Constitutional Law Prof Blog

Events for March 2011

March is always a busy month for conferences, lectures, events, and symposia. 

Here are a few that you might not want to miss.

Food Fight, March 1, 6.30 pm, organized by  the law review at City University of New York School of Law, raising First Amendment issues such as "veggie libel laws" and campaign finance.

Rehabiliating Lochner: Defending Individual Rights against Progressive Reform, March 1 [and subsequent dates] sponsored by The Federalist Society.  David Bernsetin will be speaking about his forthcoming book at various venues throughout the month.

Prison Overcrowding, March 2, Noon, organized by the law review at West Virginia University College of Law, featuring Henry Weinstein from UC-Irvine School of Law.

Marlee Kline Lecture in Social Justice, March 3, 5.30 pm, organized by the Faculty of Law at University of British Columbia, Vancouver, Canada, delivered by Ruthann Robson.

Citizens United and Corporate Speech, March 4, 8.30 am, hosted by The John Marshall Law Review and Steven Schwinn at the John Marshall Law School in Chicago, featuring a keynote by Thomas E. Mann of the Brookings Institute and panelists such as Geoffrey Stone, Atiba Ellis, and Monica Youn, director of the Brennan Center for Justice at New York University School of Law.

Writing a Brandeis Biography, March 7, 3pm, at the Oklahoma University College of Law, by Melvin Urofsky, author of notable biography of Justice Louis Brandeis.  Urlovsky will also speak at a Faculty Colloquim at noon on "“Dissent As Form of Constitutional Dialogue."

Justice Clarence Thomas: 20 Years, March 11, 9.30am, at the Detroit Athletic Club, hosted by the University of Detroit Mercy Law Review.  The morning panel is devoted to individual liberties and the afternoon panel focuses on governmental powers.

Moral Imagination in Judging, March 11, noon, at Washburn University School of Law, by Susan Bandes  (pictured right) delivering the annual Foulstein Siefkin Lecture, organized by the Washburn Law Journal.

Boundaries and Enemies, 2011 Conference of The Association for the Study of Law, Culture and the Humanities, March 11 - 12, at University of Nevada, Las Vegas – William S. Boyd School of Law, organized by the association.  Two packed days of panels and events.

Official Wrongdoing and the Civil Liability of the Federal Government and Officers, March 18, 9am, organized by the law journal at the University of St. Thomas School of Law, Minneapolis.  The afternoon panel is entitled "Constitutional Claims: Bivens Suits."

Perspectives on Prerogative, March 24-26, The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, will "examine an especially troubling form of executive power: "prerogative" or "extra-legal" or "extra-constitutional" power."

Other events for which there is some information include two at Chapman University School of Law: Randy Barnett on March 8 discussing the constitutionality of the Patient Protection and Affordable Care Act, and Eugene Volokh on March 16 on "The Mechanisms of the Slippery Slope,"  and at Loyola Law School- New Orleans, on March 11 at noon, Calvin Johnson and Steven Willis on the constitutionality of the Patient Protection and Affordable Care Act, moderated by Cynthia Lepow.

 

and in April .......

Constitutional Law Symposium: Debating the Living Constitution, April 2, 8.30 am - 12.30 pm, organized by the Center for Constitutional Law at Drake University College of Law, Iowa, featuring speakers such as Rebecca Brown of USC School of Law.

 

RR

O'Neill on Constitutional Argument

Professor Tim O'Neill (John Marshall, Chicago) recently posted on SSRN his eclectic and highly engaging article Constitutional Argument as Jeremiad--an argument about the structure of constitutional rhetoric.  O'Neill treats us to more than familiar legal and philosophical fare; instead, he roots his thesis in American jeremiad--a form of rhetoric that he traces from Herman Melville's once maligned and now mostly ignored Pierre through Paul Harding's 2010 Pulitzer Prize-winning novel Tinkers.  This compact piece--with its one part law-and-literature, one part intellectual history, and one part constitutional theory--is well worth a read, both for the argument on constitutional rhetoric, and for the sheer fun.

"Jeremiad," derived from the biblical prophet Jeremiah, means a list of one's own troubles or complaints--"a prolonged lamentation or complaint," according to Webster's.  O'Neill traces its travels and evolution from Europe to America and describes the American jeremiad as a three-part process:

1) an invocation of a standard to be lived up to; 2) a demonstration of how the current behavior of the people has fallen short of that standard; and 3) a presentation of a vision of the future when the people . . . return to that standard.

O'Neill, drawing on a distinction from Tinkers and Pierre between a chronometer (a time-piece always fixed at Greenwich mean time, representing unchanging, divine truth) and a horologist (a clock-maker, who sets clocks locally, representing relative time), offers Jack Balkin as an example of the jeremiad:

Balkin's "original meaning" theory treats a constituitonal provision such as the Cruel and Unusual Punishment Clause as a chronometer.  It treats the clause as a standard that exists outside of time.  It functions as a challenge to our narrow, local, horological sense of justice.  And the form of Balkin's argument folows the jeremiad: first, the invocation of the aspiratioinal "heavenly chronometer" in the form of a constitutional provision challenging us to live up to an ideal; second, a description of how we have currently strayed from that ideal; third, a demonstration that by correcting this wrong we will merely be returning to the chronometric standard we have always embraced.

