Constitutional Law Prof Blog

NYC MTA Amends Advertising Standards

As we discussed earlier this week, the controversial "paid political advertisements" that began appearing at NYC subway stations Monday soon sparked controversy.  Recall that the MTA originally rejected the advertisements because they demeaned an individual or group of individuals on account of race or ethnicity, but lost in federal court when challenged by the advertisements' sponsor.

In an emergency meeting yesterday, the MTA promulgated new guidelines, as the NYT reports.

The new guidelines (h/t Gothamist) expand on the previous limitation of advertisements that would be "adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees" to include an "incitement" provision.  The new amended guideline, subsection (a) x, provides the advertisement will be excluded if:

The advertisement, or any information contained in it, is directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees or contains material the display of which the MTA reasonably foresees would incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.

The federal judge's July opinion and order had invited the MTA to consider a "standard of civility" and expressed the latitude of the MTA "to investigate and experiment with alternative mechanisms for using ad space"  "productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division."   Instead - - - and probably wisely - - - the MTA adopted the more established incitement standard for evaluating restrictions on speech.

Additionally, the MTA added a disclaimer requirement.  The new section (b) ii, provides:

An advertisement that primarily or predominately expresses or advocates a viewpoint on a political, moral, or religious issue or related matter shall include, the following statement: “This is a paid advertisement sponsored by []. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

Mandated disclosures are also an established First Amendment strategy.  However, the standards' singling out of "viewpoints on a political, moral, or religious issue or related matter" might cause some constitutional consternation.  On the other hand, the MTA has a valid argument that such advertisements are distinct: It would be the rare subway rider who would believe that the MTA endorses "Dr. Zizmor" - - - a ubiquitous NYC subway advertisement - - - but one could mistake a noncommercial advertisement as being one of the many "public service" advertisements.

Of course, the MTA could ban all advertisements, closing the limited public forum. As it reportedly stated: "the MTA does not believe the First Amendment compels the MTA to open up its ad spaces in this way to a wide range of expressive communications."

RR
[image at 23rd Street Station via]

Daily Read: Segall on O'Connor in Grutter

As the October 10 oral argument in Fisher v. University of Texas approaches, Grutter v. Bollinger (2003) is  center stage.  Consider this critique:

Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case?  A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power.  In fact, it is not “judicial” at all.

It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012). 

It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.

Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher.  His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria. 

Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.

RR

District Court Dismisses Challenge to Ban on Lobbyist on ITACs

Judge Amy Berman Jackson (D.D.C.) ruled in Autor v. Blank that the federal ban on registered lobbyists serving on Industry Trade Advisory Committees did not violate the First and Fifth Amendments.  The ruling dismisses the lobbyists' case and lets the ban stand.

Federal law bans federally registered lobbyists from serving on ITACs--commissions that provide advice on trade policy to the President through the USTR and the Secretary of Commerce.  A group of federally registered lobbyists claimed that the ban violated their First and Fifth Amendment rights--in particular, that the bar forced them to forgo their First Amendment protected activity (lobbying) in order to receive a government benefit (membership on an ITAC).

The plaintiffs pitched their case this way--as an unconstitutional condition--because, as Judge Jackson ruled, Minn. State Bd. for Cmty. Colls v. Knight blocked their more direct claim.  In Knight, the Court ruled that the Constitution doesn't grant members of the public any particular right to be heard by public bodies making policy decisions.  Knight thus prohibited the plaintiffs from successfully arguing that the ban violated their right to petition the government through membership on an ITAC.  The plaintiffs tried to navigate Knight by arguing that the ban was an unconstitutional condition--an invalid requirement that they relinquish a constitutional right in order to receive a government benefit.

