Commandeering Federalism

Alison LaCroix

What light can the history of federalism shed on modern-day constitutional debates? Quite a lot – beginning with the important point that the search for the “real” federalism may in fact be a misguided quest. This is not to say that the idea of federalism is simply an empty shell or a rhetorical flourish devoid of content. But an understanding of American federalism’s beginnings does suggest that the Supreme Court’s recent “federalism revolution” has been neither revolutionary nor about federalism in any historically informed sense. Instead, the Court’s federalism doctrine has unthinkingly replicated centuries-old debates, even as some justices claim to have divined the concept’s one true meaning.

As I discussed in a previous post, the central tenet of federal ideology as it emerged in the late eighteenth century was a conviction that multiple levels of government could – indeed, should – exist within a composite polity such as British North America. Federalism has had a core of stable meaning since its first American incarnation as a doctrine of colonial resistance to the power of Parliament, but that meaning has centered on a commitment to governmental multiplicity itself more than a vision of a particular distribution of governmental authority. We might term this the first lesson that the history of federalism offers for modern constitutional doctrine: a reminder that overlap, concurrence, and multiplicity are and have always been the background principles of the American federal republic, not a temporary way station to be visited on the way to a more perfect – static, settled – national structure. The states may be laboratories, but we should not assume that the experiment will be able to produce a magic structural formula.

The American theory of federalism originated in the colonial and Revolutionary periods. Matters became even more complicated as political and legal actors attempted to institutionalize that theory in the 1790s and early 1800s. And here is the second lesson of federalism’s history for modern constitutional doctrine: uncertainty about the “real” meaning of federalism in practice has as long a lineage as federal ideas themselves. Similar debates to the ones that played out in the Court’s classic anticommandeering cases, New York v. U.S. (1992) and Printz v. United States (1997) (and that lurked behind the decision in Medellin v. Texas (2008)), took place in the first few decades of the Republic’s existence.

Beginning at least with the First Congress’s debates over the structure of the lower federal courts, early republican commentators articulated two distinct views of what federalism meant. The first group viewed federalism as requiring a clean division between the power of the general government and that of the states. They therefore opposed concurrent power, regarding it as liable to create confusion among citizens and thus to increase the risk that the general government would be able covertly to expand its brief. As Virginia judge Joseph Jones wrote to James Madison in 1789, “[W]here there is danger of clashing jurisdictions, the limits should be defined as ac[c]urately as may be, and this danger will exist where there are concurrent jurisdictions.”

The second group of commentators argued that the real imperative of federalism was to minimize the institutional footprint of the general government, either because of their normative beliefs about which level of government was more suited to handle a particular task, or because they feared that the creation of any centralized agencies or programs would amount to the thin edge of the nationalizing wedge. In the debates over the lower federal courts, observers such as the Antifederalist Luther Martin argued that requiring state courts to enforce U.S. law was a better means of protecting state sovereignty than insisting that federal law be carried out only through federal instrumentalities. Martin and his fellow watchdogs of state power preferred messily concurrent powers to neatly distinct ones. In modern terms, they chose commandeering over formal federalism. On their view, having county sheriffs performing background checks on gun purchasers at the request of Congress would be less offensive to the federal structure than the establishment of the Transportation Security Administration.

As this analogy suggests, these divisions among early republican commentators find striking echoes in the modern anticommandeering cases. For the majority in New York and Printz, federalism requires the type of structural, subject-matter-specific separation that advocates of a sharp line between federal and state judicial power demanded in the 1790s and 1800s. On this view, the job of a federalist judge is to police the formal boundaries between the states and the general government, rendering that which is federal unto the general government and keeping the rest for the states. Structural commitments to vertical separation of powers, as well as pragmatic considerations about accountability, are held to militate in favor of a clear delineation between levels of power, even if the downstream consequence of such a holding is to encourage the expansion of federal bureaucracies because Congress is not permitted to “commandeer” or “impress” the states into its service.

For the dissenters, meanwhile, the need to maintain a formal division between state and federal authority is less important than the impulse to encourage experimentation and cooperation among levels of government. In addition, these justices resist the majority’s claim to the federalist mantle and argue that their view in fact represents a stronger commitment to the real federalism. This is the “irony” that Justice White identified in his New York dissent: “in its formalistically rigid obeisance to ‘federalism,’ the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.” Like the early republicans who viewed state-court review of federal questions under the Supremacy Clause as both more convenient and normatively preferable to the creation of a system of lower federal courts, the dissenters in the anticommandeering cases seem relatively untroubled by the use of state institutions to carry out federal law.

Of course, the Supremacy Clause’s deputization of state courts to hear federal issues has not been understood as a potential federal commandeering of state institutions, in part because the requirement that state courts uphold federal law is textually based, and because it seems to go to the heart of the compromises reached at the Constitutional Convention.

