John Bingham on Racial Equality

Gerard N. Magliocca

Let's focus for a moment on an actual hero of the Civil War era--John Bingham.  Here's what the drafter of Section One of the Fourteenth Amendment said at a campaign rally in 1867:

“They undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy! . . . I thought that in the middle of the nineteenth century it had come to be pretty well known that this world of ours was not made for Caesar, but for man; that it belonged, at last only to the common Father of us all, and to all his creatures who worked well upon it. . . . 

It is a ‘white man’s government,’ is it? Why, the very first blood shed for the assertion of your independence and the establishment of your nationality, upon the field of Lexington, was the blood of a black citizen of Massachusetts. And when they came to the work, after the victory had been achieved, and the independence of the nation acknowledged, of organizing a constitutional government of the United States, in a majority of the States of the Union the black men voted with white men, and the man who denies it is simply ignorant of the history of his own country. . . . 

Your armies bore witness that 175,000 of the black population, made free by the proclamation of liberty, were in the army of the republic. When you consider that the majority of the black population were the slaves of rebels, and within their territory, unable to signify to the United States Government their unwillingness to serve it, the fact that as large a population of the black population as of the free whites rushed to the defense of your flag, speaks well for their patriotism. . . . 

But these Democrats are whining through the streets, ‘You propose to enfranchise the nigger, and disenfranchise the white man.’ That is the point where the difficulty is.  I think the black patriot is as much entitled to vote as Jeff Davis, who is waiting across the border, or any of his followers. The issue is upon us. One third of the whole population of the South are black freemen. They are friends of the Union; and if they are to be permitted to exercise the rights of freemen. Those States must have a republican government, but how can a State be republican in its government where the minority rule over the majority of the natural born citizens of the State?  . . . In South-Carolina the black population exceed in number the white population; and what sort of a republican government will that be, if the white minority, who are traitors, should rule over the majority, who are loyal men? . . . 

You have the power, because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic.  Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children? If you would not, you should not deal thus with them.” 

Posted 9:26 PM by Gerard N. Magliocca [link] (126) comments

If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?

Marty Lederman

Mark Tushnet suggests that there's a very straightforward way of looking at Christie v. NCAA--namely, as what he calls a federal "preemption" case that can be resolved by ignoring New Jersey law and simply recognizing that the sports gambling in question is prohibited by federal law.  Mark's perspective on the case--what he himself describes as an "unbearably simple-minded" view--might well be right.  It's not clear, however, what should follow in the case if he is right.

The suits in question were brought by the NCAA and the major national professional sports leagues--MLB, the NFL, NBA and NHL--against New Jersey.  Note that the federal government is not a party.  The plaintiffs allege that it was unlawful for New Jersey not to have categorically prohibited sports gambling under state law--or, to be more specific, they allege that New Jersey has affirmatively and unlawfully "authorized" sports betting by "channeling" such wagering into established casinos and racetracks.  The "channeling" in question is effected, claim the plaintiffs, by the simple fact that those are the only locations in the State in which New Jersey law does not prohibit such gambling.  In other words, they complain that New Jersey, far from simply declining to prohibit gambling in the interest of its residents' liberty to wager, has in effect done the bidding of the casinos and race tracks by providing them an effective monopoly.  The state has thereby "authorized" sports betting in such locales, claim the plaintiffs, which allegedly violates a federal law (28 U.S.C. 3702(1)) that makes it "unlawful for . . . a governmental entity to . . . authorize" such wagering "by law."

The plaintiffs succeeded on this argument, thereby securing an injunction against New Jersey, prohibiting the State from "giving effect to" its own 2014 law.  As the plaintiffs' lawyer, Paul Clement, describes it, this injunction "thus requires the State to resurrect and maintain prohibitions on private conduct the State itself chose to repeal."

New Jersey's constitutional defense is that to the extent federal law does prohibit what the state has done, Congress is effectively "commandeering" the New Jersey legislature to criminalize certain conduct, in violation of the Court's so-called "Tenth Amendment" doctrine announced in New York v. United States and Printz v. United States.

Mark's understandable reaction to this suit about what New Jersey has or has not done is:  so what?  The plaintiffs don't really have grounds for complaining about whether or not New Jersey has prohibited the gambling in question, he suggests, because federal law independently prohibits that very same conduct.

Mark might be right about the impact of federal law.  Indeed, in its amicus brief at the cert. stage, the federal government took Mark's view:  The SG urged the Court not to grant cert. because "even if this Court granted review and agreed with petitioners that Section 3702(1) violates the Tenth Amendment, the sports-gambling schemes purportedly authorized by the 2014 Act would still be prohibited by Section 3702(2)."  Paul Clement, representing the NCAA and the sports leagues, argued likewise in his brief in opposition (see pages 33-34).  Unlike Section 3702(1), which regulates governmental entities, Section 3702(2) of the federal law makes it unlawful for a private party, such as the casinos and racetracks in question, to operate a sports betting scheme "pursuant to the law or compact of a governmental entity."

It is unclear--or disputed, anyway--whether the SG and Clement are correct about the scope of the federal prohibition.  In a supplemental filing at the cert. stage, Ted Olson, representing New Jersey, argued that section 3702(2) does not have prohibitory force of its own because the casinos and racetracks in question do not operate gambling schemes "pursuant to" New Jersey law.

I haven't studied the question, and so I don't (yet) have a strong view about whose interpretation of section 3702(2) is more compelling.

Let's assume for the sake of argument, however, that the SG, Paul and Mark are correct about section 3702(2) of the federal law--namely, that it directly prohibits the gambling in question, even though (as far as I know) the federal authorities have never taken any steps to directly enforce that federal law.  Why would that mean, as Mark's post appears to suggest, that the injunction concerning New Jersey law is unobjectionable because "New Jersey's repeal of its prior ban on sports betting is basically irrelevant"?

