Site Meter

Category: Politics

0

Signing off

AFC-cover      Thanks to all for having me back to Concurring Opinions.  I’ve enjoyed the visit immensely.

During my stay, I blogged about the conception of my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).  I discussed ideas of constitutional formation and reorganization, alternative theories of popular consent, and certain black nationalists’ view of the Fourteenth Amendment (and even guns and self-defense).  I analyzed Cliven Bundy’s theory of rancher sovereignty, which is shared by many who rallied to his armed defense against the Bureau of Land Management (here and here).  I advocated the creation of a new national office, the Tribune of the People, whose sole responsibility would be defending civil and human rights. Finally, I discussed the Supreme Court’s recent decision on legislative prayer as an example of institutional withdrawal, as issues of prayer were thrown back to the hurly-burly of the public sphere.

News about America’s Forgotten Constitutions can be followed on my author’s page, book blog, facebook, or twitter.  On September 18, 2014, during the week celebrating the U.S. Constitution, I’ll be giving a noontime book talk and signing at the National Archives (more details later).  I hope to see you there.

I am working on a variety of other research projects, including books and papers exploring presidential leadership over individual rights, war-dependent forms of constitutional argumentation (to be published by Constitutional Commentary in the fall), and popular theories of law found in poetry and fiction (my latest, “‘Simple’ Takes On the Supreme Court” is hot off the press).  My papers can be downloaded here.

So long!

0

Podcasts on America’s Forgotten Constitutions

For those who might be interested, I recently did two podcast interviews on my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).

The Electric Politics interview is more far-ranging and can be found here.

The ConSource interview delves more deeply into the book itself, especially the settlers who broke away from New Hampshire to establish the Republic of Indian Stream, the nineteenth-century socialist constitution written by Icarians (and blessed by the State of Illinois), and John Brown’s armed efforts to refound the Republic.  We also talk a bit about archival work.  Go here.

1

Town of Greece v. Galloway and Institutional Withdrawal

Every so often, the Supreme Court seems to be doing something other than clarifying the principles of constitutional law to guide the resolution of future cases.  Instead, it may be doing little more than sketching the terms for institutional withdrawal from a field of social action.

Yesterday’s decision in Town of Greece v. Galloway, which allowed a town supervisor to pick someone to solemnize town meetings even though it is highly likely such statements will turn out to be sectarian, bears all the hallmarks of a hasty retreat.  First, there is the monumental move of describing the chosen prayer-givers as private speakers, subduing Establishment Clause objections by resorting to free speech ideas (I will note that Free Exercise language is sprinkled liberally throughout the opinion, but no one seriously claimed that one must have a right to speak at government functions in order to worship in a meaningful way).  Recall that when public school officials tried the private speech argument in the school prayer (Lee v. Weisman) and football prayer (Santa Fe Indep. Sch. Dist. v. Doe) cases, the Justices rejected it out of hand.  Now, the Court likes the argument in a prayer case. The main difference cited is that those cases involved children and this one involves adults, but fear of coercing children should hardly extinguish the objections of adults, who might very well need to be present for the people’s business.  We are quickly informed that adults in the religious minority must buck up (more on this in a moment).

Second, as some commentators have observed, the ruling gives very little by way of guidance to judges who must determine when the Establishment Clause has been transgressed (and when the Speech Clause has not).  It appears that the Court may be giving up on the idea that sectarian expressions must be guarded against, once you have an honest to goodness public forum. Even if a citizen isn’t forced to attend town meetings, does she have a right to be free from offensive prayer at court proceedings and other government-sponsored events?  Is the Court really going to start drawing fine lines between government settings (apart from schools), identifying ones that present an inherent risk of improper proselytizing?  Doubtful.

Third, if the answers to these questions are: probably not, then the Court may simply be giving the appearance of leaving serious questions open for litigation, but in fact be effectively insulating a certain kind of religious politics, i.e., over prayer, from judicial review.  Once the state creates a public forum, we are told it can’t censor the content of the expression that follows to ensure it is “generic or nonsectarian.”  Doing so would interfere with the invisible hand that governs the marketplace of ideas and often now trumps Establishment Clause concerns.

Since at least the Warren Court, legal liberals have believed that an alert judiciary policing the religious sphere helps keep the peace.  But conservatives learned a very different lesson over the years.  After decades of organizing against the mythical wall of separation between church and state, conservatives–and the jurists that represent their views–have arrived at the conviction that judicial involvement has marginalized people of faith and silenced them, while rendering the courts politically vulnerable.  The resolution in Town of Greece is best understood in this light of backlash politics and institutional withdrawal.

