Tuesday, May 05, 2015

The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part Two


This is part two of my interview with Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015).  Part one of the interview appears here.

* * * * *

JB: Any book on the Constitution will be controversial to somebody. Mike, you are generally a proponent of strong presidential power, and you are also one of the most prominent critics of Roe v. Wade in the American legal academy. In the final chapter of the book, which discusses the modern period, it's almost impossible to avoid saying something that someone will disagree with. Nevertheless, I notice that you try very hard to be even-handed, although it's pretty clear to the reader what you think. What was your basic philosophy in dealing with modern controversies about the Constitution? What were some of the choices that you made in deciding how to present material about which you had strong opinions?

Mike Paulsen: The last chapter was truly the hardest to write!  The basic decision we made was to embrace the theme for this chapter that the modern era is one of renewed "Controversy" over the meaning and application of the Constitution, and to be both up-front about our views and try doubly hard to fair to opposing views.  I'm personally gratified, Jack, that you can see the effort to be even-handed. And we think part of the effort at "fairness" also lies in not trying to disguise our views when we have them.  We wrestled hard with how to write about Roe v. Wade. Yes, Jack, as you know we first became better acquainted when you invited me to Yale to be one of the opposing viewpoints for your book "What Roe v. Wade Should Have Said" -- and I stunned the audience with a (seemingly unfamiliar!) views that Roe was the most clearly wrong decision, and the greatest atrocity, to that point in the Court's history.  

In the book, we set forth the arguments on each side -- more dispassionately -- and what our evaluation is of each one.  We make clear where we stand.  But mostly, we try to highlight the problems with Roe by situating it within the broader historical context of other situations in which the Court has strayed rather far from the constitutional text in the name of effectuating what was believed (at the time) to be good-and-true-and-desirable social policy -- Dred Scott, Plessy, Buck v. Bell and others.  Even for those who favor the result in Roe as a policy matter, this is a challenging interpretive problem: Is it legitimate for courts to stray from the constitutional text, or not?  If so, what constrains them?  What keeps courts, unleashed from the text, from advancing what folks might think terrible social policy?  Is there not a case for leaving social policy to the democratic process and the choices it produces?  All of these debates are familiar to readers of Balkinization (and to many in society generally).  In the book, we try to frame the debate fairly, give a sense of the stakes, say where we stand and why, point out analytic problems and weaknesses with judicial decisions, and then leave it to the readers' judgments.  

There are any number of modern-day issues of this sort.  We didn't want to treat them in an over-delicate manner, as if afraid to engage.  (Down that road lies the Great Error of school textbook editors, who massage controversy into mush -- and inaccuracy.)  Instead, we tried to treat them in an engaging manner -- one that invites ongoing discussion, rather than screaming insistence on a particular view.  

Ironically, our strongest, most strident criticisms, come in the context of disputes and decisions of bygone eras.  We are pretty unreservedly critical of the framers of the Constitution for their accommodation -- bordering on embrace, support, and encouragement -- of the atrocity of slavery.  We engage in harsh denunciation of Dred Scott.  And our bitterest critique seems to come, as noted before, in Chapter Eight, where pretty much every major decision of the Court -- Bradwell, The Civil Rights Cases, Plessy, Giles, Berea College, Buck v. Bell, Lochner, The Insular Cases, Schenck, Debs, you name it -- seemed to amount to a "Betrayal" of the great advances in the constitutional text made in the wake of the Civil War.   

Balkinization readers tend to lean left.  Other bloggers and reviewers on the right have found -- and will find -- things they disagree with, too.  Already, some of my more right-leaning friends have taken mild issue with our seeming embrace of a broad, "Hamiltonian" view of the scope of Congress's enumerated powers -- including defense of the Court's conclusions in the New Deal-era commerce clause cases, and even NFIB v. Sebelius.  

