War and Peace in Time and Space

Mary L. Dudziak

In a few different talks this semester, I plan to build on the ideas in my last book, and finally take up a question I did not previously have a good answer to.  The book, War Time: An Idea, Its History, Its Consequences, critically analyzes the way the concept of “wartime” works in law and public policy.  It focuses on war and temporality, arguing that the ideas about war and time that are implicit in law and policy (e.g. that wartime and peacetime are distinct, and follow each other in sequence) are in tension with the history of U.S. military engagement, which has been persistent, not episodic. 

When I gave talks about the project, I was often asked about whether space mattered – essentially whether I should consider time and space together.  I would answer that yes, space/geography is important to American war in part because U.S. military action takes place outside U.S. territory, and, relying on Catherine Lutz’s work, some domestic communities, especially communities with military bases, experience directly domestic costs of war, while other areas are not directly affected.  But time and space did not come together in the work itself.  I figured that the topic of war and time was important enough to be the singular focus of the book.

But I am occasionally asked to say something about peace, and that has finally helped me with how to think about war’s times and spaces together.  The most helpful provocation was an invitation from Yxta Murray of Loyola Law School to speak at a symposium on Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace, at Seattle University School of Law in March. My difficulty: what to say about “peacetime” when I think there is, essentially, no such thing.  Yxta’s generative call for papers seemed to require more than a suggestion that peacetime is an anachronism – in part because peace is such a fervent hope, and peacefulness has been an important political strategy for social movements.

The answer, which I am still working out and which may not be fully satisfactory for Yxta’s conference, was to turn to scholarship on spatiality. When I began working on temporality, I found my way to a tremendously interesting literature on the history and culture of time.  The same is true of space, with developing new work in critical geography. This is helping me to see that my initial thoughts about wartime and space were too simplistic.  And many law-related works that take space or place into account are similarly limited.  When space or place are invoked, sometimes that just means focusing on the local, or perhaps being comparative.  In this way of thinking, there is an implicit normative space, which is the nation.  All else is a departure. But this is, ultimately, not very interesting or helpful.

I started by returning to Stephen Kern, The Culture of Time and Space, and looking carefully at his chapters on spatiality, and to Mary Favret’s focus on war and distance.  And I am finding my way into critical geography.  The argument for the peace conference is falling into place: that peace is not a time in the United States, it is a geography.  The geography of peace is driven in part by social class.  Those engaged in the work of American war (soldiers, reservists, military contractors, their families and communities) have a direct experience of “wartime,” while the rest of us can go about our daily lives minimally affected by American military engagement.  Whether it is wartime or peacetime within the United States depends upon who you are and where you live. There are consequences of this for the politics of war, and for political checks on presidential war power – but this will await another paper.  For now, thinking about peace as a geography can be a way of thinking about time and space as different yet intersecting dimensions of the culture and experience of American war.

My first take on this will be a lecture at the Robert S. Strauss Center at the University of Texas next week.  The abstract is below.

In law, history and public policy, we conventionally divide the past into wartimes and peacetimes.  Peacetime is thought to be normal time, and wartime is exceptional.  Harsh wartime policies are tolerable in part because they are temporary. In the long war-era of the 21st century, these temporal assumptions have been remarkably persistent, with President Obama and others suggesting that we will at some point return to peacetime.  This lecture will begin with a critique of wartime as a temporal concept, drawing upon my recent book War Time: An Idea, Its History, Its Consequences.  If war’s time limits have eroded, what has become of “peacetime”? Going beyond the wartime critique, I will argue that for the United States “peace” is not a time, but is a spacial concept.  It is because peace is experienced geographically, rather than temporally, that much of the U.S. population can experience peace, while war’s violence is the province of its soldiers and of those who reside in the places of its export.

Take two will be in Seattle, and take three will be at a symposium on The Future of National Security Law at Pepperdine. Then I hope to take the spatial analysis in a different direction, focusing more on a global community of the surveilled that is produced by contemporary security practices for a symposium at Yale’s Center for Historical Enquiry and the Social Sciences. This blog was a helpful place for me to work out the War Time ideas, so I hope you will indulge this new project.  Comments are open -- with thanks in advance for your reading suggestions!
Posted 1:09 PM by Mary L. Dudziak [link] (22) comments

Harvard Law Review Symposium on Freedom of the Press

JB

The Harvard Law Review is hosting a symposium on Freedom of the Press on February 15th to celebrate the fiftieth anniversary of New York Times v. Sullivan.

