Constitutional Law Prof Blog

Wisconsin High Court Strikes Isolation Order, Justices Debate Separation of Powers

Steven D. Schwinn, UIC John Marshall Law School

A sharply divided Wisconsin Supreme Court struck the isolation order issued by the state Department of Health Services Secretary-Designee, effective immediately. The 4-3 ruling said that the order didn't go through administrative rule-making process and exceeded DHS's statutory authority.

The ruling says nothing about Governor Evers's emergency order. And nothing in the ruling restricts the state DHS from going back to the drawing board to tailor an administrative rule or order to the court's ruling.

The majority opinion focuses almost exclusively on administrative law and statutory authority.

But don't stop there: the lengthy concurring and dissenting opinions, and their back-and-forth on the separation of powers, are well worth a look--if only for the dramatically different ways that the Justices apply these principles.

Check it Out: Robson on Positive Rights in a Pandemic

Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.

Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)

Read it!

Daily Read: Crenshaw & MacKinnon Propose a New Equality Amendment

In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal

centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.

The article elaborates on the rationales for each section. The entire proposed amendment reads:

The Equality Amendment

Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and

Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and

Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;

Therefore be it enacted that—

Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.

Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.

Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.

Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.

This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.

 

pictured: Professors Crenshaw (left) & MacKinnon (right)

 

U.K. Supreme Court Unanimously Rules Suspension on Parliament Unlawful

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion and judgment in R. (on behalf of Miller)  v. The Prime Minister and Cherry and others  v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful."  The Court's eleven Justices unanimously held it was not.

The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:

1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve  justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."

Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:

that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."

The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).  

There is also a four page judgment summary. 

Additionally, the UK Supreme Court has made available the fifteen minute video of President of the Supreme Court, Lady Brenda Hale, delivering the summary of judgment. It's definitely worth a watch!

Sixth Circuit OKs Voting on Tennessee State Constitutional Abortion Amendment

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).

The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.

Article XI, Section 3, provides:

if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.

The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.

Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.

Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)

The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."

The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.

Daily Read: Judicial "Supremacy" and Comparative Constitutional Law

Professor Ruthann Robson, City University of New York (CUNY) School of Law

While our recent attention has been focused on the character and the lack of  gender diversity of those who occupy judicial positions, the question of the role of the judiciary in a constitutional democracy is broader.  In an article entitled Judicial Review and Sexual Freedom published over a decade ago, I discussed the common conceptions that judicial review was the United States' most renowned legal export while exploring the ways in which it remained contested in the area of basic sexual equality. In his forthcoming article in Tulane Law Review, Judicial Supremacy in Comparative Constitutional Law, Manoj Mate "challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally." 

Mate seeks to reorient the discussion from "interpretative supremacy" ("the degree to which constitutional courts serve as the exclusive and final interpreter of the Constitution, or decisional supremacy") to "institutional supremacy" (the role of courts  in judicial review of constitutional amendments, entrenching constitutional norms and principles, and even structuring government and litigation).

Mate takes as his central example the Supreme Court of India - - - which has one woman out of its 25 judges  - - - and  discusses in detail the cases and circumstances which lead to the present situation in which "India remains the only constitutional system in the world in which the Chief Justice of India (and the collegium of justices) enjoy primacy in judicial appointments."  The Supreme Court of India has also played a determining role in curbing government corruption and managing public interest litigation. 

Mate interestingly argues that the "supremacy of the Indian Supreme Court is not purely a product of the assertion of political power by political regimes who construct judicial review to advance political or partisan agendas and goals," but instead has operated in the particular conditions of India as a powerful force "for protecting constitutionalism and optimizing governance." In short, judicial review has not operated as anti-democratic but as staunchly democratic.

Mate concludes that India's "more pragmatic model of judicial supremacy" can be a model "for newer constitutional democracies across the globe." But Mate's article opens with a statement from Presidential advisor Stephen Miller in reference to judicial decisions regarding the constitutionality of the presidential travel ban as examples of judges taking "power for themselves that belongs squarely in the hands of the president of the United States."  When criticism of the judicial role is heightened, it does seem fitting that judges must act pragmatically to protect democracy.

 

[Supreme Court of India building via]

Call for Papers for Younger Scholars Forum in Comparative Law

The International Academy of Comparative Law invites younger scholars (no more than ten years of tenure-track faculty experience) to participate in the first-ever Younger Scholars Forum in Comparative Law, on Wednesday, July 25, 2018, in Fukuoka, Japan.

Submit an abstract between 150 and 500 words to the appropriate moderator of one of eight workshops or the Director of the Speakers' Corner by September 15, 2017.

The program includes workshops on the Separation of Powers and its Challenges in Comparative Perspectives; Populism and Comparative Approaches to Democratic Theory; Comparative Public and Private Law Responses to Religious Diversity; Methodological Approaches to Comparative Constitutional Law; and more.

Check out the detailed call for papers for more information and contacts.