So: is the real meaning of federalism a structural, almost aesthetic demarcation between the domain of the states and that of the general government, with special emphasis on preserving the states’ formal autonomy? Or is it more of a functional concern that permits some overlap and concurrence, in the name of a commitment to minimizing the expansion of congressional power? The historical record suggests that both accounts have a long pedigree, and that the real meaning of today’s federalism may be the same as that of the old federalism – with its ingrained commitment to apportionment without weighing the portions – after all.
Posted 11:33 PM by Alison LaCroix [link]

Remembering the Confederate Constitution

JB

Continuing our commemoration of Confederate History Month, here are some selections from that great charter of human liberty, the Constitution of the Confederate States of America. The Constitution of the Confederacy lists the great freedoms that our Confederate Forefathers fought for.


Article I, section 9, clauses 1 and 2:

The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.

Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.

[These clauses, in conjunction with Article IV, section 2, clause 1, preserve the status quo before the Civil War regarding the international and interstate slave trade. The status quo consisted of (1) the 1808 ban on importing slaves into the United States (which might lower their market value); and (2) protection of the interstate slave trade (guaranteed by the Confederate Constitution's Article IV, section 2, clause 1). Article I section 9 clause 2 also gives the Confederate Congress the power to ban importation of slaves from border states still in the Union if Congress so chooses.]

Article I, section 9, clause 4:

No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.

[This specifically guarantees the right to hold negro slaves, but not slaves of any other race. The slavery protected by the Confederate Constitution depends on the race of the slave. Thus, although white slavery might be banned, negro slavery must be preserved. This is consistent with Vice-President Alexander Stephens' famous Cornerstone Speech, which argued that although enslavement of whites was contrary to natural law, the enslavement of blacks was consistent with their inferior nature.]

Article IV, section 2, clause 1:

The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.

[This rewrites the Comity Clause of the U.S. Constitution's Article IV, relied on by abolitionists before the Civil War, and turns it into a specific protection of slavery; it also preserves the interstate slave trade. Finally, the Confederate Constitution's version of Article IV prohibits any state from attempting to prevent slaveholders from entering with their slaves. In this way it goes even further than the Dred Scott decision, which only protected the rights of slaveholders in federal territories]

Article IV, section 3, clause 3:

The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States . . . In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.

[This clause once again makes clear that negro slavery-- premised on the natural inferiority of one race to another--and not slavery in general, is protected by the Confederate Constitution. It places one of the key holdings of Dred Scott v. Sanford into the text of the Confederate Constitution.]

I am sure that Governor McDonnell of Virginia will want to include careful study of these provisions as part of his celebration of Confederate History Month. Surely we cannot understand why the Confederacy was such a noble and glorious cause worth commemorating without understanding the values and visions of the framers of the Confederate Constitution.


Posted 2:19 PM by JB [link]

How I Lost the Big One, Bigtime

Marvin Ammori

On Tuesday, the D.C. Circuit ruled on an important Internet law case I argued for the FCC's supporting Intervenors, where the court rejected legal theories I helped craft on complaint I filed when I was, oddly, the only on-staff lawyer of the lead complainant, the media reform/open Internet group called Free Press. (I had deferred my current law professorship for that position.) Jack wrote about it yesterday, and I wanted to post a few thoughts about the decision.


I'll begin with how the decision affects you: it's really bad news for you and other Americans. I'm sorry to be the one to tell you, but I'm sure you've heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet's role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us. (The subject of the Free Press-Comcast case, which this decision vacated, was precisely this factual scenario.) Tuesday's decision also means the FCC cannot implement many aspects of its recently-issued National Broadband Plan, and the US will continue to fall behind the rest of the world with far slower, more expensive, and less innovative broadband service, strangling our economy and harming our democracy.

Really. At least, that's the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration--a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.

From my point of view, I was reminded of my friend Larry Lessig's classic article, "How I Lost the Big One," where he said he wished he could go back in time and argue differently an important test case he lost in 2003 (Eldred v. Ashcroft). I've thought about the case, for months now since the argument, and I don't feel that way. If we argued it poorly in Tuesday's loss, we at least argued it 9 different ways (which I discuss below). I doubt our tenth best argument would have worked any better. Plus, I benefited from the advice of so many lawyers and law professors during the FCC proceeding against Comcast, and on appeal (where the FCC's excellent lawyers, not I, carried the oar), that I don't think we could have had better lawyers considering the issues. (Thanks go to friends like Jack Balkin, Larry, Tim Wu, Barbara van Schewick, Yochai Benkler, David Vladeck, those at Media Access Project and Public Knowledge, as well as, primarily, the amazing team at Free Press, those at the FCC, and many many others, for making sure some young law professor wouldn't go astray.)

For this post, I want to look on the bright side.

