Archive for the ‘Constitutional Law’ Category
posted by UCLA Law Review
Volume 61, Discourse Discourse
October 15, 2013 at 7:05 pm Posted in: Civil Rights, Constitutional Law, Current Events, Economic Analysis of Law, Financial Institutions, International & Comparative Law, Law Rev (UCLA), Politics Print This Post No Comments
posted by Gerard Magliocca
In the 1850s, it was common for members of Congress to carry loaded weapons into the House chamber (and maybe the Senate as well, though I don’t know). I also don’t know when this practice ended, but here is my question. If the members of the 39th Congress were carrying loaded weapons into the House chamber, does that say anything about their view about an individual right to bear arms? Or there view of the power to exclude guns from public facilities?
I’ll leave it to the NRA to tell me that the Capitol would be a safer place if most of the members of Congress were armed now.
posted by Deven Desai
That an inmate facing the death penalty is denied clemency is not unusual; what happened in Arizona this week was. Arizona has a clemency board that, as I understand it, was explicitly established to be a check on the executive in death penalty cases, but the Governor appears not to like that fact. As The Republic explained:
The clemency board, whose members are appointed by the governor, is supposed to make independent assessments of cases and make recommendations to [Governor] Brewer, who has final say in whether to grant a reprieve or a commuted sentence. But the former board members claim that Brewer, working through a top staff member, regularly “overtly attempted to influence” them not to grant clemency to state prisoners whose cases came before the board. (See also, Laird v. Sims, 147 P. 738 (1915).
The Board is a check and balance on the Governor under Arizona law, and it appears the Governor may be trying to get around that limit. I think that a recommendation by the Board for clemency does not mean the Governor has to grant it. Instead, it means that the Governor has more information from an independent group. But it may be that the Governor “is so concerned with appearing tough on crime that she ha[d] top aides bear down on the Arizona Board of Executive Clemency to ensure that it shows no mercy for prisoners in high-profile cases, according to former clemency-board members.” The Republic hints at possible job threats “Three of the board members were unseated for voting to recommend clemency, they said, and two resigned.” In other words, rather than make the tough call against a considered recommendation, an executive wants decisions that make certain policy stands easier.
Great power is something our country has tried to balance from its inception. We stray from checks and balances at our peril. Leaving aside whether the death penalty is OK (as that discussion is important but far too complex for this space), if one has the death penalty, a system that is cautious and considered about administering the ultimate sanction, death, shows understanding for the human condition. An extra check and evaluation, a system that requires anyone to take a stand before executing someone, matter. They invite reflection and debate. As part of the overall system of checks and balances, Arizona’s independent clemency board seems to have been born of wisdom, now undermined. That should not be the case.
posted by Zephyr Teachout
Next week in oral argument on McCutcheon v. FEC, you may hear the justices asking counsel to explain why aggregate limits on contributions serves a governmental interest in quid pro quo corruption. Quid pro quo is mentioned 14 times in McCutcheon’s brief, and 5 times in the response.
In Citizens United, Justice Kennedy used the phrase quid pro quo fourteen times. Justice Kennedy believes that the governmental interest in regulating corruption only includes regulating “what we can call the ‘quids’ in the quid pro quo formulation.” The phrase quid pro quo came to serve as a kind of redundant definitional phrase attached to the word, describing what corruption constitutes, or reinforcing that description.
Justice Thomas has scolded others for trying to separate “‘corruption’ from its quid pro quo roots.”
In Wisconsin Right to Life, Chief Justice Roberts’ announced that “the quid-pro-quo corruption interest cannot justify regulating [issue ads].”As for any other efforts to define it, he writes, with frustration, that “enough is enough.”
Here’s the rub: quid pro quo didn’t become part of definitions of corrupt, corruption, or corruptly until the 1970s, and in many states it is still not part of the definition of any bribery, extortion, or other corruption statute. Just to take one example–I could do this with many states– the first mention of quid quo pro in the New York bribery context was in 1972, and it has been mentioned only a handful of times after that. When the elements of bribery are listed, quid pro quo is not one of them.