O'Neill gives another example, Frederick Douglass:

Frederick Douglass saw the possibilities inherent in the Constitution.  He viewed the constitutional guarantee of freedom not as a horological actually describing reality in antebellum America, but rather as a chronometric ideal.  In a Fourth of July speech in Rochester, New York, in 1852, Douglass supported this view by making an audacious claim: he said the Constitution "interpreted as it ought to be interpreted . . . is a glorious liberty document." . . .

First, Douglass recognizes that the high-minded ideals in the Constitution and Declaration were not horologicals describing the nation that existed in the Eighteenth Century; rather they are chronometric values to which the country pledges to forever aspire.  Second, his description of mid-Nineteenth Century America shows the woeful state the country was in because of slavery.  Third, he urges that the solution to the current problems lies in a return to the Eighteenth Century: not in the horological sense . . . but in the chronometric sense to the aspirational values upon which the country was founded.

But according to O'Neill these values--this "concept" of justice, borrowing from Dworkin, can only be approached and never achieved: "[T]he American jeremiad provides a never-ending process: it is 'the official ritual form of continuing revolution.'" (Quoting Bercovitch's The American Jeremiad).

SDS

 

Local Government and Constitutional Funding: West Virginia Weekend

With the new "austerity" budgets as well as efforts to ban collective bargaining by government employees, local governments are considering their options.  In Ohio, The Local Government Fund Coalition launched this week.  The state legislatures of Wyoming, Nevada, South Dakota, and Minnesota are among those that are reportedly considering the issue. 

In West Virginia, a resolution calling for a constitutional amendment to address the ability of a local governments to raise funds was introduced during the Regular Session of the West Virginia State Legislature this term. Born of an idea researched and advanced by Matthew Delligatti, the former mayor of Fairmont, West Virginia, and current third-year law student at WVU College of Law, House Joint Resolution 9 attempts to present the voters with a constitutional amendment designated “The Silenced Majority Local Levy and Bond Amendment.” 

The resolution aims to amend the provisions of Article X of the West Virginia Constitution, which requires a 60% supermajority voter approval for the passage of municipal and county levies and bonds.  In 1982, voters amended this restriction by ratifying an amendment requiring only a simple majority for school levies and bonds.  However, the 60% threshold remains for all other local levies and bonds and continues to plague municipal and county leaders’ plans to raise revenue, including for recreational levies.  While the Resolution has not yet been approved by both houses of the state legislature, many observers expect the measure to pass and be sent on to the voters for ratification.  In fact, the State Senate unanimously passed the Resolution on Friday.   

 

As the "Silenced Majority Amendment" makes clear, local government reform must conform to restrictions in state constitutions.   Professor Robert Bastress at the WVU College of Law, is not only knowledgeable on the constitutionality of West Virginia statehood and the constitutionality of West Virginia's "Acting Governor" controversies, but also the challenge of local government reform under West Virginia's state constitution.  In “Constitutional Considerations for Local Government Reform in West Virginia,” 108 W. Va. L. Rev. 125 (2005), Bastress surveys the history of local government reform and constitutional revision in West Virginia and offers considerations for legislators concerned with the constitutionality of statutory reforms of local government.  In a follow-up article, Bastress addressed the principles underlying the need for vibrant, autonomous local government in “Localism and the West Virginia Constitution,” 109 W. Va. L. Rev. 983 (2007).  In both pieces, Bastress lays out a strong case for local government reform. 

He writes in Constitutional Considerations: “Moving toward consolidated governments and cooperative arrangements provides great opportunities to share resources, achieve efficiencies, and promote equity.  Any such effort, however, should include mechanisms to preserve the advantages of small government: local self-determination, diversity, governmental responsiveness to constituent concerns, citizen participation, and sense of community.” Id. at 169.  Bastress then argues in Localism that the West Virginia Constitution “provides considerably more local government discretion” than has been previously understood. Id. at 684.  Ultimately, Bastress links  localism to democracy:

By leaving important decisions to local governments, a state promotes self-determination, the rationale and foundation of democracy. The smaller the governmental unit, the more input and influence an individual citizen can have on her government. Then, too, the more discretion that local leaders have, the better they can address problems in a manner that is most suitable to the community’s particular needs. Local people know local conditions the best and can most effectively address them, if they have sufficient regulatory tools and the resources to do so. . . .

With enhanced local power also comes enhanced citizen participation in local government. Citizens participate in government when that participation can be meaningful. The smaller the governmental unit, the more likely a citizen’s participation will be meaningful. And the more autonomy that unit has, the more likely the participation will prove to be useful. Active citizen participation  in government improves the public debate, promotes better decision-making, advances the lives of the participants, and makes for a better polity and a better democracy.

Id. at 687 - 688.  Bastress' arguments extend well beyond West Virginia.

 

RR

with J. Zak Ritchie

(image: Monongahela River at Fairmont, WV, by Tim Kiser via)

Iowa Supreme Court Update

The Governor of Iowa did not choose Professor Angela Onwuachi-Willig to fill one of the three vacancies on the Iowa Supreme Court resulting from last November's election, a possibility we last discussed here.

The process of selecting Iowa's judges is undergoing reconsideration.

But Iowa's highest court now consists exclusively of white men.

Iowa joins Idaho and Indiana as states with no women on their highest courts; a helpful chart of gender diversity of state high courts shows the District of Columbia with the highest percentage of women, 67%, followed by Tennessee with 60%.

