Archive for the ‘Constitutional Law’ Category
Ricci: Color-Blind Standards in a Race Conscious Society?
posted by Michael Zimmer
While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.
The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:
“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”
The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:
“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”
In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed. (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read the rest of this post »
November 20, 2009 at 8:49 am
Posted in: Civil Rights, Constitutional Law, Employment Law, Supreme Court
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The Lead Brief in McDonald v. Chicago
posted by Gerard Magliocca
On Monday, the petitioners in the Second Amendment incorporation case filed their merits brief and asked the Court to overrule Slaughterhouse, United States v. Cruikshank, and Presser v. Illinois. While I agree with their view that the Second Amendment should apply to the States and think the brief’s discussion of the Fourteenth Amendment’s original understanding is excellent, the case analysis is flawed.
As I explain in my forthcoming article, which should be out any day now, Slaughterhouse is not hostile to incorporation. It only acquired that meaning in Maxwell v. Dow, a 1900 case that reread Slaughterhouse in light of recent political events (i.e., the defeat of William Jennings Bryan). Indeed, the brief just adopts Maxwell’s faulty claim that using the Privileges or Immunities Clause for incorporation would require the overruling of Slaughterhouse and Cruikshank. Cruikshank can be distinguished on state action grounds — it’s holding is not inconsistent with incorporation–and Presser is irrelevant as the Second Amendment claim there was not properly pled. The real case that needs to be overruled (or modified) is Maxwell.
Finally, what does “overruling Slaughterhouse” mean exactly? Would I now have a constitutional right to be a butcher?
November 18, 2009 at 1:45 pm
Posted in: Constitutional Law
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Is Ricci a Significant Procedural Case?
posted by Michael Zimmer
Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.
Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?
Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:
“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”
Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?
November 15, 2009 at 9:42 am
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Employment Law
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The Thirteenth Amendment and Hate Crimes
posted by Gerard Magliocca
A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law. The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).
This could be a significant doctrinal development. The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement. To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter. This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.
November 11, 2009 at 5:19 pm
Posted in: Constitutional Law
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The Return of Penal Colonies
posted by Gerard Magliocca
On Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau. (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.
This ad-hoc way of dealing with the detainee issue strikes me as problematic. In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever. While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.
November 2, 2009 at 11:07 am
Posted in: Constitutional Law
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UCLA Law Review 57:1 (October)
posted by UCLA Law Review
Volume 57, Issue 1 (October 2009)
Articles
| From Privacy To Liberty: The Fourth Amendment After Lawrence | Thomas P. Crocker | 1 |
| Who Can Sue Over Government Surveillance? | Scott Michelman | 71 |
| Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance | Frederick Tung | 115 |
Essay
| After the Bailout: Regulating Systemic Moral Hazard | Karl S. Okamoto | 183 |
Comments
| Evaluating The Public Interest: Regulation Of Industrial Hemp Under The Controlled Substances Act | Christine A. Kolosov | 237 |
| Improving The Education Of California’s Juvenile Offenders: An Alternative To Consent Decrees | Stefanie Low | 275 |
| The Right to Control One’s Name | Julia Shear Kushner | 313 |
Discourse
| Getting the Framers Wrong: A Response to Professor Geoffrey Stone | Samuel Calhoun | |
| The Perils of Religious Passion: A Response to Professor Samuel Calhoun | Geoffrey Stone |
Th UCLA Law Review is also pleased to announce the launch of a our new website.
October 30, 2009 at 4:21 pm
Posted in: Civil Rights, Constitutional Law, Corporate Law, Law Rev (UCLA), Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Uncategorized
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Native Americans and Equal Protection
posted by Gerard Magliocca
I want to flag this forthcoming article by Bethany Berger entitled “Reconciling Equal Protection and Federal Indian Law.” This is one of the best efforts I’ve seen to take the original understanding of the Fourteenth Amendment seriously with respect to how Native Americans should be treated. My own interest is how the Native American example should inform equal protection doctrine generally, which I think is a major blind spot in antidiscrimination law. While this is not what Berger is talking about, her focus on the interaction of these concepts is well worth reading. The Abstract follows the jump:
October 26, 2009 at 8:15 am
Posted in: Constitutional Law
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Medical Marijuana: A Wild Ride on Federal and State Law
posted by Deven Desai
The Justice Department has announced a policy memo about how it will handle medical marijuana. The full memo is on The Justice Blog and in pdf here. As AP summarizes the DOJ will go after medical marijuana operations that exceed state laws or are fronts for criminal acts. At the same time, the New York Times reports that Los Angeles is thinking of cracking down on its more than its estimated 800-1,000 (yes 800-1,000) dispensaries. It seems that many are not adhering to the law that allowed them to exist. For example, many are turning a profit which apparently is not allowed; they must be non-profit. One dispensary in Oakland that adheres to the law has revenues of around $20 million. As the Times reports in other states such as New Mexico, licensed sites still encounter vague and contradictory rules as couriers can be stopped by border patrol and the medical marijuana confiscated even though the delivery is authorized. My colleague Alex Kreit does some great work on drug policy and certainly knows more about it than I. Luckily he will be guest blogging here in the near future. For now I will point folks to his op-ed Yes: It’s Time To Rethink Marijuana Prohibition. It is a thoughtful approach to what to do about marijuana (and has some fascinating figures about how many Americans use marijuana). For me, the recent moves by the federal and state governments seem to indicate that some better system is required to allow the medical use of the drug. The inconsistent standards and enforcement within each state is not great. The more difficult question is how much will medical marijuana be seen as using the federal system to let states test public policy choices? If one adds in same-sex marriage to the question, it seems that federal and state laws are entering a new phase regarding how they interact. I say that because it seems to me that the open divergence between federal and state systems with the possibility that the federal government will ignore or defer to states on national issues is new. In other words, these two issues seem analogous to prohibition and civil rights; yet they are managed differently. I could easily be wrong on this idea. I welcome thoughts and leave sorting out the implications of this possible change to the constitutional law folks.