So while it is true that Buckley mentions quid pro quo corruption, but in doing so, it wasn’t consolidating and describing an understanding, it was creating one.
posted by Gerard Magliocca
Most constitutional lawyers are familiar with Home Building & Loan Ass’n v. Blaisdell, which held that the Contracts Clause did not prohibit a state from giving home mortgage debtors an extension of time to fulfill their obligations. This case, in practice, drained the Contracts Clause of any significance unless a state actually annuls a debt. Justice Sutherland authored an epic dissent in Blaisdell, which I’ve posted about before.
What I did not know was that there was a companion case to Blaisdell. W.B. Worthen v. Thomas invalidated an Arkansas statute as a violation of the Contracts Clause. That law said no payout from an insurance policy could be used to satisfy any debt (including ones entered into before the law was enacted). The Court held that this was unreasonable because “the relief sought to be afforded is neither temporary nor conditional. In placing insurance moneys beyond the reach of existing creditors, the Act contains no limitations as to time, amount, circumstances, or need. We find the legislation, as here applied, to be a clear violation of the constitutional restriction.”
Sutherland concurred but wrote that this case was not distinguishable from Blaisdell. He explained that four Justices were:
“[U]nable then, as we are now, to concur in the view that an emergency can ever justify, or, what is really the same thing, can ever furnish an occasion for justifying, a nullification of the constitutional restriction upon state power in respect of the impairment of contractual obligations. Acceptance of such a view takes us beyond the fixed and secure boundaries of the fundamental law into a precarious fringe of extraconstitutional territory in which no real boundaries exist. We reject as unsound and dangerous doctrine, threatening the stability of the deliberately framed and wise provisions of the Constitution, the notion that violations of those provisions may be measured by the length of time they are to continue or the extent of the infraction, and that only those of long duration or of large importance are to be held bad. Such was not the intention of those who framed and adopted that instrument. The power of this court is not to amend but only to expound the Constitution as an agency of the sovereign people who made it and who alone have authority to alter or unmake it. We do not possess the benevolent power to compare and contrast infringements of the Constitution and condemn them when they are long-lived or great or unqualified, and condone them when they are temporary or small or conditioned.”
posted by Suzanne Kim
Friday’s New Jersey Superior Court decision in Garden State Equality v. Dow holding that equal protection requires the extension of marriage to same-sex couples was an important victory for marriage equality overall and for recognition of the importance of naming. The decision arises at a time when debate continues over whether the New Jersey legislature will override the gubernatorial veto of the last year’s Marriage Equality and Religious Exemption Act, which would have extended the title of marriage to same-sex couples in New Jersey.
Seven years ago, the New Jersey Supreme Court concluded in Lewis v. Harris that the equal protection challenge to the state’s refusal to marry same-sex couples could be separated into two distinct issues – (1) whether same-sex couples had an equal right to the rights of marriage; and (2) whether they had a right to the title “marriage.” As to the first question, the court easily concluded that same-sex couples were entitled under equal protection principles to the benefits and privileges of marriage. But as to the second question, the court was careful to maintain a distinction between substantive rights and naming. In deferring to the legislature, the majority chose not to “presume that a difference in name alone is of constitutional magnitude.”
The question of access to the title of “marriage” has often focused on the social costs associated with being labeled something other than married. In her stirring dissent from the court’s deferral of the naming question in Lewis v. Harris, then-Chief Justice Poritz identified the stigma and devaluation flowing from giving same-sex couples a title other than marriage. I have written more extensively about this issue elsewhere.
The decision in Garden State Equality v. Dow highlights the substantive costs (apart from the social ones) of failing to use the term “marriage.” With DOMA’s Section 3 in place prior to Windsor, committed couples in New Jersey—in marriages or civil unions—were similarly, if not equally, situated regarding substantive rights and privileges. But with Section 3 invalidated and many federal agencies conferring federal benefits only to married same-sex couples, not couples in civil unions, New Jersey’s committed same-sex couples do not receive equal protection as promised by Lewis. The decision underscores just how much there is in a name.
posted by Gerard Magliocca
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”
Now I’ve always wondered where Justice Douglas got this idea for Griswold v. Connecticut. Then I read Springer v. Philippine Islands, 277 U.S. 189 (1928), an opinion by Justice Sutherland. Holmes dissented, and here is how he started his dissent:
“The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Property must not be taken without compensation, but with the help of a phrase (the police power), some property may be taken or destroyed for public use without paying for it, if you do not take too much. When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.”