While "at least one judge of color serves on the court of last resort in twenty-four states and the District of Columbia," according to a 2011 report from the American Judicature Society,  yet several states had no minority judges on their appellate courts according to statistics published in an ABA journal in 2009.

RR

(image: Arthur Moselely Channell, "An Amiable Judge", 1898, via).

 

The Obama DOJ's Position on DOMA: Constitutional Crisis or Constitutional Opportunity?

The Obama DOJ's announcement that it will no longer defend the constitutionality of the Defense of Marriage Act has provoked a range of reactions.

New Gingrinch, in the video below (via) states that the president "is not a one-person Supreme Court" and that

the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job."

Gingrich continues:

“I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

 

 

Attorney General Holder anticipates such arguments in his original letter to Congress:

the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.   However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.   “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”   Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).   This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

Steve Sanders on the U Chicago Law School Faculty Blog supports the DOJ analysis; Tony Infanti discusses the tax consequences and Sheila Velez Martinez discusses the immigration aspects over at Feminist Law Professors. 

RR

District Court Upholds Health Insurance Mandate

Judge Gladys Kessler (D.D.C.) on Tuesday upheld the individual health insurance mandate in the federal health reform package, the Affordable Care Act.  Judge Kessler granted the government's motion to dismiss the case, Mead v. Holder, handing the government its third district court victory.  (We posted on the earlier two cases upholding the individual insurance mandate here and here.  We posted on the two earlier cases ruling the mandate unconstitutional here and here.  District court rulings are on appeal, but no federal appellate court has yet ruled on the constitutionality of the individual health insurance mandate.)

Plaintiffs in the case argued that they were outside the scope of congressional Commerce Clause authority, because they planned never to use the health care system.  And if they did, they'd pay out of pocket.  Moreover, they claimed, the individual mandate violates their religious freedom under the Religious Freedom Restoration Act.

Judge Kessler surveyed the Commerce Clause landscape in some detail and synthesized this three-part rule from Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich:

• First, the Court must consider whether the decision not to purchase health insurance is an economic one.
• Second, if the decision is economic, the Court must determine whether Congress had a rational basis for concluding that such decisions, when taken in the aggregate, substantially affect the national health care market.
• Third, the activity may be found to be within the reach of Congress's Commerce Clause power if it is an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated.

Op. at 35-36.  (Internal quotes and citations omitted.)

The first part--whether the (in)activity is economic--has perhaps received the most attention in the public debates and court cases.  But Judge Kessler had little trouble concluding that the activity was economic, ruling simply that "[b]oth the decision to purchase health insurance and its flip side--the decision not to purchase health insurance--therefore relate to the consumption of a commodity: a health insurance policy."  Op. at 38.  She dismissed the plaintiffs' related argument that the non-purchase is non-activity, not subject to Commerce Clause regulation: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice.  Making a choice is an affirmative action, whether one decides to do something or not to do something.  They are two sides of the same coin.  To pretend otherwise is to ignore reality."  Op. at 45.

Judge Kessler went on to rule that Congress rationally concluded that the decision not to purchase insurance substantially affected the health care market, and that the individual health insurance mandate was an essential part of the regulatory scheme--that it was a critical tool in preventing free-riding and cost-distribution by those who would opt out.

Judge Kessler ruled against the government on the General Welfare Clause: the penalty for not insuring was not a "tax," she ruled, because Congress never intended it to act as a tax. 

She rejected the plaintiff's RFRA claim.  She ruled that their argument that the mandate undermines their religion (because they believe that God will take care of their health, and the mandate forces them into a back-up plan) represented only a de minimis impact on their religious beliefs.  And moreover, she ruled, the mandate is the least restrictive way for the government to achieve its compelling interest.

SDS

Obama DOJ: Holder Announces DOMA will Not be Defended because it is Unconstitutional

Eric Holder, Attorney General of the United States, informed Congress today that "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."  

Holder's letter is worth reading in full.  It contains a lengthy and substantive discussion of the law, focusing on equal protection theory and doctrine to support this conclusion:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

Nevertheless, the letter states that DOMA will continued to be enforced by the Executive branch.

Holder also issued a Statement which outlines the arguments and conclusions.

This is a reversal of earlier policy in which the DOJ appealed a district judge's opinion that DOMA was unconstitutional.  And it is quite different from the DOJ defense of DOMA in which the Obama Administration argued "DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected.""

Holder will now "instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3."

 

 

 

RR

 

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Oral Argument

The Court heard oral argument today in Bond v. United States which involves the criminal conviction of Carol Ann Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court. 

That this is no ordinary criminal appeal is evinced by the appearance of  Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.”   If this is a case in which even the United States - - - who after all, prosecuted Ms. Bonds - - - agrees with the defendant, then why is this case in the United States Supreme Court?

The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute:  Noting that there was a split in the circuits on the issue, the court stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”

There is little doubt that Bond has standing to raise the issue of whether the federal statute exceeds federal power, either under the Commerce Clause or the Treaty Power, but much more ambiguity regarding the Tenth Amendment Claim.   Yet this prompts the query of the real difference between a Congressional lack of enumerated power argument and a Tenth Amendment argument, a subject that preoccupied the Court at first. 

Justice Alito, however, posed a goldfish hypothetical, addressing the breadth of the underlying statute:

JUSTICE ALITO: . . . . Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?

MR. DREEBEN: I'm not sure, Justice Alito. I will assume with you that it is. The statute -

JUSTICE ALITO: If she possesses a chemical weapon.

