Constitutional Law Prof Blog

Democracy and Workers Rights: West Virginia Weekend

As the legislative battle in Wisconsin continued on Friday with the enactment of a bill which limited collective bargaining rights of most state employees, similar disputes are simmering across the country.  Along with Wisconsin, Ohio, Iowa, and Idaho, among others, seem poised to join the growing group of state governments that are prohibiting at least some public employee collective bargaining.  Also on Friday, the West Virginia House of Delegates passed a resolution supporting the public employee unions in Wisconsin.  Despite this show of support, and unlike Wisconsin, which still allows collective bargaining in limited circumstances, West Virginia law does not extend collective bargaining rights to any public employees.

These controversies raise issues of democracy and dignity. WVU College of Law Professor Anne Marie Lofaso recently commented on a new federal proposal that would count a non-vote as a no-vote in elections regarding unionization by saying that such a process would run "counter to the spirit of democracy." Likewise, Lofaso uses notions of democracy and dignity as the basis of her theorizing about workers and unions.  In Toward a Foundational Theory of Workers’ Rights: The Autonomous Dignified Worker, 76 UMKC L. Rev. 1, available on ssrn, Lofaso critiques the conventional free-market view of workers and then advocates “a novel theory of grounding workers’ rights in two values: autonomy as promoting an individuals’ freedom to become part author of his or her working life and dignity as promoting each individual as having equal moral worth.” Id. at 3.  Indeed, “[t]he conflict between the property rights of capital and those of labor in market economics signals an incompatibility between the current capitalist conception of property rights and the human right to work.” Id. at 38.

Professor Lofaso writes:

[W]orker autonomy means employees who (1) know what issues affect their working lives and know how to resolve those issues according to their own interests; (2) have access to information relevant to making informed decisions; and (3) are free to effectively decide how to resolve those issues. Autonomous workers must, therefore, possess the power to effectuate these decisions. But workers who do not gather together may simply not have the power to control decisions affecting their working lives. Thus, worker autonomy often implies some level of industrial or worker autonomy—the need for meaningful employee participation at a variety of levels, a right to any information management would deem necessary to effect wise business decisions on behalf of property owners; state intervention to protect these worker rights to be free from coercive forces, all set in a pluralist industrial or other workplace framework.

Id. at 41-42.  The author concludes with specific recommendations for the Congress, Executive, Supreme Court, and NLRB, to protect the rights of the autonomous and dignified worker. Id. at 57-64.

In her most recent piece, “What We Owe Our Coal Miners,” 5 Harv. L. & Pol’y Rev. ___ (forthcoming 2011), [UPDATE: NOW available on ssrn], Lofaso focuses on the work of coal mining, work that is closely identified with West Virginia.  Indeed, the statute of a coal miner (pictured right) is on the grounds of the State Capitol Complex.  Despite the valorization of coal miners, the workers themselves are often under-protected, as illustrated by last year's loss of life at the Upper Big Branch mine, owned by Massey Coal Company, of Caperton v. Massey Coal Company fame. 

Lofaso advocates mandating the union model on the mining industry by demonstrating that “collective bargaining above the regulatory floor is likely to result in safer, healthier mines, and that the safety records of such mines will be better justified when based on informed, unforced, general agreement.” Id. at 702.  Throughout the article, Professor Lofaso observes the power disparity between coal operators and their miners; examines the incentives for operators to circumvent mining regulations; identifies several market failures, such as inequality of bargaining power, irrationality in assessing risk, asymmetrical information, and monopsony; and, finally, advocates for “extending the union model to nonunion mines” in order to resolve many safety issues. Id. at 702-03.

In sum, Professor Lofaso writes:

Coal mine operators possess greater bargaining power than coal miners. The conditions resulting in this disparity of bargaining power are precisely those conditions that Congress intended to ameliorate when it passed the NLRA. A comparison between pre- and post-regulator fatality rates in coal mines strongly supports the conclusion that current regulations make coal mines safer. Those regulations raise the floor of rights on top of which unions bargain, thereby further addressing the disparity of bargaining power . . . making it more likely that unions will bargain for even better safety conditions than current regulations permit. . . . Accordingly, it makes sense for policy makers to consider bringing the union model into the nonunion coal mine.

Id. at 726. From the more “radical solution” of compelling union representation for all coal mines, id., Lofaso also advocates more modest proposals, “such as posting miners’ rights,” or “mandate[ing] bargaining over health and safety . . . regardless of whether the miners are union represented.” Id. at 724.   Ultimately, Lofaso observes that “[d]angerous jobs in industries that the public perceives to be vital to its comfort and security may be here to stay, but that does not mean that the public shouldn’t demand that policy makers focus on questions of human life and dignity in the context of these crucial multi-billion dollar industries.” Id. at 727.

The Constitutional power of the federal government to mandate unionization or even worker safety has become contenstious, as has the legitimacy of state governments relationship towards unionization.  Lofaso's work reminds readers - - - in West Virginia and elsewhere - - - that such arguments have real life consequences.