Judge Jackson rejected this claim.  She wrote the complaint did not sufficiently allege that service on an ITAC was a valuable government benefit, and the plaintiffs failed to show that service amounted to anything more than an opportunity to "fatten [their own] rolodex[es]" (and thus their paychecks).  Moreover, Judge Jackson held that the plaintiffs failed to allege that they were denied ITAC membership because of their lobbying activity.  She said that the ban didn't impose a penalty; instead, it simply prohibited the plaintiffs from receiving a benefit.  ("[T]he government is not required to help plaintiffs 'realize all the advantages' of their lobbying activity.'")  And she noted that the plaintiffs themselves seemed to concede that one's lobbying activities could even increase while serving on an ITAC, so long as one isn't a federally registered lobbyist (by, e.g., restructing one's lobbying activities to stay under the LDA's radar). 

Judge Jackson also rejected the plaintiffs' claim that ban treated those who exercised the right to petition the government differently from those who didn't.  She said that the ban allows service on an ITAC and simultaneous petitioning of the government--just not by a federally registered lobbyist.  She said that this distinction--between federally registered lobbyists and everybody else--was rationally related to the government's interest in reducing special interests in government.

SDS

Princeton Law & Public Affairs Fellowships

From the Princeton Law & Public Affairs Program:

The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty members, independent scholars, lawyers, and judges to apply for visiting, residential appointments for the academic year 2013–2014. Each year, through its fellows program, LAPA brings to Princeton world-class experts on the law. Successful candidates will devote an academic year in residence at Princeton engaging in their own research and in the intellectual life of the campus. 

deadline:  November 5, 2012

more information:  here

RR

University of California Settles UC Davis "Pepper Spray" Lawsuit

Arising from the now infamous video (below) of a UC-Davis officer seeming to casually pepper spray students as they sat on campus during a protest, the University of California has wisely settled a lawsuit alleging constitutional violations filed by the ACLU.  The UC Davis suit is one of a number of complaints challenging police practices during Occupy and Occupy-type actions last year.

 

 

As reported by the LA Times, the approved settlement includes:

$30,000 to each of the 21 students and alumni who were pepper-sprayed;

$250,000 attorneys' fees;

set aside of $100,000 to pay up to $20,000 to any other individuals who were pepper-sprayed;

written formal apology by UC Davis Chancellor Linda Katehi to each of the students and alumni who were pepper-sprayed or arrested.

The ACLU Northern California reports additional terms, including compensation to ACLU of $20,000 for work with the university to develop "new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again" and to "protect free speech and free expression on campus."  Additionally, the University promised to "assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment."

Of course, the video was an important aspect of the case and settlement, even as controversies about constitutional rights to record police officers continues (our latest post is here). 

 

ConLawProf Cruz Reynoso

Additionally, the 190 page report of a Task Force appointed by the university was strongly condemnatory of the incident. The Task Force was chaired by ConLawProf Emeritus Cruz Reynoso (pictured above) and included  ConLawProf Alan Brownstein, who was nominated by the Academic Senate, and Law Student William McKenna, who nominated by the Law Students Association), , service on such a Task Force was a time-consuming endeavor and one that too often goes under-appreciated, so kudos to Brownstein and McKenna.

The University's actions in creating a Task Force also merits recognition, although one wonders whether such a Task Force would have been created absent the video and the attention it generated.

RR

Daily Read: Constitutionalism and Literature

The marvelous and brilliant South African writer Antjie Krog (pictured right) asks some important questions

This makes me wonder: which books are on the bedside tables of our ministers? How many book shelves had been built into the newly renovated presidential and ministerial houses? How many reading circles are in the parliamentary complexes? What novels are the captains of industry reading there in business class? What poetry volumes are in the judges' smart cases? What literary texts are to be found in doctors' waiting rooms, or on teachers' or parents' tables?

****

Why should a country read its writers?

Antjie Krog provides some answers in her speech at the Edinburgh International Book Festival, as published in The Guardian.