MR. DREEBEN: I'm not sure that vinegar is a chemical weapon.

JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon.

After a bit of vinegar discussion, Justice Ginsburg asked if the argument had veered into the merits, to which Dreeben replied, "A lot further than I had intended, Justice Ginsburg. . . ."

Appointed to argue for the opinion below, Stephen McAllister crystalized the issue quite quickly:

The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case [Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)] and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing.

Yet Roberts replied, "Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"

Later, Roberts again raised the relevance of the criminal context of the case and reiterated the enumerated powers/Tenth Amendment relationship:

CHIEF JUSTICE ROBERTS: . . . . it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers [argument] . . . .

The Court’s opinion can be expected to address whether or not a criminal defendant has prudential standing to raise a Tenth Amendment claim and presumably provide guidance on what difference that makes when the defendant can raise a (lack of) enumerated powers claim.

Meanwhile, the mix of underlying facts and constitutional theory have commentators such as Dalia Lithwick and Garrett Epps writing excellent pieces worth sharing with students in Constitutional Law.

 

RR

Libya's "Constitution"

One of Libyan leader Moammar Gadhafi's sons, Saif al-Islam Gadhafi, delivered a speech on Monday that blamed protests on everyone from criminals to Islamic extremists, warned of civil war if the protests continue, and said his father would fight to the last protestor. 

Saif Gadhafi also called for a constitution.  It wasn't the first time.

Libya doesn't operate under a constitution.  Instead, Gadhafi runs the country according to the Green Book, a document in three parts, published in 1975, that outlines Gadhafi's theories on government.  Its three parts:

• The Solution of the Problem of Democracy: The Authority of the People
• The Solution of the Economic Problem: Socialism
• The Social Basis of the Third Universal Theory

Here's just a little of what the Green Book has to say about law and constitutionalism (from Part One, section on The Law of Society):

Law represents the other problem, parallel to that of the instrument of government, which has not been resolved.  Although it was dealt with in different periods of history, the problem still persists today.

For a committee or an assembly to be empowered to draft the law of society is both invalid anad undemocratic.  It is also invalid and undemocratic for the law of society to be abrogated or amended by individual, a committee, or an assembly.

What then is the law of society?  Who drafts it and what is its relevance to democracy?

The natural law of any society is grounded in either tradition (custom) or religion.  Any other attempt to draft law outside these two sources is invalid and illogical.  Constitutions cannot be considered the law of society.  A constitution is fundamentally a (man-made) positive law, and lacks the natural source from which it must derive its justification.

The problem of freedom in the modern age is that constitutions have become the law of societies.  These constitutions are based solely on the premises of the instruments of dictatorial rule prevailing in the world today, ranging from the individual to the party.  Proof of this are the difference existing in various constitutions, although human freedom is one and the same.  The reason for the differences is the variation in the assumptions and values implicit in diverse instruments of government.  This is how freedom becomes vulnerable under contemporary forms of government.

The method by which a specific modality of government seeks to dominate the people is contained in the constitution.  The people are compelled to accept it by virtue of the laws derived from that constitution, which is itself the product of the tendencies within particular instruments of government.

SDS

 

Presidents' Day: Where Are the Women?

"Where Are the Women?" is a query that is not limited to the category of United States Presidents.

Consider Lynn E. Ford's work on women and politics, especially their complete absence in South Carolina elected office; or the lack of women in the group tasked with revising Egypt's Constitution.

The dearth of women working on Wikipedia has received much attention; less attention has been paid to a compilation by VIDA looking at figures from 2010 for influential outlets, including these revealing charts for   The New Yorker, The New York Review of Books, and The New Republic.  While not state actors, such media is certainly part of the "civil society" democracy contemplates.

And then there are law reviews.  The newest issue of The Georgetown Law Journal is women-free.  And there are a sufficient number of other law review issues and conferences of a similar composition to support a regular feature pondering the lack of women at Feminist Law Professors.

 
But maybe we already have a woman President?  

Quoting a journalist who noted that "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president," Frank Rudy Cooper has suggested that Obama may indicate we are all a bit more free to perform our gender and racial identities. 

In Cooper's article, Our First Unisex President?: Black Masculinity and Obama's Feminine Side, available on ssrn and published shorty after the election, he argues that "Obama could not be too masculine because that would have triggered the Bad Black Man stereotype but he could not be too feminine because that would have looked unpresidential."

Something to contemplate this Presidents Day.

RR

[image via]

Voter Identification Laws and the Discourse of "Free and Fair Elections": West Virginia Weekend Spotlight on Atiba Ellis

A cornerstone of democracy is the "free and fair election."  Recent events in Egypt and less dramatic ones in West Virginia have demonstrated the importance of the ballot box.  Moreover, some argue that the acts of the Wisconsin governor should not be protested because he was duly elected.

Yet what makes an election "free and fair" is not universally agreed upon. Professor Atiba R. Ellis at the WVU College of Law views the U.S. history of the right to vote as a constant tension “between those who wish to constrain or restrict the vote by raising the cost and those who wish to make the vote more accessible by lowering the costs."  In his article, The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy, 86 Denv. U. L. Rev. 1023 (2009), available on ssrn, he considers the controversy over voter identification laws, including voter photo identification requirements. 

Such requirements are now in force in more than half of the states, although not in West Virginia or Wisconsin.  A recent bill in North Carolina, HB 430, would add that state to those requiring photo identification, a proposal discussed by a television news report earlier this month and criticized by Chris Kromm in an article for the Institute for Southern Studies.