First, we succeeded in many ways, factually. Politically, we brought a case that helped educate the public and the FCC about blocking and discriminating practices that Comcast claimed were becoming an industry standard across the entire Internet, at least in the US; hundreds of thousands of people got involved to stand up for an open, free Internet; and organizations ranging from the Christian Coalition to Moveon to people who love Barbershop Quartets stood together to ask their government to preserve the democratic promise of the Internet. And, because of public scrutiny and the FCC investigation, Comcast changed its practices. Those are good things. We can also expect this decision to galvanize citizens across the country, much like the Citizens United decision.

Second (and I'll spend more time on this), the case served its purpose perfectly--it was a "test" case to test several important questions and get a definitive answer.

So, here's some background. I'm sorry we need background, but your speech rights are generally threatened by several years of complex-sounding legal decisions and political maneuvers (just think about the cases leading up to Citizens United). So background helps.

The Bush administration, from 2001 to 2005, worked doggedly to "deregulate" broadband Internet access. The effect was, among other things, you would not be able to choose your own ISP on DSL or cable modem the same way you could on dial-up (choosing among, say, Earthlink and NetZero and AOL, not just your phone company's ISP).

Turns out, substantively, that decision has resulted in our nation having slower, more expensive broadband Internet connections, as independent ISPs invest in new technologies and drive competition. That FCC decision also put the FCC on (what the DC Circuit believes to be) flimsy legal grounds for protecting consumers, even when the second largest ISP (Comcast) blocks some of the most popular, pervasive technologies used by millions of Americans.

Indeed, shortly after these deregulatory decisions, the biggest carriers, like AT&T and Verizon, announced that they would transform the Internet into a pay-for-play medium they controlled, rather than an open, general purpose technology we all know and love. That would be awful for our country. Millions noticed, and this sparked a citizen movement organized by Free Press through a coalition called Save the Internet.

In response, the carriers backtracked, in their public rhetoric, and argued a few things.

(1) We'd never block or interfere with the open Internet, even though we have announced the intention to do just that, and are spending hundreds of millions of dollars lobbying against "net neutrality" rules forbidding us from doing that. And (2) if we ever did interfere with the open Internet, don't worry, the FCC will punish us. And (3) the FCC will have the jurisdiction to do.

So we tested those three point.

1. Would the carriers interfere with Internet content and applications? Based on the FCC investigation of Comcast's actions, the answer was a resounding yes. Carriers would not only interfere, and with very popular technologies, they would lie about it, over and over, and then when caught, lie some more. And afterward, they'd keep lying, and keep blocking. If the FCC learned anything during that investigation, it is that Comcast was not a good faith actor. Recently, Windstream engaged in some of its own interference, hijacking search queries.

2. Would the FCC punish bad actors? We thought this unlikely--the FCC is a notoriously captured agency that generally follows the orders of the companies it is supposed to regulate. The carriers seemed to have even more power under the Bush FCC. But in the FCC's entire history, it has adopted just a handful of pro-consumer decisions in the face of carrier-pressure. But, it turned out, to our surprise, the answer was yes, the FCC would act, thanks largely to a citizen outcry and engagement. The answer was yes, even when the Chairman was a deregulatory Republican named Kevin Martin facing unbelievable political pressure brought to bear by some of the nation's most powerful and ruthless companies, with the backing of many Republican leaders.

3. Finally, does the FCC have the authority to protect consumers?

The worst-case scenario for us was that we would get an unclear answer on jurisdiction. Free Press devoted considerable resources to this case--their only lawyer spent almost every moment of his day working on it, alongside three other senior Free Press policy staff, who had similarly overworked schedules in taking on almost every law firm and lobbying shop in town--and many others pitched in from other organizations and from academia. The last thing we wanted was for the DC Circuit to avoid the key question of the test case on appeal--does the FCC have jurisdiction to protect consumers, preserve an open Internet, encourage deployment of new technologies.

We were given the guidance we wanted, although the answer we didn't.

The Obama FCC had thought, until yesterday, that under the Bush-FCC's framework, the FCC maintained something lawyers call "Title I," or "ancillary jurisdiction" over Internet access providers like Comcast, AT&T, Cox, Verizon, and Time Warner Cable. On first read, it looks to me like the court unanimously removed any ambiguity--the short answer is "no." The long answer is "not at all." Longer still: "Not in a boat, not with a goat, not in the rain, not on a train." There seems to be no wiggle room in the court's decision, on first read.

So we lost the big one, and lost it bigtime. Any "narrower" loss would have provided little guidance and been even worse for the public.

This clarity derives partly from our case before the FCC, where we urged the FCC to adopt every single possible basis of jurisdiction under Title I, so that a reviewing court could either reject them all or sustain one. (These are the 9 or so arguments we raised.) Our strategy was that there'd be no point in wondering, like one of my heroes Larry Lessig, "Would another argument have worked?" No point in having to go back to the court five years later. We set the groundwork below. And then, on appeal,when the judges ominously asked the FCC how the FCC wanted to lose (on some other grounds or on "jurisdiction," which included 9 legs of arguments), the FCC asked for "guidance", and I similarly then pleaded for a jurisdictional decision setting the question to rest, after five years of debate, and two years after the complaint.