Balkinization bloggers Mark Tushnet and Marvin Ammori will speak, and I will be presenting my recent paper, Old School/New School Speech Regulation.

Here is the schedule:

Harvard Law Review Symposium 2014: Freedom of the Press

A conference in celebration of the 50th anniversary of
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

February 15, 2014
Harvard Law School
Austin North

8:45 Breakfast

9:20 Introduction:

Mark Tushnet
Harvard Law School
“Reflections on the First Amendment and the Information Economy”

9:45 Panel 1:

Susan Crawford
Benjamin N. Cardozo School of Law
“First Amendment Common Sense”

Comments by Stuart Benjamin (Duke)

10:55 Panel 2:

Sonja R. West
University of Georgia School of Law
“Press Exceptionalism”

Comments by RonNell Andersen Jones (BYU) and by David Anderson (University of Texas)

12:10 Lunch

1:10 Panel 3:

Marvin Ammori
Fellow, New America Foundation
“Free Speech Lawyering in the Age of Google and Twitter”

Comments by Marjorie Heins (Free Expression Policy Project) and by Jonathan Zittrain (Harvard)

2:35 Panel 4:

Rebecca Tushnet
Georgetown University Law Center
“More than a Feeling: Emotion and the First Amendment”

Comments by Caroline Corbin (University of Miami)

3:45 Panel 5:

Jack Balkin
Yale Law School
"Old School/New School Speech Regulation"

Comments by Yochai Benkler (Harvard) and by Dawn Nunziato (George Washington University Law School)

5:00 Break

5:10 Open Panel

6:00 Dinner



Posted 4:55 PM by JB [link]

Did the law professors blow it?

Andrew Koppelman

David Hyman’s paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA?, reflects on what he calls "the epic failure of law professors to accurately predict how Article III judges would handle the case." The culprit, he concludes, was the experts’ insularity and arrogance. (I’m one of his named targets.)

The paper is forthcoming in the Illinois Law Review, which solicited a group of responses.  My response is now posted on SSRN, here.

I offer a different explanation for the professors’ surprise at the seriousness with which the challenge was taken. The oral argument caused great consternation precisely because judges who had previously endorsed a broad view of Congressional power now suddenly abandoned principles that had been unquestioned for decades, and embraced limits that they had never before even mentioned and that made no sense as a matter of either constitutional interpretation or political philosophy. The explanation for the near-success of the challenge was a combination of libertarian prepossessions and pure Republican party loyalty. Because such behavior is so far outside the bounds of normal, responsible judicial action, the law professors did not anticipate it.
Posted 12:54 PM by Andrew Koppelman [link]

Urban Sprawl + Lack of Public Transit + 2 Inches of Snow = Atlanta Shutdown

Mary L. Dudziak

There’s no better time than a weather-related shutdown to get back to blogging.  Apologies for my silence, which comes in part from my discovery that there really is a scholarly use of Twitter, allowing for both reading and writing across smaller platforms. [Jack: please install Twitter share widget on blog.]

As I am writing, the City of Atlanta is in a “civil emergency” as the city and the state of Georgia work to clear abandoned cars from icy roadways, and as temperatures finally climb above freezing to do the de-icing that the region lacks the tools to accomplish.  For the rest of the country, this has been hilarious. 

 But Rebecca Burns has a smart piece in Politico that allows us to see a broader, and more general, lesson: The Day We Lost Atlanta: How 2 lousy inches of snow paralyzed a metro area of 6 million. “What happened in Atlanta this week is not a matter of Southerners blindsided by unpredictable weather,” she writes.

More than any event I've witnessed in two decades of living in and writing about this city, this snowstorm underscores the horrible history of suburban sprawl in the United States and the bad political decisions that drive it. It tells us something not just about what's wrong with one city in America today but what can happen when disaster strikes many places across the country.

Burns makes an argument that you will remember from the post-Katrina commentary: this was not a natural disaster, but “this fiasco is manmade from start to finish.”  The essay also reminds us of Randolph Bourne’s argument that it is in war that citizens see the state, and at other times “the State reduced to a shadowy emblem.” For New Orleans after Katrina and in Atlanta today, weather stands in for Bourne’s focus on World War I, as weather provides the occasion for residents to confront in a direct and sometimes dire way the consequences of their government’s aid or its neglect.

