"Our Imbecilic Constitution"

Brian Tamanaha

Sandy's Op-Ed in today's New York Times. Constitution worshipers be warned.
Posted 12:40 PM by Brian Tamanaha [link]

For Memorial Day: Toni Morrison's Home

Mary L. Dudziak

On Memorial Day we are encouraged to remember those who have given their lives for the country through their military service.  Toni Morrison's new novel Home follows one soldier's homecoming.  It is a sobering mediation on the limits of our ability to understand.  My take appears today on the Oxford University Press blog.  I can't fully cross-post, but here's the beginning:

Toni Morrison’s new novel Home about a Korean War veteran’s struggles after the war might seem perfectly suited to an impending cultural turn. The close of the U.S. combat mission in Iraq and an anticipated draw-down of American troops in Afghanistan, might signal the end of a war era and a renewed focus on what we now call the homeland. Perhaps we can turn to Morrison’s beautiful and brief narrative to understand the journeys of our generation’s soldiers as they, like Frank Money (the protagonist), try to find their way home.

The message of this novel is sobering. Whatever home might be for Frank, it is not a place where war is absent, as he brings Korea along with him as he travels. If peace is thought of as an absence of war, it is a state that Morrison’s character is unable to experience. War memories, psychological injury, and loss have become a part of him, so that his wartime and peacetime selves have become one. His army jacket and dog tags are outward signs of an inner melding. Home for this soldier/citizen cannot be a place apart. And so a central theme in the novel is the kind of space home can be for a broken veteran like Frank.

Continue reading here.

Cross-posted from War Time.
Posted 9:50 AM by Mary L. Dudziak [link]

Moyn on Endless War

Mary L. Dudziak

Sam Moyn begins a thoughtful review of War Time on Lawfare not with the book but with the Jack Goldsmith's appearance on The Daily Show.  Discussing Goldsmith’s new book Power and Constraint, Jon Stewart raised the concern that the president “has extraordinary powers in an endless war.”  Goldsmith agreed that he does.  “But Stewart failed to challenge Goldsmith's premise of ‘endless war,’” Moyn writes.

Some vigorously insist that the Authorization for Use of Military Force Against Terrorists offers clear boundaries to our war, at least as to who the enemy is.  But it is not as obvious that it imposes serious chronological (or for that matter geographical) limits. Goldsmith, far from using "endless war" as a throwaway line, incorporates it in the title of his book's preface. The main value of Dudziak's War Time is that comes much closer to mounting the challenge to interminable hostilities.

The project of my book is first and foremost to problematize the way wartime is understood, and to illustrate that, like other forms of temporal thinking, our understanding of wartime is a product of culture, and not a stable “fact” in the world.  The contemporary consequences of this conceptual problem is captured by Moyn:

legal scholars, liberal and conservative, have mainly spent their time since 9/11 continuing, and indeed amplifying, the Cold War mistake of thinking within the culturally constructed frame of a chronologically bounded understanding of war.  Insistence on this frame, and failure to see its constructed qualities, prompts an obsession with "civil liberties in wartime." But the "civil liberties in wartime" argument depends upon a social construction of "wartime" that in fact fit World War I and II much better than either the Cold War or today's "endless war" in the first place.

But Moyn asks: “I wonder, however, if the civil libertarian strategy came about because of ill-fitting conceptual categories or, instead, a failure to challenge geopolitical realities. Was the error of our time conceding a wartime frame, or conceding an open-ended struggle on which to impose it?”  Moyn presses both me and my critics to address the problem of ongoing warfare more directly.  In response to Goldsmith’s claim that our system has worked post-9/11, Moyn suggests that perhaps “the system crashed in the Cold War; it is to our great and lasting moral discredit that matters were never put right after it.”  Seeking deeper engagement of the moral problem of ongoing war, Moyn suggests that “one might take the repeated ceremonial endings [of combat] Dudziak singles out, for example, to imply widespread nostalgia for the very chronological confinement to war Americans long ago gave up.”

