Constitutional Law Prof Blog

Check it Out: Lupu and Tuttle on Fulton and the Future of Free Exercise

You gotta check out Chip Lupu and Bob Tuttle's outstanding piece on Fulton and the future of free exercise, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, forthcoming in the American Constitution Society Supreme Court Review (OT19 Term's here). In addition to reviewing Fulton and examining the opinions (you'll especially want to check out their critique of Justice Alito's opinion), Lupu and Tuttle integrate the Court's COVID cases into the trend line and argue that

[t]hese moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.

Read it.

Check it Out: Sullivan on OLC Reform

Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding piece on Office of Legal Counsel reforms, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy. Here's the abstract:

First, this Article situates the Office of Legal Counsel (“OLC”) within the context of a political system in which the executive has grown in power far beyond anything that the founders could have foreseen. As the chief legal advisor to the executive branch, OLC performs a critically important function in protecting our constitutional system and ensuring adherence to the rule of law, but OLC makes no final determinations on behalf of the United States and is subject to the supervision of the Attorney General. Second, the Article reviews the recent recommendations of the American Constitution Society concerning possible reforms of OLC. Among other things, those recommendations include a systematic review of existing opinions and greater transparency going forward. This Article generally concurs in those recommendations but also suggests the possibility of additional reforms such as a reduction in the number of political appointees in OLC and a focus on recruiting more experienced lawyers to fill its ranks. Third, and most important, the Article reviews the relevant case law and evaluates the possibility of a more fundamental reform, namely, giving a greater degree of independence to OLC by providing the Assistant Attorney General for OLC with a fixed term coterminous with that of the President. The Article concludes that such a reform is legally possible and worthy of serious consideration, whether as a matter of legislative enactment or administrative regulation.

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!

Check it Out: Sullivan on Democratic Conditions

Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding and wide ranging Democratic Conditions, part of the Loyola Law Review symposium on democracy. Sullivan starts with the increasing alienation of non-elites from elite-run government and a survey of the "disconnect between the rhetoric of constitutional democracy and its reality." He moves to a comparative study of democracy and an exploration of constitutional democracy.

Sullivan then focuses on three ways our current system frustrates constitutional democacy--our lack of understanding of the anti-democratic features of our system, our historical preference for defining our political community in exclusionary terms, and justifiable lack of public confidence in our electoral system--and what to do about it.

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)

 

Daily Read: 1619 Project

The 1619 Project is a unique and accessible look at slavery in the United States — starting in 1619 — and its aftermath.

The muli-faceted project, developed and curated by Nikole Hannah-Jones, appeared as the Sunday New York Times magazine (download here) and is also available as an interactive magazine website. Moreover, the Pulitzer Center’s education team has created curricula from over 30 visual and written pieces from historians, journalists, playwrights, poets, authors, and artists from the project, and although primarily aimed at secondary education, it nevertheless contains a wealth of ideas that could be useful in law school classrooms and scholarship. 

Not suprisingly, the law runs throughout the pieces in the Project. There is an incredible section profiling Howard University School of Law students with their families and ancestors. 

Call for Papers: ACS Junior Scholars Public Law Workshop at AALS

Check it out: The American Constitution Society is seeking paper proposals for its Junior Scholars Public Law Workshop at the 2020 AALS. The deadline is October 18, 2019. Click the link below for more specifics.

Here's the call:

To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses — individual rights and liberties, genuine equality, access to justice, democracy and the rule of law — ACS is pleased to announce a call for papers for a workshop on public law to be held on Friday, January 3, 2020, in connection with the 2020 AALS Annual Meeting in Washington, D.C. A committee composed of members of ACS’s Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler, among others. Papers can be in any field related to public law, including but not limited to: constitutional law, administrative law, legislation, antidiscrimination law, criminal law, election law, environmental law, family law, federal courts, financial regulation, health law, public international law, social welfare law, and workplace law.

For more information: https://www.acslaw.org/get-involved/awards-and-competitions/junior-scholars-public-law-workshop/

Check it Out: Blackman and Tillman on Wall Funding, Emoluments, and Courts' Equitable Jurisdiction

Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).

Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.

Here's from Volokh:

In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.

***

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.

***

[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.

Call for Papers: Barry Con Law Scholars Forum

The Barry University School of Law American Constitution Society Student Chapter and Law Review and the Texas A&M University School of Law just issued a Call For Papers for their 2020 Constitutional Law Scholars Forum.

The full call is here.

The Forum is on Friday, February 28, 2020, in Orlando. The proposal deadline is December 1, 2019.