How could Atlanta’s weather crisis be manmade?  Burns makes four points. 

First, “Atlanta” is not a city but a region, and governance is diffused by the division of the metro area into many different counties.  Georgia has more counties than any state except Texas. In the 1960s and 70s a combination of flight to the suburbs and new Atlanta migrants setting outside the formal city boundaries left the city as “the commercial district to which people commute.” This is why, when snow began to fall and schools and offices closed, one million vehicles headed for the freeways at the same time.

Burns’s remaining points are about transportation: the focus on making room for automobiles, including the bulldozing of urban neighborhoods; the way balkanized government impeded development of a regional public transit system; and voters’ rejection of a public transit referendum in 2012.

Her most important generalizable insight is that forms of governance affect outcomes.  We tend to think that smaller units allow for deeper citizen participation, but Burns shows that it can lead to peril. “There was no coordination around school closings, because there are more than two-dozen city and county school systems in ‘Atlanta,’” she explains.

There was little coordination between highway clearance and service to city streets because "Atlanta" is comprised of dozens of municipalities connected by state and federal highway systems....  If Atlanta, the region, wants to get serious about public safety, its mayors, county officials, and state officials will need to start practicing regionalism instead of paying lip service to it. And whether threatened by a dangerous pandemic, a major catastrophe, or just two inches of snow, we need to have ways to get around-and out of-the city other than by car.

Read the full essay here.
Posted 11:31 AM by Mary L. Dudziak [link] (29) comments

Will democracy (even if desirable) survive?

Sandy Levinson

The invaluable Thomas Edsall has a terrific online posting in the NYTimes discussing a new book by Thomas Piketty, “Capital in the Twenty-First Century."  It argues that there is really no plausible way to stop the ever-increasing inequality, based on the comparative rate of return on capital and labor.  (As Marx predicted, there is in fact an increasing world-wide "reserve army of the unemployed").  Edsall's column concludes as follows: 

Posted 2:25 PM by Sandy Levinson [link] (41) comments

Reifying Racism: Real Property as Information Law

Jane Bambauer

(By Derek Bambauer, cross-posted at Info/Law)

On Friday, Carol Rose and Richard Brooks will co-star at a conference at the University of Arizona James E. Rogers College of Law, titled “Saving the Neighborhood,” after their new book. (You can come! Register here.) Rose and Brooks examine the development of legalized racial segregation in housing, the gradual shift to the use of covenants in real property deeds to effectuate restrictions, and the legal battle that culminated in the Supreme Court’s rejection of such devices in Shelley v. Kraemer. Shelley is a casebook standard for both constitutional law and property courses, entangled as it is in questions of state versus private action, alienability of property, and the rise of the civil rights movement. Rose and Brooks, though, tell a much less well-known story: one of subtle signals, game theory, legal formalism, and norm entrepreneurs. The book is gracefully written and eminently readable. It tells a story that is much more complex than the standard 1L accounts of racial covenants. It intrigued me, and in the next few posts, I’ll expound upon why.

Rose and Brooks argue that the legal enforceability of racial covenants was almost beside the point: court battles were rare, and expensive. Rather, racial covenants served as a substitute and a signal. In looser-knit communities (and in ones with higher socio-economic status), racial covenants took the place of informal social pressures – everything from angry glares to deadly violence – that were the standard mechanism for maintaining racial boundaries in poorer communities or ones with closer ties. Racial covenants carried two simultaneous messages. First, and most obviously, they conveyed to potential homebuyers who were of a racial or ethnic minority (principally African-Americans, but also Asian-American and Latino-American ones as well, depending on the location) that they were quite definitely unwelcome. This indicator had real as well as semiotic effects. It was far more difficult for minority purchasers to obtain a home mortgage when reviewing banks saw the covenants, and the legal proscription could demonstrate a willingness to engage in extra-legal pressures as well. The second signal was to neighbors of the restricted property. It reassured them that collective action to maintain segregation remained strong, preventing the risk of panicked selling or white flight when neighbors feared a sudden shift in the area’s racial composition. This is a sophisticated account of the functioning of fairly arcane legal restrictions. (How many homeowners reading this have checked their deeds for restrictions? Supreme Court Justice William Rehnquist didn’t.)

