Fisher v. University of Texas, Justice Kennedy, and the Text and History of the Fourteenth Amendment

David Gans

Last week, the Supreme Court teed up yet another big constitutional showdown over the constitutionality of affirmative action programs by agreeing to review the decision of the Fifth Circuit in Fisher v. University of Texas, which held that the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas at Austin to consider race as one of a multitude of factors in selecting a diverse student body. Fisher is largely an attempt to seek a do-over of the Court’s 2003 opinion in Grutter v. Bollinger, which upheld a similar policy adopted by the University of Michigan Law School by a 5-4 vote over the dissents of Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, and then-Chief Justice William Rehnquist.

Fisher has been billed as a case about racial preferences, but the facts show how poorly that description fits the bill. The UT Austin policy permits the school to consider race as a factor in selecting a diverse student body, but only as a part of an individualized assessment that takes into account all facets of the applicant. The policy emerged after many years of effort by the Texas legislature and the University to increase classroom diversity, break down stereotypes, and increase pathways to leadership for all persons at the state’s flagship public university. UT Austin adopted this review process in 2004, after undertaking a study of campus life and finding significant racial isolation and racial tensions on campus. The University found that the State’s Top Ten Percent law – enacted by the legislature in 1997 when African American enrollment was at an extreme low of 2.7% – had improved the enrollment of minority students at UT Austin by guaranteeing admission to any Texas resident graduating in the top ten percent of his or her high school class, but that racial isolation remained a serious problem on campus. The question in Fisher is whether the university’s holistic, individualized review of applicants for admission violates the Fourteenth Amendment’s guarantee of the equal protection of the laws because it allows for consideration of race.
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Posted 4:40 PM by David Gans [link] (115) comments

Is the Alien Tort Statute limited to suits against U.S. citizens?

Guest Blogger

Marco Simons

Today the Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum, in which the issue is whether corporations can be sued for serious human rights abuses under the Alien Tort Statute (ATS), 28 USC 1350. But some scholars are urging the court to decide the case on other grounds.

There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying - what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?

Led by Curtis Bradley, Anthony Bellia, and Bradford Clark, this group of scholars argued strenuously that the ATS did not allow cases under modern human rights law at all. After this position was thoroughly repudiated by the Supreme Court in Sosa v. Alvarez-Machain, they have trotted out new arguments. The latest, from Bellia & Clark, is that the ATS only allows suits by aliens against U.S. citizens; it's started to get some traction, as four Ninth Circuit judges adopted a version of this argument in their dissent in the Sarei v. Rio Tinto case decided in October.
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Posted 9:35 AM by Guest Blogger [link]

The Bill of Rights and Illegal Aliens

Gerard N. Magliocca

One theme that emerges from an examination of John Bingham's understanding of the Fourteenth Amendment is that: (1) he wanted the Bill of Rights to apply to the States; and (2) he thought only citizens were entitled to the protections of everything in the first eight amendments. Non-citizens were entitled to due process and equal protection, but not to something like, say, the right to bear arms. The Supreme Court, though, has completely obliterated Section One's distinction between citizens and persons by incorporating most of the Bill of Rights through the Due Process Clause which, of course, applies to all persons.

Nevertheless, there now appears to be a movement to resurrect Bingham's distinction as between legal residents (citizens and aliens) and illegal residents. In other words, courts seems hesitant to say that illegal aliens have, for example, a right to bear arms or certain other protections in the Bill of Rights even though the right is recognized as fundamental under the Due Process Clause.

I'm not sure what to make of this trend. In some sense it captures the original understanding (and textual meaning) of Section One, but on the other hand it requires judges to distinguish rights that are fundamental and apply to all legal persons from those which are "super fundamental" and therefore must apply to all persons--legal or illegal. Moreover, neither Bingham not any other framers of the Fourteenth Amendment drew a distinction between legal and illegal residents, so that line in and of itself is not well grounded in history, text, or the case law.
Posted 12:35 PM by Gerard N. Magliocca [link] (16) comments

Cosmic Constitutional Theory in the UK?

Ken Kersch

As it turns out, there is a relevant article in the new London Review of Books (23 February 2012) by Stephen Sedley focusing on a lecture entitled “Judicial and Political Decision-Making – The Uncertain Boundary” delivered this fall at Lincoln’s Inn by the Jonathan Sumption, QC, the newly confirmed appointee to the UK Supreme Court.  In this lecture, the soon-to-be Justice Sumption indulges in some U.S.- like cosmic theorizing about the supposed opposition between judges following law vs. judges doing politics. Again, in an idiom that American constitutional theorists will find familiar, Sumption expresses concern for the future of self-government under activist, policymaking courts, when judges substitute their own policy preferences for those of the people’s elected representatives. Sumption references the grand constitutional theory debates taking place in the United States, duly noting the positions of the American originalists, and their opponents.

