Constitutional Law Prof Blog

Fed Chair Bernanke Reacts to Efforts to Curtail Independence

Federal Reserve Chairman Ben Bernanke wrote in yesterday's Washington Post that Senate proposals and a recent vote in the House Financial Services Committee threaten to undermine the independence of the Federal Reserve.

Bernanke:

To support economic growth, the Fed has cut interest rates aggressively and provided further stimulus through lending and asset-purchase programs.  Our ability to take such actions without engendering sharp increases in inflation depends heavily on our credibility and independence from short-term political pressures.  Many studies have shown that countries whose central banks make monetary policy independently of such political influence have better economic performance, including lower inflation and interest rates.

Independent does not mean unaccountable.  In its making of monetary policy, the Fed is highly transparent, providing detailed minutes of policy meetings and regular testimony before Congress, among other information.

The House Committee apparently felt differently.  Every Committee Republican and a good number of Democrats voted on November 20 in support of an amendment sponsored by Reps. Ron Paul and Alan Grayson to cut restrictions on the Comptroller General's authority to audit the Federal Reserve.  The effect of the measure would be to increase Comptroller General audit authority over the Fed and to require Comptroller General auditing pursuant to its regulations.  The amendment is patterned on Paul-sponsored H.R. 1207, and, if adopted as part of the underlying legislation, would amend 31 U.S.C. Sec. 714, the provision outlining Comptroller General audit authority.

The Fed has enjoyed some measure of political independence by virtue of its extended Board terms since its creation in 1914.  That independence increased in 1935, when Congress removed the Secretary of the Treasury and the Comptroller of the Currency from the Board and increased Board terms from 12 years to 14 years.

This latest vote represents an effort to bring more political accountability to the Fed, an independent agency, by way of the Comptroller General, itself an independent office.  (The Comptroller General, of course, is the head of the U.S. Government Accountability Office, which is, by statute, "independent of the executive departments."  Like Fed Board Governors, the Comptroller General is appointed by the President, with the advice and consent of the Senate, and enjoys an extended tenure.) 

Under the Paul amendment, the relationship between the Fed and the Comptroller General inches closer to another relationship between two independent agencies, the Public Company Accounting Oversight Board and the Securities and Exchange Commission under the Sarbanes-Oxley Act.  (The SEC still maintains much greater control over the PCAOB under SOX than the Comptroller General maintains over the Fed under the Paul amendment.)  That relationship is now before the Supreme Court on Appointments Clause and separation-of-powers grounds.  The Court will hear arguments in that case next Monday, December 7.

SDS

VMI Update: Gender and the Virginia Military Institute

Of the 1,500 cadets on the campus of the Virginia Military Institute (VMI) this fall, only 126 are women - - - a dozen years after the United States Supreme Court, in its landmark opinion United States v. Virginia, ordered VMI to change its male only admission policy.

Yet the small number of female cadets is not the reason that the VMI is again subject to a federal investigation, although the small number may be a contributing factor.  

According to a report in The Roanoke Times in August:

A copy of the complaint -- obtained by The Roanoke Times through a Freedom of Information Act request -- sheds little light on the complainant's identity. Large portions of the document were redacted. Among the few readable sentences: "The language and terminology that is used and considered acceptable by VMI in the barracks reflects a climate and culture that is derogatory and discriminatory toward the women that are required as cadets to live in the barracks." And: "A male VMI graduate is almost always given preferential treatment."

According to a report November 22 in The Baltimore Sun, the "ongoing investigation of a sex discrimination complaint at the small, state-supported school" has  "taken nearly a year and a half — three times longer than usual."

VMI issued a statement on its website here.

For those thinking about a forthcoming constitutional law exam, this might be worth a look.

RR

(with thanks for the tip to Jen Hogg, CUNY School of Law, class of 2012)

Holiday Travel?: Time to Catch Up on Some Constitutional "Listening"

When was the last time you listened to a reading of The United States Constitution? 

