Sunday, January 31, 2010

Tribune Profiles Second Amendment McDonald

The Chicago Tribune today profiled Otis McDonald, the lead plaintiff in McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court.  We've posted on the case, here, here, here, here, here, and here.  It's scheduled for oral argument on March 2.

McDonald is a 76-year-old Chicago resident who says he needs to carry a handgun for personal protection and self-defense.  After agreeing to serve as lead plaintiff--and on instructions from his attorney--he sought to register his .22 Beretta pistol with the Chicago police.  The police denied his application, citing the city's 28-year-old handgun ban, and he sued.

According to the story, McDonald's compelling personal background and legitimate reason for wanting to carry a handgun made him a good pick for lead plaintiff.  But the story cites constitutional law experts as suggesting another reason: McDonald is black.  According to one source, this may "help us remember [the] history" of the Fourteenth Amendment.  The Tribune: "In the Hellerdecision, Justice Antonin Scalia, writing for the majority, referred to that chapter in history, arguing that those who had opposed disarmament of freedmen did so with the understanding that the Second Amendment protected an individual right to own a gun for self-defense."

This story is a good complement to lessons on incorporation, the Second Amendment, and even constitutional litigation generally, reminding us that so many of these disputes come to the Court as carefully engineered cases, not as accidents.


January 31, 2010 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Privileges and Immunities, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Perry v. Schwarzenegger, Prop 8 Trial: The Re-enactment

The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.

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The "episodes" will be available on YouTube.  Here is the trailer:


January 31, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Gender, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips, Television, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Saturday, January 30, 2010

Patricia Williams on Citizens United and Corporate Personhood

Professor Patricia J Williams, author of the groundbreaking essay "On Being the Object of Property," has a few things to say about corporations as persons in Citizens United v. FEC.


In a column forthcoming in The Nation, she provides this historical and nonconstitutional perspective:

In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called "Transcendental Nonsense," in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked "Where is the corporation?" in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. "Nobody has ever seen a corporation," Cohen pointed out. "What right have we to believe in corporations if we don't believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the assume that it travels about from State to State as mortal men travel."  Cohen denounced such thinking as essentially "supernatural."

More commentary on the opinion is collected here.


January 30, 2010 in Cases and Case Materials, Fourteenth Amendment, History, Interpretation | Permalink | Comments (2) | TrackBack (0)

Friday, January 29, 2010

Perry v. Schwarzenegger, Prop 8 Trial RECAP

Wednesday, January 27, 2010

Perry v. Schwarzenegger, Prop 8 Trial Evidence Ends

The trial proceedings of the Proposition 8 trial ended with the judge's compliments, familiar to anyone who has ever been involved in a federal trial, if slightly modified in this situation:

THE COURT:  Well, I want to extend my congratulations to the lawyers in the case for, obviously, a fascinating case.  Extremely well-presented on both sides. Obviously, there are some old hands in the courtroom in this proceeding.  But I have been particularly struck by the very fine work of many of the younger lawyers in the case, both here in the courtroom and, I'm sure, behind the scenes.

It really -- the old hands should take great pride and pleasure in the younger colleagues that you've worked with.  They have done a splendid job, and so you have much to be pleased with. And I would just like to take a moment to personally congratulate you and tell you what a good job you've all done.

After thank-you responses from Cooper, Boutrous, and Boies, the “proceedings” of the so-called “Proposition 8” trial were adjourned at twelve noon, on Wednesday January 27, 2010, after twelve (or eleven and a half) days and almost 3,000 pages of transcript, available here.

The  trial had resumed Monday (our last post here) with evidentiary questions and the plaintiffs’ concluding their case with the introduction and playing of videos of simulcasts from the Proposition 8 sponsors,, in which the well-known analogies of same-sex marriage to polygamy and bestiality were featured, as well as the less well-known analogy of same-sex marriage to the World Trade Center attacks.

Then the defendant-proponents presentation began.  (As a reminder, the defendants presenting are not the named defendants of the state of California, but the proponents of the Proposition 8 ballot initiative.) The Picture 3Kenneth Miller (pictured left) associate professor in Government at Claremont McKenna  College.  Miller, who also has a law school degree, is the author of Direct Democracy and the Courts, published last year by Cambridge University Press.  The book asks the very question that is at the heart of the litigation: "Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders – the people, through direct democracy, and the courts."   The cross examination of Miller by Boies was extensive, centering on Miller's knowledge of LGBT issues and how much such issues have played a part in Miller's work, as well as surfacing some of Miller's criticisms of initiative processes.  