Sedley, a former judge, takes issue with Sumption’s argument at many points. But, on the question I had posed here about the prevalence and purchase of American-style cosmic constitutional theory abroad, Sedley (who at one point describes judging as “our unreflective and atheoretical profession”) seems truly taken aback by the sudden appearance of grand constitutional theory on his home turf.

An interesting instance….






Posted 4:13 PM by Ken Kersch [link]

Are Federal Judges Required to Cite the Bible as Authority for Constitutional Decisions?

Gerard N. Magliocca

Rick's post gives me an excuse to make the following observation. On a couple of occasions during the 1866 campaign, John Bingham told voters that the purpose of the Fourteenth Amendment was to put the Golden Rule in the Constitution. For example, in a speech on August 24, 1866, he discussed Section One of the Amendment and said: “Is it objected to by any Christian man, to embody in your Constitution at least the simple golden rule you learned at your mother’s knee: ‘Whatsoever ye would that others should do unto you, do ye even so unto them?'”

Now here's my (half-serious) interpretative question. Does the Golden Rule state a prohibition on discriminatory intent or a bar on acts that also have a disparate impact?
Posted 4:50 PM by Gerard N. Magliocca [link] (5) comments

Should Federal Judges Cite the Bible As Authority for Constitutional Decisions?

Rick Pildes

In a major campaign finance case decided two months ago by the Second Circuit, Judge Guido Calabresi began his concurring opinion by citing Luke 21:1-4 and including the following block quote:

As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow put in more than all the others. All these people gave their gifts out of their wealth; but she out of her poverty put in all she had to live on.”

Judge Calabresi used this epigram to launch into an opinion which argued that the Supreme Court should overrule Buckley v. Valeo and accept the "equalization" or "anti-distortion" rationale for permitting government to impose limits on how much candidates, individuals, political parties and others could spend on trying to get candidates elected.

I recall being struck at the time by this direct invocation and quotation of the Bible as a source of normative authority or inspiration for Judge Calabresi's legal analysis of the First Amendment issues. I expected to see a flurry of discussion and debate about the appropriateness of relying on the Bible in this way. But if there were any such discussion, I missed it. A good recent article on campaign-finance reform by Steven Rosenfeld, which quoted Judge Calabresi's quotation of the Bible, reminded me of this question.

Is it appropriate for judges to invoke the Bible in this way and quote from it in their decisions? If a "conservative" judge had similarly quoted from the Bible as support for a "conservative" decision on some constitutional issue, would the opinion have attracted more attention and discussion? Note that Judge Calabresi is not referencing a biblical passage for some descriptive purpose, such as to give an account on how a class on comparative religion, for example, was being taught in a public school. As I read his opinion, he is invoking the Bible as normative support for his position on how the First Amendment should be understood in the context of regulating election spending.
Posted 11:01 AM by Rick Pildes [link] (14) comments

On Cosmic Constitutional Theory

Mark Graber

Supreme Court justices are expected to justify constitutional decisions, no matter what the outcome. We commonly refer to arguments about what counts as a justification for a judicial decision as theories of judicial review or theories of constitutional interpretation. For this reason, J. Harvie Wilkinson is wrong when in Cosmic Constitutional Theory he asserts that he has no theory. If he is making an argument about how justices should decide constitutional cases, he is advancing a theory of the judicial function. His theory may better, more rudimentary, or less cosmic than other theories of the judicial function in constitutional cases, but his claims are nonetheless a theory.

Consider in this vein the difficulty of determining the language that should be spoken in a particular international tribunal. Critics could raise problems with English, Hindi, Chinese or French. Not enough litigants speak any of those languages or those languages fail to capture adequately certain legal concepts. Similar problems plague the practice of inventing a new language or having everyone speak in their native tongue. Faced with the problems with any language, however, Judge Wilkinson would not suggest that the tribunal do without language. All they can do is decide which language or language policy has the fewest warts. The same is true for justifications or theories about judicial decision making. As long as we have judges and we insist judges justify their decisions, all we can do is choose the theory of the judicial function that we think better than others or the one with the fewest warts. We can no more do without a theory of the judicial function than we can do without language.

What may be confusing Wilkinson is the common tendency to conflate theories about constitutional interpretation and theories of the judicial function in constitutional cases. The two are different. A theory of constitutional interpretation is a theory about what the constitution means. A theory of the judicial function is a theory about judicial power. One can coherently assert that the First Amendment prohibits government from passing laws that restrict flag burning, but that justices ought not have the power to declare such laws unconstitutional. At times, Judge Wilkinson seems to be making that claim. Judges, he seems to argue in places, ought to defer to constitutional interpretations made by other governing officials rather than always engage in independent constitutional interpretation. This is a theory, but a theory of the judicial function.