If you can't recall, and you are one of the 38.4 million people traveling by car in the US over the Thanksgiving holiday,  perhaps your trip might be the perfect time to hear the Constitution read aloud. 

Or if not the Constitution, what about the Articles of Confederation?  Or the Declaration of Independence?

If your travel-time is extended, you might be interested in the 21 hours of The Federalist Papers - - -  or the 19 hours of The Anti-Federalist Papers.  Or perhaps A Treatise of Human Nature by David Hume (almost 14 hours) or John Locke’s Two Treatises on Civil Government (11 hours). 

What about Aristotle’s Politics?  Plato’s Republic?  Alexis de Tocqueville's Democracy in America (both volumes)?  Or Discourse on the Origin and Basis of Inequality Among Men, by Jean-Jacques Rousseau,  available in both English and French?

All of these and more are available for free download on LibriVox.  With its motto of "acoustical liberation of books in the public domain,"  the site provides a wide range of materials.  Browsing is possible, but somewhat cumbersome.   If you cannot find your favorite classic, LibriVox accepts volunteer readers.

RR

Movement Grows to Undo Iqbal, (Re)Open Access to Federal Courts

With the introduction last week of a bill in the House to overturn Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the movement among plaintiffs' and open-courts advocates to re-set the pleading standard in federal courts is gaining momentum.  The American Association for Justice, which is leading a broad coalition in support of the bill, released this statement last week. 

A 5-4 Supreme Court ruled last term in Iqbalthat allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss.  The Court, applying its new pleading principles set in Twombley, ruled that Iqbal had to plead more than "bare assertions amount[ing] to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim"--that he had to plead a "plausible" claim for relief that the courts could evaluate based on "judicial experience and common sense." 

The standards effectively heightened the 50-year-old notice pleading standard set in Conley v. Gibson.  That case held that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Soon after Iqbal came down last spring, defendants' "Iqbal motions" proliferated in federal court, and numerous complaints were dismissed for failure to meet the new heightened pleading standard. 

This past summer, Senator Specter introduced legislation (aptly titled the "Notice Pleading Restoration Act") to re-set the pleading standard at the old level under Conley v. Gibson.  The House Judiciary Committee held a hearing last month here.  And most recently--just last week--Rep. Jerrold Nadler introduced legislation (the "Open Access to Courts Act") in the House.  Unlike Specter's bill, which sets the standard as that "set forth . . . in Conley v. Gibson," Nadler's bill includes specific language from Conley v. Gibson:

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.  A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

The American Association for Justice coalition last month wrote to the Senate Judiciary Committee couching its claims in constitutional terms:

The new standards substantially hamper access to the courts for people who are harmed by illegal conduct, undermine the fundamental right to a jury trial, and infringe the rights of civil plaintiffs to due process of law, fundamental fairness and their day in court.

SDS

Panel Debates Constitutional Right to Health Care in Prisons

The American Constitution Society (Chicago Lawyer Chapter and John Marshall Law School Student Chapter) and the ACLU hosted a panel discussion on health care in prisons last week titled Health Care Behind Bars: Are Inmates' Health Care Needs Being Met?  The panel featured Judge Easterbrook (7th Cir.), Dr. Michael Puisis (Cermak Health Services), and Benjamin Wolf (ACLU) in a lively discussion about the constitutional rights to health care of prisoners.

The recording is here.

Prisoners, by virtue of their incarceration and dependency on the state, have a right to health care under the Eighth Amendment.  The Court wrote in Estelle v. Gamble:

These elementary [Eighth Amendment] principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration.  An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.  In the worst cases, such a failure may actually produce physical "torture or a lingering death" . . . the evils of most immediate concern to the drafters of the Amendment.  In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . .  The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that "[i]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."

The panel conversation at one point (around 40:00 in the recording) turned to the nature of negative (not positive) rights in our constitutional tradition and the state's obligations to provide care and protection (or not) to those in its custody (or not) under DeShaney v. Winnebago.

The discussion added a dimension to my own lessons on DeShaney and Castle Rock v. Gonzales.  Perhaps you can use it, too.