It's like a relationship--if you want to break up, do it now, don't let us wonder as you string us along.

So: test case resolved.

1. The carriers will actually interfere with the Internet, though they will lie and say they'd never do it, and then lie and say they haven't done it.

2. The FCC will act, but only if three Commissioners are heroic enough to withstand an overwhelming political assault.

3. The Bush-era FCC decisions gave away FCC authority to protect the American public for the most important communications medium the world has ever known. Unless the FCC reverses those decisions (or there is another reversal), the Internet will become the carriers' controlled entertainment machine while other nations surpass us with open, high speed, affordable broadband infrastructures supporting jobs and innovation. In short, unless this FCC re-evaluates its existing framework, the Bush administration may have made the FCC irrelevant, and the nation with it.

Posted 11:51 AM by Marvin Ammori [link] (8) comments

Commemorating Confederate History Month

JB

I think Governor McDonnell of Virginia is correct that we need to remember the Confederacy and the causes that led Americans to forsake their country and commit treason. Americans need to know their history, and how the world we live in came to be. Herewith my own commemoration of Confederate History Month:


From Confederate Vice-President Alexander Stephens' famous cornerstone speech, delivered March 21, 1861, explaining the purposes of the confederacy, and the assumptions on which it was founded:

The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution -- African slavery as it exists amongst us -- the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests upon the great truth, that the negro is not equal to the white man; that slavery -- subordination to the superior race -- is his natural and normal condition. [Applause.] This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. It has been so even amongst us. Many who hear me, perhaps, can recollect well, that this truth was not generally admitted, even within their day. The errors of the past generation still clung to many as late as twenty years ago. Those at the North, who still cling to these errors, with a zeal above knowledge, we justly denominate fanatics. All fanaticism springs from an aberration of the mind -- from a defect in reasoning. It is a species of insanity. One of the most striking characteristics of insanity, in many instances, is forming correct conclusions from fancied or erroneous premises; so with the anti-slavery fanatics; their conclusions are right if their premises were. They assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct, their conclusions would be logical and just -- but their premise being wrong, their whole argument fails. I recollect once of having heard a gentleman from one of the northern States, of great power and ability, announce in the House of Representatives, with imposing effect, that we of the South would be compelled, ultimately, to yield upon this subject of slavery, that it was as impossible to war successfully against a principle in politics, as it was in physics or mechanics. That the principle would ultimately prevail. That we, in maintaining slavery as it exists with us, were warring against a principle, a principle founded in nature, the principle of the equality of men. The reply I made to him was, that upon his own grounds, we should, ultimately, succeed, and that he and his associates, in this crusade against our institutions, would ultimately fail. The truth announced, that it was as impossible to war successfully against a principle in politics as it was in physics and mechanics, I admitted; but told him that it was he, and those acting with him, who were warring against a principle. They were attempting to make things equal which the Creator had made unequal.

In the conflict thus far, success has been on our side, complete throughout the length and breadth of the Confederate States. It is upon this, as I have stated, our social fabric is firmly planted; and I cannot permit myself to doubt the ultimate success of a full recognition of this principle throughout the civilized and enlightened world.

As I have stated, the truth of this principle may be slow in development, as all truths are and ever have been, in the various branches of science. It was so with the principles announced by Galileo-it was so with Adam Smith and his principles of political economy. It was so with Harvey, and his theory of the circulation of the blood. It is stated that not a single one of the medical profession, living at the time of the announcement of the truths made by him, admitted them. Now, they are universally acknowledged. May we not, therefore, look with confidence to the ultimate universal acknowledgment of the truths upon which our system rests? It is the first government ever instituted upon the principles in strict conformity to nature, and the ordination of Providence, in furnishing the materials of human society. Many governments have been founded upon the principle of the subordination and serfdom of certain classes of the same race; such were and are in violation of the laws of nature. Our system commits no such violation of nature's laws. With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system. The architect, in the construction of buildings, lays the foundation with the proper material-the granite; then comes the brick or the marble. The substratum of our society is made of the material fitted by nature for it, and by experience we know that it is best, not only for the superior, but for the inferior race, that it should be so. It is, indeed, in conformity with the ordinance of the Creator. It is not for us to inquire into the wisdom of his ordinances, or to question them. For his own purposes, he has made one race to differ from another, as he has made "one star to differ from another star in glory."

The great objects of humanity are best attained when there is conformity to his laws and decrees, in the formation of governments as well as in all things else. Our confederacy is founded upon principles in strict conformity with these laws. This stone which was rejected by the first builders "is become the chief of the corner" -- the real "corner-stone" -- in our new edifice.