UPDATE: Lori Ringhand’s comment helped me refocus my thoughts. As she notes (and I was trying to capture but apparently did not), there are of course ebbs and flows in this dynamic. Maybe the better way to ask my question is whether we are seeing a shift towards more deference to states. Again it may not be possible to verify this notion. In addition, it may be that the large social issues are catching attention more than the day-to-day issues. If so, the question may be further refined as are large scale social issues being left to the states a little more than they were from around the 1930s to the 1970s?
Image WikiCommons, Public Domain
October 20, 2009 at 6:47 am
Tags: medical marijuana
Posted in: Constitutional Law, Health Law, Politics
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You’ve lost that Loving feeling
posted by Kaimipono D. Wenger
An incredible story in today’s news:
A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.
“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”
Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.
It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.
October 15, 2009 at 3:54 pm
Tags: Civil Rights, Loving v. Virginia, marriage, Race
Posted in: Civil Rights, Constitutional Law, Family Law
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Constitutional Amendments that Failed in Congress
posted by Gerard Magliocca
As part of my research on the Child Labor Amendment, I’ve come across an interesting issue. There is a strong assumption that constitutional amendments are hard to enact, in part, because you need a two-thirds vote in each House of Congress. It turns out, though, that there are very few amendment proposals that have received a majority in each House but not two-thirds. In other words, in practice, the rules that govern statutory enactments (including the filibuster) weed out almost all amendment proposals.
Think about it — in the last twenty-five years the only two contrary examples are the Balanced Budget Amendment and the Flag Burning Amendment. Reaching back further, I don’t think there are many others (though I’d be interested if people know of some). One wonders, then, why there is a belief that the two-thirds rule is the reason for the lack of amendments rather than robust political support (or norms) in favor of the text as is.
October 14, 2009 at 4:02 pm
Posted in: Constitutional Law
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The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid
posted by Spencer Waller
By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.
A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.
The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.
On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.
By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.
To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.
I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.
October 6, 2009 at 9:55 am
Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court
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When Facts Are Really Interpretations
posted by Gerard Magliocca
Last week I was at the FDR Library in Hyde Park to continue my research on the link between the Child Labor Amendment and the Crisis of 1937, which I’ve blogged about previously. Doing work in archives is always fun. You just feel more scholarly in these places (no more so than in the Reading Room at the Library of Congress.) Plus, old depositories are quirky. They tend, for example, to be fanatically anti-pen. Pens — as opposed to pencils — can leave marks on the documents. Presidential libraries are especially strange because they are memorials for their guy. When I was at the Nixon Library a few years ago, the Watergate section was “Closed for Renovation,” which I found hysterical. At the FDR Library, the term of choice for the President’s 1937 proposal is “judicial reform,” not “Court-packing.”
So what did I learn during my visit?
October 1, 2009 at 4:56 pm
Posted in: Constitutional Law
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Cert. Granted on Second Amendment Incorporation
posted by Gerard Magliocca
My article on this issue, which will be published in the Minnesota Law Review this Fall, is here.
September 30, 2009 at 10:04 am
Posted in: Constitutional Law
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The Proposed Health Care Individual Mandate
posted by Gerard Magliocca
There is a lively discussion underway (on Volokh and in some op-eds) about whether a federal statute requiring all Americans to buy health insurance would be constitutional under the Commerce Clause. I’m interested in this question because I’m now revising a draft paper on the “30,ooo foot” view of the Obama Administration in political time.