I have two thoughts about the signaling function of racial covenants. The first is that it suggests some internal discomfort, on the part of at least some white homeowners, about their racial attitudes. Racial covenants strike me as a mechanism for psychological distancing from a slightly distasteful / embarrassing prejudice. (Put another way, I would argue that at least some homeowners preferred more covert “polite racism” to the overt pressures of broken windows and burning crosses.) If this is correct, covenants would have two appealing features. First, unlike “Not For Sale” signs or other constant, more salient signals, racially restrictive covenants were invisible until needed. While real property deeds are nearly always recorded, few people bother to check them until there is a need – buying or selling a parcel of property. Thus, white homeowners did not have to reveal themselves as racist until it was economically or socially important to convey that information. And, covenants allowed a sort of outsourcing of blame: the homeowners could claim that it was not they who were preventing neighborhood integration, but rather the law, via the mechanism of the deed to their property. Some homeowners (like Rehnquist) might plausibly claim not to know of the covenants, or even to disagree with them. But, they could argue that it was no longer up to them – the property carried a legal restriction, and they wanted to follow the law. (Put to one side the fact that, like Rehnquist, they could likely extinguish such covenants with a few hours of a lawyer’s time.) I would argue, then, that racial covenants played an important role for white homeowners aside from the practical one of keeping minorities out of their neighborhood: it allowed them to avoid confronting fully the depth and effects of their prejudice.

Second, this signaling function has important implications for utilitarian versus expressivist theories of law. I have always been an instinctive utilitarian: unenforceable laws strike me as useless. (Years ago, Massachusetts attempted to clear a congeries of outdated, unenforceable laws from the statute books, only to run into stiff opposition from segments of the public who still supported those strictures, even while acknowledging they were no longer binding.) Rose and Brooks’s work, though, convinces me the line between the two theories is not nearly so sharp as I had thought. Even legal devices that cannot be enforced in court can still have social effect. While racially restrictive covenants were rarely enforced in court before Shelley, the shadow of the law may have been important. But even after the Supreme Court’s decision, parties continued to write these covenants into deeds. The expressivist utilitarian view is that these were tales told by an idiot, full of sound and fury (at the Court’s decision), signifying nothing (legally). Rose and Brooks, however, argue that these formally defunct restrictions continued to play a role in setting out social norms – they were greatly weakened signals, but signals nonetheless. It took a flat ban under the Fair Housing Act of 1968 to cut off the informational role of covenants. Even afterwards, recorded deeds still served as musty, but functional, data for buyers about what to expect from their new neighbors.
This is real property as information law – tremendously exciting. More to come.
Posted 11:21 AM by Jane Bambauer [link]

Hobby Lobby Part V: Whose Religious Exercise? Of corporations, for-profit employers, and individual plaintiffs acting in their various corporate capacities

Marty Lederman

1.  These cases do not require the Court to decide broad questions about what sorts of corporations can ever practice religion, advance religious objectives, or have religious “beliefs” or “consciences,” nor whether a for-profit corporation can ever be a “person” under the Religious Freedom Restoration Act (RFRA). 


2.  On the question of corporate exercise of religion, it suffices for purposes of the present cases for the Court simply to recognize that these corporate plaintiffs do not have a RFRA claim because of the particular nature of the burden on religious exercise alleged in these cases.

HOWEVER . . .

3.  A holding that the three corporations at issue here--Hobby Lobby Stores, Inc., Mardel, Inc., and Conestoga Wood Specialties Corp.--have not alleged valid RFRA burdens on their own "religious exercise" hardly ends the case, because the religious exercise of the individuals who wholly own and operate those companies can be substantially burdened by laws that are imposed upon the companies . . . and those individuals are also plaintiffs in the cases.

4.  Those individual plaintiffs appear to sue in at least three distinct capacities:  (i) as shareholders (at least in the case of Conestoga Wood); (ii) as managers, or administrators, of the companies; and (iii) in their capacities as directors, or decision-makers, of the companies.  It helps, I think, to consider separately their RFRA claims in each of those distinct capacities.  And in considering those claims, the fact that the companies are for-profit enterprises, or corporations, may well be relevant, whether or not they are determinative threshold considerations.