RR

District Court Declines to Enjoin Florida Early Voting Change

Judge Timothy J. Corrigan (M.D. Fla.) ruled in Brown v. Detzner that the plaintiffs failed to show that they were substantially likely to succeed on their statutory and constitutional claims challenging Florida's 2011 changes to its early voting law.  Judge Corrigan thus rejected the plaintiffs' motion for a preliminary injunction.

The ruling means that Florida's 2011 changes to its early voting law--and the counties' rules and regulations as to early voting days and times--will almost certainly stay in place for the upcoming election.  But if Judge Corrigan is right, the changes will have little effect on access to the ballot.

(One issue that Judge Corrigan didn't touch: the plaintiff's argument that the disparate voting days and times in the various counties violated the Equal Protection Clause.  Judge Corrigan wrote that the plaintiffs failed to plead this claim.) 

The case arose in response to Florida's 2011 changes to its early voting laws.  Florida reduced the number of early voting days, but gave local elections supervisors the discretion to allow voting on certain other days and to offer up to 12 hours of voting each day.  On net, the 2011 changes didn't necessarily mean fewer total voting hours--and several counties intend to offer the same number of hours as they did under the old law, 96 hours in all--but it does mean fewer total days.  (There's a nice chart in the last six pages of the linked file that gives each county's voting days and times and total available voting hours.)

Here's the old law:

Early voting shall begin on the 15th day before an election and end on the 2nd day before an election. . . .  Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods.  Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.

And here's the new one:

Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.

The plaintiffs, including Congresswoman Corrine Brown, the SCLC Jacksonville Chapter, and the Duval County Democratic Executive Committee, challenged the new law, arguing that it violated Section 2 of the Voting Rights Act and the Equal Protection Clause by burdening the rights of African Americans to vote.  (Because five Florida counties are covered jurisdictions under the VRA, those counties had to seek preclearance under Section 5 before implementing the change.  The Section 5 court originally declined to preclear, but said that "Florida would likely satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive" (and thus satisfy the Section 5 preclearance standard) if the covered counties opened their polls for the maximum allowable time--thus ensuring that the total available voting hours under the new law would equal the total available hours under the old one.  That's exactly what they did.)

Judge Corrigan ruled that the plaintiffs failed to show a substantial likelihood of success on either the VRA or the Equal Protection claim.  In particular, he ruled that the plaintiffs couldn't show that Florida enacted the change with discriminatory purpose.  Looking to the Arlington Heights factors, he said that the change will have a disproportionate effect on minority voters (although this effect will be mitigated if counties implement the full 96-hour voting plan allowable under the new law); nothing in the historical background of the change suggests a racial intent; irregularities in the process of enacting the new law were insufficient to suggest a racial intent; and the legislative history didn't suggest a racial intent (although some statements from the history suggested otherwise). 

SDS

"More Speech" or Vandalism? First Amendment and Political Advertising

The controversial political advertisements started appearing Monday on New York City subways after the MTA (Metropolitan Transportation Authority) was ordered to accept the advertisements. 

The MTA had originally rejected the adverts by the American Freedom Defense Initiative, an organization devoted to combating the "Islamization of America."  The MTA found the advert did not meet one of its standards: "“contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation." 

In its 35 page opinion in July, District Judge Engelmayer found that the bus advertisements were a designated public forum. The judge then found that the MTA's "demeaning" standard did not survive the Supreme Court's analysis in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), especially given the advert's content as core political speech.  Thus, the Judge granted the motion for a preliminary injunction enjoining the enforcement of MTA's no-demeaning standard.

The adverts were quickly altered by "vandals," as pictured right, and as a NY1 report explains.

However, there were also more public - - - and arguably less artful - - - attempts to alter the adverts, as in the video below in which a person uses pink spray paint and is intercepted by a photographer, all of which is recorded:

 

 

 

These incidents reflect back to the closing section of Judge Engelmayer's opinion: "Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary" to a "standard of civility." He believed the ruling "instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space"   "productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division."  

These incidents also call into play other standards of advertising in the MTA policy mentioned in the opinion, prohibiting adverts that "the public would find to be offensive or improper" and "are adverse to MTA’s commercial or administrative interests, or its employees’ morale."