From my perspective, Moyn accomplishes three crucial things in this review.  First, he highlights a crucial transformative moment in American politics, and urges that we study it more deeply.  Although there has been on-going U.S. military engagement since at least the Civil War, it was during the Cold War, in the context of shifts in the U.S. role in geopolitics and the domestic political reaction, that American political leaders argued that American military power projected around the world was the only way to keep the nation safe.  This put the nation on a trajectory that we have not stepped back from, and that others have argued has become entrenched in American political culture.  From that point on the infrastructure of endless war was created.  And from that point on, politicians might argue against particular uses of force by presidents, while at the same time supporting continued military build-up if it brought jobs and resources to their districts. 

Second, Moyn insists that the morality of endless war be placed more clearly on the table.  Moyn himself illuminates the importance of critically exploring both morality and its uses as a political rhetoric in his own fine work.

Third, and especially helpful from my perspective, he places people who don’t usually speak to each other, and their ideas, in conversation in an important way.  The liberal/conservative back-and-forth about war, rights and presidential power has become predictable and even tiresome, so that it fails to illuminate underlying cultural, political and global dynamics that produce the conceptual environment within which our leading conservative and liberal scholars argue with each other.  It will help us to get beyond that impasse, I believe, by turning more seriously to other disciplines where war is treated not as a stable fact in the world, but as a complex and changing phenomenon requiring the tools of political scientists, anthropologists, historians and others to more fully understand.

Cross-posted on War Time.
Posted 11:49 AM by Mary L. Dudziak [link]

The (Ir)relevance of Gender to Judicial Decisions?

Mark Tushnet

The Supreme Court decided Blueford v. Arkansas. The case involved a prosecution for the death of a child resulting from battering, or so the prosecution charged (with apparently quite weak evidence). The Court divided 6-3, with Justices Ginsburg, Kagan, and Sotomayor dissenting in an opinion by Justice Sotomayor. I could be wrong, but I think this is the first case in which the Court has divided along gender lines. (After writing this, I checked Cavazos v. Smith, a factually similar case, but there Justice Breyer was with the dissent and Justice Kagan with the majority.)

How much can we make of this? Not much, I suspect. Neither the issue (a double jeopardy problem) nor the underlying facts implicate gender in any direct way. Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)
Posted 10:49 AM by Mark Tushnet [link]

Lobbying the Supreme Court update

Mark Tushnet

So, here's the conservative press release if the Court upholds the Affordable Care Act: "John Roberts [or, presumably, at least one conservative] was intimidated by the left into abandoning his sincerely held convictions about the Constitution's meaning. The Court's decision was 'tainted' by politics." Again, I think it would help were proponents of the underlying theme to spell out exactly what they mean by "intimidation" (which is Parker's word). Do they think that John Roberts is going to worry that he won't be invited to some nice dinner parties, or won't get invited to speak at law schools? And, why exactly shouldn't he worry if he believes that a Court decision -- any one, really -- will impair the Court's legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the "verdict of history" point)? I'm not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court's legitimacy or be seen in retrospect as unwise, just wondering what's wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan's dissent? Was Justice Breyer being obnoxious or guilty of attempting to intimidate his colleagues when he concluded his dissent in PICS with the words, "This is a decision that the Court and the Nation will come to regret [emphasis added]?)
Posted 9:20 AM by Mark Tushnet [link]

"Lobbying" the Supreme Court

Mark Tushnet

Kathleen Parker may not be responsible for the remarkably silly title of her op ed in the Washington Post, "The Public Trial of John Roberts." But, I've noticed a theme (meme?) going around, that saying something about how a Supreme Court decision invalidating the Affordable Care Act will -- may? might? -- adversely affect the Court's reputation, or the way "history" will treat the Chief Justice, amounts to "lobbying" the Court -- a term Parker uses -- or is an attempt to "delegitimate" such a decision.

This strikes me as silly in two ways. (1) It's probably too late to "lobby" the Court. The justices have already cast their votes and opinions are being prepared. Of course there's always the chance of what political scientists call "fluidity" before the case is handed down, and sometimes fluidity means that the result of the preliminary vote is reversed. And, I suppose, there's some -- I'm pretty confident minuscule -- chance that some justice's vote will be fluid because of what the justice thinks people are going to say about a decision one way or the other, although I'd be quite surprised to learn that that was true because of  things that were said or written after the preliminary votes were cast: A justice would have to be pretty thick to think about reputation and the like afterwards but not have it in mind beforehand.