5.  It’s not clear that the individual plaintiffs as shareholders can sue for injuries based on the way in which their financial contributions would be used by the companies or by the insurance plans (e.g., to pay insurance premiums, or to provide reimbursements for contraceptive purchases).  Indeed, it’s not even clear that that is a federal question; it would appear to turn, instead, on matters of state corporation law--here, the laws of Pennsylvania (Conestoga Wood) and, perhaps, of Oklahoma (Hobby Lobby).

6.  In the individuals’ capacity as managers or administrators (or employees) of the companies, it is difficult to see how federal law substantially burdens their religious exercise, because it would be other persons (such as third-party plan administrators) who would engage in the relevant actions (e.g., reimbursements) that are said to facilitate the use of contraception, and nothing in federal law requires the Greens or the Hahns to perform any such role.

7.  The focus of the case, therefore, ought to be on whether federal law substantially burdens the owners’ exercise of religion in their capacity as decision-makers—i.e., as directors—of the plaintiff companies.  And that turns out to be a very complex question, one that might well turn on whether federal law imposes substantial pressure on the company directors to choose to retain their employee health insurance plans.

I'll try to break this all down below the fold . . . [slightly updated for clarification]


Read more »
Posted 6:36 PM by Marty Lederman [link]

President Obama’s Non-Constitutional NSA Initiative

Unknown

      President Obama seems to have forgotten the Constitution in formulating his policy on the NSA. A first warning sign came with the publication of an otherwise insightful 300 page report on NSA reform by his special advisory committee. Though the five-man panel included three eminent constitutionalists – Geoffrey Stone, Cass Sunstein, and Peter Swire – it explained that "Our charge is not to interpret the Fourth Amendment, but to make recommendations about sound public policy." (Report, p. 85)





Posted 9:23 PM by Unknown [link]

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters)

Marty Lederman

The Supreme Court issued this one-paragraph order today in the Little Sisters case:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders:  If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

This deftly crafted paragraph is a fine example of Solomonic judgment.  It leaves things just as they were and, for all practical purposes, just as they would have been in any event, as I explained here:  The Little Sisters affirm that they are opposed to providing contraceptive services--something they've already informed the government of, in their RFRA complaint itself!--and their employees will therefore not receive any such coverage, since the government does not have authority (even absent the Court's order) to require the objecting third-party administrator, Christian Brothers Services, to offer the coverage, and the government has not yet figured out any way to amend its regulations to guarantee coverage to women employees in the rare cases (such as this one) where (i) their employer is a nonprofit religious organization that objects to such coverage; (ii) the employer self-insures; (iii) the health plan is a "church plan"; and (iv) the third-party administrator of the church plan itself objects to providing such coverage.  

Now that that tempest in a teapot has been quelled, we can move on to what truly matters:  The Hobby Lobby/Conestoga Wood for-profit employer cases in the Supreme Court, and the Notre Dame nonprofit employer/university case in the Court of Appeals for the Seventh Circuit.
Posted 4:56 PM by Marty Lederman [link]

"Is Democracy Desirable?" A forthcoming symposium

Sandy Levinson

The University of Texas Law School and Department of Government will be co-sponsoring a symposium, "Is Democracy Desirable," on Friday, January 31.  It is free and open to the public. 



Posted 12:13 AM by Sandy Levinson [link]

What President Obama's Surveillance Speech Should Have Addressed

Frank Pasquale

In his recent speech on surveillance, President Obama treated the misuse of intelligence gathering as a relic of American history. It was something done in the bad old days of J. Edgar Hoover, and never countenanced by recent administrations. But the accumulation of menacing stories—from fusion centers to “joint terrorism task forces” to a New York “demographics unit” targeting Muslims—is impossible to ignore. The American Civil Liberties Union has now collected instances of police surveillance and obstruction of First Amendment‐protected activity in over half the states. From Alaska (where military intelligence spied on an anti-war group) to Florida (where Quakers and anti-globalization activists were put on watchlists), protesters have been considered threats, rather than citizens exercising core constitutional rights. Political dissent is a routine target for surveillance by the FBI.