So, you're right: To engage the Constitution, and the decisions of the Supreme Court, in a nothing-up-our-sleeves fashion, is to say things that someone will disagree with.  We're pretty open about acknowledging that there will be room for disagreement with some (or a lot) of what we say.  (That is, in part, why we style the book as "An Introduction" -- it is not the only possible way of teeing up these questions -- and also "An Introduction" -- this is hardly the last word on the Constitution!)  We have no doubt that some of what we say will be controversial to some folks; different folks will find different things with which to disagree.

Luke Paulsen: In editing Chapter 10, I found that it was extremely easy to distinguish two kinds of passages: those that might be taken as reflecting a political viewpoint, and those that took and defended specific legal positions on the basis of clear, consistent reasoning. And I'd like to think that we were able to sift out most if not all of the passages of the first kind. In the discussion of Roe v. Wade especially, we were careful to present the legal arguments faithfully and evenhandedly-- and, separately, to discuss the real-life import of the decision. (In Chapters 6 and 7 we gave a similar treatment to Dred Scott v. Sandford, which is easily Roe's equal in its influence and practical consequences.) We also made sure, in passages that might attract disagreement, to present where our conclusions were our own-- not those of other scholars, and not necessarily those of the reader. What we want readers to take away from our discussions is the process of thinking and talking about the Constitution, more than any specific legal result.

JB: A book with two authors means that there are two minds at work. What were some of the topics you didn't agree on, and how did you handle those disagreements in the book?

Luke Paulsen: We actually had very few major disagreements, and all of them were about the style and presentation of the material, not the substance. I guess that isn't surprising, since I learned most of what I know about the Constitution from my father. A lot of the time I played the role of the editor, trying to rein in the professor-isms, technical jargon, digressions, and terrible jokes that found their way into my dad's first drafts. When he came up with a punchy way of saying something that didn't read well to me, we'd often go back and forth for a while trying to find a solution that both of us liked.

I was also the one advocating for more moderate (or at least less overt) political statements in a few cases once we got to Chapter 10. That's not necessarily because our political views are very different-- I just tend to be a little more sensitive about these things, and as the less experienced Constitution scholar I was doing my best to represent the feelings of the average reader.

My dad, on the other hand, was the one who always insisted on exciting, memorable writing and precise, correct scholarship. When we went over the material that I wrote or rewrote, he often pushed me to rewrite parts that I felt were "good enough". That was crucial to my improving as a writer-- it wasn't enough for me to just write something that was clear, concise, and informative. It had to pull people in and make them want to read it.

Oddly enough, our biggest disagreements happened once we had a real editor. In the end this book was the work of more than two minds-- Alex Littlefield and the rest of the folks at Basic Books did a ton to get us from manuscript to publication, including several rounds of editing. But when the comments came back, we often split on our reactions to them. I tended to be a lot more deferential about accepting proposed changes, while my dad was more insistent on keeping what we had written. 

When it was just the two of us working together, disagreements weren't so much of a problem. We could often find a different way to say something, and if one of us felt strongly about a passage the other would back off. But when we were working remotely from a third person's changes, there was more pressure on us to have a binary "yes" or "no"-- especially as we got close to publication-- and figuring out disagreements got more challenging. Even so, we never even came close to a point where one of us would have had to overrule the other, and we were really happy with how the final text turned out.

JB: A big theme of the second half of the book is the distinction between judicial review, which you support, and judicial supremacy, which you do not. You also emphasize the role of non-judicial actors in  interpreting the Constitution. In an introductory book on the Constitution, why do you think this is important?