Turkey's Constitutional Referendum

The NYT reports that with 99 percent of the votes in, Turkey's constitutional referendum passed 51.3 percent to 48.7 percent.

The referendum shifts Turkey from a parliamentary system to an independent presidential one, among making other changes. On net, the changes shift power to the president (especially in the areas of executive power and judicial appointments), but also build in some checks.

Brookings has a nice summary here; the Center for American Progress has a good summary here.

Call for Papers: Symposium on the Constitution of Canada

Scuola Sant' Anna and the STALS (Sant' Anna Legal Studies) Project are hosting a symposium on The Constitution of Canada: History, Evolution, Influence and Reform in Pisa, Italy, on May 24, 2017. Hosts are calling for papers:

Submissions are invited from scholars at all levels--from senior scholars to doctoral students--on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

1.    The History and Evolution of the Constitution of Canada

2.    The Influence Abroad of the Constitution of Canada

3.    Canada's "Invisible" Constitution

4.    Reforming Canada's Constitution: Perspectives from Abroad

500-word abstracts are due by December 15, 2016, to [email protected]. The full call is here.

You can direct questions to Giuseppe Martinico, at [email protected].

CFP: Feminist Legal Theory at Law and Society in Mexico City

The Feminist Legal Theory Collaborative Research Network of Law & Society is a great group and Law & Society is always terrific.  Here's the call:

 

Call for Papers – Friday September 16^th Deadline

The Feminist Legal Theory Collaborative Research Network

Seeks submissions for the

Law and Society Association Annual Meeting

Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017

Dear friends and colleagues,

We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.

This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.

As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.

The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.

The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.

If you would like to present a paper as part of a CRN panel, please email:

• An 1000 word abstract or summary,
• Your name and a title, and
• A list of your areas of interest and expertise within feminist legal theory

to the CRN Planning Committee at [email protected]. (Please do not send submissions to individual committee members.)

Note that LSA is imposing a requirement that your summary be at least 1,000 words long. Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.

Best,

2017 LSA Feminist Legal Theory CRN Planning Committee

Aziza Ahmed & Elizabeth MacDowell (co-chairs)

 

South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense. 

Zuma's Nkandla Residence via

Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.

The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government. 

The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power

a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;

b. to report on that conduct; and

c. to take appropriate remedial action.

Thuli Madonsela, Public Protector of South Africa, via

In this case, the Public Protector, Thuli Madonsela (pictured left) investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements  and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly. 

The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability."  Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement.  Thus, the decision in the case is not surprising.

Nevertheless, the Constitutional Court's decision is an important one.  It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding."  Additionally, it finds that both the President and the National Assembly acted unconstitutionally:

The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.

The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.

Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.

Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.

 

 

How to Write a Constitution to Prevent Violence

Nic Cheeseman and Alexander Noyes give tips in the Washington Post on writing a constitution to prevent violence and promote peace in Africa. (An upcoming Tanzanian vote provides the backdrop.)

Cheeseman (Oxford) is the author of Democracy in Africa: Successes, Failures, and the Struggle for Political Reform.

Their lessons, largely drawn from Cheeseman's book:

-Constitutional design is important, but very different kinds of constitutions can work.

-Political inclusion can bring great benefits, to a point.

-Power-sharing carries large risks, if not done right.

-But failing to share power also comes with risks.

-There's no one-size-fits-all model for every country.

Connecticut Supremes Strike Extra-Judicial Regulation of Attorneys in Debt-Relief Business

Steven D. Schwinn, John Marshall Law School

The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)

The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.

The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."

A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.

The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")

The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."

Missouri Court Upholds Ban on Felon Gun Possession

Steven D. Schwinn, John Marshall Law School

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

Daily Reads: On the 800th Anniversary of Magna Carta

According to the usual history, "On June 15, 1215, in a field at Runnymede, King John affixed his seal to Magna Carta. Confronted by 40 rebellious barons, he consented to their demands in order to avert civil war."  The civil war was not successfully averted, but the document has come to symbolize principles of liberties and rights, including as a precursor to the United States Constitution. 

Important daily reads to celebrate the anniversary include:

    The document itself, with its specific items regarding freemen, property, writs, and the memorable "No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband."

    A good overview is from the BBC magazine, which points outs that most of its provisions applied only to ""Free men" who in 1215 accounted for less than half the population; the rest were serfs, to whom the charter did not apply, as well as women and children.

    ConLawProf Tom Ginsburg's Op-Ed in the New York Times entitled "Stop Revering Magna Carta," in which he argues that the Magna Carta's current status rests on a series of misunderstandings.

    The current celebrations and controversies in "England" including not only commemoration by Queen Elizabeth, but statements by Prime Minister Cameron that Great Britain must "restore" its dedication to "human rights" as evinced in Magna Carta by secession from the European Court of Human Rights and Human Rights Act.

 

Governor Looks to Constitutional Amendment to Undo Court Ruling on Pensions

Steven D. Schwinn, John Marshall Law School

Illinois Governor Bruce Rauner is looking to amend the state constitution to give the state more flexibility in cutting state worker pensions, according to the Herald & Review. Rauner's idea came in reaction to the state supreme court ruling last week holding that state efforts to cut state pensions violated the state constitutional Pension Protection Clause.