For those teaching First Amendment, this would make a great problem or in-class discussion.

RR

UPDATE HERE

 

Daily Read: Are You a Textualist? Take the Quiz

Here's one of the 12 questions in a  "quiz" on textualism.  It appears in the ABA Journal, by Bryan Garner as an "outtake" omitted from the controversial book co-authored with Justice Antonin Scalia, Reading Law.

A state constitution declares that superior court judges are to be elected by both branches of the legislature. The legislature enacts a statute allowing the governor to appoint a superior court judge to fill a vacancy. Is the statute constitutional?

Garner instructs:

As you try answering each question, identify not just the outcome but also the canons of construction that must be considered. Our answers are normative rather than descriptive. They are the answers of a textualist. Purposivists, consequentialists and hence some courts would reach different (and variable) results.

Apparently other types of constitutional interpretation, including evolutive, critical, or "living constitution" theories are beyond the ken.  But in role as textualists, this question is one of the easier ones:

Answer: No, the statute is unconstitutional. The constitution specifies how superior court judges are to take office—not including gubernatorial appointment. The governing rule is the negative-implication canon. See § 10 [of Reading Law].

Most of the questions stress statutory construction, but as in the book, there is a conflation of constitutional and statutory interpretation.  Garner promises an additional set of questions and answers will be forthcoming in the ABA Journal.

RR
[image circa 1901 via]

Maryland High Court Allows State Dream Act To Go To Referendum

The Maryland Court of Appeals ruled in Doe v. Maryland State Board of Elections that a ballot referendum challenging the Maryland Dream Act, a law that offers in-state tuition to Maryland colleges and universities to certain qualifying unauthorized aliens, can stay on the ballot in the upcoming elections.

The decision gives reasons for the court's earlier per curiam order also allowing the referendum on the ballot. The rulings mean that the Maryland Dream Act, a validly enacted state law, will go before Maryland voters in the upcoming election. (Here's a sample ballot. The referendum is Question 4, on page 2.)

At issue was the state constitutional appropriations exception to the referendum clause. The referendum clause says,

The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.

Md. Const. art. XVI, Sec. 1(a). But the appropriations exception prohibits a referendum on certain appropriations questions:

No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.

Md. Const. art. XVI, Sec. 2.  The appropriations exception is designed to insulate essential functions of the state, funded by "appropriations for maintaining the State Government," from the whims of voters.

The state Board of Elections approved a referendum challenging the Dream Act for the fall 2012 elections, and petitioners, unnamed and unauthorized aliens who sought in-state tuition under the Act, challenged it as violating the appropriations exception.

The court said that the Dream Act does, indeed, require additional appropriations, but that those appropriations were not the kinds of outlays that the appropriations exception had in mind. The Dream Act was neither a budget bill nor an appropriations bill; it's not a revenue-raising measure; and its primary purpose was to provide a benefit, not to spend money. (Spending money is only incidental.)

The court also rejected the claim that the Dream Act was in pari materia with the state Cade Funding Formula, a formula that ensures stable year-to-year funding of state colleges and universities and itself "mak[es] any appropriation . . . for maintaining or aiding any public institution," and thus shoehorned into the appropriations exception by way of Cade.  The court said that the Dream Act and Cade (and any future budget bills) operate independently, so that Cade doesn't leverage the Dream Act into the appropriations exception. 

The Dream Act now goes to Maryland voters.

SDS

Supreme Court Validates Constitutionality of West Virginia's Redistricting Plan

In a per curium reversal of a three judge court, the United States Supreme Court today issued its brief opinion in Tennant v. Jefferson County Commission. 

The issue was not whether West Virginia itself was unconstitutional - - - as some have entertained - - - but whether the latest redistricting plan of its state legislature was constitutional.  The constitutional argument centered on the “one person, one vote” principle the Court has held to be "embodied" in Article I, §2, of the United States Constitution.  