Mike Paulsen: One of the great modern myths about the Constitution is that it is the exclusive province of the judiciary in general, and of the Supreme Court in particular.  The Constitution does not say that, of course.  There is no "supreme interpreter" clause in the Constitution.  What there is in the Constitution is a deliberate separation and division of powers, with each branch of government bound by oath to support with integrity "this Constitution" and no branch designated as the sole interpreter of that Constitution.  The "judicial Power" is a power to decide cases, not a supreme power over the other branches in all matters of constitutional interpretation.  The "executive Power" is a power to execute the laws -- including the Constitution as supreme law of the land -- and the President swears a specially constitutionally prescribed oath to preserve, protect, and defend the Constitution.  Logically, he has as much of a right to independent constitutional interpretation as do the Courts.  Congress, too, in the course of the exercise of all its constitutional powers, necessarily engages -- overtly or not -- in constitutional interpretation.  Each branch, then, rightfully possesses the power of constitutional interpretation, each within the province of its other granted constitutional powers.  This understanding has considerable historical support.  Madison argued that none of the branches was supreme over the others -- none possessed a superior right to define the boundaries between their respective powers.  Hamilton openly defended checks on the courts, including the prospect of presidential non-enforcement of judicial decisions and congressional impeachment of judges who usurped the legislature's powers.  And Marbury v. Madison never asserted judicial supremacy -- merely coordinate interpretive competence and authority on the part of courts; that is, the judiciary was not bound by the other branches' erroneous interpretations of the Constitution and could properly assert its own views, within the scope of the legitimate exercise of the judicial power.  

This theme pervades so much of our constitutional history -- from Jefferson to Jackson to Lincoln to Roosevelt to Reagan to Obama -- that it simply cannot be ignored.  Yet it is astonishing how insistently textbooks and popular media ignore it!  This indeed is one of the major lessons of the book: constitutional interpretation is a game best not played alone, and one that can legitimately be engaged in -- and ought to be engaged in -- by presidents, senators, representatives, governors, juries, voters, and citizens.  It's a cliche, but it's true:  The Constitution belongs to "We the People."

Luke Paulsen: We think it's important because it's so crucial to appreciating and understanding the Constitution! This is a point that I feel strongly about. The whole notion of an introduction to the Constitution is, for me, premised on the idea that knowing the Constitution is an important part of citizenship-- that the Constitution really is, and remains, the people's document. It's the foundation of our government "of the people, by the people, for the people"-- which implies that "We the People" must somehow be involved in the Constitution's interpretation if our system of government is to function properly. Otherwise, the powerful and influential would be free to manipulate the Constitution's meaning in such a way as to bypass democratic government. And some would argue that that's exactly the kind of thing the Supreme Court has tended to do in the past half century or so. Or, to come at the question from the other direction: if non-judicial (and democratically responsible) actors don't have a major role to play in interpreting the Constitution, then why should anyone outside the federal courts and the legal academy be interested in its meaning? In that case, what would be the point of having a general introduction at all? Besides, the Constitution's history of non-judicial interpretation is so rich and fascinating that we couldn't possibly fail to emphasize it. It makes for a better book, one that engages the reader's interest more deeply, and one that's more truly an "Introduction".

JB: Over the course of its history, how well do you think that the Supreme Court has behaved in upholding and interpreting the Constitution?  If we had to do it over again, should we have structured the federal judiciary differently?

Mike Paulsen: Speaking only for myself, I wouldn't structure the federal judiciary any differently -- but perhaps that's because I've become so thoroughly steeped in the law of Article III (teaching "Federal Jurisdiction" for several years) that the familiar has become attractive to me.  But as for how the Supreme Court has done at the task of interpreting the Constitution, I'd have to say the record has been decidedly mixed.  There is a seemingly regular, insistent litany of major disastrous holdings in the Court's history:  Dred Scott, Plessy and its myriad variations, Hirabayashi and Korematsu, Prigg v. Pennsylvania, Bradwell v. Illinois, Lochner, Buck v. Bell, Gobitis, and (to our minds) Roe, Casey, Carhart and the other abortion decisions.  The list is long enough -- many, many more could be added; everyone will have his or her own special most-hated-cases to add to the list -- and so distressingly regular over time, that it surely should be enough to make one question the wisdom of essentially unchecked judicial supremacy in constitutional interpretation.  But at the same time, there have been some truly magnificent, restorative, uplifting judicial decisions (and these get plenty of attention in our book, as well): Brown v. Board of Education, West Virginia Board of Education v. Barnette, Youngstown Sheet & Tube, Strauder v. West Virginia, McCulloch, and dozens more.  