Moving to a theory of the judicial function from a theory of constitutional interpretation creates problems that Judge Wilkinson does not discuss. Constitutions are normally thought to constrain elected officials as well as justices. So even if judges are restrained and only declare unconstitutional obvious constitutional violations, we still need a theory of constitutional interpretation that will help guide citizens and elected officials. Indeed, once judges are out of the picture, we probably need a really robust theory of constitutional interpretation to constrain other officials. So cosmic constitutional theory still seems a valuable enterprise, even when unmoored from a theory of the judicial function.

Moreover, theories of the judicial function, even of judicial restraint, are more "cosmic' than Judge Wilkinson suggests. Consider Judge Wilkinson’s claim that judicial self-restraint is a democratic theory. To begin with, Judge Wilkinson seems to deny the people the power to vest constitutional authority in judges. Every candidate for the President is free to campaign on a platform to end judicial review. None does. If the president is elected on a platform promising to appoint justices who will recognize same-sex marriage or outlaw affirmative action, arguments from democracy at the very least cut in both directions. Indeed, as a good deal of political science and some law literature recognizes, judicial review is politically constructed, a consequence of choices made by elected officials rather than judicial usurpations. So Judge Wilkinson turns out to be the authoritarian who is thwarting the will of the majority of elected representatives. Moreover, lots of theories of democracy are out there. Judicial review is more consistent with some, less consistent with others. Many of these theories are rooted in contested empirical claims. The literature on judicial review tends to ignore these theories altogether, assuming that whatever values democracy serves, those values are always in practice best served by judicial restraint. Maybe so, maybe not. But a long argument is needed.

Arguments for judicial restraint are no more based on timeless truths or long-tested ideas than any other claim in American constitutional politics. Judicial restraint at the beginning was not a democratic theory. Blackstone opposed judicial power to declare laws unconstitutional, but he was no democrat. Thayer did not rely on a theory of democracy when he urged judicial restraint in the 1890s. The identification of judicial restraint with democracy begins in the progressive era. At the same time, other progressives insisted that democracy justified a different kind of judicial activism. As attitudes towards democracy changed, so do theories of judicial activism and restraint.

What Judge Wilkinson calls cosmic constitutional theory is the near inevitable consequence of political and constitutional change. Theories of constitutional interpretation and the judicial function are rooted in broader political theories and sociological phenomenon. When the dominant understandings of democracy, liberty, equality, justice and the like change, so will the dominant theories of judicial review, whether those theories champion activism or restraint. The theory of judicial review today must be different than 75 years ago, because any contemporary theory must justify Brown v. Board of Education and at least explain whether Roe v. Wade was rightly decided. No one had to do that in 1935. What Judge Wilkinson calls cosmic constitutional theory is simply the ongoing effort to make constitutional interpretation and judicial practice consistent with the norms and values of the present time. We can no more avoid the project of constitutional theory than we can avoid language as a tool of communication.
Posted 8:36 PM by Mark Graber [link]

Bacevich on The War Formerly Known as the Global War on Terrorism

Mary L. Dudziak

Andrew Bacevich,one of the most important and prolific critics of current American military policy, has a post today on the nature of the current war era at TomDispatch and HNN.  He begins:

With the United States now well into the second decade of what the Pentagon has styled an “era of persistent conflict,” the war formerly known as the global war on terrorism (unofficial acronym WFKATGWOT) appears increasingly fragmented and diffuse. Without achieving victory, yet unwilling to acknowledge failure, the United States military has withdrawn from Iraq. It is trying to leave Afghanistan, where events seem equally unlikely to yield a happy outcome.

Elsewhere—in Pakistan, Libya, Yemen, and Somalia, for example—U.S. forces are busily opening up new fronts. Published reports that the United States is establishing “a constellation of secret drone bases” in or near the Horn of Africa and the Arabian Peninsula suggest that the scope of operations will only widen further. In a front-page story, the New York Times described plans for “thickening” the global presence of U.S. special operations forces. Rushed Navy plans to convert an aging amphibious landing ship into an “afloat forward staging base”—a mobile launch platform for either commando raids or minesweeping operations in the Persian Gulf—only reinforces the point. Yet as some fronts close down and others open up, the war’s narrative has become increasingly difficult to discern. How much farther until we reach the WFKATGWOT’s equivalent of Berlin? What exactly is the WFKATGWOT’s equivalent of Berlin? In fact, is there a storyline here at all?