SDS

Former Detainees' Habeas Claims Moot

Former Guantanamo detainees cannot maintain their habeas claims against the U.S. government, Judge Richard Leon (D.D.C.) ruled in a set of opinions released today (all duplicates of the linked opinion).  Judge Leon ruled the claims moot.

Former detainees, all apparently in custody in other countries, argued that they were constructively held by the U.S. government and that they suffered collateral consequences of custody at Guantanamo.  Judge Leon ruled that former detainees were not under constructive U.S. custody, that collateral consequences were "based on the discretionary decisions of" someone other than the U.S. government, and that the court couldn't do anything about another country's detention anyway.

The ruling dismisses the former detainees' claims for release and their recently added claim that their transfer was unlawful under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

SDS

Epstein on Easterbrook's Incorporation Case

Richard Epstein (Chicago, Hoover Institution, and NYU) recently posted on SSRN a critique of Judge Easterbrook's decision in NRA v. City of Chicago, the Seventh Circuit case rejecting Second Amendment incorporation.  (The case is now at the Supreme Court, captioned McDonald v. City of Chicago.)  Epstein's essay, NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?, is a fine deconstruction of Judge Easterbrook's opinion with thoughts about the appropriate role of an appellate court judge in an area where aged Supreme Court precedents, still on the books, are long overdue for reconsideration.

Epstein compares Judge Easterbrook's short, direct opinion with Judge O'Scannlain's much lengthier, more historically grounded analysis in Nordyke v. King, the Ninth Circuit case that ruled the Second Amendment incorporated against the states.  Easterbrook was motivated by judicial restraint and the circuit court's role in (not) making constitutional law; he therefore passed on the substantive incorporation question, leaving that to the Supreme Court.  O'Scannlain, in contrast, engaged the incorporation question, reviewing the history and dodging The Slaughterhouse Cases, U.S. v. Cruikshank, and Presser v. Illinois on his way to ruling the Second Amendment incorporated against the states.  Epstein:

Easterbrook's approach emphasized the imperative need for lower court deference to the Supreme Court's explicit Reconstruction Era holdings that the Second Amendment does not bind the states . . . .  On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

How would Epstein have had Easterbrook rule?  Epstein:

The better approach by far is to take your best shot on the issue, and leave it for the Supreme Court to decide whether you have misspoken.

Ironically, Judge Easterbrook should have followed the Posner strategy in Khanby first announcing that he would deny incorporation, and then offering his complete analysis of the case on the merits.  Half measures don't work.  The Supreme Court would have been ideally positioned to decide this case if Judge Easterbrook had decided to join issue by taking on Judge O'Scannlain's decision in Nordyke.  The lesson of NRA is to beware of a half-hearted commitment to judicial restraint.

SDS

Abortion and Health Care as Rights: Saturday Evening Review

The volatile link between abortion and heath care reform is being hotly debated.  The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives,  provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions.  As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it. 

In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."

She contends that the right to abortion

is  a right to access  a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.

She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference,"  even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.  

She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right."  Discussing  the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug,  she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services."   She contrasts Chaoulli v. Québec, [2005] 1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care."  Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.

In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right.   Perhaps optimistically, she argues that

The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.

She also astutely contends that

emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues.  After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.

As the health care debate's obsession with abortion continues, this is an article worth reading.

RR

Is the "Pay Czar" Constitutional?

That's the question that Michael McConnell (Stanford, and formerly on the 10th Circuit) and Martin Flaherty (Woodrow Wilson School, Princeton) are debating on the Federalist Society On-Line Debate Series. 

McConnell wrote an op-ed in the Wall Street Journal last month arguing that the Obama administration's Pay Czar violates the Appointments Clause:  Pay Czar Kenneth Feinberg is an "officer," but he was neither confirmed by the Senate nor authorized by Congress.  McConnell explains in the Federalist debate:

Mr. Feinberg is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet.  Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him at any time for any reason.  This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so.

