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“Congress” Versus “the Congress”

Since it is the weekend, let me offer this rather trivial observation about the constitutional text:  The Constitution appears to take a stylistically erratic approach to the word “Congress,” sometimes introducing it with the definite article “the,” and at other times introducing it without any article at all.  Looking at this GPO edition of the document, I count 22 references to “the Congress” and 3 references to “Congress” in the first seven Articles, along with 12 references to “the Congress” and 12 references to “Congress” in the subsequent amendments.  There is also one reference to “a Congress” in the Vesting Clause of Article I, although that one makes pretty good sense to me in context.

(By the way, I have no doubt that someone has made this observation before, but the topic turns out to be frustratingly difficult to Google, so I’m unable to provide a reference.  If you have addressed the issue previously, though, feel free to let me know, and I’ll be sure to give credit where credit is due.)

Some of these “Congress”/“the Congress” discrepancies might well be justified, but others seem to me pretty obviously inconsistent.  Compare, e.g., Article I, Section 10, Clause 2 (“No state shall, without the Consent of the Congress…”), with its immediately ensuing clause, Article I, Section 10, Clause 3 (“No state shall, without the Consent of Congress…”).  Compare also the Enforcement Clause of the Thirteenth Amendment (“Congress shall have power to enforce this article by appropriate legislation”), with the Enforcement Clauses of the Fourteenth Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”) and Fifteenth Amendment (“The Congress shall have power to enforce this article by appropriate legislation.”).  So unless there are some deep and subtle messages that I’m supposed to be picking up on, these (and other) discrepancies look to me like the product of accidental oversight.

All of which prompts from me one question and one observation:  The question, which I pose for those more learned than I, is whether it was ever customary, at least in a colloquial sense, to refer to the Constitution’s legislative branch as “the Congress” rather than just “Congress.”  And if so, when did customs change?  I don’t normally say things like: “I wonder if the Congress will shut down the government,” or “I’m looking forward to those debates in the Congress this week,” and I don’t often hear other people using formulations of this sort.  (But see these examples.)  On the other hand, the original Constitution’s heavy reliance on the term “the Congress” makes me wonder whether practices were different earlier on.  (Also, for whatever it’s worth, both “the Congress” and “Congress” make regular appearances in the Federalist Papers.  But that’s the full extent of my meager primary-source research on this vitally important subject.)

The observation, which I offer mainly to myself, is that it’s really, really tough to put together a written document that is totally lacking in stylistic inconsistencies.  That such inconsistencies appear in the constitutional text itself—a short text, whose provisions have been carefully reviewed and edited by lots of smart people—seems to me a pretty good indicator that small-scale deviations of this sort are virtually impossible to eliminate altogether.  That’s something I’m going to keep in mind the next time I find myself fretting about stylistic inconsistencies in my own work.  (E.g., “Did I accidentally use the un-hyphenated ‘decisionmaking’ in Part I, while later using the hyphenated ‘decision-making’ in Part VI???”)  Not that I shouldn’t try to be consistent, but to the extent that I do end up erring, at least I’m not alone…

A Pithy Rendering of the New Political Economy

I remember reading Raymond Geuss’s The Idea of a Critical Theory in graduate school and finding it a clear, compelling work. Geuss reflects on the book in a recent essay, offering the following summation of our economic predicament:

What the 1980s and 1990s had in store for us. . . was the successive implementation of a series of financial gimmicks which created financial bubbles and allowed the illusion of increasing growth for the majority of the population to be maintained for a while. . . . [T]he system began to collapse in 2007 and 2008. Catastrophe was averted only by a bizarre . . . set of political interventions in the Western economies–interventions that have correctly been described as “socialism for the rich”: defaulting banks and failing industries were propped up by huge public subsidies, private debts were taken over by the state and profits continued to flow to private investors. This structure, which certainly bears no similarity whatsoever to the ways in which proponents of “capitalism” have described their favored arrangements, seems to give us the worst of all available worlds. . . .