By Tuesday, Blankenhorn the Proposition 8 proponents called their second and final witness, David Blankenhorn, (pictured right) the president Institute for American Values and author of Fatherless America. Blankenhorn's testimony on direct was directed to the issue of the universality of opposite sex marriage and the effect on marriage of allowing same-sex couples to marry.  The cross-examination, again by Boies, began late in the day and continued on Wednesday morning. By all accounts this was a rather testy cross-examination, with questions regarding Blankenhorn's qualifications, his knowledge of the literature, and the specificity of his conclusions regarding the effects on traditional marriage.

The closing arguments remain to be scheduled.


January 27, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 26, 2010

Sandra Day O'Connor on Judicial Campaign Spending

Sandra_day_oconnor_lg The Caperton v. Massey saga is cause for retired Justice O'Connor's concern over the Court's recent decision in Citizens United v. FEC.  According to a report in the Washington Post this evening by Robert Barnes,  O'Connor told law students at Georgetown:

    "In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

O'Connor, however, didn't necessarily limit her criticism to judicial campaigns.  Citizens United rejected precedents such as McConnell v. FEC, and Barnes quotes O'Connor as stating: "Since I was one of several authors" of the McConnell opinion, "if you want my legal opinion, you can go read it." The NYT has a similar report, adding that unlimited campaign spending might result in "mutually assured destruction."

Not necessarily related to campaign spending or judicial elections, O'Connor also stated that she doesn't worry about her decision in Bush v. Gore. 

However, in an op-ed in the Los Angeles Times, ConLawProf and now Dean at UC-Irvine School of Law Erwin Chemerinsky linked Bush v. Gore and Citizens United, characterizing both opinions as conservative judicial activism.


January 26, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Elections and Voting, News | Permalink | Comments (3) | TrackBack (0)

Justice Bertha Wilson

9780774817325 Bertha Wilson was the first woman appointed to the Supreme Court of Canada, sworn in on March 30, 1982, less than three weeks before the Charter of Rights and Freedoms became a centerpiece of Canadian Constitutional law.  Wilson's career on the Court before she retired in 1991 would engage with many constitutional controversies in Canada.

Justice Bertha Wilson: One Woman's Difference is an important new anthology, edited by Professor Kim Brooks of the Faculty of Law at McGill University. Brooks' introduction to the volume is available on ssrn. The collection provides perspectives on Bertha Wilson's judicial career and explicit interrogations of the relevance of gender to the judiciary.

For Americans - - - the third woman on our United States Supreme Court having been appointed last summer - - - the Canadian experience provides a much richer data base for making arguments about gender on the Supreme Court.  While Justice Bertha Wilson was appointed six months later than SCOTUS' first woman justice, Sandra Day O'Connor, the Supreme Court of Canada quickly surpassed SCOTUS in the number of women justices:  Madame Justice Claire L'Heuerux-Dube was appointed in 1987, with woman justices appointed in 1989, 1999, 2002, and two in 2004.  The Chief Justice of the Supreme Court of Canada is now the Madame Chief Justice Beverly McLachlin and four of the nine justices are women.   The ratio on Australia's High Court is similar.


January 26, 2010 in Books, Comparative Constitutionalism, Gender, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Perry v. Schwarzenegger, Prop 8 Trial Resumes Today

The challengers to the constitutionality of California's Proposition 8 are expected to rest their case today after almost two weeks of trial. (Our last post, with previous trackbacks including a primer, is here).

Transcripts of the first nine days are here.  Great coverage from our colleague Steve Sanders at Sexual Orientation Prof Blog here.

Last week saw witnesses including:L_badgett

*    Jerry Sanders, Republican mayor of San Diego, whose testimony (reiterated in his HuffPo column) included discussions about his lesbian daughter who married her partner in Vermont last year;

*    M.V. Lee Badgett, (pictured left) Professor of Economic at Amherst, and author of When Gay People Get Married, whose testimony included the economics of marriage and whether same-sex marriage would have a harmful effect, including an economic effect on opposite-sex marriage.