Why isn't Feinberg just an employee (and not an officer)?  McConnell's WSJ op-ed:

Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler.  They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress.  [Quoting Buckley v. Valeo.]  He is not a mere "employee," acting at the direction of a superior.  That means his office is subject to the requirements of the Appointments Clause.

The Pay Czar is different than some (most?) other administration czars, which are presidential advisers and raise no Appointments Clause problems, in that the Pay Czar plainly exercises significant authority under the TARP and Treasury regulations.  (Treasury regs authorizing the Pay Czar to limit executive compensation of TARP recipients are here.) 

But the Pay Czar is also a temporary position, at least in theory, operating only until TARP recipients have repaid their obligations.  Under a 2007 Office of Legal Counsel memorandum, the Pay Czar therefore may well be a non-officer.  OLC Memo, at 32 (concluding that temporary and non-continuing positions are not "offices" for Appointments Clause purposes). 

SDS

Seventh Circuit Rules on Gun Case

The Seventh Circuit, which spawned McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court, ruled yesterday that the federal government failed to sufficiently justify its ban on firearms for domestic violence convicts under the Second Amendment.

The Seventh Circuit in U.S. v. Skoien established a framework and a test, where D.C. v. Heller was silent.  Thus the court adopted this two-step framework:

First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified.  If the government can establish this, then the analysis need go no further.  If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government's ability to satisfy whatever level of means-end scrutiny is held to apply.

Skoien, at 10 (citing Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda; Lund, The Second Amendment, Heller, and Originalist Jurisprudence; Winkler, Heller's Catch-22; and Reynolds and Denning, Heller's Future in the Lower Courts.) 

As to the first part, the court ruled that Skoien's hunting shotgun was squarely within the Second Amendment's protection, relying on D.C. v. Heller's reference "to the founding-era importance of the right to bear arms 'for self-defense and hunting.'"  (Quoting Heller, with emphasis added.)

As to the second part, the court ruled that intermediate scrutiny was the best standard (because Heller specified none, but suggested that neither rational basis nor strict scrutiny was the right test) and that the government failed to meet this:  The government simply neglected to argue that its ban "reasonably fit" its objective to reduce domestic gun violence.  (Instead, the government relied only on the dicta in Heller saying that felon dispossession laws would withstand Second Amendment scrutiny.)  The court remanded with this instruction:  "If the government successfully discharges its burden [under intermediate scrutiny], the district court shall reinstate Skoien's conviction."

Skoien involves a federal gun ban.  It therefore says nothing about whether the Second Amendment applies against the states--the issue now before the Supreme Court.

SDS

Same-sex marriage updates: New York and Texas

New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. 

The case may be most interesting to constitutional law professors for what it does not hold; the challengers abandoned almost all of their state constitutional law claims before the Court of Appeals.

In considering the one possible extant constitutional law claim, the Court of Appeals construed it as a statutory claim:

Plaintiffs' remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted "inconsistently with the Legislature's pronouncements on spousal benefits." Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law §164.

The Court's opinion concludes,

We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it "will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

UPDATE: NYLJ article here.

The issue of same-sex marriage is presently before the New York Legislature.

Meanwhile, in Texas,

{Texas update from Texas Lawyer here}

Barbara Ann Radnofsky, a candidate for state Attorney General is reportedly arguing that a DOMA-like amendment to the Texas constitution actually bans all marriages.  The amendment, now in Article 1 §32, provides:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Radnofsky seems to be arguing that a plain meaning interpretation of the constitutional provision prohibits all marriages.

RR

Sheldon Whitehouse Lecture in NYC

"Living Up To Our Constitution" is the title of a lecture to be given by United States Senator (D-RI) on Friday, November 20 at 5:30 pm, sponsored by the Brennan Center at NYU.

As a member of the Senate Judiciary and Intelligence Committees, Whitehouse has prominently supported the confirmation of Sotomayor and the investigation of the role of the Bush Administration in torture and surveillance.

More information and rsvp details here.

RR

Dred Scott & Harriet Scott Plaque next to Taney Statute

Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there.  Thus, it is not surprising that the town of Frederick would have a monument to Taney.  It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.