[T]he forms of economic regulation that had been introduced during the Great Depression of the 1930s and had stood the West in good stead for over forty years were gradually relaxed or abolished during the 1980s. Social welfare systems that had gradually been developed came under pressure and began to be dismantled; public services were reduced or “privatized”; infrastructure began to crumble. Inequality, poverty and homelessness grew.

Thus the current trend of corporate profits without widespread prosperity.

One of the very few contemporary economists up to responding to these trends is Mariana Mazzucato, who teaches that any account of value extraction has to be premised on an account of value creation. I’ll be blogging on her work’s relevance to IP, tax, and other policy over the rest of the month. For now, I highly recommend her contribution to the panel “How to Change the Post-Crash Economy,” at the RSA.

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The Incorporation of the Seventh Amendment

Recently a federal district court held that the Seventh Amendment applies to that territory and to the states.  While I am uncertain if this will stand up on appeal (it’s not clear that the issue need even be reached in this case), I did want to offer two thoughts about the opinion.

First, it’s disappointing (though not that surprising) that the Court said nothing about Reconstruction in its analysis.  There is a lot of talk about the importance of the civil jury to the Framers, but none about how that right was seen by John Bingham and his colleagues when they ratified the Fourteenth Amendment.  What that evidence would show (beyond Bingham’s view that the Seventh Amendment should be incorporated) is one thing, but to ignore it is wrong.

Second, I am unclear about how incorporating the Seventh Amendment against the States would change civil practice.  (Puerto Rico has a more unusual constitution, so the impact would be greater there).  In other words, to what extent can you not get a civil jury trial in a state nowadays?  Granted, the Seventh Amendment’s outdated money threshold ($20) may wipe out higher amount-in-controversy requirements that states have, but otherwise would incorporation matter?  As an aside, why twenty dollars?  There must be a story there.

 

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) — The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

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GW’s C-LEAF Annual Call for Papers from Newer Business Law Scholars

The Center for Law, Economics & Finance (C-LEAF) at The George Washington University Law School has announced its fifth annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes. Here are the details:

The Workshop will be held on February 27-28, 2015 at GW Law School in Washington, DC.  The Workshop supports and recognizes the work of young legal scholars in accounting, banking, bankruptcy, corporations, economics, finance and securities, while promoting interaction among them and selected senior faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, C-LEAF also aims to encourage new and innovative scholarship.

Approximately ten papers will be chosen from those submitted for presentation at the Workshop pursuant to this Call for Papers. At the Workshop, one or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants. The Workshop audience will include invited young scholars, faculty from GW’s Law School and Business School, faculty from other institutions, practitioners, and invited guests.

At the conclusion of the Workshop, three papers will be selected to receive Junior Faculty Scholarship Prizes of $3,000, $2,000, and $1,000, respectively. All prize winners will be invited to become Fellows of C-LEAF. C-LEAF makes no publication commitment.

Junior scholars who have not yet received tenure, but have held a full-time academic appointment for less than seven years as of the submission date, are cordially invited to submit summaries or drafts of their papers. Although published work is not eligible for submission, submissions may include work that has been accepted for publication. C-LEAF will cover hotel and meal expenses of all selected presenters.

Those interested in presenting a paper at the Workshop should submit an abstract, summary or draft, preferably by e-mail, on or before October 17, 2014. To facilitate blind review, your name and other identifying information should be redacted from your paper submission. Direct your submission, along with any inquiries related to the Workshop, to:  Professor Lisa M. Fairfax, Leroy Sorenson Merrifield Research Professor of Law, George Washington University Law School, 2000 H Street, NW, Washington, DC 20052, lfairfax@law.gwu.edu.

Papers and Junior Faculty Scholarship Prizes will be selected after a blind review by members of the C-LEAF Executive Board. Authors of accepted papers will be notified by November 24, 2014. Please feel free to pass this Call for Papers along to any colleagues who may be interested.  For more information on C-LEAF Fellows, please visit  here or contact us at cleaf@law.gwu.edu. The Workshop and prizes are supported by grants from the Schulte Roth & Zabel law firm.