My appraisal is that the Supreme Court's performance, over time, has been inconsistent, uneven, imperfect.  (Is there really any room for doubt about that?)  And one possible lesson the book suggests is that the Court has tended to do best by the Constitution in those instances when it has stuck faithfully, but fearlessly, close to the text and the original meaning of the Constitution, and not been swayed by the political winds of the day (or tried to create such winds itself).  In addition, some of the Court's greatest landmarks have come in cases where it has overruled itself -- corrected the errors of a previous era.  (Barnette and Brown, two of my favorites, are examples of this.)  

Not all will agree, of course.  But "if we had to do it over again," I wouldn't structure the judiciary differently.  I'd just want  some of the judiciary's decisions to come out differently.  :-) 

Luke Paulsen: Should we have structured the judiciary differently? No way! As complicated and imperfect as the Constitution's history has been, it's been astoundingly successful at its main objective-- creating an effective, stable, democratic system of limited government-- and I wouldn't want to go back and tinker with anything. Unless, that is, I could avoid promoting and protecting slavery so much, while still getting the Southern states to agree. 

As far as the Supreme Court goes, it's behaved more or less as I would expect any of our political institutions to: doing the right thing marginally more often than not, often behaving inconsistently, and aggregating more power to itself whenever it can. It certainly hasn't been anywhere near perfect or infallible, but then it was never meant to be. And the other parts of government have been able to push back against its worst excesses-- which just goes to show that, in general, the Constitution is working as intended. 

Monday, May 04, 2015

The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part One


I recently spoke with the father and son team of Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015)  This is part one of a two-part interview.  Part two will appear tomorrow

JB: Why did you write this book?  What is the audience you are hoping to reach? How would you say this book differs from the dozens of books published every year on the Constitution and the Supreme Court?

Mike Paulsen: Thanks for "interviewing" us, Jack!  We're grateful for the chance to connect with Balkinization's readers and bloggers.  Thanks for your generous hospitality.  

The story of how the book came to be is fairly straightforward.  I had given a lecture at an institute at Princeton way back in the winter of 2006 -- on Lincoln, Presidential Power, and the Emancipation Proclamation (topics eventually addressed in this book!).  Following the lecture, at the usual academic dinner, the college profs and law profs began arguing about just how and when their students got such messed up notions about the U.S. Constitution.  The law profs blamed the colleges; the college profs blamed the high schools; everybody blamed the shallow media and textbook treatments generally. 

I ventured that "somebody" really ought to write a book trying to set forth the essentials of the Constitution -- origins, meaning, history, interpretive disputes -- in a straightforward, smart, concise, and reader-friendly way that would correct many myths and half-truths.  The idea would be to reach general readers -- students, non-lawyer citizens, journalists,real people -- with (hopefully) sound factual information and reasonable analysis, teeing up all the major historical and modern debates in an intelligent way.  Such a book could not be superficial and sloppy -- it would have to be "smart enough" for academics, even if not aimed merely at academics.  But it had to be accessible and readable, too.  And it would also have to be fair and not a screaming ideological screed.  

Of course, my dinner companions challenged me to write it.  I took the idea home to Luke, my then-thirteen-year-old son, who liked the idea.  He'd just finished eighth grade Government, and we'd occasionally laugh together at the textbooks that said things like "The Supreme Court invented the idea of 'judicial review' in Marbury v. Madison, which held that the Supreme Court is the supreme interpreter of everything in the Constitution and can determine what it means and change it over time."  (The hazards of being a law professors' son, I suppose.  I'd like to think that our discussions were part of his early education, and not a bizarre form of child abuse!)
Luke and I decided to take up the idea as a summer vacation project.  We underestimated how long it would take -- by a factor of about eight years! -- but we wrote it almost exclusively during summer breaks, a large part of it at our island cabin in extreme northern Minnesota.  Originally, the book might have been aimed at younger students -- high-school age or so -- but our ambitions and the book's sophistication grew over the years.  (Luke went from being a high school freshman to a Princeton Phi Beta Kappa computer scientist, and now a software engineer in Silicon Valley.  His legal acumen grew tremendously over this time.  He may be one of the most sophisticated lay constitutional interpreters never to have been corrupted by a law school education!)  