As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott.  As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).

RR

Latina: the Magazine and the Justice

On newstands today is the new issue of Latina, the magazine, with a cover portrait of Justice Sonia Sotomayor. 

Portions of the accompanying article, written by Sandra Guzman, a former Editor-in-Chief of Latina, are available on the magazine's website here.  The piece is a profile rather than an interview, as Guzman makes clear in her journalistic style:

As the new personification of an intellectual rock star, Sotomayor has been inundated with interview requests—from Vogue to Newsweek, El País to Le Monde. But the new justice has yet to agree to a sit-down, aside from one she granted C-Span for a documentary on the Supreme Court. When I asked about a formal interview for this magazine, she told me, “I am not doing interviews and have said no to everyone. I do not want to be seen as having favorites.”

She did, however, agree to have her portrait taken for the cover and inside pages. And she went as far as granting me her blessing: “You will have to write based on our history together.”

And that’s exactly what I’ve done.

It may be a piece worth reading for ConLawProfs - - - certainly, some of our students will be reading it.

RR

Googling Constitutional Law

Google's newest enhancement has the potential to change the way we research constitutional law.

Here's an announcement from the "Official Google Blog"

Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptability of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

The blog entry also has this populist proclamation:

As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don't just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations. And they often do it in language that is surprisingly straightforward, even for those of us outside the legal profession. In many cases, judges have gone quite a bit out of their way to make complex legal issues easy to follow. For example, in Korematsu v. United States, the Supreme Court justices present a fascinating and easy-to-follow debate on the legality of internment of natural born citizens based on their ancestry.

RR

Right to Bear Arms is a Privilege or Immunity, McDonald Argues

Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.

The petitioners' aggressive argument on the Privileges or Immunities Clause--and the after-thought treatment of the Due Process Clause--opens the door for a reevaluation of how the Court treats claims that fundamental rights, including those in the Bill of Rights, apply against the states.

Petitioners' Privileges or Immunities claim was rejected by the Seventh Circuit.  That court ruled that The Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states) were still good law, even if they are universally criticized and even defunct.  The Seventh Circuit also rejected the petitioners' Due Process argument.  (The Second Circuit, in a panel including then-Judge Sotomayor, similarly rejected a claim that the Second Amendment applied against the states, but the Ninth Circuit ruled that it did.  The full Ninth Circuit voted to rehear the case en banc.)

Petitioners argue, as they must, that The Slaughter-House Cases, U.S. v. Cruikshank, and Presser v. Illinois should be overruled.

Here's a taste:

And yet this Court's various approaches to [applying fundamental rights, including those in the Bill of Rights, to the states under] the Fourteenth Amendment fall short of upholding this provision's essential promise.  State violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by the federal courts.  Moreover, the failure to honor the Fourteenth Amendment's original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.

This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment's true meaning, and bring a needed measure of clarity to this Court's civil-rights jurisprudence.

The Fourteenth Amendment's Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights. . . .

SlaughterHouse's illegitimacy has long been all-but-universally understood.  It deserves to be acknowledged by this Court.  Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative.

Others, most notably the Constitutional Accountability Center, have made similar arguments.  I've posted on them here, here, here, and here.  Ruthann just posted yesterday on teaching P or I here.

SDS

Privileges or Immunities Clause Pedgagogy: Robson's Saturday Evening Review

Teaching the Fourteenth Amendment’s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor.  For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor’s role was largely to address the cynicism of students who concluded that the Court’s majority had obliterated the plain language of the Constitution. Ten years ago, Saenz v. Roe, 526 U.S. 489 (1999), initially held the promise of revivifying the clause, but the doctrine did not develop beyond Saenz’s applicability to the right to travel across state lines, which was also encompassed by the Equal Protection Clause, Shapiro v. Thompson, 394 U.S. 618 (1969).