Does the Superseding Assange Indictment Implicate the First Amendment?

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

As anticipated, the Department of Justice has filed a superseding indictment  against WikiLeaks founder, Julian Assange.

The 18 count indictment charges 17 violations of the Espionage Act, 18 U.S.C. §793, as well as one count of conspiracy to commit computer intrusion. The factual recitations revolve around Chelsea Manning occurring in 2010; other highly publicized allegations involving President Trump and Hillary Clinton do not make an appearance (and their names are not mentioned in the indictment).

The charges of unauthorized obtaining and receiving of "National Defense Information" (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues. 

The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), "The Pentagon Papers" Case. 

In Assange's situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).

This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck's 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.

 

[image via]

 

Call for Proposals: Loyola Chicago Health Law Symposium

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and the Annals of Health Law & Life Sciences invite original submissions for presentations at the Thirteenth Annual Health Law Symposium: Addressing the Health Care Needs of Justice-Involved Populations, at Loyola Chicago, on Friday, November 15, 2019.

The full call is here.

The call specifically includes "constitutional issues relating to the medical treatment [or lack thereof] of justice-involved populations."

Proposals (1,000 words or less) are due by June 15, 2019, to [email protected].

Brooklyn Law Review to Host Symposium on Incitement

The Brooklyn Law Review will host a symposium titled Incitement at 100--and 50--and Today: Free Speech and Violence in the Modern World on Friday, April 12, at Brooklyn Law School. Very impressive line up. RSVP at the link by April 10.

UNLV Symposium: Dignity, Tradition, & Constitutional Due Process

Check out this exciting symposium next month at UNLV: Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms. The two-day event runs from March 14 to 15. The event is free, but you have to register. (Click the link above.)

The line-up is truly impressive; here are the presenters and their presentations.

Questions? Contact Prof. Peter B. Bayer.

Daily Read: Can the Senate's Composition Change by Statute?

In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule. 

Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although 

the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white." 

Indeed, Orts states that  his proposal

corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.

Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.

Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.

[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]

Call for Papers: Michigan Junior Scholars Conference

Michigan Law posted this announcement and call for papers for its Fifth Annual Junior Scholars Conference.

Submissions (600-word abstract, plus a CV) are due by January 12, 2019. From the call:

The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and assistant professors (pre-tenure) who have not held an academic position for more than four years are welcomed.

 

Daily Read: Posse Comitatus and the Constitution

The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.

A good read is by Ohio State University/Mortiz College of Law Professor Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018), available on ssrn.

Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"

He notes that there are a series of such statutory frameworks, including the Posse Comitatus Act and its relatives which generally operates  as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” 

Rudesill concludes:

The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .

He contends that Courts could take up the issues, but also Congress has an important role:

Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.

An interesting read as the composition of Congress is at issue in the midterm election.

CFP: Kavanaugh Nomination

CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.

An America Divided: The Kavanaugh Nomination

The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.

SUBMISSION DEADLINES:
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline: January 15, 2019

full call and submission details here

 

 

CFP: Women and the Law

 

2019 Detroit Mercy Law Review Symposium: Women and the Law

Call for Papers and Presentations

Deadline: November 9, 2018

The Law Review at University of Detroit Mercy School of Law will be hosting its 103rd annual symposium: Women and the Law.

Call for Proposals

The Detroit Mercy Law Review is accepting proposals for the 2019 Symposium: Women and the Law. The Detroit Mercy Law Review Symposium will take place on Friday, March 8, 2019 (International Women’s Day) in Detroit, Michigan. Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law.

Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation.

Submission Procedure

The deadline to submit proposals is Friday, November 9, 2018 at 5PM EST. All proposals should be submitted to Samantha Buck, Symposium Director, at bucksl AT udmercy.edu. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, March 15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by November 30, 2018. Preference will be given to those willing to submit an article for publication.

CFP: ACS Constitutional Law Scholars

The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807. 

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

 

The deadline to submit proposals is December 1, 2018.

 There are no conference fees and meals are provided.

 

Abstract Submissions:

Email proposals to Professor Eang Ngov, [email protected], with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 

Professor Eang Ngov, [email protected], office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, [email protected]

Daily Read: Some Women Legal Scholars on the First Amendment

Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that  protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but  "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."

A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.

Here's the list of authors and titles, all accessible here:

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”

Mary Anne Franks, “The Free Speech Fraternity”

Sarah C. Haan, “Facebook and the Identity Business”

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”

Ruthann Robson, “The Cyber Company Town”

Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”

Sonja West, “President Trump and the Press Clause: A Cautionary Tale”