Note that Holmes is using penumbra in a different way from Douglas. He is arguing against using these to infer a general right. The penumbras are exceptions that build some flexibility into the Constitution. Still, this could be the source of Douglas’s language. (This may be something that everyone familiar with Griswold already knows, but I’d never come across this Holmes dissent before.)
posted by Gerard Magliocca
Why is the Affordable Care Act still so controversial? I want to advance the following explanation: Whenever the government gives substantial regulatory power to private firms (or a single private firm), serious constitutional doubts emerge. This conclusion does fit neatly into any doctrinal category, but it does explain a lot of significant constitutional controversies. Consider these examples:
1. The Bank of the United States. This was the great constitutional controversy at the start of the Republic. Congress gave a private firm tremendous (and largely unregulated) power over monetary policy. In effect, we had a private central bank. All sorts of arguments were made against this arrangement, but the most persuasive one probably was that it was inappropriate for the government to delegate this fundamental authority to a private firm.
2. The Slaughterhouse Cases. There is no shortage of literature on these decisions, but one point that is often overlooked is that there were four votes to say that state monopolies should be viewed suspiciously–they were not like ordinary economic legislation. Justice Field’s dissent explained at length why monopolies were different, drawing on the common law.
3. The National Industrial Recovery Act. FDR’s initial effort to tackle the New Deal delegated broad authority to firms and unions to set wages, hours, and work conditions. The Supreme Court struck this down on non-delegation and Commerce Clause grounds, but again the deeper problem was that the private sector was being given broad discretion to make law.
The Affordable Care Act bears some resemblance to these precedents. The individual mandate is a requirement that you subject yourself to private power. In fairness, this is regulated more closely than the examples listed above, but insurance companies still have quite a bit of discretion over health care policy. Moreover, there is a concern about corruption once the state and private companies get linked in this way–corruption was, of course, a leading argument against the Bank of the United States.
posted by Suzanne Kim
Recent reports of a Texas state court order requiring a divorced custodial mother’s cohabiting female partner to stay away between 9 pm and 7 am while the children were in the home brings to mind the continued discrimination against same-sex couples and same-sex couples with children through custody law, despite major strides on the marriage access front. In my 2012 article The Neutered Parent, I explore the ways in which custody law has historically been used to enforce norms of sexuality against women and sexual minorities, particularly to discipline sexuality into a marital framework. The problem with this judicial action, of course, is that same-sex couples may not marry in Texas. The wider availability of marriage, however, would not necessarily diminish the assumption inherent in such “morality clauses,” that parental sexuality is best pursued in a marital context. Broader access to marriage/marriage rights, including as conferred by the federal government following Windsor, should prompt us to consider with greater attention the rights of parents outside of the marital sphere. Analysis of the latest Census data highlights the class-based disparities in who gets married and who doesn’t. Nonmarital parents constitute a significant and growing percentage of parents. These reports raise the question of how custody law should address such realities of contemporary family life. Is the answer to bring more parents into the marital fold? The Texas case suggests continued reliance on heterosexual, marriage-based norms of parental sexuality. As I discuss in The Neutered Parent, the ALI’s 2002 amendments to custody provisions pertaining to parental sexuality fail to foreclose the types of thinking that animate discriminatory custody decisions. While the ALI suggests focusing on parental “conduct,” rather than relying on biased assumptions about how parental sexuality and nonmarital sexuality pertain to children’s best interests, the ALI might provide more explicit criteria for what qualifies as relevant conduct. Without such clarification, actions that might not read as “sexual conduct” in a marital setting, like a parent’s private consumption of pornographic material, might look like evidence of relevant conduct in a nonmarital setting. This is because of what I describe in The Neutered Parent as the perceived “sexual salience” of nonmarital parents in judicial determinations of custody. Greater clarity regarding relevant parent conduct can better serve sexual liberty interests as promised by Lawrence v. Texas.
September 22, 2013 at 4:09 pm Tags: custody, Family Law, marriage equality, sex discrimination, sexual orientation, sexuality Posted in: Constitutional Law, Culture, Privacy, Uncategorized Print This Post No Comments
posted by Gerard Magliocca
I was recently asked to participate in a workshop on federalism, and my first reaction was: ”Is there anything new that I can say? Hasn’t that topic been beaten to death?” Necessity worked its magic though, and I got to thinking about how the Constitution protects states.