Now, we'd like to think that the book is the (!?) definitive, concise, modern introduction to the Constitution.  It comes in at just over 300 pages, and treats the Constitution in all major respects:  its origins at the Constitutional Convention; its structure, design, and broad themes; the meaning of its core provisions assigning powers and protecting specific rights; its awful accommodation of slavery; and then -- fully the second half of the book -- its history of interpretation over 225 years' time.  

We were surprised to find that there is, really, no other book exactly like this.  On the one hand, there are massive, dense, sophisticated scholarly tomes and treatises.  But those are too daunting for many.  (I still think that the best book, other than The Federalist, on the Constitution is my old friend -- and former law school roommate -- Akhil Amar's America's Constitution: A Biography.  It's just double or more the length, and doesn't cover the history of the Constitution's interpretation.  By the way, thanks to Akhil, and to so many others, who read the book in draft and provided insightful, critical comments.)  

There are also many excellent books that focus just on specific constitutional issues, or on debates over constitutional interpretive methodology, or that are histories of the Supreme Court and its decisions specifically.  Some of these are a little too "academic" for most readers; others are terrific but of limited scope. 

Then, on the other side of the ledger, there are the somewhat embarrassing, quick-and-dirty "citizens' guides" that aren't really of much use -- and often perpetuate the shallow treatment and mythology of the popular press and of school textbooks.  Finally, there are the ideological tirades that don't even try to be fair to opposing viewpoints: preachings to different choirs, right and left.  

We've aimed right down the middle.  300 pages is better than 600 (in many respects).  And it's better than 100, too.  Comprehensive, concise, and readable is our goal.  And while the book takes positions on important constitutional questions, we try to lay them out fairly and note where we depart from the standard modern consensus.  

We also sought, throughout, to make the narrative lively and energetic.  That pretty much came naturally, but we had to bear in mind the needs of a (hoped-for) broad readership.  For you, Jack, and others well versed in constitutional law, these things are just intrinsically interesting.  But -- inexplicable as it might sound to you, me, Luke, and many if not most of your readers! -- one first-blush reaction I've had from non-lawyer, non-history, non-government, non-political types is "Wow, a book on the Constitution. Three hundred pages?  How do you keep it interesting?  Is there really that much interesting to say?"  One of the attractive features of the book, we hope -- making it more interesting to lay readers and probably to seasoned constitutional veterans as well -- is that we try to tell a story about the Constitution and to intersperse that narrative with the specific stories of many interesting constitutional characters, from Hamilton and Madison to Roger Taney to John Calhoun to Frederick Douglass to Dred Scott to Lincoln to Myra Bradwell to Eugene Debs (what a character!) to FDR to Robert Jackson to the Hirabayashi, Korematsu, and Endo, to Norma McCorvey to Thurgood Marshall . . .  

So, that's a very long way of saying that we're hoping that the "audience" is, well, everyone.  Legal scholars will, I hope, find much to engage their interest (and occasionally provoke discussion and debate).  Scholars, activists, and engaged citizens -- readers of Balkinization, both on the right and the left -- will, we think, find much value in it.  And lay readers, interested in history, politics, and government, who are looking for the "one book" that they really ought to read on the Constitution -- as a point of entry to this intriguing topic -- should start here, we think!  (But not end here, of course.)  
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Defending the sex discrimination argument from the left

Andrew Koppelman

Some of the recent criticisms of the sex discrimination argument for same-sex marriage have come from the left, arguing that the argument does not do justice to the reality of discrimination against lesbians and gay men.  The argument in fact does not do it justice, but this is true of legal argument generally.  I responded to such arguments in some detail in a 2001 article, responding to criticisms from Edward Stein.  In light of the renewed interest in the sex discrimination argument, I'm posting that article onto SSRN.  It is here.  Here is the abstract:

