Constitutional Law Prof Blog

Footnote of the Day: Plurality Footnote on Habeas for State Prisoners

Article I, section 9, of the United States Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."  However, Congress has often restricted habeas corpus, especially for state prisoners.  In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, (AEDPA), placing a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. In 28 U.S.C. § 2254(d)(1) Congress prohibited a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.''

In Williams v. Taylor, 529 U.S. 362 (2000), the Court considered an ineffective assistance of counsel claim under Strickland v. Washington in the penalty phase of a capital case tried in Virginia.  The trial court granted the state post-conviction relief, the state Supreme Court reversed, and in subsequent federal habeas proceeding, the district judge granted habeas relief and the Fourth Circuit reversed.

With such a history, it is perhaps no surprise that the United States Supreme Court opinions were fractured.  Justice Stevens delivered the Opinion for the Court, except for Part II of his Opinion. 

Justice O'Connor delivered the Opinion of the Court in Part II, except for "the footnote," with which Justice Scalia disagreed.  The cause of the disagreement between Justices Scalia and O'Connor seems a bit anticlimactic:

footnote *

The legislative history of § 2254(d)(1) also supports this interpretation. See, e.g., 142 Cong. Rec. 7799 (1996) (remarks of Sen. Specter) (``[U]nder the bill deference will be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court's decision applying the law to the facts will be upheld''); 141 Cong. Rec. 14666 (1995) (remarks of Sen. Hatch) (``[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an `unreasonable application' of clearly established Federal law to the facts'').

The "interpretation" being supported is "Indeed, we used the almost identical phrase ``application of law'' to describe a state court's application of law to fact in the certiorari question we posed to the parties in Wright [v. West, 505 U.S. 277(1992)]."*

While this may not seem worthy of a disagreement, this is not the first time Justices Scalia and O'Connor could not reach an accord over a footnote.  In the next segment of "footnote of the day,"  April 17, a more substantive disagreement between the Justices.

RR

Footnote of the Day: Taxes and Numbers

Tax day, usually April 15 but this year with a filing extension until Monday, remains a suitable day to appreciate numeracy and try to maintain a sense of humor.  The law review article, The Law of Prime Numbers, 68 NYU Law Review 185 (1993), authored by 19 authors, attempts to do both.

 

Slight on text, the article's footnotes are appreciations of individual prime numbers.  Footnote “l” of the article highlights the prime number “37” with a discussion of a famous tax footnote, a more loosely linked interpretative question, and an even more tangentially related, but exceedingly important, constitutional criminal procedure case:

 37 was the footnote number in Crane v. Commissioner, 331 U.S. 1, 14 (1947), in which the Supreme Court set forth a proposition that would bedevil tax practitioners and scholars for decades. In what has come to be acknowledged as the most famous footnote in tax history, see Boris I. Bittker, Tax Shelters, Nonrecourse Debt and the Crane Case, 33 Tax L.Rev. 277 (1978), the Court suggested that the inclusion in income occurring on the relief of a liability for which the taxpayer had no personal liability should be limited to the fair market value of the property securing the debt, rather than the full amount of the debt. It was not until the Court revisited the issue in 1983, in Commissioner v. Tufts, 461 U.S. 300, 307 (1983), that footnote 37 was repudiated, laying the issue to rest (we think). In the intervening period, however, much effort was consumed in the pursuit of the true meaning of this cryptic footnote. See, e.g., Christian C. Day, Commissioner v. Tufts: The Fall of Footnote 37; The Confirmation of the Functional Relationship, 45 U.Pitt.L.Rev. 803, 804 n. 3 (1984) (“If footnote 37 did not launch a thousand ships, it certainly killed more than its share of trees in its day and still continues to do so.”).