(2) The comments or predictions about the Court's reputation and the like are just that -- comments and predictions. They may be right, they may be wrong, but really, it's not much different from political commentary about whether Republicans or Democrats are going to  be hurt more by a new debt-ceiling crisis. "History" will tell us in its own good time how "it" regards the Roberts Court, but right now all people are doing is writing political commentary (not even the first draft of history).

So, is there anything to say about this theme (instead of participating in its development)? A couple of things occur to me. Maybe it's softening the battlefield (by both sides) in anticipation of the Court's decisions, laying out the themes that both sides expect to use after the decisions come down. "The Court's a captive of partisan Republicans"/"It's obnoxious [again, one of Parker's words] to criticize the Court for partisanship." If that's what's happening, it's interesting that the battlefield seems to be one where the Court has invalidated the Act. Neither Democrats nor Republicans seem to be working out plans for using a Court decision upholding the Act for political gain. Maybe they know something I don't about how the case is going to come out. (But, I do know that good strategists draft one press release to distribute if the Court comes out one way and another to distribute if it comes out the other. The NAACP archives, for example, have this sort of "dual" press release ready to go before the Court's decision in Brown v.Board of Education.)

The other thing is that the "Greenhouse effect" discussed by conservative critics of Justices O'Connor, Kennedy, and sometimes Souter, seems to have morphed. In its origins, the effect was that mushy conservatives came to Washington and, desiring to be liked by the people they hung out with, drifted to the left. The effect was gradual and "environmental." Now conservatives seem to be worrying -- completely needlessly -- that the effect might occur in a quite targeted way, with respect to a specific case. But, one thing's pretty clear: John Roberts isn't going to be affected by these articles. He knows his own mind. Maybe he's concerned about his reputation in history or the Court's legitimacy, maybe he isn't.* But he's going to vote -- or has voted -- the way he thinks correct. (I would have written "right," but in the present context that would be too easy to misinterpret.)

* For myself, I don't think there's anything wrong with a justice building concerns about the Court's legitimacy into a general view about interpreting the Constitution. That's certainly one way of understanding Bickel's advocacy of the passive virtues, for example. (Concern for personal reputation is a trickier matter, but I'm inclined to think that it's OK as part of a general view.)
Posted 3:33 AM by Mark Tushnet [link]

The House (Further) Militarizes U.S. Detention Policy

Jonathan Hafetz

In what has become an all too familiar pattern, lawmakers are again seeking to exploit the National Defense Authorization Act (NDAA), which establishes Pentagon policy and spending levels, to enact senseless measures aimed at demonstrating how tough they are on terrorism. On Friday, the House approved two amendments to the House Armed Services Committee (HASC) version of the FY 2013 NDAA. Both amendments threaten to entrench and expand military detention.  One amendment, proposed by Rep. Louis Gohmert (R-Tex.), significantly dilutes habeas corpus and appears to authorize the indefinite military detention of individuals seized in the United States.  The other amendment, proposed by Rep. Tom Rooney (R-Fl.), would bar civilian trials for individuals who fall within the broad jurisdiction of military commissions.

The Gohmert amendment's purported aim was to protect the rights of all persons lawfully in the United States by ensuring their access to habeas corpus.   But this protection was already clearly established under both federal statute and the Constitution--not only for those lawfully in the United States, but for all persons in the country, whose statutory rights the Gohmert amendment now calls into question with its lawful-unlawful distinction.  The Gohmert amendment's real purpose, however, was to deflect and defeat a bi-partisan amendment proposed by Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have actually done something to protect individual rights: by clarifying that existing law does not authorize the military detention of individuals arrested in the United States.    Not only was the Smith-Amash amendment voted down, but also the Gohmert amendment now threatens the status quo by suggesting that military detention is authorized.  Additionally, the Gohmert amendment could allow domestic military detention without habeas corpus for up to thirty days, thus undermining the current statutory regime, under which the writ is immediately available to anyone detained without trial.  In fact, the Gohmert amendment would help lay the foundation for secret imprisonment and enforced disappearance  (The only "protection" it provides is that the President notify Congress within 48 hours after subjecting a person to military detention).  Steve Vladeck has an excellent post at Lawfare on the amendment's flaws.