Prayer has been the single most visible issue, both real and symbolic, contributing to conservative counter-mobilization.  So if Engele v. Vitale represented the high point of judicial involvement in religious matters, and if Lee v. Weisman and Santa Fe Indep. Sch. Dist. v. Doe were holding pattern cases, Town of Greece finally absorbs and unleashes those political lessons with a vengeance. It does so by returning prayer issues back to the rough and tumble of ordinary politics. Outside of the school context, it seems that much is permissible by way of “ceremonial prayer” (but why leave it at “ceremonial” prayer?).  Justice Kennedy’s opinion tells us as much.  First, religious minorities who do not hear their religious leaders at government events are told to toughen up, for “[a]dults often encounter speech they find disagreeable.”  Once again, the resort to free speech rhetoric is undeniable: religious objectors are treated like hecklers who should not be given a veto over the religious majority.  An objector’s remedy is one of self-help, just like anyone who is confronted by objectionable speech on the streets: to remain and try to ignore the offending religious speech or leave the gathering.  Justice Kennedy suggests, in a hopeful way, that no one will think any less of you either way.  If you exit, your “absence will not stand out as disrespectful or even noteworthy.” Staying won’t be “interpreted as an agreement with the words or ideas expressed.”

Second, citizens are explicitly warned not to run to court and make too much out of single invocations that go too far.  This is more language seeking to insulate prayer from further litigation.  A judicial remedy might be available only if a litigant demonstrates “a pattern and practice” of ceremonial prayer being used to “coerce or intimidate others.” It might be a problem if government officials directed audience members to pray, or “singled out dissenters for opprobrium,” or allocated “benefits and burdens” on the basis of participation in prayer. In “the general course,” however, mere exposure to unwanted or insulting religious ideas would not make out an Establishment Clause violation.

Will blurring the rules in an attempt to get the courts out of prayer disputes work to reduce religious strife?  I’m not as confident as Justice Kennedy that reduced judicial attention to government-organized prayer will diminish antagonistic politics. At best, it may displace conflict from the courts to local communities and disperse conflict regionally.  In fact, it may very well intensify the activity of legal liberals.  For one thing, we will now see redoubled efforts by religious minorities and nonbelievers to test whether these “public forums” springing up truly are open to all faiths (or those with no faith at all), or are actually shams.  In other words, will the Muslim, the atheist, the devil worshipper, the Odinist, and the Wiccan really be permitted to solemnize town meetings?  If they are not, will their exclusion be done on a content-neutral basis?  The people of Greece really did bend over backwards, apparently never once turning someone down who wanted to solemnize a town meeting.  What happens when citizens decide that only a Christian solemnization is appropriate for the occasion?  Under limited public forum rules, the government is accorded some leeway to determine the purpose of the forum; on the other hand, viewpoint discrimination presumably can still be a problem.

Second, we will surely experience a resurgence of prayers at legal proceedings and other government-sponsored events.  Those situations, too, will continue to be tested in the courts. The re-writing of doctrinal rules (what happened to the endorsement test?) incentivizes further government-religion partnerships through creative use of the public forum doctrine.  A public forum need no longer be a physical space in the traditional sense, but could be a metaphorical pot of money or now, a moment in the agenda when one might speak or pray.  Each time this strategy is judicially approved, it removes the state from constitutional responsibility over the religious activity that subsequently occurs.  At some point, this strategy of recharacterizing Establishment Clause issues as simple Speech issues must reach a logical limit.  Just not yet.

Will clashes over prayer become more intense or less so?  Will there be fewer religion cases in the courts?  Time will tell.  But one thing is apparent: the Supreme Court no longer wishes to be blamed for taking God out of the public square.

0

Tribune of the People

bostonglobe-504oped_tsaiCLRYesterday, the Boston Globe published my piece proposing the creation of a new national office dedicated to the protection of civil and human rights. I wanted to give a little more context to the idea here, beyond what the op-ed format allowed.

The basic idea is that we need a single national figure to instantiate rights and defend them consistently. For a variety of reasons, our existing political-legal structure fails to do this robustly and consistently. Enforcement of civil and human rights is fractured among multiple bodies with narrow mandates (U.S. Department of Justice, U.S. Commission on Civil Rights), all of which are captured by party politics. Those in the trenches know how much a general commitment to rights, along with which rights to promote, can vary wildly depending on which party controls the White House. Amicus briefs offer only an ad hoc solution, because such writings are driven by interest group concerns, which can be quite distorting, and don’t carry the kind of institutional weight that government briefs do (if they are read at all by judges, as opposed to their clerks). All of these factors reinforce the idiosyncratic way in which relevant law, including international and comparative law, is presented to jurists.