37 dollars was the price per 100 pounds of chicken established in the contract at the heart of Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960). A dispute arose between the buyer (plaintiff) and seller (defendant) as to whether the chickens that were delivered met the specifications of the contract. Judge Friendly faced the difficult hermeneutical issue of just what, exactly, is a “chicken”:

Plaintiff says “chicken” means a young chicken, suitable for broiling and frying. Defendant says “chicken” means any bird of that genus that meets contract specifications on weight and quality, including what it calls “stewing chicken” and plaintiff pejoratively terms “fowl.” Dictionaries give both meanings, as well as some others not relevant here. To support it, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes' remark “that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties' having meant the same thing but on their having said the same thing.” I have concluded that plaintiff has not sustained its burden of persuasion that the contract used “chicken” in the narrower sense.

Id. (citation omitted). Upon learning of the court's decision, the plaintiff undoubtedly clucked “FOWL.”

37 was the age of the detective who arrested Clarence Earl Gideon when he testified at Gideon's retrial. Gideon had secured a retrial by successfully arguing to the U.S. Supreme Court that, as an indigent, he had a constitutional right to representation by counsel. See Anthony Lewis, Gideon's Trumpet 233 (1966). In Gideon v. Wainwright, 372 U.S. 335, 345 (1963), the Warren Court established the right of indigent defendants to the appointment of counsel in both federal and state prosecutions. The Court generously referred to members of the legal profession in this instance as “necessities, not luxuries.” Id. at 344.

 

In need of further tax numbers?  Check out the new "Taxpayer Recepit" program from the White House, an idea that was articulated by Ethan Porter and David Kendall.

 

RR
[image: Arabic numerals via]

Footnote of the Day: Baseball Poem

In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.

Footnote 4:

Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:

I knew a cove who'd never heard of Washington and Lee,

Of Caesar and Napoleon from the ancient jamboree,

But, bli'me, there are queerer things than anything like that,

For here's a cove who never heard of ‘Casey at the Bat’!

‘Ten million never heard of Keats, or Shelley, Burns or Poe;

But they know ‘the air was shattered by the force of Casey's blow’;

They never heard of Shakespeare, nor of Dickens, like as not,

But they know the somber drama from old Mudville's haunted lot.

‘He never heard of Casey! Am I dreaming? Is it true?

Is fame but windblown ashes when the summer day is through?

Does greatness fade so quickly and is grandeur doomed to die

That bloomed in early morning, ere the dusk rides down the sky

‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

Footnote 5:

‘These are the saddest of possible words,

‘Tinker to Evers to Chance.’

Trio of bear cubs, and fleeter than birds,

‘Tinker to Evers to Chance.’

Ruthlessly pricking our gonfalon bubble,

Making a Giant hit into a double-

Words that are weighty with nothing but trouble:

‘Tinker to Evers to Chance.“

Franklin Pierce Adams, Baseball's Sad Lexicon.

The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball.  Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this,"  it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."   

There are footnotes for "hockey" and "golf" but they contain case citations, not poems.

RR

with J. Zak Ritchie

[image: statute of Casey at the Bat, via]

 

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12: 

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.

RR

Footnote of the Day: Separation of Powers and Military Commissions in Hamdan

Writing for the Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Justice Stevens included footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

In his article, Congress, the Commander-In-Chief, and the Separation of Powers After Hamdan,  16 Transnational Law & Contemporary Problems 933 (2007), draft available on ssrn, Professor Stephen Vladeck argues - - - in a footnote - - - that "To say that “[t]he Government does not argue otherwise” is entirely misleading, for the government’s entire theory of the case was that the UCMJ procedures were not exhaustive."  Id. at 959 n. 141.  

Vladeck later expands on the relevance of the footnote in Hamdan and its relationship to the famous concurrence of Justice Robert Jackson (pictured right) in Youngstown:

In the crucial footnote 23, the only part of the majority opinion where Justice Stevens even attempted to recognize the existence of a significant constitutional question in Hamdan, the sole citation is to Justice Jackson’s Youngstown concurrence, and to page 637—where Jackson outlines all of the second category and the beginnings of the third. It is an odd choice, though, given that even in category three cases, where the President’s power was to be at its “lowest ebb,” there remained a residual question about “disabling” Congress, the very question raised by the Commander-in-Chief override.