In his article, Ellis contends that photo identification laws create an economic barrier which the lower economic classes in our society cannot surpass.   He begins with an analysis of political science research models, specifically the “rational actor model of voting behavior.” Id. at 1032.  The premise of this model, Ellis notes, is that “voting enacts a cost on the voter.” Id.  Such costs include, primarily, economic and structural costs.  Through this model, the author contends that voters must “undertake a cost/benefit analysis to determine whether they will participate in the political process.” Id. at 1033.  Ellis focuses his analysis on the direct and indirect costs of voting with respect to the “willingness and ability for potential voters to comply with the legal requirements related to voting.” Id. at 1034.  Direct costs “relate to the express ability to access a ballot from a governing authority,” while indirect costs are “the costs a voter has to expend to become eligible to vote,” and which include, among other things, the costs of identifying oneself as a voter through some manner of official proof of identification. Id. at 1035.  Such costs, Ellis argues, are “inherent in the act of voting.” Id.

After surveying the history of voting rights cases, Ellis addresses photo identification requirements and   Crawford v. Marion County Election Board,  553 U.S. 181 (2008).  The decision addressed a challenge to an Indiana law that required, with some important exceptions, voters to present a photo ID in order to vote.  In a 6-3 decision, with the lead opinion by Justice Stevens, the Court found that “the interests of the state in maintaining the voter-ID law outweighed any impact that the statute would have on populations who may effectively be disenfranchised by the law.” Id. at 1057.  The Court in Crawford applied the test from Burdick v. Takushi, 504 U.S. 428 (1992) to the challenged election regulation, a standard that calls for balancing the magnitude of the asserted injury to protected rights with the interests put forward by the state to justify the burden imposed.  Even so, “the evaluation of injury to the claimant’s First and Fourteenth Amendment rights must precede any balancing of the claimant’s rights against governmental injury.” Id. at 1052.

Ellis’s central claim takes shape with a critical view of the Burdick test exemplified by the outcome in Crawford.  Specifically, courts applying the Burdick test have "tended to discount, in the absence of significant evidence, the indirect economic costs to be taken into account when analyzing the effects of voter identification laws.” Id. at 1064.  Indeed, the “inability to account for the indirect costs exasperates the long-standing problem of economic bias and the requirement of an economic stake within society in order to exercise the political right to vote.” Id.  While acknowledging the important state interest of avoiding voter fraud, Ellis concludes that

the interest in election integrity must be balanced with the interest in ensuring that every otherwise-qualified voter can have access to the ballot. This is the core premise of American democracy—that everyone who can rightfully vote should be able to vote. The battle of access . . . is ultimately one of ensuring that there must not be any invidious requirement which prevents votes from voting. This is the tie that binds us together in our civic society and should not be easily discounted. . . . It is to this end of preserving the value of realistically complete access to American elections for all who are eligible to vote that our laws should be directed.

Id. at 1066. 

To that end, Ellis calls for a “reordering of the Burdick test,” which “should be structured to required the state to demonstrate that the means it has adopted in its voter identification laws represent a significant interest in preventing voter fraud coupled with a showing that the conditional costs—direct and indirect—to the voter are minimized in the scheme the government is implementing.” Id. at 1067.  By advocating a more robust voting rights jurisprudence that takes into account indirect economic costs, Ellis hopes that “we will be able to create an enduring and greater character for American democracy.” Id. at 1068.

RR

(with J. Zak Ritchie)

[image via]

Can Congress Regulate Supreme Court Ethics?

At least one representative thinks so.  Chris Murphy is suggesting legislation that would:

• apply the Judicial Conference's Code of Conduct, which applies to all other federal judges, to Supreme Court justices.  This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
• require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
• require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.

According to the Congressperson's press release, Murphy is prompted by the actions of Justices Scalia and Thomas in relation to "Charles and David Koch, billionaire brothers who operate a Kansas-based energy company." 

The press release does not mention the controversy which swirled around Justice Alito last year regarding an American Spectator event.

RR

Ediberto Román on Citizenship's Constitutional Dimensions

In Citizenship and its Exclusions: A Classical, Constitutional, and Critical Race Critique, Professor Ediberto Román offers a highly readable and trenchant discussion of historical and contemporary citizenship. 

Román begins by discussing the cases of three "terrorists": John Walker Lindh, Yaser Esam Hamdi, and Jose Padilla.  He argues that while they were all U.S. citizens, they were "treated in dramatically different
ways":

Lindh, a Caucasian, was not treated as a terrorist and was characterized as merely a misguided young man. Hamdi, an Arab American, was effectively forced to renounce his American citizenship and was expatriated to the land of his parents, even though he was born and raised in the United States. Padilla, of Puerto Rican descent, was immediately treated as an enemy combatant and terrorist, with the limited rights associated with such labels. The stark differences in their treatment illustrate the dichotomous and confounding nature of citizenship, particularly when applied to favored versus disfavored groups.

Román thus argues that citizenship is "confounding," but he helpfully considers both dejure citizenship and defacto citizenship, exploring how formal and informal citizenship both contradict and reinforce each other.  His last chapter, “A New Vision of Citizenship,” articulates a coherent vision of constitutional citizenship that values inclusion rather than exclusion.

Román will be speaking about the book tonight at Books & Books in Miami, Florida. 