RR

with J. Zak Ritchie

(image: The West Virginia Coal Miner,  bronze statue by sculptor Burl Jones, photograph by Ken Thomas, via)

Pugliese on CIA Torture at Association for the Study of Law, Culture and the Humanities

The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia.

In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan.  While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.

Yet portions of the memos are redacted.  Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text.  In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.

Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.

 

RR

Happy Birthday Justice Scalia?

Linda Greenhouse points out that Friday March 11 is Scalia's 75th birthday, but her wishes are not necessarily warm ones. 

Instead, Greenhouse discusses Scalia's  "bullying" of his junior colleagues, notably the female ones.  She focuses on Scalia's dissenting opinion in Michigan v. Bryant, which the only other dissenter, Ginsburg, did not join, and which was aimed at a majority opinion written by Sotomayor.  She also recounts Scalia's scathing reaction to O'Connor, when O'Connor was new and the first woman Justice, on the subject of abortion, noting that Scalia did not ultimately prevail.

Greenhouse sums up Scalia's almost 25 years on the Court as ones in which he "has cast a long shadow but has accomplished surprisingly little."

The notable exception - - - and some would say it is a rather large one - - - is District of Columbia v. Heller, revivifying the Second Amendment.

RR

[image of Antonin Scalia, via]

CFP: Secrecy, National Security, and the Vindication of Constitutional Law

For a Conference in Milan, Italy on December 1-2, 2011, with proposals due April 24, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. The conference is open to proposals that seek to bring comparative analysis to bear on how best to mediate these tensions, including:

 

• the challenge of secrecy to democratic lawmaking on counterterrorism policy;
• the use of “secrecy” privileges to block litigation challenging allegedly illegal government
• programs;
• the use of classified evidence against individuals or organizations to freeze their assets, designate them as terrorist, or justify other restraints on their liberty;
• the use of “anonymous” witnesses who testify without revealing their identity;
• the closure of criminal trials and other proceedings to the public;
•  and the adoption of secret coercive programs without transparent legal justification, such as the US’s coercive interrogation practices or targeted killing program.

One of the covenors is David Cole of Georgetown; more information and submission details here.

RR

International Women's Day, Women in Combat, and Military Leadership Diversity

As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.

In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military.  The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women.  That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.

 Today, according to the United States Department of Defense, a

commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.

In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”

 

The Military Leadership Diversity Final Report,  From Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity.  The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary.  The exclusion of women from combat is specifically linked to career advancement.  The Press Release, dated March 8, provides an interesting connection to International Women's Day.

RR

President Orders Review of Guantanamo Detainees

President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."

The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.

The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009.  Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available.  Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).

The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict."  It also explicitly recognizes detainees' right to habeas corpus.

The EO sets this standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.

Emphasis added.

SDS

School District Ban on T-Shirt Violates First Amendment

A three-judge panel of the Seventh Circuit ruled last week in Zamecnik v. Indian Prairie School District #204 that officials at Neuqua Valley High School in Naperville, Illinois, violated the First Amendment when they prohibited a student from sporting a t-shirt that read "Be Happy, Not Gay."

The statement on the t-shirt was the student's anti-gay response to the Day of Silence, an annual event sponsored by a private group called the Gay, Lesbian, and Straight Education Network and intended to draw critical attention to harassment of gays and lesbians.  Some students and faculty wear t-shirts that read "Be Who You Are" on the Day of Silence.  

Officials at the school claimed that the student's statement interfered with the rights of gay and lesbian students.  The Seventh Circuit ruled that that interest wasn't enough to justify suppressing speech, especially when it allowed speech supporting gays and lesbians on the Day of Silence:

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. . . .  [P]eople in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.  R.A.V. v. City of St. Paul. . . . .

"Be Happy, Not Gay" is not an instance of fighting words.  To justify prohibiting their display the school would have to present "facts which might reasonably lead school officials to forecast substantial disruption."  Tinker v. Des Moines Independent Community School District. . . .  Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school--but the school had presented no such facts in response to the motion for a preliminary injunction.

Op. at 5.

The panel also looked to the school's civil educational mission as a reason for allowing the speech:

Although tolerance of homosexuality has grown, gay marriage remains highly controversial.  Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

Op. at 4.

SDS

 

Judge Vinson Stays Ruling Declaring Federal Health Care Reform Unconstitutional

Judge Vinson (N.D. Fla.) on Thursday stayed his ruling that the Patient Protection and Affordable Health Care Act was unconstitutional.  (Recall that Judge Vinson ruled in January that the individual health insurance mandate exceeded congressional authority and was unseverable from the rest of the Act; therefore, he ruled, the whole thing was unconstitutional.  But he stopped short of issuing an injunction, instead assuming that the government would treat his declaratory ruling as an injunction.)