From the Mississippi Secession Resolution, November 30, 1860:

Whereas, The Constitutional Union was formed by the several States in their separate soverign capacity for the purpose of mutual advantage and protection;

That the several States are distinct sovereignities, whose supremacy is limited so far only as the same has been delegated by voluntary compact to a Federal Government, and when it fails to accomplish the ends for which it was established, the parties to the compact have the right to resume, each State for itself, such delegated powers;

That the institution of slavery existed prior to the formation of the Federal Constitution, and is recognized by its letter, and all efforts to impair its value or lessen its duration by Congress, or any of the free States, is a violation of the compact of Union and is destructive of the ends for which it was ordained, but in defiance of the principles of the Union thus established, the people of the Northern States have assumed a revolutionary position toward the Southern States;

That they have set at defiance that provision of the Constitution which was intended to secure domestic tranquility among the States and promote their general welfare, namely: "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom the Service or Labour may be due;"

That they have by voluntary associations, individual agencies and State legislation inteferred with slavery as it prevails in the slaveholding States;

That they have enticed our slaves from us and, by State intervention obstructed and prevented their rendition under the fugitive slave law;

That they continue their system of agitation obviously for the purpose of encouraging other slaves to escape from service, to weaken the institution in the slave-holding States by rendering the holding of such property insecure, and as a consequence its ultimate abolition certain;

That they claim the right and demand its execution by Congress to exclude slavery from the Territories, but claim the right of protection for every species of property owned by themselves;

That they declare in every manner in which public opinion is expressed their unalterable determination to exclude from admittance into the Union any new State that tolerates slavery in its Constitution, and thereby force Congress to a condemnation of that species of property;

That they thus seek by an increase of abolition States "to acquire two-thirds of both houses" for the purpose of preparing an amendment to the Constitution of the United States, abolishing slavery in the States, and so continue the agitation that the proposed amendment shall be ratified by the Legislatures of three-fourths of the States;

That they have in violation of the comity of all civilized nations, and in violation of the comity established by the Constitution of the United States, insulted and outraged our citizens when traveling among them for pleasure, health, or business, by taking their servants and liberating the same, under the forms of State laws, and subjecting their owners to degrading and ignominious punishment;

That to encourage the stealing of our property they have put at defiance that provision of the Constitution which declares that fugitives from justice (escaping) into another State, on demand of the Executive authority of that state from which he fled, shall be delivered up;

That they have sought to create domestic discord in the Southern States by incendiary publications;

That they have encouraged a hostile invasion of a Southern State to excite insurrection, murder, and rapine;

That they have deprived Southern citizens of their property and continue an unfriendly agitation of their domestic institutions, claiming for themselves perfect immunity from external interference with their domestic policy; ...

That they have elected a majority of Electors for President and Vice-President on the ground that there exists an irreconcilable conflict between the two sections of the Confederacy in reference to their respective systems of labor and in pursuance of their hostility to us and our institutions, thus declaring to the civilized world that the powers of this Government are to be used for the dishonor and overthrow of the Southern Section of this great Confederacy.

Therefore:

Be it resolved by the Legislature of the State of Mississippi, That in the opinion of those who now constitute the said Legislature, the secession of each aggrieved State is the proper remedy for these injuries.

From South Carolina's declaration of the causes of secession:

The Constitution of the United States, in its fourth Article, provides as follows:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due."

This stipulation was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia, which now composes the States north of the Ohio River.

The same article of the Constitution stipulates also for rendition by the several States of fugitives from justice from the other States.

The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

. . .

We affirm that [the] ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that "Government cannot endure permanently half slave, half free," and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its peace and safety.

On the 4th of March next, this party will take possession of the Government. It has announced that the South shall be excluded from the common territory, that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States.

The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.

Sectional interest and animosity will deepen the irritation, and all hope of remedy is rendered vain, by the fact that public opinion at the North has invested a great political error with the sanctions of a more erroneous religious belief.

We, therefore, the People of South Carolina, by our delegates in Convention assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, have solemnly declared that the Union heretofore existing between this State and the other States of North America, is dissolved, and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.

From the Texas Declaration of the Causeswhich Impel the State of Texas to Secede from the Federal Union:

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color-- a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

. . . .

We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.

That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding states.

* * * * *

UPDATE: Steven Lubet reminds me to include provisions from the Confederate Constitution. These are discussed in the next post.






Posted 11:14 AM by JB [link]

How the Religious Right Promotes Abortion

Andrew Koppelman

The religious right purports to be deeply concerned about the high rates of abortion in the United States, but its most stalwart proponents have succeeded in implementing and maintaining policies that keep the abortion rate high.

I draw this lesson from discussions in Naomi Cahn and June Carbone’s wonderful new book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture. The book is primarily a study of the way in which different family forms have emerged in different parts of the country, and the political ramifications of the polarized value systems that result. But the data it contains reveals a deep incoherence in the American government’s family planning policies.