Admittedly, I am unaware of the NSA itself engaging in politically driven spying on American citizens. Charles Krauthammer says there has not been a "single case" of abuse.* But the NSA is only one part of the larger story of intelligence gathering in the US, which involves over 1,000 agencies and nearly 2,000 private companies. Moreover, we have little idea of exactly how information and requests flow between agencies. Consider the Orwellian practice of “parallel construction.” Reuters has reported that the NSA gave “tips” to the Special Operations Division (SOD) of the Drug Enforcement Administration, which also shared them with the Internal Revenue Service.
Read more »
Posted 9:42 PM by Frank Pasquale [link]

Hobby Lobby Part IV: The Myth of Underinclusiveness

Marty Lederman

As I explained in an earlier post, the Affordable Care Act guarantees that virtually all Americans will be entitled to a wide array of “preventive health services,” which their insurance plan must make available without cost to plan participants and beneficiaries.  42 U.S.C. § 300gg-13.  These guaranteed cost-free services include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents, and “with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”  Id. § 300gg-13(a)(4). 

In its opening brief, Conestoga Wood makes several arguments about why the government’s interests here are not “compelling.”  Most insistently, CW argues (see pp. 58-60) that the requirement here has so many “holes” that “tens of millions of women” are not covered—and that if the government is willing to live with such vastly underinclusive coverage, its interests must not be all that compelling.  This was also one of the grounds on which the Court of Appeals for the Tenth Circuit held in favor of Hobby Lobby—it concluded that the law “‘cannot be regarded as protecting an interest of the highest order [because] it leaves appreciable damage to that supposedly vital interest unprohibited’” (quoting Church of Lukumi Babalu Aye v. City of Hialeah).

Eugene Volokh has already explained why such an underinclusiveness argument might be unavailing even if the exceptions to the law were as extensive as the plaintiffs claim.  As Eugene has elaborated, countless complex laws have a large set of exceptions, because such laws typically serve multiple competing interests.  The Court has nevertheless held that the state can have compelling reasons for not granting religious exemptions to such less-than-absolute legal requirements.  In cases such as Hernandez v. Commissioner (1989) and United States v. Lee (1982), for example, the Court refused to recognize religious exemptions to tax obligations even though, as Eugene points out, the tax code is chock full of a vast range of secular exceptions.  And in Gillette v. United States (1971), the Court rejected a religious objection to fighting in what the petitioner viewed as an unjust war, even though the draft already recognized secular exceptions that allowed many others to avoid compulsory service. 

Eugene also explains why the Court’s RFRA decision in O Centro is distinguishable from this case and from cases such as Lee and Gillette.  The Solicitor General further explains (p.56 of his Hobby Lobby brief) that the religious exemption sought in O Centro was essentially indistinguishable from a peyote exemption that federal law already recognized; that is to say, the existing exemption and the requested exemption would have had substantially the same impact on the whole range of government interests in question.  O Centro was fundamentally a case about a proposed religious exemption that was not different in kind from an existing exemption.  Hobby Lobby/Conestoga Wood is not such a case.

My focus in this post is a bit different:  I want to question the factual predicate of the underinclusiveness argument itself.  The Court does not even need to reach Eugene’s objections, in other words, because the statute here is not nearly as full of “holes” as the plaintiffs would have it.  It does not “leave appreciable damage” to the government’s interests unaddressed. 

Read more »
Posted 10:35 AM by Marty Lederman [link]

State Capacities and the Fourth Amendment

Mark Graber

Posted 8:45 AM by Mark Graber [link]

Hobby Lobby and the Establishment Clause: Gedicks and the Government

Guest Blogger

Posted 8:00 AM by Guest Blogger [link]

Why Are Americans Originalist?

JB

I have posted my latest essay, Why are Americans Originalist?, on SSRN.  It is an attempt to explain to non-Americans why originalism has such influence in American federal constitutional argument but lacks a similar degree of influence in the interpretation of the constitutions of other democracies, or even in the interpretation of the fifty American state constitutions. The answer is that originalism is a feature of American national culture, deeply connected to narratives of American national identity. Here is the abstract:

* * * * *

This brief essay, addressed to scholars outside the United States, attempts to explain why originalism is popular in debates over the American federal Constitution. If as its advocates sometimes maintain, originalism is the most legitimate method of interpretation in a democracy, one would expect advocates in every constitutional democracy in the world to demand that judges use it. Yet although originalism has made inroads in Australia and a few other countries, it is largely ignored elsewhere in the world. Although the “thin” version of original meaning advocated in Living Originalism would not be particularly controversial in most constitutional democracies, "thicker" versions of originalism that require judges to follow how a constitution's adopters would have understood or applied the text have little influence outside the United States or even in the interpretation of the fifty indigenous state constitutions. Originalism’s authority in debates about the American federal Constitution rests on cultural factors rather than a unique American commitment to the rule of law or popular sovereignty.