The Rooney amendment, meanwhile, picks up where opponents of Article III courts left previously off.  The amendment seeks not merely to preserve military commissions as an option (the Obama administration position), but to expand them by mandating their use in lieu of federal criminal prosecutions. (For the amendment's text and a further discussion of its problems, see Bobby Chesney's post here).  Every top counter-terrorism official in the government opposed attempts to enact a far less draconian mandatory military detention provision in the 2012 NDAA, and the Rooney amendment will no doubt face similar opposition.  The amendment underscores, nevertheless, the extent to which the military detention and trial of terrorism suspects has become normalized and how each legislative cycle or thwarted terrorist plot prompts new calls to expand military jurisdiction at the expense of federal courts.

The attention and support garnered by the Smith-Amash amendment, to be sure, reflects an increasing concern among both conservatives and liberals about the risks of domestic military detention.  Yet, this bi-partisan groundswell remains insufficient to affect a change in the direction of U.S. national security policy. Proponents of further militarizing U.S. detention practice engaged in election-year fear mongering not only to defeat the Smith-Amash amendment but to approve a measure that further erodes constitutional protections.  The House vote suggests that until a tipping point is reached, the roots of military detention will only grow deeper with each attempt to legislate in this area.
Posted 10:08 AM by Jonathan Hafetz [link]

Brown v. Brown: The Equal Protection Clause at a Crossroads

David Gans

Today marks the 58th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, the unanimous ruling that struck down racial segregation and restored the Fourteenth Amendment’s promise of equality. While Brown is still widely celebrated as the “crown jewel of the U.S. Reports,” the sad truth is that, on the Supreme Court these days, Brown is hardly recognizable as the landmark ruling that ended Jim Crow and struck down state-sponsored discrimination treating African Americans as inferiors. In the hands of Chief Justice Roberts and other conservatives, Brown stands as a barrier against race-conscious efforts to promote equality and foster the effective participation by all persons in the civic life of nation that was at the core of Brown. In conservative hands, Brown freezes in place, not ends, continuing racial inequality.

One of John Roberts’ first landmark opinions as Chief Justice announced this new understanding of Brown and of the Equal Protection Clause. In 2007 decision in Parents Involved v. Seattle School District, Chief Justice John Roberts, speaking for four Justices, opined that Brown’s command is “to stop discriminating on the basis of race.” In a bitter dissent, Justice Stephen Breyer, also speaking for four Justices, accused the Chief Justice of undermining “Brown’s promise of integrated primary and secondary education” and turning its back on the Constitution’s guarantee of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Justice Anthony Kennedy provided the fifth vote to strike down local efforts to prevent racial isolation in schools, but rejected the Chief Justice’s rule of absolute colorblindness and agreed with the dissent that governments have the authority to act “to reach Brown’s objective of equal educational opportunity.” This fight over Brown is sure to continue next Term, when the Justices consider Fisher v. University of Texas at Austin, a constitutional challenge to the race-conscious admission process at Texas’ flagship public university. In Fisher, Justice Kennedy has the opportunity to set matters rights and demonstrate to the Chief Justice that Brown is at the core of what Justice Kennedy has called our “historic commitment to creating an integrated society that ensures equal opportunity for all its children.”

Today, corresponding with Brown’s anniversary, Constitutional Accountability Center is releasing Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?, the newest chapter in the CAC series, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution. As we explain in the introduction to the series, focusing on a dozen or more of the most ideologically charged areas of constitutional law, Crossroads attempts to map out and describe the ideological battle on the Supreme Court over the meaning of the Constitution. (Prior chapters of Crossroads, available here, tackle the ideological division on the Court over the powers of the federal government to regulate commerce among the states, to spend money to promote the general welfare, and to enforce the guarantees of the Civil War Amendments, and over the limits the First Amendment imposes on campaign finance reform designed to ensure the integrity of our democracy.)

