Constitutional Law Prof Blog

Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education

Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award.  There will be an event January 3, 2014 at the AALS Conference in NYC .

 

 

More from Feminist Law Professors here.

For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.

 

 

Daily Read: Originalism and the Good Constitution

In their defense of originalism, Originalism and the Good Constitution (Harvard U Press 2013),  John McGinnis and Michael Rappaport emphasize the "supermajoritarian" nature of the US Constitution. 

For many, any "supermajoritarian" thesis is defective given the composition of those considered within the polis at the time of the drafting of the Constitution.  McGinnis and Rappaport take this on.  As they write in their article with the same name of their book, published in Georgetown Law Journal in 2010, the "exclusion of most African-Americans from the constitutional enactment process was an enormous failure of the supermajoritarian process."  But, they argue, "this failure was corrected through the enactment of the Reconstruction Amendments," or even if not "fully resolved," the Reconstruction Amendments "came close enough to render further judicial correction inadvisable." 

As for women of all races, they recognize that this was also a "serious defect."  But again, this problem has been substantially corrected: "In 1920, the nation passed another supermajoritarian correction to a supermajoritarian failure: the Nineteenth Amendment guaranteed women the right to vote, assuring that women from that time forward could fully participate in the constitutional amendment process."

Here's more discussion over at LibertyLaw.

Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)

The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000. 

The resolution echoes earlier attention to the problem which it defines as including

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender.  Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?

Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn.  Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women."  She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted.  In West Virginia, the Supreme Court of Appeals in  Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men.  As Goldscheid describes it, the court

concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.

To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible.  However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,

the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender.  The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services.  For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.

These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."  

Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing.  It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.

Daily Read: Representing Justice

If you haven't yet read - - - or looked at - - - Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011) by Judith Resnik and Dennis Curtis, the 2014 Order of the Coif biennial award to a book of the “highest order of legal scholarship” should convince you this book is not to be missed.

We previously discussed the book here in the context of Judith Resnik's presention for a celebration of Justice Ginsburg's equality jurisprudence.  

You can also access a slide show of some of the book's many images in a NYT article here.

 

 

Court Hears Oral Arguments in Bond v. United States on Treaty Power and Chemical Weapons

The oral arguments in Bond v. United States today evoked both the use of chemical weapons in the ongoing conflict in Syria and the understandings of the farmers of the Constitution regarding the  power given to the Executive, with "Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."  The treaty at issue is the Chemical Weapons Convention, but also at issue is the Chemical Weapons Implementation Act.

Carol Anne Bond was convicted of a crime in violation of the Act, 18 U.S.C. § 229(a).  But the fact that she is not a "terrorist," but rather a venegful woman in a love triangle, has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

It's not the first time that Carol Anne Bond has been before the United States Supreme Court.  Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit.

On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."  Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."   The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  The Supreme Court (again) granted the petition for certiorari.

In a nutshell, Bond's prosecution under a federal law for what seems a state (local) crime raises issues of federalism not unlike the issues the Court has confronted regarding the power of Congress to criminalize guns in school zones (Lopez) or marijuana (Raich).  But the invocation of these cases at the beginning of Paul Clement's argument on behalf of Carol Anne Bond brought a clarification from Justice Scalia that the Court did not take the case to decide any Commerce Clause question.  Instead, the focus must be on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  

Later, Justice Alito returned to these cases as well as Section 5 (of the Fourteenth Amendment) to pose a question to the Solicitor General about the Treaty power as circumventing the Court's limitations, and interestingly demonstrating a familiarity with scholarly articles:

JUSTICE ALITO: Whenever -- when this Court has issued decisions in recent years holding that there are some limits on Congress's power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power. Do you agree with that?

The Solicitor General eventually answered that it depended on "whether the treaty is a valid exercise of the treaty power."

The limiting construction of the statute proposed by Paul Clement - - - war-like use of the chemicals as includable within federal power - - - proved problematic at times.  The Solicitor General argued that this was "one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful and warlike uses."  On the other hand, the lack of a line other than valid treaty also proved problematical. 

The Solicitor General often summoned originalist principles to support the primacy of a ratified treaty.  Justice Kagan in her questioning of Paul Clement suggested that all properly ratified treaties must be constitutional:

Because there's clearly a treaty power that does not have subject matter limitations. And, indeed, if you go back to the founding history, it's very clear that they thought about all kinds of subject matter limitations and James Madison and others decided, quite self-consciously, not to impose them. So where would you find that limitation in the Constitution?

MR. CLEMENT: I would find that limitation in the structural provisions of the Constitution and the enumerated powers of Congress. And I would say that it would be very -­

JUSTICE KAGAN: But this isn't an enumerated power. The enumerated power is the treaty power. So you have to find a constraint on the treaty power. Where does it come from?

MR. CLEMENT: Well, I think where that it would come from, again, is the structural provisions of the Constitution.

As to federalism being a limit, Chief Justice Roberts responded to the Solictor General's argument that the framers deemed the 2/3 ratification by the Senate was an important protection of the interests of the States by noting that at that time, the Senate was elected by State legislatures.

The tenor of the arguments, the echoes of Bond's previous unanimous success at the Supreme Court on the Tenth Amendment standing issue, and the Court's majority suspicion of federal power may mean another win for Carol Anne Bond before the United States Supreme Court.