Recently, however, the Privileges or Immunities Clause has been much discussed, including in the context of the applicability of the Second Amendment to the states in the recent grant of certiorari in McDonald v. City of Chicago, documents here, previously discussed here, in which the question is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

But how to teach the P or I Clause?   It is possible to discuss it in the context of the forthcoming McDonald after D.C. v Heller, 554 US ___ (2008), but it seemed to me that Privileges or Immunities deserved its own discussion.

This year, I assigned not only portions of  The Slaughter-Houses Cases and Saenz v. Roe, but a brief piece from The Wall Street Journal, which provides a nice rehearsal of the issues and a judgment that scholars and attorneys on “the left and right” seem to be uniting in their opinion that The Slaughter-House Cases were wrongly decided.   I also gave students a choice of one of two pieces:

The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, a 50 plus page report intended for a broad audience, published by the Constitutional Accountability Center in 2009, available here,

 or 

Ink Blot or Not: the Meaning of Privileges and/or Immunities, a 33 page law review article intended for a scholarly audience, by Richard Aynes,  11 Pa. J. Const. Law 1295 (2009), available on ssrn here.

I chose these pieces because they were recent, accessible, and relatively short.  Based on a class questionnaire students submitted anonymously, students split fairly evenly between the two pieces, responding to the query to explain their choice of article with various reasons including favoring or disfavoring the intended audience, the titles and subtitles, the mentioning of the Constitutional Accountability Center in the Wall Street Journal article, chance, download ease, and a great many “recommendation by classmate” (which nevertheless also split evenly).  Indeed, the students’ pre-class discussions were evident in the larger class discussion, and seemingly in their answers to some of the other questions I posed in the questionnaire.  The two final questions (out of a mere five questions) were most gratifying to read.  I asked students to quote a sentence or passage from the article they read which they found “most appealing” and then “most troubling.” 

Reading these responses after class, I was impressed by the students’ thoughtfulness and insight, as well as some of their humor.  (Students who read Ink Blot appreciated, and were inspired by, Aynes’ wit.)  While it can be difficult to discuss constitutional theory in a large classroom, contemporary background reading with some student choice, accompanied by in-class focus questions and adequate time for small-group discussion, allowed for wide-participation and much enthusiasm about the potential for change in the Fourteenth Amendment's Privileges or Immunities Clause doctrine. 

RR

Taking Private Property for Private Abandonment?: An Update on Kelo

The "takings clause" of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation.”   Much of the constitutional controversy has revolved around "taking," especially when the "taking" is through regulation rather than physical appropriation.

However, with Kelo v. City of New London, 545 U.S. 469 (2005), the issue of "public use" assumed prominence.  In Kelo, the Court acknowledged the two poles of "public use": the clearly constitutional situation when the government takes private property and will itself use that property (e.g., for a road) as opposed to the clearly unconstitutional scenario if a government were to take private property and then transfer that private property to a private entity for private use.   Relying on precedent relating to railroads, a majority of the Court held that the City of New London's taking of property in this "blighted" area and transferring it to companies including Pfizer that would develop the property amounted to a public use.

One way to portray the Kelo controversy is as a pitting of "little" individual property owners against "big" government and corporate interests.  The Little Pink House, a book published this year, is true to this  narrative, providing a compelling account of Susette Kelo, the case, and its aftermath.  For a more nuanced view, there is an excellent and critical review of the book by Professor George Lefcoe who teaches property at USC, available on ssrn here, and forthcoming in Connecticut Law Review. 

The newest development in the factual landscape might be called a "non-development."  As reported by the New York Times, Pfizer is leaving the development in New London, Connecticut and taking 1400 jobs.  The report (with audio) on Democracy Now notes that Souter (who was in the majority in Kelo) has been replaced by Sotomayor, but that change would probably have less impact on any future "public use" case than the "feedback" to the Court's opinion.  As Dana Berliner, who represented the homeowners in Kelo expressed it on Democracy Now:

I don’t think there was anything in the [Sotomayor confirmation] hearings that would tell us that [she would rule differently]. I’m hoping, though, that what has happened since will have an effect on the court. The court’s decision basically said, “If the city’s got a plan, then we’ll just trust that they know what they’re doing. We won’t look at it.” And it was evident, even at the time, that this project was going to fail. And we showed that, and the court said they didn’t want to hear about it. I’m hoping that now, the next time they look at it, they’ll realize cities don’t know what they’re doing. They don’t know how to engage in risky real estate deals. And this is not the kind of thing that we should be using, eminent domain, in order to allow private companies to make a greater profit.