*    Ryan Kendall, presently employed in law enforcement, testified regarding his family's hostility toward his sexuality. His testimony, admitted over defense objection, was that his family discovered his sexuality when he was 13, forced him to undergo "conversion therapy" to change his sexuality, and became increasingly hostile when the therapy was unsuccessful, causing him to feel suicidal. Segura

*    Gary Segura, Professor of Political Science and chair of Chicana/o Studies at Stanford, (pictured right) testified that GLBT people do not possess a meaningful degree of political power, including stating that religion was a major obstacle to GLBT political advancement and that President Obama was not a reliable ally of GLBT people. On cross-examination, the attorney defending Prop 8 played a video of Obama. Interestingly, at the end of Segura's testimony, Judge Walker reportedly asked Professor Segura whether losing elections or failures to get legislation passed denotes political powerlessness.

*    Hak-Shing William Tam, called by the challengers and cross-examined by Boise as an adverse witness, testified regarding his views of homosexuality, including its link to pedophilia and as destructive to Asian families, as reasons for his activism in favor of Prop. 8. Questioning from the proponents of Prop. 8 sought to distance Tam from

*    Gregory Herek, Professor of Psychology at UC-Davis, was the witness on Friday. He testified on direct that sexual orientation is not chosen and is stigmatized. The cross-examination of Hereck lasted more than five hours, with some discussion of Sigmund Freud's theories.

Also admitted were video depositions of Professors Katherine Young and Paul Nathanson, both at McGill University and co-authors of Legalizing Misandry: From Public Shame to Systemic Discrimination Against Men.  They were originally scheduled to be witnesses for the defendants of Proposition 8.   Transcript excerpts here and here, video excerpts here and here.

If, as expected, the Prop 8 challengers rest their case today, and however quickly the Prop 8 defense attorneys complete their case, a resolution is not expected soon.  Judge Walker is reportedly expected to schedule the closing arguments for several weeks after the trial concludes. 


January 25, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, January 24, 2010

Schwinn in Jordan

Jordan-flag ConLawProf Blog's own Steven Schwinn is in Amman, Jordan this week with his colleague Mark Wojcik, both from John Marshall School of Law.  

 As Legal Writing Prof Blog notes, they'll be leading a one-week ABA Workshop on Teaching Essential Legal Skills -- Legal Writing and Analysis. Their audience is law professors from Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, and other countries in the Middle East. 


January 24, 2010 in Conferences, Foreign Affairs, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, January 23, 2010

Reproductive and Sexual Rights Conference: NYU February 12

A one-day Symposium gathering scholars and practitioners involved in reproductive and sexual rights will be held by the NYU Review of Law and Social Change on February 12, 2010.  

Registration and other information here.

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January 23, 2010 in Conferences, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Privacy, Race, Reconstruction Era Amendments, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 20, 2010

Symposium: Civil Legal Representation and Access to Justice

The Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, the University of Washington School of Law, and Gonzaga University School of Law are co-sponsoring a symposium and CLE on Friday, February 19, at Seattle University School of Law titled Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change.  Click here for the program and registration.

This looks like an outstanding program, with a very impressive line-up.  It includes some of the leading advocates and academics on the civil right to counsel.  Washington State Supreme Court Chief Justice Barbara Madsen will deliver the keynote.

The symposium comes in the wake of ABA President Carolyn Lamm's call last year for a constitutional right to counsel in civil cases involving basic human needs.  We posted on her call here.


January 20, 2010 in Conferences, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Privileges and Immunities, Procedural Due Process, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 18, 2010

Government Releases Names of Bagram Detainees

The government on Friday released the names of the detainees at Bagram Airbase in Afghanistan in response to a FOIA lawsuit by the ACLU.  According to the list, there are 645 detainees at Bagram.  The government redacted information about their citizenship and the date, location, and circumstances of their capture.

The list came out just a week after the D.C. Circuit heard oral arguments in Al-Maqaleh v. Gates, the case testing whether the privilege of habeas corpus, established for detainees at Guantanamo Bay in Boumediene v. Bush, extends to detainees at Bagram.  We analyzed the lower court decision here.