Edward Stein’s is only the latest and most systematic of a growing number of criticisms of the sex discrimination argument, from the left and the right. Stein’s doctrinal objections to the argument misconceive the reach of present doctrine, which treats all sex-based classifications with deep suspicion. His empirical doubts misapprehend both the argument’s claims and the enduring connections between heterosexism and sexism. His only persuasive claim is his moral objection, which argues that the sex discrimination argument ignores, and may render invisible, a central moral wrong of anti-gay discrimination. This is a profound moral difficulty, but it is one that is present in almost any legal argument, and perhaps in language as such. It therefore cannot be an objection against any particular argument.

Friday, May 01, 2015

The sex discrimination argument for same-sex marriage, in full

Andrew Koppelman

At the oral argument in the Supreme Court's same-sex marriage case this week, Chief Justice John Roberts asked:  “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.  And the difference is based on their different sex.  Why isn’t that a straightforward question of sex discrimination?” That question has generated renewed attention to the sex discrimination argument.  Ilya Somin reviews some of what's been written in the past few days, and capably responds to it, here.

All of the argumentative moves that are being made now, and others that people will probably think of in the next few weeks, are considered in an overlong article I wrote in 1994.  It is available here.  A critical response to the resistance of lower courts to the argument is also available, here.

Wednesday, April 29, 2015

An idea whose time has gone

Andrew Koppelman

Nothing is stronger than an idea whose time has gone. Yesterday’s Supreme Court argument showed as clearly as anything could have that same-sex marriage will prevail, not only because of the strength of its arguments, but because those arguments meet no resistance: The opposing view has become incomprehensible.

I elaborate on this argument at, here.

The sex discrimination argument, which I’ve developed in an amicus brief in the case (coauthored with Ilya Somin) and elsewhere, is nicely profiled in today’s New York Times, here.

Wednesday, April 22, 2015

Is the First Amendment Being Misused as a Deregulatory Tool?-- The Abrams Institute First Amendment Salon


Here is the video from the Abrams Institute's First Amendment Salon held on March 30, 2015.  Martin Redish and I discuss "Is the First Amendment Being Misused as a Deregulatory Tool?"  Floyd Abrams is the moderator.

Monday, April 20, 2015

The sex discrimination argument for same-sex marriage, in USA Today

Andrew Koppelman

I have argued for many years that denying same-sex couples the right to marry is sex discrimination

This time, though, I've got a bigger audience:  a column, coauthored with George Mason law professor Ilya Somin​, in today's issue of USA Today.

Saturday, April 18, 2015

The canard of "lawful presence" status in the Texas challenge to the DAPA policy

Marty Lederman

You can listen here to yesterday's Fifth Circuit oral argument (before Judges Smith, Elrod and Higginson) in Texas's challenge to DHS's “Deferred Action for Parents of Americans" (DAPA) immigration policy.  The argument ranged widely over virtually all of the issues in the case.  Here, a short word on only one of them, involving the question that engendered the greatest confusion and misunderstanding in the argument:

The judges repeatedly questioned counsel about whether deferred action status is merely a decision not to remove an alien, or whether it additionally confers a new legal "status" upon the alien, one that would transform unlawful conduct of the alien into lawful conduct (or, at a minimum, that would confer an "immunity" from government prosecution or removal authority).

At one point, for instance, Judge Higginson asked Texas Solicitor General Keller why DHS's DAPA  "enforcement priority" policy--that is, a decision generally not to "enforce" removal against a class of aliens--should be subject to APA notice and comment procedures, when so many other, apparently analogous, governmental nonenforcement policies are not.  For example, the judge pointed to the "Petite policy" in the U.S. Attorney's Manual, which "precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s)," except where, inter alia, the state prosecution has left a substantial federal interest "demonstrably unvindicated."  There is nearly 100% adherence to this policy, by all 200,000 or so Assistant U.S. Attorneys, noted Judge Higginson:  They never prosecute in such cases except in the rare circumstances described in the policy.  Accordingly, on Texas's theory, why wasn't it necessary for DOJ to subject the "Petite policy" to notice and comment review?