RR

(with thanks to a number of CUNY School of Law students from previous Constitutional Law classes who forwarded various articles this week).

Government to Try Five Guantanamo Detainees in Federal Court

Attorney General Eric Holder announced today that the government will transfer ten Guantanamo detainees to the U.S. for trial.  The government will try five Guantanamo detainees in the regular federal courts for their roles in the 9/11 attacks, and five other detainees in military commissions (recently revamped in Chapter 47A, p. 385, of the National Defense Authorization Act for Fiscal Year 2010).  The NYT profiles the ten detainees here.

Holder said that the Justice Department wouldn't transfer the ten until 45 days after notifying Congress, as required by section 1041 of the NDAA. 

Holder also said that the Department used criteria set out in the Detention Policy Task Force's preliminary report (July 2009) to determine which detainees should be tried in regular Article III courts and which detainees should be tried by military commission.  That report recognized the different appropriate uses of Article III courts and military commissions for different detainees, called for "significant reforms" to the military commission system "to ensure that they are lawful, fair and effective," and identified criteria for determining whether to try a detainee in an Article III court or a military commission.  As to the criteria:

These . . . include the nature of the offenses to be charged; the identity of the victims of the offense; the location in which the offense occurred and the context in which the defendant was apprehended; evidentiary issues; and the extent to which the forum would permit a full presentation of the accused's wrongful conduct, among others.  Decisions about the appropriate forum for prosecution of Guantanamo detainees will be made on a case-by-case basis in the months ahead.

This isn't a model of determinacy, and some of these criteria, as some critics have argued, suggest that the administration is using the case-by-case approach to go forum shopping to ensure convictions.  But other criteria suggest that the administration has adopted a more balanced approach--one that recognizes the different legitimate uses of Article III courts and military commissions for different detainees--and that it is thoughtfully trying to sort the detainees out. 

SDS

Cato, Barnett Weigh in on Extended Civil Commitment of "Sexually Dangerous" Persons

The Cato Institute and Professor Randy Barnett (Georgetown) filed an amicus brief in U.S. v. Comstock, the case involving Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248, which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous."

Respondent in the case, Graydon Earl Comstock, challenges the Act as exceeding congressional authority.  The Fourth Circuit overturned the Act; the Eighth Circuit upheld it in U.S. v. Tom.  I previously posted on the case here and here.

The government argues that Congress had authority to enact the provision under the Necessary and Proper Clause alone, and as an incident of its authority to run the federal penal system (itself, claims the government, authorized by a hodgepodge of Article I powers, including the Commerce Clause). 

Cato and Barnett take on this claim, and add a little Tenth Amendment:

The Constitution itself is clear: the Necessary and Proper Clause allows Congress to make laws only "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . . ."

Thus, legislation adopted under the Clause may be justified only by an enumerated power, not by an implied power.  Congress may carry into execution the powers specifically delegated to it, and the Necessary and Proper Clause permits adoption of reasonable means to carry into execution the enumerated power.  But there the power ends.  Indeed, the Tenth Amendment was adopted to ensure that Congress did not rely upon the Clause to expand its powers beyond those enumerated.  As it must, this Court has guarded against the danger perceived at the founding of the Republic: in the 190 years since M'Culloch, this Court has never upheld a statute based on the Necessary and Proper Clause that was not tethered to a specific enumerated power. . . .

Notably, the Government does not and cannot affirmatively argue that the Act is a legitimate exercise of Congress' Commerce Clause power.  Civil commitment involves neither commerce nor interstate activity.

Pp. 4-6 (emphasis in original).

SDS