In related news, the New York Times editorialized yesterday that the D.C. Circuit should rule in favor of the detainees in Al-Maqaleh.  The Times argued that, although Bagram is in an active theater of war (unlike Guantanamo Bay), prisoners there were not captured in a war zone.  And U.S. courts have shown themselves fully capable of dealing with habeas petitions of Guantanamo detainees.


January 18, 2010 in Executive Authority, News, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, January 17, 2010

Law as Sport: SCOTUS Fantasy League

800px-Youth-soccer-indiana It had to happen - - - and in case you haven't heard, it has: SCOTUS Fantasy League.

For those who will bet on anything that moves (or doesn't) and for those who feel envious (and perhaps perplexed) about football/hockey/baseball/cricket fantasy leagues and for those who bemoan Fantasy Congress, and for those who are SCOTUS "nerds," the SCOTUS Fantasy League could prove a potential time-waster, a potential fun endeavor, or even a potential teaching tool.

According to the website,

The Rules are simple. For each case the Supreme Court grants cert, predict:

-The Outcome of the Case (Affirm or Reverse the lower Court)
-The Split (9-0, 8-1, 7-2, 6-3, 5-4, 4-1-4, or fragmented)
- The Justices in the Majority, and the Justices in the Dissent

At the end of the Term, the Associate Justice who predicts the most cases correctly will be confirmed as the Chief Justice of the Fantasy Supreme Court League....


January 17, 2010 in Games | Permalink | Comments (0) | TrackBack (0)

Saturday, January 16, 2010

Perry v. Schwarzenegger, "The Proposition 8 Trial": teaching opportunities

The first week of trial testimony has concluded in the first federal trial on the constitutionality of same-sex marriage bans.  Our primer of the case is here, a Q&A for CUNY School of Law here, and our previous discussions of testimony in previous days here and here.  

Thursday and Friday saw more expert witnesses including 

  • Edmund Egan, the Chief Economist of the City of San Francisco (the city is an intervenor in the case), who testified that Proposition 8 has had a negative impact on the city's economy and budget;
  • Professor Ilan Meyer (pictured right) Mailman School of Public Health, Columbia University, who testified about his research regarding the relationship of minority status, minority identity, prejudice and discrimination and mental health outcomes in sexual minorities and the intersection of minority stressors related to sexual orientation;
  • Professor Michael Lamb, Department of Social and Developmental Psychology, Cambridge University UK, who testified about the consequences of denying same-sex marriage to parents given that children in general do better when their parents have adequate social supports such as marriage;
  • Helen Zia (pictured left) former Executive Director of Ms. Magazine, who testified, over defense objection, regarding her experiences regarding her lesbianism and same-sex marriage.

Images Im15_3_Meyer-pic More specifics about the testimony can be found at the twitter and live-blogging sites previously mentioned, as well as daily synopsis notably from National Center for Lesbian Rights and, as well as the excellent live-blogging from Howard Mintz of the Mercury News (starting with day 1 here).

The reporting - - - and widespread student interest - - - in the case provides some wonderful teaching opportunities. Most of the study of constitutional law concentrates on SCOTUS opinions, and highly edited ones at that.  The type of fact analysis necessary for the practice of law, including constitutional law, can be difficult to glean from most SCOTUS opinions.  The Proposition 8 trial coverage (alas not on You Tube, but nevertheless) provides the important perspective of litigating constitutional law at trial.

One could ask students to consider a specific portion of testimony elicited on direct or redirect, or a specific question asked in cross-examination, and answer questions such as the following:

  • to what legal argument does it pertain?
  • could it be relevant to more than one legal argument? which ones?
  • what type of testimony/evidence should the opposing party introduce?
  • are there credibility issues with the witness?

This could be a great in-class exercise, a short take-home assignment, or even a multiple choice quiz.


January 16, 2010 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips | Permalink | Comments (1) | TrackBack (0)

Friday, January 15, 2010

Constitutional Law Professors as Difficult to "Nail" with "Witticisms": John Yoo and Jon Stewart

The consensus seems to be that John Yoo bested Jon Stewart in Yoo's appearance on The Daily Show;  even Stewart seemed to think so.   As Christopher Beam says on Slate today, although Stewart may have apologized for not "nailing" Yoo:  "Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power."  