At the Founding, the most important structural protection for federalism was a Senate comprised of appointees by state legislatures. Not far behind were the doctrine of enumerated powers and the Tenth Amendment. All of those safeguards were diminished by subsequent constitutional developments. In some instances the Senate does protect states or a given state, and there are a few cases that strike down an Act of Congress for violating federalism, but these occasions are few and far between.
So what does protect states nowadays? The answer is the Electoral College and the presidential nominating process. Take Ohio. It gets showered with attention by presidents and officials of both parties. Why? Because it is a swing state. That is now worth a lot more than having a powerful member of Congress. If the Electoral College were abolished and the winner determined by the national popular vote, no single state would get disproportionate attention. The same would be true for a given state if it went from a winner-take-all system to a proportional or congressional district method of allocating electors.
The question of which states are swing states is a product of demographics that are beyond their control. Iowa and New Hampshire’s role in the presidential nominating process, however, is the product of a choice. The Iowa caucus does more to protect Iowa as a state than anything else. (Ethanol subsidies are a good example.) Ditto for any state that get itself early in the calendar (such as Florida).
There are many other interesting federalism issues raised by the presidential selection system. More on that next week.
posted by Gerard Magliocca
It occurs to me that nobody has done an top-notch study of the First Congress. While the Constitutional Convention and the state ratifying conventions were very important in shaping our institutions, the First Congress ranks with them. Among other things, that body created: (1) the federal judiciary; (2) the Bill of Rights; (3) the original executive departments; and (4) the Bank of the United States. There were plenty of precedents established as well which were crucial for separation of powers and the internal operations of Congress. If there is a fine book on this, though, I’d love to hear about it.
As an aside, I’m pleased by the brisk sales of American Founding Son thus far. But there is always brisker.
posted by Gerard Magliocca
I’ve been busy with a couple of projects (hence the dearth of blogging), but here’s an interesting chestnut. I was reading a book about Harry Truman that discussed a series of strikes in 1946 that threatened the economy. Truman eventually decided that he would draft the strikers into the Army if they refused to return to work and made this threat public. (The strike quickly ended.) When told that his plan was illegal, Truman essentially replied that the courts would sort that out. This was a preview of his decision to seize the steel mills in 1952, which led to the Court’s decision in Youngstown.
Why would selective conscription (if authorized by Congress) be unconstitutional? Presumably the answer is something like “Because the draft was being used as punishment for the exercise of a legal right.” But is that saying that conscription violates the Eighth Amendment when used as a punishment? Or that it is an improper legislative punishment (a bill of attainder)? Or something else? The result (that what Truman proposed was unconstitutional) must be right, but what is the right reason for that conclusion?
posted by Ronald K.L. Collins
McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees. This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976). The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.
Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.
Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny. That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act. Here again, the Court was badly divided.
In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.
* * * * *
The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975:
Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”
“The disclosure provisions are the heart of the whole thing for me. I think these provisions are constitutional and highly desirable.
Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”
Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”
“The expenditure limitations are wholly unconstitutional.”
“I see no First Amendment problems in political committees.”
posted by Ari Waldman
It is always a pleasure to join the Concurring Opinions community, one that I find supportive and tough, insightful and witty. I hope to contribute to ongoing discussions, raise a few eyebrows and bring some new perspective to issues of great concern to us all. Thanks to the incomparable Danielle Citron and the Con-Op community of leaders for having me on this month, and thank you in advance to all the readers for indulging my interest in sociology and privacy.
That is what I’d like to write about this month. My research is on the law and sociology of privacy and the Internet, but I am particularly concerned with the injustices and inequalities that arise in unregulated digital spaces. This was the animator of my previous work on bullying and cyberharassment of LGBT youth. This month, I would like to speak more broadly about how sociologists (I am completely my Ph.D. in sociology at Columbia U) talk about privacy and, by the end of the month, persuasively argue that we — lawyers, legal scholars, sociologists, psychologists, economists, philosophers and other social scientists and theories — are, for the most part, thinking about privacy too narrowly, too one-dimensionally, too pre-Internet to adequately protect private interests, whatever they may be. But before I get there, let me start small.