In just a little more than half a decade, the Roberts Court has begun to reshape basic, fundamental principles of constitutional law. From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases argued in March, in which the Court decided to hear just about every claim presented to it – including claims unanimously rejected by the lower courts – and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important controversies over the meaning of the Constitution. Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, but it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. Crossroads explains what is at stake in these battles over the Constitution.

Brown v. Brown, the first of a number of Crossroads chapters on the Constitution’s protection of equality for all persons, tells the story of how conservatives on the Rehnquist and Roberts Courts have transformed Brown and the Equal Protection Clause into a powerful weapon to limit what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings since the late 1980s have limited the power of government to redress racial isolation in schools, enact affirmative action programs to assist racial minorities in overcoming the lingering effects of racial discrimination, and draw legislative districts in which racial minorities have a fair chance of electing their candidate of choice. This conservative reading turns Brown on its head and threatens to limit iconic civil rights statutes, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965, enacted by Congress to build out and enforce Brown’s understanding of constitutional principles of equality.

The Court’s conservatives have not made any serious effort to justify this dramatic transformation of the law in the name of the text and history of the Fourteenth Amendment. Nor could they. The text of the Fourteenth Amendment provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Framers chose this language, providing universal coverage that protected every person residing in the United States, rejecting proposals that would have prohibited all forms of racial discrimination by the state. Indeed, the Framers recognized a basic difference between oppression and assistance. During debates over the Fourteenth Amendment, the Framers explained that the Equal Protection Clause “abolishes all class legislation” and “establishes equality before the law,” but they did not believe that laws designed to assist minorities overcome the legacy of slavery and racial discrimination were in any way legally equivalent to Southern Black Codes that oppressed the newly freed slaves.

Rather than answer this history, Chief Justice Roberts and others have turned to Brown, claiming that Brown’s lesson is that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In Chief Justice Roberts’ hand, Brown is a potent weapon against a long list of statutes that use race-conscious measures in order to realize the Constitution’s promise of equal opportunity. That is not fulfilling Brown’s promise of true racial equality, but burying it.

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.

Posted 12:28 PM by David Gans [link] (42) comments

"Secondary" Consumer Boycotts: Breakdown of Civil Society or Pillar of First Amendment Values

Guest Blogger

Theresa J. Lee

Bradley Smith and Jonathan Adler both recently raised the hue and cry that secondary consumer boycotts are leading to the demise of civil society. As with boycotts, the political and the economic regularly overlap in our current political climate. And in many cases, that interaction is lauded as a vindication of the First Amendment.

In that vein, there is already a highly regulated area of law dealing with the interaction of the political and the economic: campaign finance. In Citizens United, the Court rejected the idea that resources from the economic marketplace should not be deployed in the political marketplace—a position Smith evidently supports. This latest argument against the use of the political consumer boycott wants to have it both ways—it would allow the economic to affect the political when corporations or wealthy individuals do so but bemoans the loss of civil society when consumers take action. While there are differences in the way each set of resources is deployed, these are inevitable ones that stem from the different economic power possessed by corporations versus the average consumer.

If corporations can use their market clout to influence the political process, it's only fair that consumers can too. Boycotts allow those whose main economic resource is their participation in the market as consumers to join with other like-minded consumers to influence the political marketplace. Although Smith notes that people “have a right not to do business with companies or individuals,” he becomes concerned at exactly the point that such decisions may have an impact—when individuals aim to aggregate that right so their otherwise limited economic clout can impact the political marketplace.
Read more »
Posted 2:02 PM by Guest Blogger [link]

Tenure and the Law School

Jason Mazzone

Law schools face increasing pressures to reduce the costs of legal education. While few people like to talk about it, tenure must be a key component of any cost assessment. In many law schools, salaries comprise a large portion of the annual budget. Tenure is especially expensive because it means an institution grants a (virtually) lifetime appointment without any guarantee that the individual who is tenured will continue to produce at a rate that justifies the salary paid. Tenure is also costly because it reduces an institution’s flexibility: the institution cannot (easily) move somebody out to make room for somebody who would add greater value.