SG Keller's response was that under the Petite policy, when the government declines a prosecution "it’s not saying that your unlawful conduct is now lawful,” whereas--allegedly by contrast--DAPA does confer some sort of "lawful presence" status upon the covered aliens, making lawful some conduct that previously was unlawful.  (The relevant colloquy is at approximately 1:34:00-1:40:20 of the audio file.)

As I have previously explained in much greater detail, this is simply wrong.  Deferred action status does not make any unlawful conduct lawful, or confer any immunity from the force of federal law.  The aliens in question presumably have violated the law, by entering the United States without authorization or overstaying a visa.  Accordingly, they can be prosecuted for such a violation; and because they lack authorization to be present in the country, they also can be removed from the United States.  Deferred action status does not change any of that.  It does not immunize the aliens from being prosecuted for past unlawful entry (or any other violation of federal law); nor does it even guarantee that they will not be removed based upon their lack of authorization.  As the government put the point in its most recent brief (p.46):  "What the district court described as 'lawful presence' is nothing more than the inevitable consequence of any exercise of prosecutorial discretion: remaining free of the government’s coercive power for so long as the government continues to forebear from exercising that power."  DAPA does not, however, immunize the covered aliens from the exercise of that coercive power.

Friday, April 17, 2015

New Annual Book Review Issue of Tulsa Law Review Now Available

Linda McClain

My co-editor Ken Kersch and I are pleased to announce that the fifth annual book review issue of the Tulsa Law Review (our second as co-editors) is now available online and in print.  This issue (Volume 50, Issue 2, 2014) includes twenty-seven reviews of sixty-six books.  In keeping with the vision of founding editors Sandy Levinson and Mark Graber,  our roster of reviewers reflects several disciplines:  predominantly law and political science, but also history, sociology, and women’s and gender studies.  The authors of the books reviewed are similarly diverse in their disciplinary fields and their approaches. The books themselves cover a wide range of topics, including substantive areas of law, legal history, and political institutions and actors.  It is fitting as we have recently reached the 50th anniversary of landmark civil rights legislation that several reviews address books on civil rights, dissent, and social movements. Along those lines, one notable feature of this issue is that it includes not just one, but two review essays on Bruce Ackerman’s important new book We the People, Volume III:  The Civil Rights Revolution, the latest installment in Ackerman’s  We the People project.   These reviews start from two quite different perspectives, with the first by political scientist --and leading social movement scholar -- Sidney Tarrow (Cornell University), and the second by  law professor – and leading constitutional theorist – James E. Fleming (Boston University School of Law).  We hope readers will enjoy this issue.

Thursday, April 16, 2015

Constitutional Interpretation and Change in the United States: The Official and the Unofficial


I have just posted a draft of my latest essay, Constitutional Interpretation and Change in the United States: The Official and the Unofficial, on SSRN. Here is the abstract:

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.

The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.

The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.

American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.

The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.

The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon—the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.

Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries-- the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.