Yesterday's ruling in Florida v. Department of Health and Human Services was highly critical of the government for claiming it misunderstood the earlier "clear" ruling and for filing a "motion to clarify," not a motion to stay.  Judge Vinson wrote:

So to "clarify" my order and judgment: The individual mandate was declared unconstitutional.  Because that "essential" provision was unseverable from the rest of the Act, the entire legislation was void.  This declaratory judgment was expected to be treated as the "practical" and "functional equivalent of an injunction" with respect to the parties to the litigation.  This expectation was based on the "long-standing presumption" that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction.  To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, which is the usual and standard procedure.  It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to "clarify."

Op. at 14.  Judge Vinson treated the government's motion as a motion to stay and granted it, on the condition that the government appeal within 7 calendar days and seeking an expedited appeal.

Judge Vinson recognized that his original position would have put some plaintiff-states in an unusual position.  For example, the State of Michigan, as a plaintiff in the case, would have been subject to his original ruling, and the federal government would have been prevented from implementing the Act there.  But another federal district court in Michigan ruled the Act constitutional.  In other plaintiff-states, state attorneys general disagreed with state governors.  Yet other plaintiff-states declined to stop implementation pending appeal.

SDS

Libby Adler's Rights Critique, Law Reform, and Responses

Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform." 

 
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that

 

rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective

Twelve invited commentators respond to Libby Adler's advocation of  “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona. 

Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."  

This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.

A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.

RR

Court Rules First Amendment Protects Funeral Protesters

The Supreme Court ruled today in Snyder v. Phelps that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion.  Chief Justice Roberts wrote for the eight-member majority; Justice Breyer wrote a concurrence; Justice Alito wrote the lone dissent.  We posted on the oral argument here, with a link to background on the case.

The case involved state tort judgments in favor of Snyder's father against Phelps after Phelps and members of his church appeared at Snyder's Catholic Church funeral with signs reading, "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell," among other similar messages.  The District Court reduced the damage awards, but the Fourth Circuit ruled that they violated the First Amendment Speech Clause.  The Supreme Court affirmed.

Chief Justice Roberts wrote for the eight-member majority that Phelps's speech was on matters of public import--"the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy," op. at 8--and was therefore entitled to special protection under the First Amendment.  Op. at 6.  The context--i.e., the funeral--didn't change this, because here Phelps's signs were on public land next to a public street (and not in a private or non-public forum).  And the fact that Phelps's speech included both personal attacks (i.e., speech on matters of private concern, subject to lesser First Amendment protection) and speech on public matters did not transform Phelps's public-oriented speech into a contrived shield to protect his otherwise unprotected personal attacks: Phelps had long been picketing with similar signs long before Snyder's funeral, and there was no indication that Phelps was using his statements on public matters to shield his personal attacks.

The Court also held that Phelps's speech was protected against Snyder's intrusion upon seclusion damage award.  The Court ruled that Snyder was not a captive audience, and Phelps and his fellow protesters stayed away from the service.  "Snyder could see no more than the tops of the signs when driving to the funeral.  And there is no indication that the picketing in any way interfered with the funeral service itself."  Op. at 14.

Chief Justice Roberts emphasized the narrowness of the ruling based on the facts and suggested that states could enact and enforce reasonable content-neutral time, place, and manner restrictions on speech at funerals.  (He noted that 43 states and the federal government do just that.)  Justice Breyer underscored the narrowness point in concurrence, with this illustration:

Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.  The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected.

Breyer Concurrence, at 1.

Justice Alito in dissent emphasized the private nature of Phelps's attacks on Snyder and argued that Phelps's other, public-oriented statements couldn't shield those private attacks from state tort damage awards based upon the private attacks.

SDS

 

Does the Obama DOJ's Position on DOMA Create a Constitutional Crisis? Redux

The DOJ's decision not to defend the constitutionality of DOMA, but to continue to enforce DOMA, is being illustrated in a few examples, such as that of Karen Golinski, the lawyer who works for the Ninth Circuit Court of Appeals as the ABA Journal noted.  An excellent overview by Aziz Huq over at Slate compares Golinski's situation to that of a few others who the DOJ decision might assist.

As for the unprecendented "constitutional crisis" character of the DOJ's decision not to defend the law, Nina Totenberg at NPR offers some historical perspective:

While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

• During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals.
• The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court.
• The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote.
• It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court.
• The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive.
• The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana.
• And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.

 

Listen to broadcast here: 20110301_me_17

 

RR

Right to Counsel in India

The Supreme Court of India ruled last week in Ali v. State of Assam that a criminal defendant has a right to counsel under Article 21 of the Constitution of India.

 

Article 21, Protection of life and personal liberty, provides:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution."  But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.

The Court even drew on its own brand of originalism:

The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal).  Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases.  It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.

The Court extended the right to appeals, even though the case involved only the right to counsel at trial.  In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals.  Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first.  As Anthony Lewis wrote in Gideon's Trumpet:

A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals.  To any informed listener it was obvious that the same rule must apply at trials . . . .  Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."

But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection.  Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:

In either case, the evil is the same: discrimination against the indigent.  For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."

SDS