RR

Lawrence in Louisiana: Lawsuit Challenges Sex Offender Registration Scheme

In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment.  The opinion specifically noted that the case did not involve commercial sex. 

But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?

The complaint in Doe v. Jindal contrasts two types of commercial sex offenses:  the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;"  the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation.  Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow  "unnatural carnal copulation" statute.

However, the punishment for two statutes is not identical, even after recent amendments.  Additionally, only convictions under one of these statutes requires registration as a sex offender.  According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.

The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment.  While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall  Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.

More information about the lawsuit is here and here.

RR

Father Chief Justice: A Constitutional Play

Actor, playwright, and Con Law Prof Paul Baier (LSU) will take his play "Father Chief Justice" Edward Douglass White and the Constitution to Washington, D.C., on Tuesday, March 8, 2011.  (He previously staged it, to great acclaim, at the AALS Annual Conference.)

 

Here are the details:

"Father Chief Justice" Edward Douglass White and the Constitution

Tuesday, March 8, 2011, 2:00 to 3:30 p.m.

Coolidge Auditorium, Jefferson Building, Library of Congress, 101 Independence Ave, SE, Washington, DC

RSVP tada@loc.gov or call Tynesha Adams at 202.707.5065

Check out the announcement for more information and a list of cast members (notable, all).

SDS

New York Chief Judge Calls for Equal Access, Civil Counsel

New York Chief Judge Lippman today delivered the State of the Judiciary address--a speech dominated by calls for open courts and access to justice.  (Click on the link for the 2011 State of the Judiciary web-cast.)

We posted on Chief Judge Lippman's address on the same issues earlier this month at CUNY here.

Chief Judge Lippman focused on dramatically increased legal needs of the poor in a struggling economy and in a resource-strained judiciary.  Drawing parallels to the right to counsel for indigent criminal defendants in Gideon v. Wainwright, he called for counsel in all civil cases in which fundamental human needs are at issue, including home foreclosures. 

Chief Judge Lippman's comments come in the wake of the November 2010 report of the New York Task Force to Expand Access to Civil Legal Services in New York, which reported on unmet legal needs and made recommendations to expand access to justice in civil cases involving fundamental human needs.

We posted on the Maryland Commission on Access to Justice report also calling for civil counsel in cases involving basic human needs here.

SDS

Constitutional Right to Same-Sex "Divorce"

Jurisdictions that do not recognize same-sex marriages or civil unions have nevertheless been sites of petitions for divorce or dissolution of a legal status granted in another jurisdiction.  In an article forthcoming in California Western International Law Journal, Professor L. Lynn Hogue argues that such a denial is unconstitutional.

Hogue's article is entitled The Constitutional Obligation To Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same- Sex Relationships: Prolegomenon to a Brief, and is available on ssrn here.  He bases his argument on what he terms a "trifecta" of three cases: Williams v. North Carolina, 317 U.S. 287 (1942), which considers the validity of migratory divorce, Boddie v. Connecticut, 401 U.S. 371 (1971), holding unconstitutional a mandatory filing fee for divorce, and Hughes v. Fetter, 341 U.S. 609 (1951), a less well known case discussing the Full Faith and Credit Clause.   Hogue concludes that this "trifecta,"  which he amplifies with a host of other cases, must prevail over Congress' Defense of Marriage Act and state jurisdictional rules.

It's a succinct argument suitable for Valentine's Day reading.

RR

Kent Announces 2011 Palmer Prize Competition

ITT Chicago-Kent College of Law announced that it would accept entries for the Roy C. Palmer Civil Liberty Prize, a $10,000 prize designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world.

Eligible books and articles should focus on the tension between civil liberties and national security.  The deadline is July 1, 2011.

Articles or books submitted to the competition must be in draft form or have been published within one year prior to the July 1 deadline.  As a condition of accepting the award, the winner will present his or her work at Chicago-Kent.  All reasonable expenses will be paid.

Profs. Gabriella Blum and Philip B. Heymann (both of Harvard) won last year's prize for their book Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press 2010).  Other past winners include David D. Cole and Jules L. Lobel for their book Less Safe, Less Free: Why America is Losing the War on Terror (The New Press 2007), Harold H. Bruff for Bad Advice: The President's Lawyers in the War on Terrorism (University Press of Kansas 2008), and Scott M. Matheson, Jr., for Presidential Constitutionalism in Perilous Times (Harvard University Press 2009).

Eligible books and articles should be submitted to Tasha Kincade, assistant to Dean Harold J. Krent, at tkincade@kentlaw.edu or Chicago-Kent College of Law, 565 West Adams Street, Chicago, Illinois 60661-3691.

Roy Palmer, a lawyer and real estate developer, is a 1962 honors graduate of Chicago-Kent and a member of its board of overseers.  He and his wife Susan are active in numerous civic, social, and philanthropic organizations and are the recipients of the 1997 Outstanding Indivudal Philanthropist Award of the National Society of Fundraising Executives.

SDS

Nonviolent Revolution: India, Egypt and West Virginia Weekend

Recent events in Egypt are a meaningful reminder of the power of broad-based, nonviolent movements from the history of other nations, such as India.  Earlier this month, we explored the presidential election process under the Egyptian Constitution here and its requirements for presidential succession here.  Mubarak has since resigned.  The Constitution of Egypt is now suspended, with promises of a new constitution.