Indeed, through the lens of Justice Jackson’s Youngstown concurrence, the logic of Hamdan grows only more obfuscated. Was the majority  disavowing any and all claims to inherent executive power in the field of trying enemy combatants by military commission? If so, was it overruling a series of cases upholding such tribunals even where congressional authorization was questionable?  Was it reading the UCMJ as manifesting clear (and valid) congressional intent to oust independent executive regulation? Suffice it to say, if Justice Stevens meant to decide Hamdan on the strength of Justice Jackson’s Youngstown concurrence, he skipped a few steps, for he did not even attempt to undertake the question (to which Jackson had devoted over a dozen pages) of whether the President’s inherent constitutional authority might trump congressional restrictions in such a case.

Id. at 960.

RR

[image: Justice Robert Jackson, circa 1945, via]

Footnote of the Day: Co-Ed Sports and VMI

Should there be co-ed football?  Must there be?

Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule.   In footnote 8, he explained:

In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.

 

 

This would be a great class exercise for law schools at public universities with a large proportion of football devotees.  For baseball afficiandos, there will be a footnote later this week.

RR

Suggested by Professor Jessica Silbey

[Image from the Cleveland Plain Dealer, May 1, 2009 via]

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?

RR

[image: James Madison, 1818, Portrait in the White House Collection, via]

Footnote of the Day: It's the Contract(s) Clause

Article I, section 10 of the Constitution provides that "no state shall" "pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."  That last prohibition is known as the Contracts Clause - - - or is it the Contract Clause?        

Professor Jay Wexler  reveals that federal courts are about five times more likely to use the term "Contract Clause" than "Contracts Clause"  - - - 4800 to 900 cases in the "allfeds" database. 

But as Wexler notes, the Fourth Circuit has devoted a footnote to deciding the issue.  Wexler is exceedingly knowledgeable about judicial footnotes and we've previously discussed his useful taxonomy.  But how would this footnote be classified?   Footnote 2 in the opinion in Crosby v. City of Gastonia, decided March 10, 2011, stated:

The Clause provides, in pertinent part, that "[n]o State shall . . . pass  any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.

(ellipses in orginal).

Wexler notes that Justice O'Connor was sitting by designation on the Fourth Circuit panel, but also expresses his opinion about the relevance of the singular and plural designations for the clause in question. Wexler's post - - - and his new blog "Odd Clauses Watch" is well worth a read.

RR

Footnote of the Day: Star Trek as a Citation for the State's Police Power

If there is one citation that best explains the constitutional "police power" of the state, it might be from well-established precedent, or perhaps even literature, but what about Star Trek? 

Here's the footnote:   

See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: “Don't grieve, Admiral. It is logical. The needs of the many outweigh ...” to which Kirk replies, “the needs of the few.”

Robinson v. Crown Cork & Seal Co., Inc., __ S.W.3d ___, 2010 WL 4144587  n.21 (Willet, J. concurring) (Tex. 2010). 

The case addressed whether a statute that limits certain corporations' successor liability for personal injury claims of asbestos exposure violated the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution as applied to a pending action.

The Texas Supreme Court held the statute unconstitutional, finding any public interest served by the statute to be "slight."

Justice Willet, concurring, viewed the case not merely about whether the statute “singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation,” but it is about delimiting “the outer edge of police-power constitutionality,” an issue that “has bedeviled Texas courts for over a century.”   Thus, Willet writes:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

Footnote 21, of course, is to the word "Vulcan."

RR

with J. Zak Ritchie

[image: Star Trek Wrath of Khan uniform, via]

Footnote of the Day: Citizens United and "the Bellotti footnote" Part II

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978),  relied upon by the Court in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010), the Court considered a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

We’ve previously discussed footnote 26 of Bellotti.  

But perhaps footnote 15 is even more trenchant:

It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394(1886); see Covington & Lexington Turnpike R. Co. v. Sanford, 164 U.S. 578 (1896).

 435 U.S. at 780 n.15. 

RR

[image via]

Footnote of the Day: Citizens United and "the Bellotti footnote" Part I

The opinions in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010) display a Court in deep disagreement, including disagreement over a footnote.