Continue reading here.  Bacevich's newest book is an edited collection The Short American Century: A Postmortem.  Cross-posted at War Time.
Posted 8:57 AM by Mary L. Dudziak [link]

American Exceptionalism? The Case of “Grand” (or “Cosmic”) Constitutional Theory

Ken Kersch

Query: Since World War II, there has been a worldwide boom in the adoption of written constitutions, and, subsequently, in the practice of increasingly robust forms of judicial review. Has this led scholars (and judges) in other countries to create their own grand theories of constitutional interpretation, in the style of grand theory here in the U.S. (living constitutionalism, originalism, political process theory, pragmatism – the schools set out and critiqued in Judge Wilkinson’s new book)? If not, why not? Are we likely to see such theories forged in other countries, with their own constitutional orders in mind? Why or why not? Do we have here a case of American exceptionalism?

The only case I can think of is that of Aharon Barak (formerly) of the Israeli Supreme Court, but my knowledge on this is limited.

Posted 7:24 AM by Ken Kersch [link]

Amar on Prop 8 Decision

Jason Mazzone

Vik Amar has posted a characteristically insightful essay on the Ninth Circuit's panel decision invalidating Proposition 8. After setting out (fatally, I think) why Judge Reinhardt's opinion for the panel finds little support in Romer v. Evans, Vik returns us to the question of standing. In Vik's view, the panel would have been better off holding that the official proponents of Proposition 8 lacked Article III standing to defend the law in federal court. The panel, Vik notes, was not bound by the California Supreme Court's opinion last November that proponents have standing to assert the interests of the state in state court. And there are sensible reasons, grounded in democratic politics, for denying standing to Prop 8's sponsors when elected representatives of California refused to defend the proposition in court. Vik writes:
Posted 7:29 PM by Jason Mazzone [link]

Big Wireless Decisions

Guest Blogger

Ellen Goodman

The last week’s spectrum decisions at the FCC and at Congress will probably have as much or more impact on information flow than last month’s SOPA/PIPA drama. Interestingly, these decisions also have very much to do with the delineation of property rights and the public domain.

Here’s what happened. First, on Valentine’s Day, the FCC pulled the plug on LightSquared – an eagerly anticipated new entrant into the broadband wireless space. LightSquared planned to provide broadband wireless service using long-idle satellite and terrestrial spectrum. It would have provided much-needed competition and service to rural areas. The problem was that its service, even after much tinkering, would have interfered with GPS receivers. GPS receivers are not engineered to be very noise-resistant. They never had to be. That’s part of what makes them cheap and ubiquitous. And GPS transmitters have never been all that good at keeping their signals within their assigned bands. They never had to because no one was bothered by their operations. So the result is that lots of GPS receivers pick up GPS signals outside of the assigned GPS bands, and they are easily overloaded by unwanted signals. LightSquared, even if operating entirely within its authorized levels, probably would have disrupted these receivers. That’s what the Commerce Department’s NTIA concluded. Since some of the receivers belong to military and lots of others are distributed among the consumers of different services, interference would be bad and logistically (if not technically) hard to mitigate. More about this in a minute.
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Posted 10:37 AM by Guest Blogger [link]

Technocracy as Trojan Horse

Frank Pasquale

Venture capitalist Eric X. Li published a remarkable opinion piece last week, entitled Why China’s Political Model Is Superior. Li starts with a hard-to-dispute premise: America talks a good game about democracy, but its billionaire primaries are embarrassing and its substantive legislation is often corrupt. He then makes some sweeping claims:

In Athens, ever-increasing popular participation in politics led to rule by demagogy. And in today’s America, money is now the great enabler of demagogy. As the Nobel-winning economist A. Michael Spence has put it, America has gone from “one propertied man, one vote; to one man, one vote; to one person, one vote; trending to one dollar, one vote.” By any measure, the United States is a constitutional republic in name only. Elected representatives have no minds of their own and respond only to the whims of public opinion as they seek re-election; special interests manipulate the people into voting for ever-lower taxes and higher government spending, sometimes even supporting self-destructive wars.

For those familiar with the George Mason school of anti-democratic theory, there is little controversial here. But for the democrat, the answer to such problems is a popular movement, however hopeless it can seem among an apathetic populace.

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Posted 9:01 AM by Frank Pasquale [link]

Cosmic Thing

Ken Kersch

Let me join Gerard in testifying that Judge Wilkinson’s new book Cosmic Constitutional Theory (Oxford, 2012) does some worthwhile things well. It surveys the landscape of contemporary constitutional theory pithily and accessibly. It critiques its main schools trenchantly.

Like Gerard, I also share Judge Wilkinson’s frustration with the apparent futility of the search for the single best “cosmic” theory of how to interpret the Constitution -- the slam-dunk that promises, besting all challengers, the best (possible?) answers to what had heretofore been the eternally vexing questions of constitutional interpretation. Like Judge Wilkinson, I don’t react well to judicial hubris and grandiosity. I think we’d all be a lot better off if judges appreciated their relatively limited (if nonetheless important) charge in our constitutional democracy. I confess to cheering – quite often without regard to my views on the underlying substantive issue -- whenever a non-judicial political actor – in an affront to the protestations of Sandra Day O’Connor (or some other grandee of the High Church of Bench and Bar) – cuts them down to size.