Many of us are familiar with the work of legal and economic privacy scholars, from Dan Solove to Alessandro Acquisti, from Jeffrey Rosen to Larry Lessig and Julie Cohen. All incredibly smart and insightful academics who have taught me much. But many are less familiar with sociologists like Robert J. Maxwell (not to be confused with the Robert Maxwell who produced “Lassie”) who’s work I would like to discuss briefly. I argue that Maxwell’s work evokes a typically narrow conception of privacy too common among sociologists: that privacy is, at best, about mere separation from others and, at worst, about the space for deviance.
Maxwell wanted to know about the presence of premarital sex in preindustrial societies. So, using an established data set including all sorts of details about these societies, Maxwell decided to look at the connection, if any, between sexual norms and, of all things, the permeability of wall construction materials. The codings for whether sex was allowed ranged from “premarital relations not allowed and not sanctioned unless pregnancy results” to “insistence on virginity; premarital sex relations prohibited, strongly sanctioned in fact rare.” Wall material codings ranged from the relatively impermeable “stone,” “stucco,” “concrete” and “fired brick” to “nonwalls” (literally, no walls, or temporary screens). He was working off the glass houses hypothesis — people who live in glass houses will not throw stones. Therefore, he thought that the more permeable the wall, the less rigid the antisex norms.
He was right.
He found that there was inverse relationship between the permeability of the materials used in wall construction and the rigidity of the norms regulating premarital sex for women.
The data provide a simple, though imperfect, proxy for talking about privacy in a discrete social unit. Walls are barriers to knowledge about what’s going on behind them (though, not impenetrable barriers, see Kyllo v. United States, 533 U.S. 27 (2001) (heat sensors used to pierce the wall of a home)). Strong anti-premarital sex norms existed in communities that could afford to have them, i.e., communities that had impenetrable walls to create hiding spaces. Communities without walls or hiding places more likely had their members have sex out in the open or, at least, in view of others. They could not afford or were not able to have strict antisex norms.
This tells us two things about how sociologists study privacy.
First, sociologists tend to think about the private as separate from the public and indulge in an oft-used spatial analogy. In fact, they’re not alone. Much of the social science literature uses the rhetoric of spaces, territories, walls, and other indicators of literal separation to support theoretical arguments. For example, Joseph Rykwert, an historian of the ancient world, argued that there was a direct correspondence between ancient conceptions of privacy and the women’s rooms in the home, on the one hand, and public behavior and the men’s rooms, on the other. The distinction in the home was literal. In his work on secret societies, Georg Simmel not only argued that “detachment” and “exclusion” were necessary for the success of a secret organization, but analogized the role of the secret to a wall of separation: “Their secret encircles them like a boundary, beyond which there is nothing.” Erving Goffman, a preeminent sociologists whose work almost every undergraduate reads in a Sociology 101 course, built his entire microsociology theory of how people behave in public around a theatrical conceit that distinguished between the “front stage,” where the action happened, and the “back stage,” where the actors could kick back. And so, when the Maxwell wanted to study sexual intimacy in pre-industrial societies, he chose to study wall construction, material permeability, and hidden spaces to determine if there was a relationship between intimacy norms in the greater society and private behavior.
But conceiving of privacy as sequestration or as a hidden space has its limits. Neither Goffman nor Simmel ever really meant their analogy to be put into practice. Both wrote much about how privacy could exist in public, in crowded rooms and when you around many other people. And yet privacy-as-sequestration in a space permeates the law of privacy, from the continued sanctity of the home to old cases like Olmstead v. United States, 277 U.S. 438 (1928), that hinged privacy invasions on an actual, physical trespass. Some sociologists appear to be guilty of the same lack of imagination that Justice Brandeis called out in his Olmstead dissent: “The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”
The second thing this approach to the study of privacy tells us about sociologists and privacy is that they, and many other scholars, burden privacy with a moral dimension. They associate privacy and private places with deviance. This is where I will pick up in my next post.
posted by Gerard Magliocca
While there are plenty of (quite valid) complaints that Congress is dysfunctional, there can be little doubt that Congress’s power is increasing in comparison to the Executive Branch. This is probably the most important (if least noticed) constitutional trend under the Obama Administration. Consider three examples:
1. The Debt Ceiling Weapon
We are about to head into another budget battle where the necessity of raising the debt ceiling will be inescapable. While this was (and still is) a partisan innovation, the result is an increase in Congress’s bargaining power. I doubt that a Democratic Congress will forego this tool when a Republican President is in office.