Tenure is ripe for reassessment because law schools have an unusual and often extravagant view of it. While most academic departments are staffed with hordes of non-tenured lecturers, research associates, instructors, and others, in the law school, there is a strong sense that if you are there full-time, tenure is an entitlement.

The traditional reason for granting tenure in a university is straightforward. Tenure provides the security that encourages researchers to explore all questions without fear of being fired. Tenure therefore helps grow the stock of knowledge. Yet tenure in the law school is only loosely related to this goal.

Read more »
Posted 7:20 PM by Jason Mazzone [link] (9) comments

Con Law in the Round

Ken Kersch

A few weeks back, I (along with Anna Law and Tom Keck) joined Howard Gillman, Mark Graber, and Keith Whittington for a panel at the Midwest Political Science Association meeting on their new constitutional law casebook, American Constitutionalism: Vol. 1 – Structures of Government (Oxford, 2013)(Vol. 1 out now; Vol. 2 – Rights and Liberties, will be available soon).

These books are primarily aimed at undergraduate courses in Constitutional Law and Civil Rights and Liberties (known in political science departments as “the sequence”: structure and powers in the fall; rights and liberties in the spring). There are, of course, plenty of casebooks out there for law students and for undergraduates. The publication of this particular text, however, is unusually significant for teachers and scholars at all levels. On the panel, I joked that it is possible that, after taking the course using this text, our undergraduate students will know more about American constitutionalism than the professors teaching their con law courses in law school.

I exaggerate, of course. But there was a point. Conceptually, at least, GGW is significant in the way that a handful of major casebooks have been in the history of case-law instruction in America (e.g. Christopher Columbus Langdell’s Selection of Cases on the Law of Contracts (1871); Leon Green’s The Judicial Process in Tort Cases (1931); Henry Hart Jr. and Albert Sacks’s The Legal Process: Basic Problems in the Making and Application of Law (c. 1958)). Gillman, Graber, and Whittington, of course, are leading historical institutionalist/American Political Development (APD) scholars. Their innovation is their insistence on treating constitutional law in the round – as part of a world in which the constitutional doctrine expounded by the Supreme Court is just one part of a broader multifaceted constitutional system, built over time, in which durable norms and rules of government are made not just by the High Court, but elsewhere: by the people, by politicians, by state judges, congressmen, bureaucrats, and administrators, each interacting to shape and structure the ways of doing things we know as American constitutional government.

Read more »
Posted 8:58 AM by Ken Kersch [link]

Party Discipline and Congressional Rules

Gerard N. Magliocca

I'll be part of a Symposium at Notre Dame on Gridlock this Fall, which gives me an opportunity to revisit my interest in the internal procedures of Congress. If you start with the premise that gridlock is a problem that should be fixed (not an assumption everyone shares, of course), then there are a couple of options. The first would be a reform of the Senate filibuster, which I've written about before. Another involves weakening party discipline in Congress to make bipartisanship easier. This is the issue that I want to explore as part of the Constitution-in-practice.

There are two ways to think about party discipline. One is that it is enforced by voters. If an elected official reaches across the aisle too often or on the wrong things, then she loses in a primary or in a general election due to lack of enthusiasm from her political base. Electoral rules shape this force (primaries could be open to all voters, for example), but on this issue public opinion must largely be convinced that cooperation is worthwhile. The strength of the party whip, though, is also a product of congressional rules. How easy is to punish members who stray from the party line? That depends on a couple of factors. First, how transparent are the actions of members? If the party leadership does not know that someone is working with the other side, then only carrots can be used to induce loyalty from those who visibly cooperate. Second, who has the power to dole out rewards or punishments? For decades, the answer was committee chairmen, not the party leadership, and their goals were often different.