Beam contrasts the style of constitutional law professors (and lawyers) with comedians.  Beam implicitly reveals the problem with assuming that Jon Stewart's The Daily Show - - - which is on the Comedy Central Network - - - is a substitute for serious news and commentary.    Beam implies that Stewart's stock in trade is "damning witticisms."   He states:  "Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down."

Make your own judgment about the interview:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
John Yoo Pt. 1
Daily Show
Full Episodes
Political HumorHealth Care Crisis

Yoo was on the show to promote his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush which he also did at a Federalist Society Luncheon today.


January 15, 2010 in Books, Executive Authority, News, Television | Permalink | Comments (1) | TrackBack (0)

Thursday, January 14, 2010

NRA Scholars' Conference on Second Amendment Incorporation

The National Rifle Association Civil Rights Defense Fund hosted a Scholars' Conference on January 10 on incorporation of the Second Amendment via the Fourteenth Amendment Privileges or Immunities Clause.  The discussion features Ilya Shapiro (Cato), Dave Hardy (Arms & the Law Blog), Adam Winkler (UCLA), and Josh Blackman (Josh Blackman's Blog).  Thanks to Alice Beard for the tip.

McDonald v. City of Chicago, set for argument on March 2 at the Supreme Court, tests this argument.  We've posted most recently on the P or I incorporation issue here; our most recent Second Amendment posts are here and here.


January 14, 2010 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Interpretation, Privileges and Immunities, Recent Cases, Scholarship | Permalink | Comments (1) | TrackBack (0)

Sex Crimes Blog on Comstock

Professor Corey Yung (John Marshall, Chicago), editor of the Sex Crimes Blog, has a round-up of commentary on the Comstock oral arguments here and here.  (U.S. v. Comstock, argued at the Supreme Court on Tuesday, tests whether Congress can authorize the indefinite detention of "sexually dangerous" federal prisoners, even beyond their prison term.)  Yung offers his own insightful analysis here and here, with a prediction here.  Our commentary is here.


January 14, 2010 in Commerce Clause, Congressional Authority, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Perry v. Schwarzenegger, “The Proposition 8 Trial”: Day Three

The Court declined to allow the broadcast of the trial, reaffirming its stay issued Monday.   Today's Order begins:

We are asked to stay the broadcast of a federal trial.  We resolve that question without expressing any view on whether such trials should be broadcast.  We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

Justice Breyer, issued a dissenting opinion, joined by Stevens, Ginsburg, and Sotomayor.

Thus, reports of the trial will be by newsmedia and tweets.   As a refresher, our primer on the issues of the case is here.

The day began with the continued cross-examination of George Chauncey, apparently seeking to elicit information that there is stronger support for gays and lesbians now than in the past and that Nancy Pelosi is a “powerful ally.”  This would pertain to the argument regarding gays and lesbians as politically powerless or not for the Carolene analysis of heightened scrutiny, and could also apply to the animus argument for heightened scrutiny.  The redirect focused on the ways in which bias against lesbians and gay men continues.

The next expert witness was Anne Peplau, Professor of Psychology at UCLA.  Peplau is a social psychologist who studies gender and sexual orientation, with a long list of publications.  Her initial testimony stressed the similarity between same-sex and opposite sex couples.

Update: A narrative from National Center for Lesbian Rights' Legal Director Shannon Minter is here; a live blogging summary from Julia Rosen is here.


January 13, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 12, 2010

Court Hears Arguments in Comstock

The Supreme Court on Tuesday heard oral arguments in U.S. v. Comstock, the case testing Congress's power under the Necessary and Proper Clause to authorize indefinite civil commitment of "sexually dangerous" persons beyond their prison term.  We've reviewed the case here, here, and here; the Fourth Circuit's opinion (holding that Congress lacks authority) is here; the Eighth Circuit opinion in U.S. v. Tom (holding that Congress has authority) is here.

The case involves Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 ("4248"), which authorizes the federal government to detain a federal prisoner designated as "sexually dangerous" beyond his or her prison term, potentially indefinitely.  (One of the respondents in the case received such designation on the day he was due for release.)

The government maintained throughout the litigation that Congress has authority based on the Necessary and Proper Clause alone--that such detention is "necessary and proper" to run the federal criminal justice system.  The government thus sees post-sentence civil commitment as part and parcel of its role as custodian of federal prisoners.