One feature of prior constitutional generations (or new party systems) in their initial phase is that there is often a clash between a rising movement and the Supreme Court over a key demand of that movement. Jackson and Marshall fought over the Cherokee Removal. Dred Scott attacked the Republican Party over slavery in the territories. And the Old Court in the 1930s went after the NRA. It is pretty clear that health care is the crucial issue for President Obama. The obvious question is how could the Court challenge that initiative (if enacted) consistent with existing doctrine?
My faculty colleague, David Orentlicher, and I batted around the following idea today. Congress clearly has broad authority to prohibit harmful commercial transactions. It also has similar power to regulate transactions that occur. But does it follow that Congress can require people to engage in a commercial transaction that they do not want to undertake? (Like buying health insurance). I’m not so sure. Are there any precedents for this? I don’t think so. Conscription is a possibility, but that’s a weak analogy. Nothing else comes to mind. Can you think of any examples of federally-mandated commerce? (Obviously, if Congress just encourages people to buy insurance through tax breaks, then this analysis would not apply.)
Of course, nothing in the “substantial effects” test distinguishes between prohibition, regulation, and requirement. I’m just saying that such a distinction could be made and would be plausible.
September 23, 2009 at 3:09 pm
Posted in: Constitutional Law
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Czar Wars
posted by Jon Siegel
Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.
Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.
Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?
Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.
And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”
So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.
And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.
September 21, 2009 at 7:09 am
Posted in: Administrative Law, Constitutional Law
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Separation of Parties?
posted by Gerard Magliocca
Three years ago Rick Pildes and Daryl Levinson wrote a terrific piece in the Harvard Law Review called “Separation of Parties, Not Powers.” They argued there that separation of powers did not work the way that Madison envisioned because politicians identify more with their party than with their branch. So when the White House and Congress are controlled by different parties, they check each other vigorously. When we have unified government, though, Congress more or less rolls over, plays dead, and lets the Executive Branch have its way. This is a powerful insight that led Pildes and Levinson to make some thoughtful suggestions about the need to strengthen the rights of the minority party in Congress and about how the courts should review separation-of-powers claims differently depending on whether the challenged statute was produced under divided or unified government. But there is a problem with their theory that the health care debate is exposing. Read the rest of this post »
September 19, 2009 at 10:20 am
Posted in: Constitutional Law
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Rediscovering the Fourteenth Amendment
posted by Gerard Magliocca
I find that blogging is useful for three things. First, you can try out new ideas and see how people react. Second, you can react to current events in real time. Third, you can talk about old ideas that did not get enough attention the first time around. (Call this “Broadway revival” blogging.)
In that spirit, let me mention this paper of mine from a few years on the relationship between Jackson’s removal of the Cherokees from Georgia and the Fourteenth Amendment. The piece argues that part of the original understanding of the Amendment was shaped by its framers support for Native American rights and disgust at the “Trail of Tears.” For example, John Bingham cited Worcester v. Georgia more than once as a benchmark for interpreting Section One of the Amendment. Obviously, there were distinctions made between African-Americans and Native Americans in that text, as tribes with treaty relations with the United States were excluded from birthright citizenship under its “subject to the jurisdiction” clause. Nevertheless, there are important interpretive resources to be found in the law and practice concerning Native Americans leading up to 1868 (on the antidiscrimination principle, positive economic rights, and more traditional individual rights). After Brown, the legal community concluded that the Fourteenth Amendment’s history was basically unhelpful. That is a mistake that more scholars should examine.
September 18, 2009 at 11:05 am
Posted in: Constitutional Law
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Happy Constitution Day!
posted by Gerard Magliocca
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. This is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.
What, then, is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten — that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”
Learned Hand — 1944
September 17, 2009 at 5:18 am
Posted in: Constitutional Law
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More on Campaign Finance Reform
posted by Michael Kang
As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.
I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.
September 9, 2009 at 6:30 am
Posted in: Constitutional Law, Current Events, First Amendment, Politics
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Campaign Finance Reform
posted by Gerard Magliocca
Tomorrow the Supreme Court will hear reargument in Citizens United v. FEC and consider whether to overrule Austin v. Michigan Chamber of Commerce, which upheld limits on independent corporate spending in political campaigns. Since reargument was ordered, one would think that Austin will be overruled. And that would be a good thing.
Campaign finance reform reminds me of the adage, attributed to Mark Twain, that “the more you explain it, the less I understand it.” The Government committed a classic Kinsley error — inadvertently telling the truth — when it told the Court in the first Citizens United argument that Congress could prohibit the circulation of campaign books in the weeks prior to an election. How book banning is consistent with any theory of the First Amendment is beyond me. Granted, McCain-Feingold does not regulate books, but my concern is not alleviated just because its restriction on speech falls on electronic media.
September 8, 2009 at 4:51 pm
Posted in: Constitutional Law
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