As legal scholars contemplate the uprising in Egypt with an eye toward the possibility of further popular uprisings in the Middle East, they might also be looking to earlier nonviolent freedom movements. Nearly 81 years ago this week, the All-India Congress Committee authorized a nationwide campaign of civil disobedience aimed a loosening the grip of British colonial rule.  Mahatma Gandhi launched the Civil Disobedience Movement in India in March of 1930 by leading the historic Dandi Salt March, also known as the Salt Satyagraha. (Satyagragha translates as “truth seeking” or “asking for truth.”)  The Salt March was a pivotal moment in India’s long campaign for independence, because as Gandhi marched from village to village and ultimately to the sea where he and his fellow marchers made salt without paying the reviled British salt tax, a nationalist fervor swept the country.

Professor of Law at WVU Charles R. DiSalvo does just that in a brief chronicle of Gandhi as a practicing attorney in the article “Gandhi: The Transformation of a South African Lawyer, 1897-1898,” in Rethinking Gandhi and Nonviolent Relationality: Global Perspectives (Degjani Ganguly & John Docker, eds. 2008).  In it, DiSalvo theorizes that “the experiences Gandhi underwent during the time he practiced law in South Africa transformed his vision of law as an engine of social change. . . ., [and] that this transformation, during which Gandhi lost faith in an ultimately corrupt legal system, constituted a key pre-condition for his eventual embrace of nonviolence.” Id. Overall,  “Gandhi’s experience with the law in 1897 and 1898 in particular constitutes a microcosm that foreshadows and helps explain his transformation from business lawyer to civil rights attorney to civil disobedient.” Id. at 100.

DiSalvo traces Gandhi’s legal experiences beginning with his rather common transaction work for Indian business interests in the colony of Natal (now the province of KwaZulu-Natal, South Africa).  But after the imposition of a series of legislative acts by the colonial legislature that intended to weaken the influence of Indian merchants, Gandhi was persuaded to “organize [the merchants’] resistance to the European assault on their rights.” Id. at 101.  The worst of the laws was the Dealers’ Licenses Act (“DLA”), which required every wholesale and retail business in the colony to obtain a government permit.  The Act empowered local “Licensing Officers to deny permits to those who could not maintain their books in English,” and for other “imprecisely drawn grounds,” all of which served as handy pretexts for racial discrimination by local European officials.  Unsurprisingly, the essentially standard-less requirements, further compounded by the prohibition of a direct appeal to the courts, lead to racially-motivated crackdown on Indian businesses throughout the colony.

As an advocate for these targeted interests, Gandhi first “relied almost exclusively on petitioning – incessant, persistent, unrelenting petitioning.” Id. at 102.  This failed.  But, turning to litigation, Gandhi found some success in as-applied challenges to the arbitrary reviewing process of the permitting. Grounded in basic notions of due process – specifically, fair notice – Gandhi was able to convince the colonial Supreme Court to reverse a few licensure denials.  But his clever statutory interpretations would only get his Indian clients so far, as the despised anti-Indian Acts remained on the books.  In the end,

Gandhi’s recognition of the judiciary’s limitations as a tool for social change marked an early but key turning point in his transformation from lawyer to civil disobedient. While the courts might address procedural irregularities, they could not be counted on to attack basic, underlying norms and the power establishment of which they themselves were a part. The courts would not turn on themselves. The law would not free Gandhi’s people – at least not in the manner he expected it would in 1898.

Id. at 112.

DiSalvo asks of Gandhi, “Is this the end?  Does he give up on the law entirely?”  His conclusion is subtle, yet powerful:

Gandhi’s frustration with the courts led him to abandon litigation as a tool for social change and contributed to his decision to embrace nonviolent civil disobedience. . . . It is rejection of litigation. It is not a rejection of law. His rejection of litigation is a stage in his developing understanding of the law as much deeper, more expansive and more filled with promise than litigation. In the remainder of his life, he comes to see and believe in the deep underlying structure of the law. It is to this that his nonviolent disobedience appeals. A civil disobedient who willingly subjects himself to the punishment of the system, as Gandhi did, believes in the grand structure of the law, in the rule of law.

Id. at 113.

DiSalvo is presently completing a full legnth book on Ghandi's life as a lawyer.  Meanwhile, DiSalvo's interview with Australian Broadcasting Comany from several months ago is a treat; listen to it here.  

 Of course, it remains to be seen whether distinct comparisons between the Indian experience and recent events in Egypt will prove pertinent.  Nevertheless, understanding the intersection of law and the history of nonviolent freedom movements can’t be a bad place to start.

RR

with J. Zak Ritchie

(image: Gandhi in Johannesburg, 1905, via)

The Palmetto Dollar?: South Carolina Considering its own Currency

Undaunted by the Constitution's explicit prohibition of the power to coin money to States, Article I section 10, South Carolina Senate Bill 500 seeks a joint legislative subcommittee to study whether the state should adopt its own currency.