American originalism is primarily a nationalist idea. It arises from distinctive features of American cultural memory -- namely, that in popular imagination the American nation was created by Americans themselves through a self-conscious act of political revolution, and that the American nation, people, and constitution came into being more or less simultaneously through this initial act of self-creation. A similar story is not told in most other political cultures. This story has helped encourage Americans’ special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.

The self-conscious invocation of originalism as a general theory of interpretation is relatively recent; it is a response to constitutional modernity, in which Americans found themselves increasingly distanced from the past and sought to justify political reforms. Academic theories of originalism proliferated in American law schools in response to the political uses of originalism in the twentieth century. Yet as these theories have become increasingly sophisticated there is often little connection between them, the popular uses of originalism, and the way that originalist arguments are actually deployed (or ignored) by practicing lawyers and judges.

Americans use originalism as a political practice for critiquing the status quo (whether in a liberal or conservative direction) and arguing for change, sometimes quite radical. Appeals to origins serve as a precedent-breaking device -- they help justify a break from current practices by appealing to an even older tradition. This explains a little-understood fact about American originalism. The originators of originalism as a self-conscious approach to interpretation were not movement conservatives -- they were New Deal liberals. The increase in citations to originalist materials in Supreme Court opinions begins with Justice Hugo Black and the Warren Court. New Deal liberals committed to judicial restraint needed a way to justify exercising judicial review to protect individual rights. They turned to history to do so. Movement conservatives, who sought to break from liberal precedents, then flipped the political valence of originalism; they were so successful that originalism's origins as a liberal justificatory device have largely been forgotten.


Posted 8:35 AM by JB [link]

Another Federal District Court Heard From: Why Moral Disapproval Can’t Sustain a Marriage Ban in the “All-or-Nothing” State of Oklahoma

Linda McClain

On January 14, 2014, a second federal district court in the 10^th Circuit ruled that a state constitutional amendment limiting marriage to opposite-sex couples violates the U.S. Constitution. The first ruling, on December 20, 2013, by a federal district court in Utah, in Kitchen v. Hebert, has received considerable attention, most recently because the U.S. Supreme Court granted the State’s request to stay the district court’s order pending appeal, after that court and the 10^th Circuit declined to do so. Earlier this week, In Bishop v. United States, a federal district court in the Northern District of Oklahoma held that Oklahoma’s constitutional amendment, approved by voters on November 2, 2004, stating that marriage in Oklahoma "shall consist only of the union of on man and one woman" (Part A") violated the Equal Protection Clause of the 14^th Amendment of the U.S. Constitution. (The court ruled that the challenge to DOMA by the other same-sex couple ("the Barton couple"), who married in California, was moot because of  United States v. Windsor and the federal government’s new policy making federal benefits available, but it praised them for their "foresight, courage, and perseverance" over the many years of the lawsuit.) The court referred to Oklahoma as an "all-or-nothing state" because Oklahoma does not offer same-sex couples an alternative legal status, such as a civil unions: without a marriage license, they receive no marital benefits. Indeed, its amendment bars construing Oklahoma’s constitution or laws as requiring that any of "the legal incidents" of marriage "be conferred upon unmarried couples or groups." (Whether this characterization was a sly nod to Ado Annie’s and Will’s duet, in the musical Oklahoma, about the terms of their impending marriage, I am not sure.)

I want to focus on the federal district court’s reasoning about why, in light of United States v. Windsor and earlier U.S. Supreme Court precedents, moral disapproval of homosexuality is not a constitutionally sufficient basis for Part A of Oklahoma’s constitutional amendment, which prevented Mary Bishop and Sharon Baldwin (referred to by the court as "the Bishop couple") from obtaining a marriage license. (They filed their original lawsuit in 2004.)
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Posted 4:36 PM by Linda McClain [link]

The End Game on Same-Sex Marriage

Gerard N. Magliocca

It doesn't take a seer to see that the Supreme Court will eventually hold that same-sex marriage is a constitutional right.  It won't happen this year, it might happen next year, and the odds get better from there.  The interesting question to my mind is how the Court (in other words, how Justice Kennedy) writes that opinion.