Still, an amendment is unlikely to occur, at least anytime soon. The Illinois Constitution requires a 3/5 vote of state lawmakers in both houses. But the Democratic-controlled state legislature is unlikely to approve any pension amendment at all, much less by this kind of super-majority. Even if the state legislature approved a measure, it'd need to be approved by 3/5 of the voters voting on the measure, or a majority voting in the election.

This is just the latest effort of Governor Rauner to re-make constitutions. Recall that he earlier issued an executive order cutting public-sector union fair-share fees, and filed a preemptive suit against the unions seeking to get mandatory public sector fair share fees declared unconstitutional. This bold move anticipates that the Supreme Court is ready to overturn Abood--a First Amendment mainstay that says that states can require fair share in the interests of preventing free riders and promoting labor peace. Given the Court's recent rulings, Rauner is probably right that Abood is on the chopping block. Still, his very aggressive suit is designed only to hasten Abood's demise.

Illinois Has a Pension Protection Clause, and it Really Means What it Says

Steven D. Schwinn, John Marshall Law School

The Illinois Supreme Court ruled unanimously that the state's efforts to cut public pensions violated the state constitutional Pension Protection Clause.

The case means that the state can't balance its budget on the backs of state workers who are members of a public retirement system. It also means that the state supreme court takes the state constitutional Pension Clause seriously.

The case arose after the state legislature, and former Governor Quinn signed, Senate Bill 1 in late 2013. Senate Bill 1, which became Public Act 98-599, cut state workers' public pension benefits in several ways. State workers sued, arguing, among other things that the cuts violated the state constitutional Pension Protection Clause.

The Pension Protection Clause says that "[m]embership in any pension or retirement system of the State *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." The Clause was added in the 1970 constitution in order to protect state workers from pension cuts in a system that had been (and since has been) chronically underfunded.

The Illinois high court's ruling says that the Clause means what it says. In fact, the court said exactly that: "We held in [Kanerva v. Weems] that the clause means precisely what it says." And this means that "once an individual begins work and becomes a member of a public retirement system, any subsequent changes to the Pension Code that would diminish the benefits conferred by membership in the retirement system cannot be applied to that individual." The court called the question "easily resolved."

The court also rejected the state's argument that its fiscal situation is so dire that it has to dip into public pension funds by using its "reserved sovereign powers." The court said that things might be bad, but they've been bad before, and will be bad again. It's no reason to violate the Pension Protection Clause. The court also said that other provisions of the 1970 constitution contained limitations or suspension provisions; not so the Public Pension Clause.

Canadian Supreme Court Finds Opening Prayer at Town Meeting Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a case with similarities to Town of Greece, NY v. Galloway decided by the United States Supreme Court last year, the Supreme Court of Canada today rendered its judgment in Mouvement laïque québécois v. Saguenay (City) finding that a prayer at a municipal council meeting violated the constitution.

As the Court explains the underlying facts:

S regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.

The original Tribunal found the practice unconstitutional, but the Court of Appeal held that the prayer "expressed universal values" and "could not be identified with any particular religion."  It also reasoned that the "religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality." According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion; any interference with S's beliefs was "trivial or insubstantial."

While some of the issues before the Supreme Court of Canada involved procedural ones regarding the appeal, the Court was clear that the municipality's practice was unconstitutional.  Similar to an analysis under the US Constitution's First Amendment, the Supreme Court of Canada grappled with issues such as hostility to religion and the "slippery slope" of other religious practices:

The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by‑law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re‑enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.

  Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non‑denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.

The Court explicitly linked the state's duty of neutrality - - - akin to the First Amendment's (anti-)Establishment Clause - - - to the maintenance of a free and democratic society. "This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs."  This principle may have special resonance when one considers the largely French (and Catholic) Quebec as compared to the other largely English (and Protestant) other provinces.

Unlike the United States Supreme Court's opinion in Town of Greece, the Supreme Court of Canada's judgment is not closely divided; only one Justice writes separately to discuss some of the procedural issues, but otherwise concurs.  For US ConLawProfs, City of Saguenay is well worth a comparative read.

 

Massachusetts Extends Right to Counsel in Private Guardianship

Steven D. Schwinn, John Marshall Law School

The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.

The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.

By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.

The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.

Japan's Abe Plans to Revise Pacifist Constitution

Steven D. Schwinn, John Marshall Law School

Japanese PM Shinzo Abe has been making noises about revising the country's pacifist constitution--and this time not just in the interpretation. The talk comes in the wake of, and in apparent reaction to, the recent killings of two Japanese hostages by ISIS.

Article 9 of the Japanese Constitution, the pacifist provision, reads:

Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Recall that PM Abe previously interpreted Article 9 to allow collective self-defense. This time, the buzz is that Abe will move to amend the text.

The Japan Times reports here.