[image via]

Teaching and Learning the Irony of Marbury v. Madison: 1L Performance Pieces

Teaching and learning Marbury v. Madison (1803) can be challenging.  As Steven Schwinn has highlighted, I've presented at AALS on innovative ways to use powerpoint using Marbury as an example.  And I've also authored the CALI Lesson on Marbury v. Madison, which stresses understanding the case's historical importance and recognizing its use in contemporary constitutional litigation.

Marbury v. Madison is not only iconic, it's ironic. One way to have students "own" the irony is to have them create a single powerpoint slide that represents the meaning of the case's ironies. This is no easy task. In The Ironies of Marbury v. Madison and Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391(2004), Con Law Prof Samuel Olken explained the various levels of irony in the decision, but the central one on which we focus in class is Marshall's solidifying the (greater) power of judicial review to declare an act of Congress unconstitutional by refusing the power of jurisdiction granted by Congress to issue a writ of mandamus to Marbury.

But students are not limited to powerpoint slides; they can use any creative way to portray their point. 

This year, two students, Daniel McCarey and Chloe Serinsky submitted a composition and posted it on You Tube where it will join the ranks of other takes on Marbury, from a serious talking head version to the explicit language rap version that we also discussed.

Their version is indebted to Alanis Morissette's song "Ironic" and arguably uses irony in a more correct (if more legal scholarly) sense.

  

They've posted their lyrics on the You Tube site.  The description of judicial power as having "more juice" is nice, isn't it?  But I do love this:

Statute in the left hand
Constitution in the right
Judicial review was the power
To strike that statute outta sight

A different group of five other students also took a musical tack.  Collaborating, 1L students Alexandra De Leon, Alexandria Nedd, Carolina Garcia, Steffi Romano, and Vincce Chan, submitted a power point slide with the music from Drake's song

Started from the Bottom Instrumental

and their rewritten lyrics for a composition now entitled "From the Congressional Dream to the Judicial Machine." Here's a sample:

Congress just wants credit where it’s due
You say it’s written in the constitution…says who?

Extending the Supremacy Clause was Marshall's mission
Refusing Section thirteen to keep the appellate and not the original jurisdiction
Declining more power, but acquiring Judicial greatness
Marshall limited Legislative power by striking down the excess

 Oh how ironic,
Refusing power made the Supreme Court iconic ...

 

Daily Read: The New Yorker on Justice Ginsburg, Fisher, and Footnote 4

Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."

Ginsburg stated that her dissent last term in Fisher v.  University of Texas Austin, regarding judicial review of  affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes."  That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."  

Recall that the 1938 case of  Carolene Products involved 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).   It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases:  In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.

 

CFP: LBJ's Great Society at 50, MAPOC Legal Scholarship Conference

From an announcement:

19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
Baltimore, MD
January 23-25, 2014

–      Conference Theme & Call for Papers –

President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision

In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society.  As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . .  The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”

According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.”  This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.

Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968.  These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s.  As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010.  According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.”  Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.

Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality.   Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us.  Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.

It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty.  It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies.  The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.

At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society.  From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:

-- A Hand Up:  The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals:  President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
--  Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness:  the Rise and Fall of DOMA
-- Guns or Butter:  Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare:  the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights:  Shelby County v. Holder and the Promise of One Citizen, One Vote

Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: [email protected]

[image: LBJ, National Portrait Gallery, via]

Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

RR
[image via]

 

What if Supreme Court Opinions Were Anonymous?

Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary.  As well they should.  But much of our discussions focus on individual Justices:  Is Justice Kennedy the "first gay Justice?"   Is Justice Alito really rude?   Is Chief Justice Roberts playing a "long game?"  And what about the tumblr "Notorious R.B.G.?  Or @SCOTUS_Scalia, a twitter account?  

 
  

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms.  Their first proposal: 

Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals.  Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge.  Although who would have standing?  And what about recusal?

 RR

 [image DonkeyHotey via]

Two Questions in the Aftermath of DOMA and Prop 8 Decisions

In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain. 

Here are two.

The first question is the status of Proposition 8.  Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.   The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed.   Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad: 

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).

The ACLU and others are advising that the district judge's order renders Prop 8 unconstitutional as to all of California.  The  docket entry in the Ninth Circuit simply states:

Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144. [8682306] [10-16696, 11-16577].

One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks  "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what?  That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored."    He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer?  Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf  argues that the lack of opinions matters:

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.

It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.

There are certainly more questions raised by Windsor and Perry, but these two are central.

RR
[image via]

Daily Read: Larry Catá Backer on Chinese Constitutionalism

What is Chinese constitutionalism?  Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways.  As Backer (pictured right) notes, 

The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.

But Backer is not content with such simplistic dismissals.  Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development.  Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."

For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other.  For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential.  Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.

RR

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

RR

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
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Daily Read: Hutchinson on Political Power and Same-Sex Marriage

In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn.  Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory." 

Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness.  Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights."  But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level.  Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.

Ultimately, Hutchinson concludes that the present scholarly and judicial discourse

fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.

Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection.  Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.

RR

Daily Read: Tolson on VRA's Section 5 and - - - Section 2 of the Fourteenth Amendment

The controversies surrounding the Court's impending decision in  Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement."  Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."

In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations.  She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.

Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments.  She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."

Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.

RR

Daily Read: Heins on Academic Freedom

The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings.  Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks. 

Heins can be viewed takling about her book in a series of videos, available here; an excerpt from The Chronicle of Higher Education is available here.

For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics.  Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose.  Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.

And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read. 

RR

Daily Read: Sean Wilson's The Flexible Constitution

Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution.  His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning.  Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality.  (p. 83).

 

Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution."  This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.

RR

Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

RR