Writing for the Court, Justice Kennedy opined:

A single footnote in [First National Bank of Boston v. ] Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.  Dicta in Bellotti's footnote suggested that “a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424 U.S., at 46, 96 S.Ct. 612, and a law review student comment, Bellotti surmised that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” 435 U.S., at 788, n. 26, 98 S.Ct. 1407. Buckley, however, struck down a ban on independent expenditures to support candidates that covered corporations, 424 U.S., at 23, 39, n. 45, 96 S.Ct. 612, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id., at 42, 96 S.Ct. 612. Bellotti 's dictum is thus supported only by a law review student comment, which misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L.Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standards than an individual or other associations under a regulatory scheme for campaign financing”).

__ U.S. at ___, 130 S.Ct at 909.

In Justice Stevens’ dissenting opinion, he argued:

The Court’s critique of Bellotti ’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with Buckley.  Bellotti, apparently, is both the font of all wisdom and internally incoherent.

___ U.S. at ___, 130 S.Ct. at 959  (Stevens, J. dissentng).

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), the Court found unconstitutional a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

The troublesome footnote, footnote 26, including its "cf" signals and citations, provides:

In addition to prohibiting corporate contributions and expenditures for the purpose of influencing the vote on a ballot question submitted to the voters, 8 [of the state law] also proscribes corporate contributions or expenditures “for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party.” See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections. Cf. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 (1972); United States v. United Automobile Workers, 352 U.S. 567 (1957); United States v. CIO, 335 U.S. 106 (1948). About half of these laws, including the federal law, 2 U.S.C. § 441b (1976 ed.) (originally enacted as the Federal Corrupt Practices Act, 34 Stat. 864), by their terms do not apply to referendum votes. Several of the others proscribe or limit spending for “political” purposes, which may or may not cover referenda. See Schwartz v. Romnes, 495 F.2d 844 (2nd Cir.1974).

 The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. See United States v. United Automobile Workers, supra, 352 U.S., at 570-575; Schwartz v. Romnes, supra, at 849-851. The importance of the governmental interest in preventing this occurrence has never been doubted. The case before us presents no comparable problem, and our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections. Cf. Buckley v. Valeo, 424 U.S., at 46; Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U.Pa.L.Rev. 386, 408-410 (1977).

435 U. S. at 788, n. 26.

In the next segment of "footnote of the day,"  April 7, Part II of Citizens United and "the Bellotti footnote."

RR

[image via]

Footnote of the Day: Brown's Footnote 11

In Brown v. Board of Education, 347 U.S. 483 (1954), the unanimous Court grounded its reasoning for departing from of Plessy v. Ferguson’s “separate but equal” doctrine in its famous (or perhaps notorious) footnote 11, citing “modern authority” demonstrating the social and psychological problems attributable to racial segregation:

FN11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

 The language to which the footnote refers is

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [FN 11] Any language in Plessy v. Ferguson contrary to this finding is rejected.”

 

Scholarship discussing footnote 11 is plentiful, but two explicit pieces that review the controversies are the Student Comment by Sanjay Mody, Brown Footnote Eleven in Historical Context: Social Science And The Supreme Court's Quest For Legitimacy, 54 Stanford L. Rev. 793 (2002), and Professor Michael Heise's Brown v. Board Of Education, Footnote 11, and Multidisciplinarity, 90 Cornell L. Rev. 279 (2005).   

Professor Malik Edwards seeks to “update” footnote 11 post- Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) in  Footnote Eleven for the New Millennium: Ecological Perspective Arguments in Support of Compelling Interest, 31 Seattle U. L. Rev. 891 (2008).

Meanwhile, the organization that developed the litigation strategy of Brown - - - the NAACP - - - is undergoing its own changes with a new generation of leaders who are not exclusively African-American.  Yesterday's NPR story ishere.