The Assault on Journalism in Ferguson, Missouri

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its “reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend.” Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post’s Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

[Lowery was] illegally instructed to stop taking video of officers. Then he followed officers’ instructions to leave a McDonald’s — and after contradictory instructions on how to exit, he was slammed against a soda machine and then handcuffed. That behavior was wholly unwarranted and an assault on the freedom of the press to cover the news. The physical risk to Wesley himself is obvious and outrageous. After being placed in a holding cell, he was released with no charges and no explanation. He was denied information about the names and badge numbers of those who arrested him.

This is consistent with other anti-transparency measures in the dispute.

4) Police brutality has been a pervasive problem. We can only start a public conversation on the magnitude of the problem if people have the unfettered right to record law enforcement practices.

5) Many people have reported that police in Ferguson told them to turn off cameras and recording devices. Police refused to answer basic questions. Even major media organizations were told to leave.

6) Police tear-gassed journalists from Al Jazeera and local TV crews.

7) Local leaders are not safe, either. Both an alderman and a state senator were detained and tear-gassed.

The United States has not exactly distinguished itself in its treatment of journalists. In 2012, it fell to 47th in Reporters Without Borders’ Press Freedom Index, well behind countries like Surinam, Mali, and Slovakia, largely due to police harassment of photographers and videographers at Occupy Wall Street protests. How far should it fall if police can basically decide unilaterally to make entire cities “no First Amendment zones”? How can the US warn other countries not to “take military action against protesters,” if it allows an out-of-control force like Ferguson’s to plot a media blackout? This is a policy of order-at-all-costs, even if it means “law enforcers” breaking the law with impunity.

I will have more to say later on the underlying dispute (well covered by Mary Ann Franks and Jamelle Bouie). For now, all I can say is: we should be deeply worried about the broader campaign to create “urban battlespaces” in American cities. This is a dangerous amalgamation of police and military functions, thoughtlessly accelerated by the distribution of war-fighting equipment to local law enforcers around the country. Minimal standards of accountability require free access by the press.

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Alternatives to the “Living Constitution”

Nonoriginalist theories of constitutional law are often associated with the idea of the “Living Constitution.”  In a rough sense, the metaphor captures the notion that the Constitution can and should evolve to keep pace with the ever-changing nature of our modern society.  Therefore, the theory goes, judges should be permitted to engage in “dynamic” or “loose” readings of the constitutional text so as to ensure that a very old document remains able to meet the needs and challenges of today’s world.

The living Constitution metaphor often prompts the following sort of rejoinder: “Wait a minute!  Article V of the Constitution prescribes a specific and (arguably) exclusive set of procedures for changing the document’s meaning.  And if a changed world does in fact demand changed constitutional law, then those are the procedures that we should use to achieve the requisite changes.”  Judges, on this view, should not be allowed to circumvent the Article V process by informally according a “living” meaning to the constitutional text.  To permit judicial updating of this is sort is to license judicial infringements on popular sovereignty: “We the People” are the authors of the Constitution, so only “We the People” should be able to amend it.   Let’s call this argument the “Article V Objection.”

To me, the Article V Objection to the “living Constitution” is both powerful and weak.  It’s powerful in that it identifies some very real problems with the notion of a freely changing constitutional text.  But it’s weak in the sense that it doesn’t resolve the questions of whether and to what extent judges may change the content of constitutional law .  In other words, the Article V Objection doesn’t so much destroy the idea underlying the “living Constitution” metaphor as it suggests some alterations to its framing.

Here, then, I want to present three alternative re-framings of the “living Constitution” idea, each of which (a) countenances at least some forms of judicially-initiated changes to constitutional law; and (b) offers, to my mind, a more adequate (though not necessarily definitive) response to the Article V Objection.  Each of these re-framings, moreover, carries with it different a set of implications regarding the sorts of constitutional reforms that judges should be permitted to pursue.  In that sense, then, the re-framings may afford us the added benefit of teasing out some internal subtleties and disagreement points that lie lurking within appeals to the “living Constitution,” full stop.

Thus, without further ado, let’s meet our contestants:

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