Historically, presidential agendas have at times aligned with the goal of promoting civil or human rights. But case study after case study underscores how challenging this can be. The bureaucratic politics, party dynamics, and reputational hurdles can be daunting to navigate for anyone who might want a president to take vigorous action on behalf of individual rights.

The idea I have proposed is adapted from one presented by a group of experts based at the University of Chicago in the immediate post-World War II period. At the time, the group–led by the visionary Robert Maynard Hutchins (Chancellor of the University of Chicago and former Dean of Yale Law School) and the fiery Giuseppe A. Borgese (professor of Italian literature)–hoped to inspire the creation of a world constitution. Many later found the overall project too utopian. But whatever one thinks of such strong internationalist proposals, the project allowed Americans to reflect deeply on what ailed American constitutional self-governnance.

Perhaps the most penetrating critique that emerged from the working group’s many meetings involved separation of powers. They believed Americans had become slavish followers of Montesquieu, by insisting that institutional functions had to be strictly distinguished in the name of ensuring political liberty. But strict separation was a disaster: American politics had been consumed by paralyzing party politics and bureaucratic dysfunction, utterly incapable of dealing with urgent problems. Members of the Chicago group turned separation of powers orthodoxy on its head by offering reforms that retained some measure of institutional distinctiveness, but also dramatically increased the overlap of functions.  For example, they thought it wise to give a president explicit constitutional authority to initiate legislation and to serve as Chief Justice of the Supreme Court.

These mid-century reformers felt comfortable injecting greater energy into government in part because they had a strong belief in rights. The Tribune of the People idea encapsulates that commitment, as it was intended to be an office charged with defending “the natural and civil rights of individuals and groups against violation or neglect” by government. The Chicago group tried to design an office that would “neither be a duplicate or retainer of the President in office, a Vice-President in disguise, nor his systematic heckler and rival.”  A Tribune should be “truly the spokesman for real minorities, not the exponent of a second party.”

In a sense, other countries heeded this call, while Americans have largely forgotten the conversation. Today, there are a number of analogues worth studying. Countries that have a national figure dedicated to the enforcement of rights include Albania, Argentina, Armenia, Azerbaijian, Bulgaria, Columbia, Costa Rica, Estonia, France, Guatemala, Norway, Peru, Poland, Portugal, and Serbia. Each of those countries has a Defender of Rights, Commissioner for Human Rights, or Chancellor of Justice. There exists a U.N. High Commissioner for Human Rights, who recently weighed in on Oklahoma’s bungled execution by lethal injection, but has no real power to influence rights development here.

So it seems it is well past the time to consider whether we are doing all that we can institutionally to protect civil and human rights.

 

0

Self-Defense and the Fourteenth Amendment

negroes_with_guns-01

Dance and sing you black creatures

of Mother Africa.

Move to the sound of the drums

of your forefathers.

Hold on to your drums and beat

them in defiance of the slavemaster and

let their thundering sound awaken those who sleep.

–Mabel Robinson Williams, Transition (1966)

 

Mabel Robinson Williams passed away last week.  Williams may have been most famous for being married to Robert F. Williams, the controversial former head of the NAACP in Monroe County, NC, but she was an intriguing theorist and fierce activist in her own right.  She recalled that her father slept every night with a pearl-handled pistol under his pillow in case the Klan’s night riders attacked.  As an adult, she served as Secretary of the local NAACP, co-founded a newsletter called The Crusader, organized a mutual aid society called CARE, and helped run Radio Free Dixie.  Mabel called herself a “co-warrior” and “helpmate” to Robert, even as she served as a nurse’s aid and later operated a day care.  When her sons joined a picket against a segregated swimming pool, she sat in the car with guns, keeping one eye out for armed whites.  She and other female members of a rifle club trained to protect their families against the Klan.  Once, Mabel came out of her house with a shotgun and chased off deputies trying to arrest her husband.

Husband and wife worked together on Negroes With Guns (1962), which articulated a theory of self-defense of constitutional rights.  The Williamses “did not advocate violence for its own sake,” nor did they urge “reprisals against whites.”  Instead, they argued that armed self-reliance was compatible with the tactics of peaceful protest promoted by Martin Luther King, Jr. to promote legal change (but they blamed proponents of non-violence for inflexibility in demanding that blacks renounce their right to self-protection).  In their view, armed self-defense was justified because of a “breakdown of the law” in failing to protect black families from armed whites.  As they tell it, Brown v. Board of Education unleashed not only generalized racial unrest in the South, but also a wave of violence directly against NAACP members and their allies.  “[T]here was no such thing as a 14th Amendment to the Constitution in Monroe, NC,” because local officials refused to enforce the law and protect the life, liberty, and property of black families.  Federal and state officials, too, were nowhere to be found.  In fact, many in the community believed that state and local officials were conspiring to deprive black Americans of their constitutional rights. Black self-defense filled this gap in the constitutional order.