The most effective way to lower the abortion rate would be to increase the availability of contraceptives and information about contraception, especially to poor women. This is precisely what the federal government did in the 1970s, hoping to reduce out-of-wedlock births to poor women. But the Reagan administration cut contraception funding and shifted family-planning efforts toward adoption counseling and abstinence education, which were more acceptable to its conservative base. The consequence, of course, was very high levels of abortion.

Since then, there has been a toxic political equilibrium, in which the conservative right keeps contraceptive funding low. The left has not called them on the way that such policies increase the abortion rate, perhaps because proponents of family planning are reluctant to admit that abortions are a bad thing. But somebody needs to say it: the religious right is responsible for many abortions in America.


Cahn and Carbone observe that two different family systems, presupposing different norms, now exist in the United States. The older, more traditional model demands marriage before (or very soon after) sexual activity begins, identifies responsible parenthood with marriage rather than maturity or economic self-sufficiency, aims at socialization into traditional gender roles, and embraces authoritarian models of parenting. The appropriate response to unplanned pregnancy is the shotgun marriage. Same-sex marriage seems to flout this entire complex of values, elevating the happiness of adults over the well-being of children.

This model remains prevalent in much of the United States. Where it does, the Republican party has reliable support: the political affiliation of a state correlates well with the median age of first marriage. But where it prevails, divorce rates are the highest in the country, because early marriages are the most likely to fail. Teen pregnancy, high rates of sexually transmitted diseases, and single motherhood are frequent. The problem is that, although this ethic has considerable continuing power, it is in decay. Its enforcement mechanisms have weakened. Unhappy couples can no longer be forced to stay together, and teenagers can’t be prevented from having sex.

At the same time, a new sexual ethic has emerged and is now deeply entrenched in the blue states. This model, which Cahn and Carbone call the “new middle class ethic,” is tolerant of premarital sexuality so long as contraception is carefully used, with abortion as the responsible fallback. It calls for postponing marriage and parenthood until the completion of higher education, and aims at more egalitarian gender roles within marriage. It produces lower rates of divorce and teenaged motherhood, but also falling fertility and more people living alone.

The red-state, conservative ethic has always been suspicious of sex education. Evangelical Christians, who are the most militant proponents of the red-state ethic, are three times as likely as non-evangelicals to believe that sex education should not be taught in schools. (108; all page references are to Cahn and Carbone’s book.) Government support for contraception, especially contraception provided to teenage girls without their parents’ knowledge or consent is anathema. Such girls should not be having sex at all. Contraceptive information is likely to encourage them to flout moral norms with impunity. Unwanted pregnancy is unfortunate but valuable as a deterrent to premarital sex.

It was this ethic that produced the move to abstinence-only sex education, which is now the predominant approach in a third of American schools. (110) But there is no evidence that such education makes abstinence until marriage more likely (96% of Americans have sex before they marry, see 175), or produces a decline in teen or nonmarital births, and some evidence that it produces an increase in both, because it is more likely that a girl will not know how to contracept at the time of her first sexual experience. (3, 111) The effect is particularly pronounced with respect to black and Latina girls, who are disproportionately exposed to abstinence-only education. Two-thirds of white women, but fewer than half of black women, have received instruction about contraception before their first sexual encounter. (111)

It is no accident, then, that the United States has the highest rate of unplanned teen pregnancies in the industrialized world. (8) Three in ten teenaged girls become pregnant before they turn 20, and four-fifths of these pregnancies are unplanned. (91) In 2006, half of all pregnancies were unplanned, and these were concentrated below the poverty line. (90) The rate of unintended pregnancy is 69% for African-American women, 54% for Latinas, and only 40% for white women. (173)

Here is where abortion comes in. Among African-Americans, 43% of conceptions end in abortion, compared with 25% of Latinas and 18% of whites. It should be no surprise that the rate of abortion correlates heavily with the rate of unplanned pregnancy. African-American teen births dropped in the 1990s, but this was true in large part because abortion rates, which fell for white teens, remained higher for minority teens (172).

If you want to lower the abortion rate, then, the most obvious way to do it is to provide better information about contraception to the women who now are experiencing high rates of unintended pregnancy, in schools and also by providing comprehensive sex education to women over 18 (173).

The Republican leadership, however, has opposed any such funding. Most recently, they succeeded in pressuring Obama to strip out expanded funding for family-planning services from the stimulus bill. House Minority Leader John Boehner emphasized that any such funding would benefit Planned Parenthood, which delivers abortion services. He did not mention that such funding would lower the rate of abortions.

Republicans worry that sex education will lead to more premarital sex. There’s not much evidence that this is true of any particular sex ed program. The major effect of such programs is to prevent sex that was going to happen anyway from leading to pregnancy and disease. (It is true that the birth control pill helped bring about the sexual revolution of the 1960s, but it’s too late to reverse that.) But even if keeping girls ignorant would reduce the rate of premarital sex to some extent, how many abortions would be too high a price to pay for that?