RR

with J. Zak Ritchie

[image: The Warren Court in 1953 via]

Footnote of the Day: The Experience and History of Inequality

On the anniversary of the 1968 assassination of Martin Luther King, footnote 24 of Justice Thurgood Marshall’s concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) is appropriate.  Marshall's footnote is condensation of equal protection theory and an argument for judicial consideration of history and experience.  It is also an illumination of footnote 4 of Carolene Products.  Marshall (pictured) wrote:

No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante, at 442-443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U.S. 144, 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)

 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 472-473 (1985) (Marshall, J. concurring and dissenting in part).

Marshall's discussion of the social integration of minors and the lack of prejudice against the young might be worth further discussion.

RR

(Suggested by Ed Campanelli)

Footnote of the Day: The Opera Skirmish and a Taxonomy

In her dissenting opinion in Minnesota v. Carter, 525 U.S. 83 (1998), deciding the extent of the Fourth Amendment protection to guests in the home,  Justice Ginsburg includes the following footnote:

Justice SCALIA's lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan's concurring opinion in Katz to first place, see ante, at 477, Justice SCALIA undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U.S., at 351, 88 S.Ct. 507. That core understanding is the leitmotif of Justice Harlan's concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice SCALIA's elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U.S., at 365, 88 S.Ct. 507 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses ..., for me the language of the Amendment is the crucial place to look.”); id., at 373, 88 S.Ct. 507 (“[B]y arbitrarily substituting the Court's language ... for the Constitution's language ... the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice SCALIA relies on what he deems “clear text,” ante, at 477, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 476. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U.S., at 351, 88 S.Ct. 507.

525 U.S. 83,111 n.3 (Ginsburg, J. dissenting).  

While this footnote may not seem especially unusual, Professor Jay Wexler reports that it was part of what he came to think of as the footnote skirmish between Justice Ginsburg, for whom he was clerking, and Justice Scalia, both of whom are opera fans and would have particular reactions to the word "leitmotif."  In the responsive footnote in his concurring opinion, Scalia retorts:

In saying this, I do not, as the dissent claims, clash with “the leitmotif of Justice Harlan's concurring opinion” in Katz, post, at 484, n. 3; au contraire (or, to be more Wagnerian, im Gegenteil ), in this regard I am entirely in harmony with that opinion, and it is the dissent that sings from another opera.

525 U.S. 83,98 n.3 (Scalia, J. concurring).

Wexler reports that there may have been talk of an escalation of the opera references, but that this did not come to pass.

Wexler's article, Justice Ginsburg's Footnotes, 43 New Eng. L. Rev. 857 (2009), draft available on ssrn, not only contains his remembrance of this incident, but also has a useful taxonomy of footnotes.  He then organizes Ginsburg's footnotes accordingly:

Wexler's taxonomy is a useful one for thinking about - - - and teaching - - - cases in which there are footnotes, which now seem to be all cases.

RR

[image: Édouard Manet, Masked Ball at the Opera, 1873 via]

Constitutional Footnotes: A Month of Footnotes Starting with the Most Famous Footnote

April is "National Poetry Month," and here at Constitutional Law Professors Blog we are celebrating not with a poem a day, but with a footnote a day. 

Although there certainly are some poems about and in constitutional law, arguably (or so I have long thought) footnotes are the next closest creature to "poetry" in Constitutional Law.

It seems fitting to start with what has been called the most famous footnote in law:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

 

At issue in United States v. Carolene Products Company, 304 U.S. 144 (1938)  was a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).  The challenges to the law were based on a lack of commerce clause power and a due process violation.  The case did not involve equal protection - - - which perhaps explains the relegation of the now-famous language to a footnote.

For purists, here's the famous footnote four, complete with citations, from Carolene Products.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369; Fiske v. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 274 U. S. 373-378; Herndon v. Lowry, 301 U. S. 242, and see Holmes, J., in Gitlow v. New York, 268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 303 U. S. 184, n 2, and cases cited.

 United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n.4 (1938).

RR

[image via]

IMAGINE: A Quick ConLaw Quiz on the 30th Anniversary of John Lennon's Murder

                    Closed book: no use of notes, databases, internet or other sources.