But… that said, I’m afraid that, for me, at least, there is still too much of ermine and incense in Cosmic Constitutional Theory to work as a wholly successful critique. I read this book as instancing the very situation it purports to criticize.
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Posted 4:32 PM by Ken Kersch [link]

Chesney on War Rhetoric and the Obama Administration

Mary L. Dudziak

Robert Chesney, a leading national security law scholar, has a helpful post on Lawfare talking up my points here on why political rhetoric matters to war powers. (If you’re just tuning in, the starting point was my NYT op-ed on the way Obama has framed war, followed by a response from Benjamin Wittes, a reply from me, and now Bobby’s post.)  Just a few notes, to continue the discussion:
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Posted 11:26 PM by Mary L. Dudziak [link]

How Presidential War Power is Made, or why rhetoric matters to war powers

Mary L. Dudziak

Over at Lawfare, Benjamin Wittes found my op-ed in yesterday’s New York Times, on Obama’s double-take on the nature of our current war era, to be “perplexing.”  Let me say a few words that are unlikely to lead Wittes and me to agree on everything, but at least might help crystalize what the disagreement is about.  I should also say that I tend to agree with one of the underlying ideas at Lawfare, as I understand their project, and that Mark Tushnet has also made: “liberals” and “conservatives” are often talking past each other on questions of national security, and there is a need to reshift the conversation, and get beyond partisan and left/right divides.

The most essential point is methodological (and if you’re looking for the direct points about my op-ed/Wittes’ post, skip ahead a couple of paragraphs).  As legal scholars we tend to focus especially on law, of course.  Law and society scholars, including legal historians like me, study law by going beyond it – by studying law in a broader historical and cultural context.  Law exists as part of and in relation to society and culture, so that we can’t fully see law without understanding the way it is produced and understood – socially, politically, culturally.

Like other legal problems, law related to war and security is a  law-and-society subject.  Many very smart war powers and national security law specialists have been drilling down on the complex legal issues related to the post-9/11 context, an effort that Lawfare contributes to.  But as with all legal issues, there is also a law-and-society component.  Although war powers and national security scholarship often draws upon historical examples, the scholarship does not tend to incorporate current important work by historians and others related to war and security.  So, in my view, the law-and-society aspect of legal war and security studies is underdeveloped.  Alongside of the current focus on national security law in American law schools, we need, essentially, law-and-society law & security.

How does that relate to my op-ed?  My piece is about Obama’s political rhetoric related to war, and I argue that he is trying to have it both ways.  As a political matter, he has focused on the wars in Iraq and Afghanistan.  His campaign promise was to bring these wars to an end.  Early in his administration he would say “we’re in two wars.”  But in 2010 he shifted, and gave a speech that said the nation is “at war with Al Qaeda.” 

This shift in political rhetoric enables the president to argue that he is filling his campaign promise of ending the wars that he was talking about when he got elected, but at the same time the new formulation maintains (politically) the basis for his war-related powers.

Now for the law-and-society point: presidential war powers are determined not only by legal authorities and constraints, to the extent they exist, and by capacities inherent in the executive branch.  As Scott Silliman put it in a national security law class at Duke last semester, the president “paints the scene.”  Important work by historians helps to fill in the way presidents essentially narrate wars for the American public (my formulation, not Silliman’s), helping to generate both political sentiment and also, most simply, the conception that something happening faraway is a “war” that the security of Americans at home hinges upon.  (This is not a post-9/11 problem, but was a critical Cold War issue, and also was important in earlier years.)  Political scientist Adam Berinsky helps us to see that what Americans “know” about overseas conflict does not derive directly from the conflict itself, but is filtered in the same way as public opinion on other matters: it is affected by elite discourse and partisan politics.

This is a long way of saying that presidential rhetoric on war and security is tremendously important and consequential.  I focused only on Obama’s flip: “Ending major conflicts in two countries helps him deliver on campaign promises. But his expansive definition of war leaves in place the executive power to detain without charges, and to exercise war powers in any region where Al Qaeda has a presence.”  But the ultimate problem goes beyond what looks like a political bait-and-switch.  By narrating war differently, Obama is “painting the scene” differently, in a way that will not determine the scope of his war-related powers down the road, including but not limited to detention.  Though not determinative, a president’s framing of a war era is a first and essential component of the generation and maintenance of presidential war powers.

I take up Wittes directly, and the ways we’re talking past each other, below the fold.
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Posted 10:17 AM by Mary L. Dudziak [link]

If we're ending a war, what war are we ending?