The argument I’ve just been making is, of course, a classic blue-state argument. I’m not really the one who can make it effectively to pro-lifers, since I’m a strong supporter of abortion rights: I still endorse the much-reviled argument that such rights are required by the Thirteenth Amendment.

But somebody on the religious right ought to be reflecting on the now-obvious fact that the policies that they have been supporting are directly responsible for millions of abortions. If leadership is now going to be exercised in order to reduce the abortion rate, it will have to come from them. Opposing contraceptive education is politically popular in the red states. But how can a politician who sincerely believes that abortion is the killing of a person, and who is aware of the data I’ve just described, ethically take advantage of this opportunity?



Posted 4:18 PM by Andrew Koppelman [link]

What's Next For Network Neutrality?

JB

Today the D.C. Circuit held that the Federal Communications Commission could not require cable broadband providers to adhere to network neutrality rules under the FCC's ancillary jurisdiction.

What does this mean for the fight over network neutrality?

Less than you might expect. The issues in the case are quite technical, and don't go to the merits of whether network neutrality is good or bad policy or promotes or inhibits freedom of speech or innovation. Instead, the decision simply says that the FCC's jurisdiction to issue rules ancillary to its general authority to regulate telecommunications is not sufficiently broad to include network neutrality rules for broadband providers.

What happens next? There are at least three possibilities for proponents of network neutrality (and three reasons why Comcast and the rest of the broadband industry shouldn't pop the champagne corks just yet).

1. The Supreme Court overturns the D.C. Circuit on the scope of the FCC's ancillary jurisdiction, and the FCC goes on to fight the other issues in the case. One reason why the Supreme Court might reverse is because of its Brand X decision, in which it upheld the FCC's decision in its 2002 Cable Modem Order to treat broadband providers not as common carriers subject to regulation under Title II of the Federal Communications Act, but rather as "information services" which would be subject to much less stringent regulations. Brand X was premised on the assumption that the FCC might still regulate broadband providers, even if they were classified as "information services" and not subject to the more stringent requirements of Title II. The D.C. Circuit has declared these parts of Brand X dicta or read them very narrowly. The Supreme Court might disagree.

2. Congress might amend the Federal Communications Act to create a new source of jurisdiction to regulate broadband. To do this one would need at least 60 votes in the Senate. Good luck with that. Comcast and other broadband providers probably could exert influence in both parties to prevent broad new regulatory authority to the FCC.

3. The FCC might revisit its initial decision in its 2002 Cable Modem Order to treat broadband providers as information services instead of telecommunications services (regulated by Title II of the Communications Act). The Supreme Court let the FCC classify broadband this way in the Brand X decision, but in hindsight it was a big mistake on the FCC's part, because it put the FCC's regulatory authority on a much shakier ground. If the FCC goes through the administrative process of reversing its earlier decision about cable broadband, and places cable and DSL under Title II authority, there is little doubt that it has jurisdictional power to impose network neutrality requirements. And it may create special rules or exemptions for broadband under Title II to the extent that the existing common carriage model of telephone service is inappropriate for broadband. Indeed, under its Title II jurisdiction, the FCC can require open access requirements, which would be even more valuable for purposes of promoting freedom of speech and innovation.

It's possible that the FCC will simply see if it can get a reversal in the Supreme Court. That will take many more years of litigation. But the FCC might decide that the better solution is to retrace its steps, correct the mistake it made in 2002, and reassert Title II authority over broadband. Doing this would give the FCC the tools it needs to deal with the regulatory problems of the future.

Posted 12:31 PM by JB [link]

Another Ominous Sign from Kabul

Brian Tamanaha

My post two days ago argued that our mission in Afghanistan is a looming disaster. The Taliban cannot be defeated (at most they'll fade away and return) as long as the government is corrupt and despised by the Afghan people. There is nothing we can do to eliminate corruption in the Afghan government. And our military presence there makes terrorism worse because it inflames Islamic radicalism worldwide.

The New York Times reports today that President Karzai expressed angry defiance in response to Obama's lecture about reducing corruption.

Here's the money line in the report: "As for American, British and other NATO troops now fighting the anti-government Taliban insurgents, Mr. Karzai said 'there is a thin curtain between invasion and cooperation-assistance.'"

That's the thing. We always see ourselves as the good guys--bringing the rule of law, democracy, human rights, and all that stuff--without recognizing that those on the receiving end might see us as self-interested, heavy-handed invaders. And it is precisely because our troops are widely seen by Muslims as invaders that terrorists are lining up to attack us.

Sunday update: The bad news flows daily, apparently with Karzai now issuing hints about turning to the Taliban if we keep up the pressure on him. That's our guy.