Respondents consistently argued that the Necessary and Proper Clause can only support one of Congress's enumerated Article I powers--and not a program that is authorized by one of those powers.  Respondents see post-sentence civil commitment as an entirely new exercise of power, divorced from the original prison sentence and the government's role as custodian, and no enumerated power (even with the help of the Necessary and Proper Clause) supports such commitment.

The core issue--and the focus of oral arguments on Tuesday--is the scope of the Necessary and Proper Clause.

Solicitor General Kagan sets out the government's position in this exchange with Chief Justice Roberts and Justice Scalia:

Chief Justice Roberts: Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted?  In other words, when the sentence is done?

General Kagan:  Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way --

Justice Scalia:  But you said no.  I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators.  And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying on.

General Kagan:  I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

Transcript at 7-8.  Here's another exchange between Kagan and Scalia on the same point:

Justice Scalia:  General Kagan, you are relying on the Necessary and Proper Clause, right?  You say:  But necessary and proper doesn't mean it is necessary and proper for the good of society.  It means it is necessary and proper for the execution of another power that the Federal Government is given by the constitution.

Now why is this necessary for the execution of any Federal power? . . .  Why is it necessary to any function that the Federal Government is performing?  It has completed its performance of the function of incarcerating this individual until he's served his punishment.

General Kagan:  The Court has always said, Justice Scalia, that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers.  And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal--in that criminal justice system, are not released irresponsibly.

Transcript at 13-14.

Kagan argued that Congress adopted 4248 to solve a "transitional" problem: States's refusals or inabilities to accept or deal with sexually dangerous federal prisoners coming to the end of their federal sentences.  She relied upon two other long-standing federal statutes authorizing federal civil commitment--one for mentally ill federal prisoners and one for mentally ill acquities--both of which were designed to solve similar transitional problems. 

Kagan argued that the federal government would surely have the power to detain federal prisoners who contracted a disease (tuberculosis, in her hypothetical) while in federal prison beyond their prison sentence.  She argued that the government probably had a similar power to detain ex-military in a similar situation.  Both are based upon the government's special relationship with the detainees.  (See also Transcript pp. 22-23, exchange with Justice Sotomayor.)

Justices Scalia and Sotomayor seemed to search for an independent congressional authority, or special relationship, to support post-term civil detention, recognizing that the Necessary and Proper Clause traditionally complements enumerated powers, not federal programs that themselves are supported by enumerated powers.  Scalia added a federalism concern:  At one point, he questioned whether the government's position was a "recipe" for the federal government taking over everything; at another point, he raised the Tenth Amendment as a limitation on congressional authority over this area of traditional state concern.  Sotomayor added a civil liberties concern, asking whether the government could articulate any limits on its power to detain.  (Kagan answered that due process limited the government.)

Alan Dubois, for the respondents, argued that civil detention beyond the original prison term exceeded congressional authority largely for the reasons articulated by Justice Scalia in the quotes above.  Dubois argued that civil detention beyond the original term was a new act--not an extension of the government's power to run a criminal justice system--and therefore required independent Article I power.  The Necessary and Proper Clause--which acts only in conjunction with another enumerated power and alone doesn't authorize anything--was simply not up to the task.

Dubois distinguished the government's other civil commitment powers as directly related to its power to run a criminal justice system (and therefore directly supported by an enumerated power).  And he denied that the government would have power to quarantine or detain ex-prisoners who acquired a disease while in federal custody.

Dubois faced a line of questioning from Justice Breyer about the federal government's power to create mental health hospitals and, therefore, its authority to detain mentally ill individuals.  Justice Scalia supported Dubois by distinguished between Congress's power to fund and create such hospitals (which might be perfectly acceptable under the Spending Clause) and its lack of power to detain mentally ill individuals.

Dubois spent a good deal of time answering questions about alternatives to this bill--other ways that Congress might have achieved its goals.  For example, Dubois at several points argued that Congress would have had power to authorize prison terms or sanctions at the time of sentencing, but not after a prisoner had been released.  Here's an exchange with Justice Sotomayor:

Justice Sotomayor:  Could--what would happen if Congress said, as part of a sentence, a judge could incorporate a civil commitment finding and say:  You are going to serve X amount in jail, and Y amount, and then we are going to civilly commit you indefinitely, because as of today, I am finding you a sexual predator subject to a mental illness.