Mary L. Dudziak

THE defense secretary, Leon Panetta, recently announced that America hoped to end its combat mission in Afghanistan in 2013 as it did in Iraq last year.  Yet at Guantánamo Bay and elsewhere, the United States continues to hold enemy detainees “for the duration of hostilities.”   

Indeed, the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy. 

But there is a disconnect today between the wars that are ending and the “war” that is used to justify ongoing detention of prisoners.

Continue reading here.  Cross-posted at War Time.
Posted 10:54 PM by Mary L. Dudziak [link]

The Cosmic Theory of Judicial Restraint

Gerard N. Magliocca

I highly recommend Judge J. Harvie Wilkinson's book on "Cosmic Constitutional Theory." It provides a lucid and accessible discussion of the four leading schools of interpretation: (1) living constitutionalism; (2) originalism; (3) political process theory; and (4) pragmatism. In each of these four chapters, the advantages and disadvantages of the model under consideration are examined with care. The chapter on pragmatism (in other words, what Richard Posner says) is especially compelling because Posner's constitutional approach is not usually examined with the same rigor that is applied to his other views. Furthermore, I enjoyed the book because I share Judge Wilkinson's skepticism about normative constitutional theory.

Nevertheless, I do have a bone to pick. Wilkinson introduces and concludes his analysis by advocating judicial restraint as superior to any comprehensive system of constitutional interpretation. This raises a question--why isn't judicial restraint also a cosmic theory? After all, that approach has its own pros and cons if it is treated as something more than a presumption. Judge Wilkinson is aware of this weakness, but his response is not persuasive. I was particularly struck by this passage, which responds to the point that some activist decisions of the past have stood the test of time:

"Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born."

Unfortunately, this sounds a lot like the infamous quote from the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented. A presumption in favor of judicial restraint is fine, but when that becomes dogma implausible conclusions must be drawn to keep the faith. Judicial restraint is no exception.
Posted 5:15 PM by Gerard N. Magliocca [link] (39) comments

Cosmic Constitutional Theory

Guest Blogger

J. Harvie Wilkinson III

[The following are excepts from Judge Wilkinson's new book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance]

I am glad the search for cosmic theory has enlisted so many able participants. Whether it be the living constitutionalism of William Brennan, the originalism of Robert Bork, the political process theory of John Hart Ely, the textualism of Hugo Black, the minimalism of Cass Sunstein, the cost-benefit pragmatism of Richard Posner, the active liberty of Stephen Breyer, or the moral readings of Ronald Dworkin, the contribution of each must be respected. And even this is admittedly an arbitrary and far too abbreviated list. These estimable thinkers have two things in common. One is that they have enhanced our understanding of the world’s most fascinating legal document and most powerful court. The other is that in their ultimate quest they have fallen very short.
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Posted 9:39 AM by Guest Blogger [link]

Campaign 2020: Bots United

Frank Pasquale

A Legal Theory of Autonomous Artificial Agents offers a serious look at several legal controversies set off by the rise of bots (and robots generally). "Autonomy" is one of the key concepts in the work. We would not think of a simple drone programmed to fly in a straight line as an autonomous entity. On the other hand, films like Blade Runner envision humanoid robots that so closely mimic real homo sapiens that it seems churlish or cruel to dismiss their claims for respect and dignity (and perhaps even love). In between these extremes we find already well-implemented, cute automatons. As Sherry Turkle has noted, when confronted by a robotic stuffed animal called Paro, children "move from inquiries such as “Does it swim?” and “Does it eat?” to “Is it alive?” and “Can it love?”"

I want to ask another, perhaps childish, question: can the bot speak? The question will be particularly urgent by 2020, but is relevant even now as corporate and governmental entities want to promote armies of propagandizing bots to disseminate their views and drown out opposing voices. Consider the experiment run by Tim Hwang, of the law firm Robot, Robot, & Hwang, on Twitter, as explained in conversation with Bob Garfield:

GARFIELD: Earlier this year, 500 or so Twitterers received tweets from someone with the handle @JamesMTitus who posed one of several generic questions: How long do you want to live to, for example, or do you have any pets? @JamesMTitus was cheerful and enthusiastic, kind of like those people who comment on the weather and then laugh heartily. Perhaps because of that good nature or perhaps because of his inquiring spirit and interest in others, @JamesMTitus was able to strike up a fair number of continuing conversations. Only thing is, there is no @JamesMTitus. He, or it, is a bot, a software program designed to engage actual humans in social networks.

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Posted 9:19 AM by Frank Pasquale [link]

Death Panels Redux

Ken Kersch

The Francis Schaeffer/C. Everett Koop documentary film series What Ever Happened to the Human Race? (1979), along with Schaeffer’s earlier documentary How Should We Then Live? (1977), and the books that came out of them (along with Schaeffer’s book A Christian Manifesto (1981)) were seminal in forging the alliance between evangelical and Roman Catholic conservatives embracing the “culture of life,” which now serves as the ideological grounding for the contemporary religious right (the books and films have been re-issued in recent years, and the films are available on DVD – with instructional guides).