Reversing, the Court held that the three judge court misapplied the standard of Karcher v. Daggett, 462 U. S. 725 (1983), requiring first, that the parties challenging the plan bear the burden of proving the existence of population differences that “could practicably be avoided," and then if so, the burden shifts to the State to “show with some specificity” that the population differences “were necessary to achieve some legitimate state objective.”

There was no dispute that the new plan had a population variance of 0.79%, the second highest variance of the plans the legislature considered.  Instead, there was disagreement over whether this was necessary to achieve some legitimate state objective. The state had several other objectives, including not splitting county lines, redistricting incumbents into the same district, or requiring dramatic shifts in the population of the current districts.  

As to county lines, the Court noted:

With respect to the objective of not splitting counties, the [Three Judge] District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts. The court speculated, however, that the practice of other States dividing counties between districts “may portend the eventual deletion” of respecting such boundaries as a potentially legitimate justification for population variances.

[emphasis in original].  As those who have ever resided in West Virginia know, counties are quite important as demographic markers in the state.  The Court thus seems to nod to the state's individual circumstances, as well as also acknowledging its relatively small population. 

A good source for all the background of the redistricting of West Virginia is available on LawProf Justin Levin's  "All about Redistricting" website.

RR
[image: West Virginia counties map via]

Daily Read: We've Been Framed? JP Stevens on Levinson

Writing in the New York Review of Books, for which he has become a not infrequent reviewer, former Justice John Paul Stevens has this to say about ConLawProf Sanford Levinson's new book, Framed: America's 51 Constitutions and the Crisis of Governance:

Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.

Stevens has his share of disagreements with the book, but his conclusion is a "must read" endorsement:

Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.

RR
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]

Daily Read: Romneys' Tax Return 2011

The tax return of Willard (Mitt) Romney, and his wife, Ann Romney, was released late Friday.

Here is the 379 page 1040 form with attachments. 

It could certainly be the basis of an income tax final examination, but it could be used to raise constitutional law issues as well. 

RR

Third Circuit Rejects Broad Side Challenge to Congressional Reapportionment Process

Here's one we don't see everyday:

Citizen Eugene Martin Lavergne sued a who's-who of federal officers, arguing that the federal law saying how to reapportion congressional representatives in the wake of the census violated "Article the First," or the Congressional Apportionment Amendment, among other actual constitutional claims.

Not surprisingly, the Third Circuit rejected the claims.

Recall that Article the First was the first of twelve proposed amendments coming out of the First Congress and submitted to state legislatures for ratification.  Article the First never got enough states on board, though, even as Articles the Third through Twelfth became the Bill of Rights.  (Article the Second became the Twenty-Seventh Amendment, ratified 203 years after its introduction, on May 7, 1992.)  Article the First says,

After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Was Article the First actually ratified?  Here's Lavergne's math, from paragraph 59 of his complaint:

Article V of the United States Constitution is silent on the issue of fractional numbers and how they affect--or do not affect--the "three-fourths" language regarding ratification of proposed amendments by the States.  [It] is also silent on the issue of whether the "three-fourths" of the States referred to in Article V refers to the 3/4 of the States admitted at the time that the amendment was originally proposed, or whether that number changes as additional States are admitted to the Union before a given ratification process is concluded.  Even if the Law is that the 3/4 requirement changes and increases whenever a State joins the Union, when Kentucky became the 15th State and ratified "Article the First", the "pure numerical ratio" of "three-fourths" was 11.25 States, and Kentucky was the 11th State to ratify.  If fractional numbers are disregarded, or fractional numbers less than .49 are "rounded down" to the last whole number, then "Article the First" actually was ratified in 1792.  If any fractional number requires advancing to the next whole number, then "Article the First" was not ratified.  . . .  This Court is now being asked to answer these questions.