Right now we are in a period where the party leadership is quite powerful. This occurred because the parties became more ideologically homogenous, but also because of rule changes that diminished the committees and strengthened the leadership. Are we better off because of this development? I'm not sure. Moreover, rules changes can reverse this process if we think that the answer is no. Consider that until 1845 Senate Committee Chairs were elected by a secret ballot of the entire Senate. This meant that party discipline could not be enforced and members of the minority party could be chairs. Congress rarely votes by secret ballot today, even though it can so long as more than 4/5 of a House agrees to do so (Article I, Section 5, Clause 3)). There are a slew of other practices that could be examined along these lines (why should party leaders get to appoint members of the conference committee, should the prerogatives of the Senate majority leader or the Speaker be curtailed?). I hope to expand on these themes in other posts.
Posted 9:55 AM by Gerard N. Magliocca [link] (8) comments

The Roots of the Living Constitution

JB

My latest article, The Roots of the Living Constitution, is now available on SSRN. It discusses David Strauss's theory of common law constitutionalism as developed in his important 2010 book, The Living Constitution (Oxford University Press) and compares it with the theory of constitutional change in my recent book, Living Originalism (Harvard University Press 2011).

Last fall, Jim Fleming held a conference at B.U. Law School on our two books, and each of us was asked to write about the other's book. These essays will appear in a symposium in B.U. Law Review later this year. This is my essay about David's work.

I had already discussed part of David's theory in chapter 3 of Living Originalism--in particular, his view that the constitutional text is less important than Supreme Court precedent and that it largely serves as a focal point to coordinate political action.
Posted 5:59 AM by JB [link]

Two Civil Union Debates and Presidential Politics

Linda McClain

The combination this week of President Obama's affirmation that "I think same-sex couples should be able to get married" and Republican presidential candidate Mitt Romney's reaffirmation of his opposition to same-sex marriage and to civil unions usefully highlights two distinct debates about the relationship between marriage and civil unions. Both debates are likely to feature in the presidential campaign and in local politics.

One debate is whether civil unions provide same-sex couples a sufficient alternative to civil marriage by providing the benefits and obligations available to spouses under state law, but not the name "marriage." There are two issues here: the symbolic or expressive value of marriage and its tangible legal consequences. The civil union, people will recall, was the creation of the Vermont legislature when Vermont's high court ruled, in 1999, that the Vermont constitution's "common benefits" clause required that same-sex couples have access to the "common benefits" (and obligations) of marriage, but left the question of remedy to the legislature. It was also the path taken in New Jersey when its high court ruled that, under its constitution, same-sex couples were entitled to the rights "of" marriage, but whether they were entitled to the name "marriage" itself should be resolved through the democratic process. And some states have enacted civil union laws without the spur of a judicial ruling, seeing this remedy as a way to advance equality while also preserving the tradition definition of marriage.

Until recently, the idea that civil unions did accord equality to same-sex couples was President Obama's evident position, although he had more than once described his views as "evolving." In 2009, the Vermont legislature concluded that civil unions did not accord same-sex couples full equality. Testimony persuaded lawmakers that civil unions did not actually provide "equal access, benefits, and privileges under the law," but created a separate status for same-sex  partners and their children, who often were "discriminated against, stigmatized, and marginalized."

In New Jersey, the legislature reached a similar conclusion earlier this year, when it passed the Marriage Equality and Religious Exemption Act (vetoed by Governor Christie). The findings in that law mention "testimony and overwhelming evidence" that partners to civil unions in New Jersey experienced denial of equal benefits in employment, hospitals, and other arenas. Both at the tangible and expressive level, civil unions, the lawmakers concluded, do not end discriminiation against same-sex couples, but invite unequal treatment.

Thus, this first debate over civil unions concerns whether they provide a just and principled resolution of the controversy over whether same-sex couples should be able to marry. One assumes that part of President Obama's evolving stance on this issue has been evidence of this sort -- indicators that having two parallel legal structures for opposite-sex and same-sex relationships just can't afford equality.

The second debate, however, higlighted by candidate Romney's remarks and the recent vote in North Carolina, is whether same-sex couples should even be offered civil unions at all because they are too much like marriage. Romney thinks not. As quoted in the New York Times on May 10, he said: "If a  civil union is identical to marriage other than with the name, why, I don't support that."  While some opponents of same-sex marriage have indicated support for civil unions precisely because they are not called "marriage," for Romney, this is a distinction without a difference. Same-sex couples should not be provided a legal status that gives them everything spouses get under state law except the name "marriage." By contrast, he has indicated that some kind of benefits for same-sex couples might be appropriate, like hospital visitation. Which benefits? On that, he has been less specific.