One rationale is that these statutes are irrational because they discriminate on the basis of sexual orientation. The Court could also say that distinctions based on sexual orientation should receive heightened scrutiny (and that same-sex marriage prohibitions flunk that test). Or the case could be resolved by saying (as Justice Kennedy suggested during the oral argument of Windsor) that these prohibitions constitute unlawful sex discrimination. (e.g., A man cannot marry a man in some states only because he is a man.)

There is one significant advantage to using sex discrimination as the ground for decision.  It might eliminate the need for a sexual orientation amendment to the Civil Rights Act of 1964.  Right now a statutory amendment is necessary at the federal level to protect gays and lesbians from employment (and other private) discrimination because the "sex" prong in the Civil Rights Act is read to exclude "sexual orientation." If the Court collapses those categories as a constitutional matter, however, one can easily see how courts could do the same for the statute and expand its scope.

The downside is that a sex discrimination opinion would obscure the nature of the harm and deny gays and lesbians a canonical opinion declaring discrimination against them as a wrong.  Maybe we want the Court (and Congress) to state this explicitly. Whether that is worth many more years of no protection for gays and lesbians under the Civil Rights Act of 1964 (if that is the result) is an issue that some attorneys and some of the Justices may soon have to consider.
Posted 9:46 PM by Gerard N. Magliocca [link] (526) comments

Tax subsidies upheld on ObamaCare exchanges- Judge Friedman finds the ACA "clear"

Abbe Gluck

The first merits decision in the Obamacare tax subsidy litigation has been handed down, and it is a big victory for the federal Government.  Judge Paul Friedman (D.D.C.) has upheld the IRS's rule implementing  the Affordable Care Act, and making its tax subsidies available to consumers purchasing insurance on exchanges operated by the federal government, as well as to consumers purchasing insurance on exchanges operated by states.  My previous post here described the main arguments on both sides, which centered around some very sloppy drafting by Congress with respect to these provisions.

The reason the opinion is such a big victory for the Government is that Judge Friedman did not even go to Chevron deference, as some had expected. Instead, the Judge found the ACA clear, despite the bad drafting. Looking to the text in question; the legislative history; the many other provisions of the statute implicating the subsidies; and the Congressional Budget Office's estimates during the drafting process (which I blogged about here), the Judge found no ambiguity in the statute and upheld the rule on that basis.  (He references Chevron deference as an alternative, but not necessary, basis for the holding in a footnote.) 

Another point of interest in the opinion for Chevron aficionados: The Supreme Court has never resolved the question whether Chevron deference is available for multiple agencies. Much recent writing (including work by Jody Freeman and Jim Rossi; Jacob Gersen, and my recent empirical work with Lisa Bressman) has focused on the increasing frequency with which Congress delegates to multiple agencies at once, so this is very much a live question. The plaintiffs here had invoked a 2003 case from the D.C. Circuit implying that, when multiple implementers are in the picture, there might not  be Chevron deference for anyone (a conclusion that our recent empirical study finds inconsistent with congressional expectations).  Judge Friedman rejected that conclusion here, arguing that Congress's intent to delegate to both HHS and IRS, and to take advantage of both agencies' expertise, was clear.   That's even more good legal fodder for the courts in other Circuits still deciding parallel cases and for the D.C. Circuit, which almost surely will be asked by the plaintiffs to hear an appeal on this one.


Posted 1:48 PM by Abbe Gluck [link]

The Senate is not now and never has been "democratic"

Sandy Levinson

My latest missive on Al Jazeera online chastises the editorial page of the New York Times and others who declared that the very limited abolition of the filibuster in November has "returned the Senate to democracy."  A moments thought reveals that the Senate was never intended to be "democratic" if that is taken to mean roughly representative of the American population as a whole (as the House arguably is, putting partisan gerrymandering to one side and would certainly be the case if we modified our exclusive reliance on single-member geographical districts).  Perhaps there is something to be said for the Senate--though I am skeptical--but its "democratic" nature isn't one of them. 




Posted 6:19 PM by Sandy Levinson [link] (70) comments

"In the Balance" review -- update

Mark Tushnet

Posted 1:56 PM by Mark Tushnet [link]

Old School/New School Speech Regulation

JB

I've posted my latest article, Old School/New School Speech Regulation, on SSRN. It is part of a Harvard Law Review symposium on Freedom of the Press in the Digital Age. Here is the abstract:

 * * * * *

In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.

“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.

Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.

Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.


Posted 8:35 AM by JB [link]