Weighty stuff, but the Third Circuit didn't bite: "Putting aside the considerable factual and historical problems with [Lavergne's] argument, '[t]he issue of whether a constitutional amendment has been properly ratified is a political question.'"  Op. at 5-6 (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990).)  

The Third Circuit also rejected Lavergne's handful of other, actual constitutional arguments (separation-of-powers and nondelegation doctrine claims based on the process of reapportionment, and a one-person-one-vote claim), ruling as a threshold matter that he lacked standing, and then rejecting the claims on their merits.

SDS

What is Originalism Again? Scalia and Posner Debate the Meaning of "Legislative" History

The very public disagreements between Antonin Scalia and Richard Posner are of interest to ConLaw because of their relevance to originalism as a constitutional theoretical perspective.

Recall that the book Reading Law: The Interpretation of Legal Texts, co-authored by Antonin Scalia and Bryan Garner, is largely devoted to the question of statutory interpretation, although there are constitutional references peppered throughout, including a passage directed at "living constitutionalism." 

A review of the book in The New Republic by well-known Seventh Circuit Judge Richard Posner (pictured) was overwhelmingly negative and included this passage:

Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

Posner later adapted the argument even more bluntly: 

Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.

The discussion escalated, with Justice Scalia stating in an interview, ""To say that I used legislative history is simply, to put it bluntly, a lie."

Posner responded yesterday:

I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment. He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.

Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598–599, 603–605. 

So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.

One might ask whether or not the Constitution has a legislative history? 

Yet that question may be less interesting than what is at stake in this dispute, if anything.  ConLawProf Eric Segall, arguing for the dispute's relevance, correctly points out:

In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so.

For the cynical, this leaves interpretative strategies and theoretical perspectives simply strategies to achieve desired outcomes.  And perhaps that is the relevance of the dispute over legislative history.

RR

 

Daily Read: Reconsidering State Action and Reconstruction

Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

Supreme Court Rejects Effort to Block Texas's Interim Districting Maps

In perhaps the final chapter of the long-running saga involving Texas's congressional and state legislative districting maps, the Supreme Court yesterday denied a motion to stay the maps drawn by the Texas court after remand from the Supreme Court earlier this year in Perry v. Perez.

Here's our last post for background.  Here's a thumbnail version (with links to many of our earlier posts):

• The Texas legislature redrew its congressional and state legislative districting maps in response to the 2010 census and to ensure that districts respected the one-person-one-vote principle.
• Texas, a "covered jurisdiction," filed for preclearance under Section 5 of the Voting Rights Act, but dragged its feet through the preclearance process.  Call this the D.C. Court proceeding.
• Plaintiffs sued Texas for violating Section 2 of the VRA in federal court in Texas.  Call this the Texas Court proceeding.
• The Texas Court found a violation and redrew the maps.  Texas appealed.  The U.S. Supreme Court vacated the Texas Court's ruling and sent the Texas Court back to the drawing board.
• The Texas Court issued new maps earlier this year--new maps that were based on the original legislature's maps, with some changes.  Texas used these maps for its primaries earlier this year.  No party to the litigation challenged its use of these maps.
• The D.C. Court denied preclearance to the legislature's maps.  This left the most recent Texas Court maps as the only ones available.  (Recall that the Supreme Court rejected the first Texas Court maps.)
• Texas is planning its fall elections around the most recent Texas Court maps.

The League of United Latin American Citizens asked Justice Scalia for an emergency stay.  The Court yesterday rejected that request, without comment or dissent.

The ruling puts an end to the litigation and leaves the most recent Texas Court maps in place for the fall elections.

SDS

Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:

 

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

 

The full post is here.

RR
[image via]

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.

RR

 

Justice Thomas and Professor Amar at the National Archives

Here's the video of the discussion between Justice Clarence Thomas and Professor Akhil Amar (Yale) last week at the National Archives.  It's well worth a look.  The Constitutional Accountability Center co-sponsored the event; here's Simon Lazarus's review at the CAC Text & History Blog.

 

SDS