In 2004, when Romney testified before the Senate Judiciary Committee in favor of the proposed Federal Marriage Amendment to the U.S. Constitution,  which would have defined marriage in the U.S. as only "the union of a man and a woman," he spoke of a possible "middle ground." Interestingly, he suggested that such a middle grould would recognize the "inalienable rights of all our citizens to make their own choices to join in partnerships or unions of some kind and to have relationships between one another, perhaps even to raise children." That final reference seemed remarkable at the time, given his firm insistence (in the rest of his testimony) that marriage is the optimal setting for childrearing because, by exposing children to "the contrasting features of both genders," children benefit from having a father who can model masculinity and a mother who can model femininity.

The developments of this past week in North Carolina and in presidential politics put on the table these two ongoing debates about the relationship between civil unions and marriage.

  
Posted 5:27 PM by Linda McClain [link]

Prison Brutality: Order Trumps Law

Frank Pasquale

Christopher Glazek's article "Raise the Crime Rate" challenges recent estimates of crime levels in the US. According to Glazek, crime "has not fallen in the United States;" rather, "it’s been shifted. . . .away from urban centers" and into "a proliferating web of hyperhells." If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the "unbelievable brutality unleashed on kids in for-profit prisons." Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:

Under a practice known as "the Program," guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.

These revelations are among many that vindicate Mike Konczal's important essay "Against Law, For Order." Konczal argues that the latter half of the "law and order" slogan has proven far more important in recent decades than the former:
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Posted 10:40 AM by Frank Pasquale [link]

The Three Parties to Every (Civil) Marriage in North Carolina: One Man, One Woman, and God

Linda McClain

Yesterday, North Carolinians approved a constitutional amendment declaring: "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state." In the words of Tami Fitzgerald, chairwoman of the executive committe for the pro-amendment Vote for Marriage NC, "the whole point is simply that you don't rewrite the nature of God's design for marriage based on the demands of a group of adults." A sign by a local United Methodist Church (featured in a story in today's New York Times) made the point even more vividly: "A True Marriage -- Male and Female and God."

Posted 10:28 AM by Linda McClain [link]

How Justice Kennedy’s ACA Decision Could Roll Back Congress’ Power to Regulate Commerce…But Uphold the Act in its Entirety

Guest Blogger

Brian Galle

Most readers of this blog know that the second day of oral argument over the Affordable Care Act brought the government a basketful of bad news. All of the conservative justices who spoke, including Justice Kennedy, seemed fairly hostile to the government’s framing of the case. Kennedy pressed repeatedly the plaintiffs’ claim that the Act forces purchasers into a new market, a market for insurance, which they wouldn’t necessarily have chosen to enter on their own. Though later in the argument he mused that perhaps two markets could be so closely related that compelled entry into one could be necessary for regulation of the other, things still looked bleak for the Government. Kennedy seems to have a fairly strong sense that the Commerce power doesn’t reach as far the Government suggests, and assuming his fellow conservatives reach the merits he certainly has four other votes for that proposition.

As Jack suggested a few days ago, that does leave the possibility that the Court could still uphold the Act as an exercise of the taxing power. I’ve said elsewhere why I think the taxing power argument is persuasive; what I want to add here is that I think it could be an appealing way for the Court to have its Commerce cake and eat it, too.

In brief, upholding the statute under the taxing power would allow the Court to issue a genuine holding---not just dictum---narrowing the scope of the Commerce power, while at the same time avoiding the unpredictable mess that invalidating the statute would bring. In addition to potentially flammable political blowback, tossing the Act in whole or part could throw the health sector --- 1/6 of the economy, and even larger share of many state budgets--- into total chaos. At argument, Justice Kennedy sounded ready to reap that whirlwind if that was what it took to make his point about the limits of federal power, but maybe he doesn’t have to.
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Posted 3:35 PM by Guest Blogger [link]

Tomasi's Free Market Fairness

Andrew Koppelman

Posted 2:28 PM by Andrew Koppelman [link]