“There is no point in having troops in a mission that cannot be accomplished,” said Peter W. Galbraith, the former deputy special representative to the United Nations in Afghanistan. “The mission might be important, but if it can’t be achieved, there is no point in sending these troops in to battle. Part of the problem is that counterinsurgency requires a credible local partner.”

Right.

Meanwhile, more US troops and Afghan civilians are dying, and the terrorists keep coming.


[Type the rest of your post here.]

Posted 6:04 PM by Brian Tamanaha [link] (111) comments

The Supreme Court’s Role in the Financial Meltdown

Rick Pildes

Of all the public and private institutions whose role in the financial crisis has been scrutinized, the one institution about which almost nothing has been said is the Supreme Court. Were the Court irrelevant to the story, that would hardly be surprising; not every major policy crisis or issue is one in which the Court plays a role. Unfortunately for those of us who care about the Court, however, the Court turns out to have played a part in the regulatory missteps that contributed to the financial crisis. And there is evidence that the Court itself has recognized that fact.

A recent, lengthy NY Times story provides the background for this point, though the story does not mention the Court’s role. As the Times story documents, in the years leading up to the financial meltdown, state attorney generals had begun using state consumer-protection laws to go after practices, like subprime mortgage lending, engaged in by subsidiaries of national banks. At that point, the federal regulator of national banks, the Office of the Comptroller of the Currency, stepped in and argued that the states had no power to act in this area, because the OCC’s regulations preempted application of these states laws. As the Times story indicates, many consumer advocates view the OCC as far more responsive to the interests of the national banks than consumers, and they view the OCC’s effort to take the states out of any oversight role to be evidence of agency capture – that is, evidence of the OCC being controlled by the interests of those it was designed to regulate. In the spring of 2007, the Supreme Court, in a 5-3 decision called Watters v. Wachovia Bank, N.A., held that OCC did have the power, and did act lawfully, when OCC took the states out of the business of enforcing their consumer-protection laws against practices like subprime lending by the banks that OCC regulated. We will never know what might have happened had the Court not been so deferential to OCC. Would the efforts of state attorney generals to stop and expose these practices have provided enough of an early warning signal to have triggered earlier, more effective regulatory responses by other actors?

In the wake of the financial meltdown, the Court seems to have recognized that Watters was a mistake. In June of 2009, after the meltdown, the Court decided another case about OCC’s power to preempt state oversight of national banks. This time, in Cuomo v. Clearing House Ass’n, L.L.C.¸the Court was presented with amicus briefs, including from state attorney generals, that explained how Watters had devastated state efforts to protect consumers against certain lending practices, like the most extreme of the subprime mortgages. Once again, in Cuomo, OCC regulations attempted to prohibit states from enforcing certain of their laws against national banks. This time, though, the Court in a 5-4 decision rejected OCC’s efforts to oust the states. Three Justices who had recognized OCC’s powers to preempt in Watters now rejected OCC’s efforts to shut down state enforcement (Justices Ginsburg, Souter, and Breyer). Moreover, the questions of these Justices at oral argument in the later case strongly suggested that the financial meltdown, which had occurred between Watters and Cuomo, had led them to a far more skeptical attitude toward OCC and its efforts to eliminate state enforcement.

The full story is documented in articles by Professor Arthur Wilmarth, of George Washington University Law School. Of course, there are arguable legal distinctions between the cases, but it is hard to escape the conclusion that at least three of the Justices concluded that they contributed to the financial meltdown by being so accepting of OCC’s aim of monopolizing regulatory oversight.
Posted 12:45 PM by Rick Pildes [link]

Must Read Legal Theory Books

Brian Tamanaha

Lots of folks on blogs are sharing their list of most important books. I'll pass on that because I doubt there is any interest in or value to my personal list (Old Yeller anyone?). Instead, here is my list of five must read legal theory books:

The Concept of Law, H.L.A. Hart. The only contemporary legal theory book that theorists will still be reading a century from now.

Knowledge and Politics, Roberto M. Unger. A brilliant account of the dilemmas of liberalism. Closing words: "Speak, God."

The Human Measure: Social Thought in the Western Legal Tradition, Donald R. Kelley. The best book most legal theorists have never read--a stunning display of knowledge.

Playing by the Rules, Fred Schauer. Unsurpassed analysis of legal rules.

History of American Law, Lawrence M. Friedman. Legal theory uninformed by an awareness of history is apt to be empty or wrong. This is the best single primer on American legal history.

Honorable Mention: Natural Law and Natural Rights, John Finnis. Best text on natural law. Fundamental Principles of the Sociology of Law, Eugen Ehrlich. A hundred years old, yet remarkably modern and lively. Jurisprudence: Theory and Context, Brian Bix. Can't beat this book if you are looking for a survey of jurisprudence.


[Type the rest of your post here.]

Posted 11:34 AM by Brian Tamanaha [link] (9) comments