Before the late 1970s, most even very conservative evangelicals had no problem with artificial contraception, and, while they might not have been thrilled with it, they took the abortion question to be a Catholic issue. Schaeffer was a critical figure in changing that. These films are hardly single-issue hatchet jobs. In ten, hour-long episodes, in the format of monumental PBS documentaries like Carl Sagan’s Cosmos or Robert McNeil’s The Story of English, How Should We Then Live? surveys the history of western civilization, its religion, philosophy, art, literature, and law. While somewhat shorter (five episodes), What Ever Happened to the Human Race? is even more sophisticated, visually (the director, Francis “Frankie” Schaeffer, Jr., -- after repudiating the Christian Right, became a noted Hollywood director). At the outset of the Reagan administration, these films were screened for Republican members of Congress, and conservative political and church groups nationwide. Schaeffer’s idiosyncratic emphasis on the significance of the Scottish jurist Samuel Rutherford (who taught the Biblical roots of law) to the American Founding, over and above John Locke, was used to construct an alternative understanding of the American Founding, tying the imperative of living by Biblical law to the U.S. Constitution, via a pedigree spotlighting Rutherford's status as a teacher of Princeton’s John Witherspoon, who was himself, in turn, the teacher of “the Constitution’s author” James Madison. It is (as they say) no accident that we now have institutions called The Witherspoon Institute and The Rutherford Institute that play important roles on the religious (and legal/constitutional) right.

The Supreme Court, and law more generally, figure significantly in Francis Schaeffer’s documentaries. Their central teaching is that the absolutes set out in the Bible provide civilization’s only stay against arbitrary law – and the ultimately barbarous proposition that law comes from man (legal positivism), and not God. Without the Bible as our foundation, put otherwise, all is permissible – slavery, genocide ... abortion, and euthanasia. Schaeffer spends a considerable amount of time explaining to his viewers the concept of “sociological law,” in which the word of God is displaced by the arbitrary whims of man -- with consequences that, in the U.S., he argues, have become frighteningly real.

The agents of this move from Biblical absolutes to “sociological law” have been progressive elites, who control the godless, distant, federal bureaucracy (now moving to take over – of all things, health care!), and the federal courts, including, most prominently, the Supreme Court.

In the clip I linked in my previous post, there is a remarkable subliminal flash to the Court during the opening sequence of the documentary film series What Ever Happened to the Human Race? Immediately following the conclusion of this clip, with its image of a junked baby carriage, we see a beautiful little girl strolling with her parents past marble steps, which turn out to be those leading up to the High Court. Schaeffer then appears and teaches a lesson on the steps of the Court on the nature and consequences of sociological law.

Episode three of Whatever Happened to the Human Race? (“Death by Someone Else’s Choice”) is entirely devoted to euthanasia. At one point in this episode, the camera cuts sharply from images of the Pilgrims landing on American shores to an animated song and dance number (to the tune of “Anything Goes”) showing high-spirited doctors on a stage happily vacuuming up fetuses. Suddenly, the pillars of the Supreme Court descend (with the inscription “Equal Justice Under Law” above). We see an animation of dancing -- and masked -- Supreme Court justices wielding gavels attempting to crush men in wheelchairs, who try to flee. The masks are then removed, and the faces of the then-sitting justices are revealed. There is applause, followed by a rousing curtain call, with doctors, nurses, and Supreme Court justices joined in a festive chorus line hand-in-hand with each other – and with Nazi storm troopers .

I confess that I couldn’t help but chuckle when, back during the death panels controversy, President Obama earnestly protested that his critics should read the proposed law, and see for themselves that there was nothing in it at all about death panels. Does this man have political advisors? (I suppose this is the sort of rank ignorance of the Christian Right you get when you don’t have a southerner on the ticket). Of course, if you know anything about that part of the political world (and have seen these films, for example), you know that the real issue is not whether there were death panels in the then-proposed legislation, which is largely irrelevant. The underlying conviction is that, if we allow the federal government to get involved with health care (the Founders, who wrote our Constitution knew better!), in time there will be, or something close enough to it: that is, the government will make life and death choices based, not on God’s teaching, but on “sociological” grounds.

Obama’s proposed rules on contraception – constitutionally and ideologically – sparked precisely the same fears.

To be sure, the compromise position will quiet this issue down a bit, given the fact that almost all sexually active women avail themselves of contraceptives at some point in their lives. But Obama has once again reminded the irate right that, given their legal and constitutional ideology, he is a dangerous man indeed. The President would be a lot better off if he at least understood this, and took it into account, rather than flying blind concerning some fundamentals of the politics of the country he is attempting, ham-handedly, to effectively govern.