Any limited theory of armed self-defense became greatly complicated by the pair’s embrace of Marxist revolutionary ideas about the worldwide liberation of the oppressed.  Negroes With Guns predicted a day when racial violence in the United States became so pervasive that “non-violence will be suicidal in itself.”  It cited with approval the legacy of John Brown favoring the “righteous use” of weapons to “destroy those things that block [the American Negro's] path to a greater happiness in life.”  Linking armed tactics with revolutionary ends blurred the lines between constitutional preservation and constitutional usurpation–a recurring problem that faced all black power groups during this period.  In theory and practice, it became difficult to draw clear lines between self-defense and the armed instigation of foundational change.

After a protest turned unruly and Robert Williams was charged with kidnapping a white family (he claimed to be protecting the family from a mob), the pair fled.  While in exile in China, Robert briefly held the Presidency of the Republic of New Afrika, founded by the followers of Malcolm X after his assassination.  Professor Pero Gaglo Dagbovie recounts that in later years, Mabel became a community historian and keeper of an oral tradition of the Black Power period.  This tradition includes not only the major events that transpired during a tumultuous period of American history, but also popular interpretations of the law.

5

Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a “range war” muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What’s harder to figure out is Bundy’s theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the “compact theory” of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures “declare independence” when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he “respect[s] the federal government” but also that it “doesn’t have its place in the state of Nevada . . . and Clark County, and that’s where my ranch is. The federal government has no power and no ownership of this land.” Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one’s constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it’s unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?

8

Legislative Separation of Powers

I find nowadays that many of my constitutional interests revolve around comparing the United States and Britain.  In that spirit, I want to raise the following issue about rule making within Congress.

A fundamental principle of our legal system is that no person should be a judge in his or her own case.  This idea dates back to Blackstone, and is behind many of our legal institutions and ideals.  There is, though, one significant exception.  Each House of Congress makes and applies its own rules.  This means that the majority can be a judge in its own case when the rules are inconvenient.  You can make a reasonable argument that the current lack of cooperation in Congress stems from this merger of procedure and partisanship.  The Speaker largely makes the rules in the House, and Senator Reid does the same in the Senate.  And you wouldn’t call either of these guys nonpartisan.

How do legislatures deal with this problem in other countries or in the states?  There are several options.  One is to say that the rules may only be changed by a supermajority, or may only be changed at a particular time (not just any time the majority wants).  Another thought is that there could be a norm that the rules should not be changed by the majority (even though it can be done that way).  A third possibility is that you delegate rules decisions to someone who is insulated from the majority in some way (a committee chairman or a neutral presiding officer).

None of these are being done now.  I wonder whether each House of Congress could, to so speak, do with a stronger dose of internal separation of powers.

3

More Rule of the Clan Over at Cato

Those of you who enjoyed our symposium on The Rule of the Clan should check the latest on Mark Weiner’s excellent book over at Cato. The event called The State, the Clan, and Individual Liberty. Mark’s initial essay is up. Essays by Arnold Kling, March 12; Daniel McCarthy, March 14; and John Fabian Witt, March 17 will follow. It promises to be another round of heady discussion about core questions on how we order our society.

Here Mark’s opening to get you started:

Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.

I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.

0

UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

0

A silly game for those at AALS and the blogger event

Someone thinks they can tell what your politics are based on what you drink:

Consumer data suggests Democrats prefer clear spirits, while Republicans like their brown liquor. Democratic drinkers are more likely to sip Absolut and Grey Goose vodkas, while Republican tipplers are more likely to savor Jim Beam, Canadian Club and Crown Royal. That research comes from consumer data supplied by GFK MRI, and analyzed by Jennifer Dube of National Media Research Planning and Placement, an Alexandria-based Republican consulting firm.

I assume a political consulting firm wants to know this data so that it can target potential voters, especially those likely to vote and vote a certain way.

Then again, I wonder at the biases here. It does not look like the brand scatter relates only to price. So bourbons may be more favored in Republican areas. But San Francisco, that conservative stronghold, has a an excellent run of rum and whiskey focused bars.

Maybe the best idea is to be equal opportunity as a drinker. Start with gin, move to rum, have some wine, close with whiskey or port. Or drink cocktails. In the words of Radar O’Reilly “Uh, sir, if you’re thirsty. Compliments of Colonel Blake. Scotch. Gin. Vodka. And for your convenience all in the same bottle.”

For now, enjoy guessing what your colleague’s drink says about their politics.