Monday, April 13, 2015

Originalism in the Marriage Equality Cases

David Gans

Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation.   These briefs debate whether original meaning or original understanding has pride of place in constitutional interpretation, what Jack calls “yet another example of the continuing debates within originalism over who has the best version.”  Jack argues that the back and forth in these briefs, and particularly the agreement that Romer v. Evans correctly interpreted the Equal Protection Clause, shows that “we are all living originalists now.”  In a thoughtful, nuanced reply, Steve Smith, one of the professors who joined the “Scholars of Originalism” brief, agrees with Jack that “original meaning cannot simply be equated with ‘original expected applications,’” but otherwise resists the pull of Jack’s view of “living originalism.” 
Other amicus briefs filed in the marriage equality cases do a deeper dive into the text and history of the Fourteenth Amendment, debating what the history shows.  The brief filed by my organization, the Constitutional Accountability Center, lays out the original meaning of the Amendment, illustrating that the text, drafting history, and debates over the Fourteenth Amendment all demonstrate that the constitutional guarantee of equal protection establishes a broad guarantee of equality designed to protect all persons from state-sponsored discrimination.  (The CATO brief covers some of this ground as well, though its brief focuses more on the development of equality principles in antebellum America).  Under the text and original meaning of the Fourteenth Amendment, the Amendment’s guarantee of equality applies to all gay men and lesbians who wish to exercise their right to marry the person of their choice.   
Three key pieces of evidence show how powerful this view is.   First, in drafting the Amendment, the Framers specifically rejected narrower equality guarantees that would have proscribed only racial discrimination in favor of a broad equality guarantee that would protect all persons.   The decision to embrace equality for all was a conscious choice – made by the Joint Committee on Reconstruction on April 28, 1866 – bringing the Constitution back in line with basic principles of equality set forth in the Declaration of Independence.  It is fitting that the Justices will hear the marriage equality cases 149 years to the day after the Framers made the momentous choice to guarantee equal protection for all.  

Second, debates in Congress, speeches on the campaign trail, and editorials published in the press all made clear that the Amendment would establish equality for all.   As our brief demonstrates, the Framers time and again explained that the equal protection guarantee “establishes equality under the law,” “abolishes all class legislation in the States[,] and does away with the injustice of subjecting one caste of persons to a code not applicable to another,” putting in the Constitution “the declaration that all citizens were entitled to equal rights in the Republic,” and placing all “throughout the land upon the same footing of equality before the law, in order to prevent unequal legislation.” 
Third, racial discrimination against African Americans was not the only immediate issue of the day.  White Unionists in the South faced pervasive discrimination because they had fought and helped win the Civil War.  Immigrants, mainly of Chinese descent, were subject to a barrage of discriminatory laws in California and elsewhere.  The Framers gave the Equal Protection Clause a broad sweep to prevent these kinds of state-sponsored discrimination and others that might arise in the future.       

In the marriage equality cases, South Carolina, in its amicus brief  supporting the states, takes a radically different view.  It argues that the Fourteenth Amendment's original meaning was to prevent “racial discrimination and nothing else” and that “displacement of state marriage laws was the last thing the framers intended.”  To support this view, South Carolina points to congressional debates in 1866 (some concerning an earlier version of the Fourteenth Amendment that failed in Congress, some concerning the Civil Rights Act of 1866), in which a number of members of Congress recognized the authority of states to deny married women the same rights that their husbands enjoyed.   South Carolina claims that since the Framers of the Fourteenth Amendment permitted these forms of sex discrimination, they clearly would have also permitted laws that banned same-sex marriage.  

This is bad originalism at its worst – the debates cited by the state do not concern the equal protection guarantee directly – and it flies in face of the text of the Fourteenth Amendment ratified by the American people, which guarantees the equal protection of the laws to all persons, not only to men.  South Carolina finds its friends in the crowd, while ignoring the mass of evidence, clearly reflected in the text of the equal protection guarantee, that the Fourteenth Amendment was designed to secure equality under the law for all persons.   

Perhaps that’s why, when Chief Justice Roberts discussed whether the equal protection guarantee applies to laws that discriminate against women during his confirmation hearing, he insisted that the proper approach was to apply the text’s broad grant of equality under the law as written by the Framers.   “[T]hey didn’t write the Equal Protection Clause in such narrow terms. . . . [T]hey chose to use broader terms, and we should take them at their word.”  As Roberts emphasized, the Equal Protection Clause is written as a guarantee of equality for all, not simply as a prohibition on racial discrimination.  

When the Justices hear oral argument in the marriage equality cases later this month, they should remember Roberts’s advice to “take them at their word.”  The Framers made a conscious decision to write the Fourteenth Amendment as a broad guarantee of equality for all, preventing majorities in the states from discriminating against any person or group of persons.  It is the Supreme Court’s job to enforce the Constitution’s guarantee of equality for all.

David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Obergefell v. Hodges This post is cross-posted at Text and History.

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