The Senate Bill provides:

Whereas, the Supreme Court of the United States has ruled that the police power of a state is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive; and
Whereas, the Supreme Court of the United States has ruled that the police powers of the states extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order; and
Whereas, the protection of the lives, health, and property of South Carolina's citizens, and the preservation of good order in the State, depend upon the maintenance of both an adequate system of governmental finance and a sound and robust private economy that cannot be maintained in the absence of a sound currency; and
Whereas, the present monetary and banking systems of the United States, centered around the Federal Reserve System, have come under ever-increasing strain during the last several years, and will be exposed to ever-increasing and predictably debilitating strain in the years to come; and
Whereas, many widely recognized experts predict the inevitable destruction of the Federal Reserve System's currency through hyperinflation in the foreseeable future; and
Whereas, in the event of hyperinflation, depression, or other economic calamity related to the breakdown of the Federal Reserve System, for which the State is not prepared, the state's governmental finances and private economy will be thrown into chaos, with gravely detrimental effects upon the lives, health, and property of South Carolina's citizens, and with consequences fatal to the preservation of good order throughout the State; and
Whereas, South Carolina can avoid or at least mitigate many of the economic, social, and political shocks to be expected to arise from hyperinflation, depression, or other economic calamity related to the breakdown of the Federal Reserve System only through the timely adoption of an alternative sound currency that the state's government and citizens may employ without delay in the event of the destruction of the Federal Reserve System's currency; and
Whereas, "legal tender" means a currency that must be accepted in payment of a debt denominated in United States dollars if the parties have not stipulated that some alternative currency is to be used as their medium of payment or are not otherwise required to use such alternative currency; and
Whereas, the Federal Reserve System's currency has been designated legal tender under Title 31, United States Code, Section 5103; and
Whereas, under Title 12, United States Code, Section 411 and Title 31, United States Code, Section 5118(b) and (c), the Federal Reserve System's currency is not redeemable in gold or silver coin or the equivalent in bullion; and
Whereas, the Federal Reserve System's currency not being redeemable in gold or silver coin or the equivalent in bullion is being identified by more and more experts as a major reason for the ever-increasing instability of the Federal Reserve System; and
Whereas, all gold and silver coins of the United States are designated "legal tender" under Title 31, United States Code, Sections 5103 and 5112(h), and must be designated by Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of the Constitution of the United States; and
Whereas, pursuant to Article I, Section 10, Clause 1 of and the Tenth Amendment to the Constitution of the United States, each state must make gold and silver coin a Tender in Payment of Debts; and
Whereas, the Supreme Court of the United States has ruled that the states may adopt whatever currency they desire for the purposes of performing their sovereign governmental functions, even to the extent of adopting gold and silver coin for those purposes while refusing to employ a currency not redeemable in gold or silver coin that Congress has designated "legal tender"; and
Whereas, "the police power" being the primary sovereign governmental function of every state, every state may adopt its own currency, consisting of gold or silver, or both, whenever necessary and proper to facilitate exercises of that power in aid of the general welfare of the state and its citizens; and
Whereas, under Title 31, United States Code, Section 5118(d)(2), and Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of, and the Ninth and Tenth Amendments to, the Constitution of the United States, Americans may employ whatever currency they choose to stipulate as the medium for payment of their private debts, including gold or silver, or both, to the exclusion of a currency not redeemable in gold or silver that Congress may have designated "legal tender"; and
Whereas, under Title 31, United States Code, Section 5118(d)(2), and Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of, and the Ninth and Tenth Amendments to, the Constitution of the United States, the citizens of South Carolina may choose to employ as the medium for payment of their private debts whatever alternative currency, consisting of gold or silver, or both, that the State may adopt in the exercise of "the police power"; and
Whereas, various systems of alternative currency employing gold or silver, or both, in the form of coin or its equivalent in bullion have already proved themselves in the free market, and could either be employed by the State directly or be used as models for a new system created by the State to meet South Carolina's unique needs; and
Whereas, the adoption of an alternative currency consisting of gold or silver, or both, would not destabilize the present monetary and banking systems or the state's governmental finances private economy because it would not compel or commit the State or her citizens to employ such alternative currency to the exclusion of the Federal Reserve System's currency immediately, but would merely make the alternative currency available, and enable it to be used in competition with and preference to the Federal Reserve System's currency, to the degree that the need for such use became apparent; and
Whereas, the United States Congress, the U.S. Department of the Treasury, and the Federal Reserve System have taken and are preparing to take no action to provide the United States with an alternative to the Federal Reserve System's currency, in the likely event that the latter would be destroyed through hyperinflation. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION    1.    (A)    A joint subcommittee is hereby created to study whether this State should adopt a currency to serve as an alternative to the currency distributed by the Federal Reserve System in the event of a major breakdown of the Federal Reserve System.
(B)    The joint subcommittee shall consist of eight members appointed as follows: four members appointed by the Speaker of the House of Representatives and four members appointed by the President Pro Tempore of the Senate. The joint subcommittee shall elect a chairman and vice-chairman from among its membership.
(C)    In conducting its study the joint subcommittee shall consider recommendations for legislation, with respect to the need, means, and schedule for establishing such an alternative currency. Administrative staff support shall be provided by the Board of Economic Advisors.
(D)    No recommendation of the joint subcommittee shall be adopted if a majority of the House members or a majority of the Senate members appointed to the joint subcommittee vote against the recommendation and vote for the recommendation to fail notwithstanding the majority vote of the joint subcommittee. The joint subcommittee shall submit its report to the General Assembly by November 1, 2011.
SECTION    2.    This joint resolution takes effect upon approval by the Governor.

According to Stephen Largen reporting in the Spartenburg Herald Journal (goupstate.com), the Bill's sponsor, Senator Lee Bright, jokes that "If at first you don’t secede, try again," and has also sponsored legislation that would make a firearm, firearm accessory or ammunition that is commercially or privately manufactured in South Carolina and does not leave this state exempt from federal regulation and successful legislation on health insurance.

RR