Q:  Name that footnote (Name of case and author of footnote)

     The lyrics are as follows:       

“Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today ...
“Imagine there's no countries
It isn't hard to do
Nothing to kill or die for 
And no religion too
Imagine all the people
Living life in peace ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will be as one

“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will live as one.”

J. Lennon, Imagine, on Imagine (Apple Records 1971).

A:  See comments.

 RR

[image via]

Women's Equality Day

A Joint Resolution of Congress in 1971 designated August 26 as Women's Equality Day.  It's the date that the  Nineteenth Amendment, ratified by the requisite number of states on August 18, 1920, became effective.  the Resolution provides:

WHEREAS, the women of the United States have been treated as second-class citizens and have not been entitled the full rights and privileges, public or private, legal or institutional, which are available to male citizens of the United States; and
WHEREAS, the women of the United States have united to assure that these rights and privileges are available to all citizens equally regardless of sex; and
WHEREAS, the women of the United States have designated August 26, the anniversary date of the passage of the Nineteenth Amendment, as symbol of the continued fight for equal rights: and
WHEREAS, the women of United States are to be commended and supported in their organizations and activities,
NOW, THEREFORE, BE IT RESOLVED, the Senate and House of Representatives of the United States of America in Congress assembled, that August 26th of each year is designated as Women’s Equality Day, and the President is authorized and requested to issue a proclamation annually in commemoration of that day in 1920, on which the women of America were first given the right to vote, and that day in 1970, on which a nationwide demonstration for women’s rights took place.

To commemorate the holiday, try this multiple choice question:

In 1971, who said, "The more education a woman has, the wider the gap between men's and women's earnings for the same work."

a.    Ruth Bader Ginsburg

b.    Sandra Day O'Connor

c.    Patsy Mink 

d.    Pat Nixon

The correct answer is here (page 4) or here
(less well sourced but quicker).

[image via]

RR

Renaming, Amending, and "Wiki-ing" the Constitution

The Constitution is the subject of humorous treatment from John Hodgman and Jon Stewart on The Daily Show. 

The skit starts with "birthright citizenship" under the Fourteenth Amendment, then hits on Originalism and interpretation, the Second Amendment, judicial review, the First Amendment's Establishment Clause, and democratizing the document as an opensource document on the internet (including a werewolf amendment).

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
You're Welcome - Constitutional Crisis
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

RR

The World Cup and Term Limits for High Court Justices

ConLawProf Mark Kende may be watching The World Cup, but he's thinking about comparative constitutional law, and more specifically, the appointment of high court justices. 

In his Op-Ed in the Christian Science Monitor, Kende argues:

In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.

Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.

If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.

Interestingly, South African ConLawProf Pierre de Vos, commenting on The World Cup closer at hand, has recently noted that there is some talk that the South African Constitutional Court Justices might move to a mandatory retirement age of 70 for justices.  This would be more like the life-tenure American model, and quite like the Australian mandatory retirement age of 70 model. 

RR

Quick Quiz: Name the Historical Figure who is NOT a "Founding Father"

Select the person whose writings did NOT inspire the American Revolution:

a.    St. Thomas Aquinas

b.    John Calvin

c.    Thomas Jefferson

d.    William Blackstone

Correct Answer:     C

Explanation:         Thomas Jefferson's notion of "separation of church and state" was rejected by the founding fathers, who established the United States according to Christian principles.  

More Explanation:  Texas has tentatively approved a new educational curriculum which rejects Thomas Jefferson's influence and favors Blackstone, Calvin, and Aquinas.   It is thus possible that this hypothetical question would "correctly" be answered with "Thomas Jefferson."

There are 100 other amendments to the state approved curriculum, including replacing the word “capitalism” with “free-enterprise system” and adding Phyllis Schlafly to the list of important historical figures.

The NYT story is here; NYT blog here; daily blogging by Texas Freedom Network begins here with Jefferson reportage here.

If the curriculum passes, it should make teaching future constitutional law students from Texas quite interesting. 

RR