Would that be constitutional, and if not, why not?

Mr. Dubois:  Well, that would not be constitutional, Justice Sotomayor, because of the indefinite nature of the commitment.  You can envision a system--and we had that type of system in the '50s, '60s, and '70s--of indetermine [sic] sentencing, where--

Justice Sotomayor:  No, I--let's assume it incorporates all the protections of--this statute, subject to periodic review.

Mr. Dubois:  So if we have an indeterminate-type sentence where you--you get a sentence of ten years and you are periodically reviewed to see if you are safe to be released, of course that is constitutional.

Justice Sotomayor:  So it's constitutional because it's part of the sentence?

Mr. Dubois:  That's exactly right, Your Honor.  It's a part of the sentence.  It's part of the punishment for the crime which brought you into custody.

Transcript at 46-47.

Dubois similarly agreed with Justice Scalia that Congress might have achieved its goals through its spending power--that Congress could have funded state efforts to civilly commit sexually dangerous ex-prisoners.  Justice Stevens sounded frustrated with these lines and repeatedly brought the argument back to thisbill, helping Dubois move from formalistic positions on the way the bill was written to his core argument on the Necessary and Proper Clause. 

Chief Justice Roberts brought a helpful big-picture, practical perspective to the arguments, illustrated by this exchange:

Mr. Dubois:  Any time the Federal government is going to release these--a person they believe to be violent or dangerous, they are required to warn the Attorney General of the State within a certain period of time before their release.

At that point, I do believe it becomes a problem of the State polity.  If the State governor is going to be cavalier about that type of release, then I think the answer for that lies in the voters of that State, to say, no, we want you to take this problem seriously and --

Chief Justice Roberts:  Well, he's not going to be cavalier.  He's not going to have--he's going to say, don't do it.  This is a dangerous person, the Federal government, don't release him.

Mr. Dubois:  And he's--

Chief Justice Roberts:  And you want the Federal government to be in the position to say, well, we have to.

Mr. Dubois:  Exactly.  The Federal government has to, and at that point, the State must make the hard political decision.  Do we want to take this person on, spend the money necessary--

Chief Justice Roberts:  Well, it may be the Federal government's hard political position.  They are the person holding them, and the Attorney General is saying, don't release him, and then the Federal government is going to make the decision, well, we have to.

Mr. Dubois:  And so, in that sense, it is no decision at all because the Constitution requires that they be released.

Transcript at 39-41.

In all, the arguments seemed to set the stage for a ruling on the scope and breadth of the Necessary and Proper Clause--the argument that the government consistently put front and center, throughout the litigation.  Because the Court so rarely (if ever) rules on the precise contours of this clause alone, this could be a quite significant case on congressional authority.


January 12, 2010 in Congressional Authority, Federalism, Recent Cases, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Perry v. Schwarzenegger, “The Proposition 8 Trial”: DAY TWO

The ongoing "Prop 8" trial in California, see our "primer" here, has just completed its second day.

For day one coverage and tweets, see the post with a list from our colleague Steve Saunders on the Sexual Orientation Law blog here, as well as the update from Shannon Minter, of National Center for Lesbian Rights here.

Minter (and others) tweets from day two of the trial are available here.  The testimony included the experts Nancy Cott and George Chauncey.

Cott_000 Professor Nancy Cott (pictured left) is Professor of American History and Pforzheimer GeorgeChauncey Foundation Director of the Schlesinger Library at Harvard University and the author of Public Vows: A History of Marriage and the Nation.  Cott testified and was cross-examined regarding marriage, coveture, polygamy, and the relationship between same-sex marriage and the divorce rate.

Professor George Chauncey (pictured right) is Professor of History at Yale University and the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, and Why Marriage? The History Shaping Today's Debate over Gay Equality.  Chauncey testified and was cross-examined about the history of sodomy laws, the history of discrimination including in public employment, in the Hollywood codes, and Anita Bryant's crusades in the 1970s, as well as current conditions such as Don't Ask, Don't Tell policy in the military and hate crimes.


January 12, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, History, News, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)