2. The Senate Filibuster
Though the filibuster of executive nominees was rolled back last month, that device to defy a president is still much more powerful than it was under, say, President Reagan or Bush 41. (Consider that Justice Thomas could easily have been filibustered successfully, but nobody thought that was appropriate at the time.)
3. The Syria Vote
If Congress rejects the President’s authorization of force proposal, then that will set a precedent that will weaken the war-initiating power of the Presidency. (A big “if,” but I’m doubtful that the President can muster the votes.)
Concerns about the Imperial Presidency, which were so prevalent five years ago, aren’t heard much nowadays.
posted by Stanford Law Review
Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.
September 3, 2013 at 7:47 am Posted in: Behavioral Law and Economics, Constitutional Law, Criminal Law, Cyber Civil Rights, Cyberlaw, Empirical Analysis of Law, Intellectual Property, Law Rev (Stanford) Print This Post 2 Comments
posted by Gerard Magliocca
This is a piece that I wrote for an exchange hosted by the Law and Liberty Fund on the constitutional issues surrounding the Federal Reserve system.
Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities
posted by Zvi Triger
Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?
All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.
The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.
August 31, 2013 at 6:13 pm Tags: gender segregation, Jewish law, public tranportation, ultra-orthodox, women's rights Posted in: Civil Rights, Constitutional Law, Culture, Current Events, Feminism and Gender, Race Print This Post No Comments
posted by Gerard Magliocca
On Sunday, Justice Ginsburg told people for the 23rd time that she’s not retiring anytime soon. Perhaps the press will now start hounding Justice Breyer with these sorts of questions between now and 2015.
This raises a larger point that I’m thinking about as part of the article that I’m writing. We could be stuck with a disconnect between the political branches (or, at least, the Presidency) and the Court for a long time. Even assuming that Democrats hold the White House in 2016 (a not trivial assumption), there is nothing sure about any retirements from the conservative side of the Court in this decade. To serve until 2021, Justices Scalia and Kennedy would need to stay until they are 85. That is hardly unthinkable. The “Constitution in 2020,” to use that liberal slogan, could end up looking a whole lot like the “Constitution of 2010.”
In monarchies, a regency referred to a period where the king (or queen) was a child, and someone else had to govern until they came of age. This was always an uncertain time, because nobody knew whether the regent’s policies would be followed when the king (or queen) took over. I’m kind of wondering if this is the legal equivalent, at least when the Court is closely divided.
posted by Gerard Magliocca
This is one way of understanding the Court’s decision in Shelby County v. Holder. In other words, the Court is now applying tiers of scrutiny to regulatory statutes that facially discriminate between states. Let me explain what I mean by that, as it will be part of the Article that I’m writing about “Constitutional Realignments.”
We can probably agree that a law exempting one state from its regulatory requirements without any explanation would at least raise questions under rational basis review. (It turns out, apparently, that parts of ERISA do not apply in Hawaii for reasons that I don’t understand.) Shelby County went further than this. The Court held that the record amassed by Congress when the Voting Rights Act was renewed in 2006 was insufficient to justify that facial discrimination between the states. Why was that evidence inadequate? Is there a reason to distinguish Congress’s power pursuant to the Commerce Clause from its powers under the Reconstruction Amendments? Or is there something special about state authority over voting that calls for more demanding judicial scrutiny? Or will the holding of Shelby County be expanded to include all regulatory statutes that facially discriminate between states, as Justice Ginsburg worried about in her dissent?
Another question going forward is whether Shelby County will remain confined to facial state discrimination on regulation. There are not many laws that expressly differentiate between states in this regard (though the sports-betting law than I’ve blogged about before is vulnerable because it lets Nevada do things that most other states cannot). There are more federal laws, though, that intentionally discriminate between states with saying so. I doubt that the Court would want to take its new principle to cover that, but that approach would be a powerful restraint on the authority of Congress.