Posted 2:57 PM by Ken Kersch [link]

Ian Ayres

Posted 11:06 AM by Ian Ayres [link]

More on religion and political candidacies

Sandy Levinson

I was going to post the following remarks in the "comments" section of my previous post on former Senator Santorum, but I strongly suspect that the reversion of the discussion to irrelevant attacks on President Obama and insulting remarks about one of the participants means that no one would read them. So I offer this new posting:

Let me suggest that reference to the JFK speech (or, for that matter, to Article VI's "no religious test oath clause") is quite irrelevant if candidates themselves place their religious views front and center about "who they are" and, indeed, what should be expected of them if they take political office. After all, some very serious Catholics, at home and abroad, have suggested the legitimacy of civil disobedience rather than obey immoral laws. Unless one takes the untenable position that all laws deserve obedience, then, inevitably, one will find oneself sypathetic with some of these calls for civil disobedience. Think in the American context of the Berrigan brothers or, for that matter, and far more recently the views of the arch-conservative Cardinal Mahoney in Los Angeles who suggested that there might be a moral duty to provide sanctuary to illegal aliens. At the same time, of course, one might be very much against other such calls, such as the suggestion several years ago by some Vatican officials that Spanish bureaucrats simply refused to obey a new law passed in that country legalizing same-sex marriage.

John Kennedy was by no stretch of the imagination a "serious Cathoolic" in the sense of being interested in Catholic theology or how its tenets might require shaping his own life. If we had the same category for Catholics as we do for Jews, I suspect that Kennedy might well have been classified as a "secular Catholic," in the way that there is no evidence that, say, Justice Ginsburg is anything other than a "secular Jew." (This is not meant as a knock on Ginsburg, since I certainly consider myself a "secular--and decidedly non-Halachic or, for that matter, believing--Jew.)" Justice Scalia, on the other hand, gave a very serious speech on how he would feel compelled to resign from the Court if he believed (which he does not) that the Church had made a definitive judgment on the (im)morality of capital punishment, in the way that it has on abortion, given his view that the Constitution, correctly interpreted, clearly accepts the constitutionality of capital punishment. I discuss the general issue of "Catholic justices" in two different essays in my book Wrestling With Diversity, as well as in a symposium several years ago published by the St. Thomas Law Review addressing the significance of the fact that a majority of the Supreme Court is now Catholic. (Needless to say, only a Catholic law school would or could have sponsored such a symposium, which was excellent, since it would otherwise be viewed as "anti-Catholic" to address the possibility that one's identity as a committed Catholic might even be minimally relevant to one's conception of judging or constitutional meaning.)
Posted 6:11 PM by Sandy Levinson [link] (24) comments

Contraceptives and the Politics of Recognition

Joseph Fishkin

The Affordable Care Act requires all health insurance plans (except grandfathered plans) to cover the entire cost of certain preventive medical services, with no co-pays.  This list includes, among many other things, birth control.  This has led to a massive political firestorm.  Should all women, regardless of employer, have access to birth control with no out-of-pocket costs?  Or should religiously affiliated employers with religious objections to birth control be exempt from this requirement as a matter of religious freedom?

On Friday, President Obama announced a clever compromise: yes to both questions.  Yes all women should have access, and yes religiously affiliated employers should be exempt (and not only churches, who got a narrow exemption from the previously announced version of the rule, but also religiously affiliated hospitals and health care systems and universities).  Where a religiously affiliated employer objects to birth control, it need not provide it or pay for insurance that provides it.  Instead, the insurance company must, on its own initiative, provide the birth control to the women at no cost to them.  (For insurance companies, this is not such a bad deal.  Because childbirth and dependent care coverage are very expensive, and birth control pills are comparatively cheap, an insurance company that manages to pay for slightly fewer pregnancies and births as a result of paying for birth control might come out even or ahead.)

The reason this compromise is clever is that each side gets the main thing it says it wants.  Reproductive rights advocates win on access.  Employees (and families of employees) of large Catholic hospital systems, for example, will have the same access to birth control that other women will have.  At the same time, religiously-affiliated institutions win their exemption from a generally applicable law.  They win the right not to participate in something to which they deeply object.  But neither side can be completely pleased with this deal, because this fight was never exclusively about these two concerns.  It was also about the politics of recognition.  But recognition of what?

Read more »
Posted 4:30 PM by Joseph Fishkin [link]

Understanding the Right’s Birth Control Rage

Ken Kersch

A tutorial in ten minutes.

This is the opening of the documentary film series What Ever Happened to the Human Race? (Gospel Films, 1979), by the evangelical minister Dr. Francis Schaeffer and the pediatric surgeon Dr. C. Everett Koop (soon to be appointed Surgeon General by President Reagan).

Posted 7:55 AM by Ken Kersch [link]