After all, if the federal government could itself, today, shut down those gambling operations because they violate federal law, what's Congress's possible justification for requiring New Jersey to do so, too?  It's certainly relevant, as a very practical matter, whether one's conduct is prohibited by two sovereigns rather than one--which is presumably why both the plaintiffs and the casinos/racetracks believe that so much is at stake in whether the injunction stands.  This is the way Ted Olson puts the point in his supplemental brief:

If the government is correct and Section 3702(2) prohibits New Jersey's casinos and racetracks from engaging in sports wagering regardless of whether New Jersey continues to prohibit that activity, then invalidation of Section 3702(1) finally would task the federal government with administering and enforcing its own proscription against sports wagering. The end of the federal government's conscription of the States' legislative apparatuses to impose that prohibition, and the restoration of an appropriate line of accountability for it to federal officials, would have immense “practical significance” to Petitioners, the people of the State of New Jersey, and to our system of federalism.

Why is that mistaken?*

(And conversely, I might add, if the SG/Clement/Tushnet reading of federal law is wrong, and Congress has not directly prohibited the sports gambling in question, why is it kosher or defensible for Congress to insist that New Jersey do so, whatever one's views of New York and Printz might be?  What would be Congress's justification, in that case, for not bringing federal resources to bear to prohibit the gambling, but instead shifting all of the burdens to the State to do its bidding?)

_________________
* Only one possible argument comes immediately to mind:  If federal law prohibits the conduct in question, and the intended and foreseeable impact of the selective state prohibition is to funnel gambling proceeds into the pockets of the casinos and racetracks, I suppose it's arguable that the State is, in effect, "aiding and abetting" the federal law violations by those casinos and racetracks, in a way that, perhaps ironically or counterintuitively, it wouldn't be if New Jersey did not ban sports gambling at all . . . and that Congress could logically, and perhaps constitutionally, choose to prohibit such aiding and abetting.  I'd need to think about this argument further if and when Clement and the SG invoke it.
Posted 5:32 PM by Marty Lederman [link]

Anticommandeering, Preemption, and the Common Law: The PASPA Case

Mark Tushnet

Posted 11:35 AM by Mark Tushnet [link]

Blackout

Alice Ristroph

Posted 5:09 AM by Alice Ristroph [link]

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

This is the title of my new draft paper, which is available here.  Here is the Abstract:

This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.

Posted 1:22 PM by Gerard N. Magliocca [link] (22) comments

ACS Junior Scholars Public Law Workshop - call for papers

Joseph Fishkin

Last year, the American Constitution Society hosted its first-ever Junior Scholars Public Law Workshop.  It went so well that we are doing it again this year, at the 2018 AALS Annual Meeting in San Diego.  The deadline to submit a paper is October 18, 2017.  It's open to anyone who has been a full time law teacher for 10 years or less.

For more details click on the "Read more" (or follow this link):

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Posted 11:16 AM by Joseph Fishkin [link]

Robert E. Lee Was a Horrible Racist

Gerard N. Magliocca

The myth of Robert E. Lee as the "Noble Confederate General" is not unlike the myth of Erwin Rommel as the "Noble Nazi General." After a war is over, there has to be some reconciliation between former enemies, and one way to do that is by picking someone on the losing side as a heroic warrior unsullied by what the war was actually about.

There is no doubt, though, that Lee was a despicable person. Set aside the fact (if you want) that he owned slaves and led the military effort (sometimes brilliantly) to save that evil system. Maybe he recanted after the war ended and became a better man.

Er . . . no.  Here is a relevant portion of his 1866 testimony to the Joint Committee on Reconstruction, which wrote the Fourteenth Amendment:

Question:  What is your opinion about its being an advantage to Virginia to keep them there at all. Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States? 

Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me.
. . . 

Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? 

Answer. I think it is. 

Question. And do you not think it is peculiarly adapted to the quality of labor which would flow into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? 

Answer: I do.

To paraphrase our current President, Lee was an evil loser.
Posted 9:13 PM by Gerard N. Magliocca [link] (123) comments

Defining Racism Downwards

Mark Graber

Posted 9:57 AM by Mark Graber [link]

Are we really a Union?

Sandy Levinson

As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews).  Our latest addresses the extent to which the United States was a "nation" in 1787.  The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade).  As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such. 
Posted 4:49 PM by Sandy Levinson [link]

Is the Republican Effort to Destroy the ACA Dead?

David Super

     No.  That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”.  This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.














Posted 11:17 PM by David Super [link]

Obamacare As Superstatute

Abbe Gluck

               I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory--their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn's paradigm example of the Civil Rights Act (which beautifully fits the theory) fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)

               But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.

              The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in  Administration.  It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that  we just saw; but also four years' worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges  to discrete aspects of the law (e.g., Hobby Lobby).

            But what is most interesting to me about the ACA’s recent story for purposes of superstatute theory is the normative transformation that the statute seems to have wrought. That will be Obama’s biggest legacy on health care, regardless of what happens to the ACA itself; whether it gets amended, partially amended, repealed, or just tweaked and given a different name. That stuff is politics. I’m talking about our fundamental and “gut” understanding of what a health care system should be and what the government's role in it should look like.

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Posted 10:18 AM by Abbe Gluck [link]

The Hypocrisy of the "Skinny" Repeal: The Republicans Themselves Said It Would be Disastrous

Abbe Gluck

With two strikes thus far on more substantial Obamacare repeal efforts, the Senate seems headed for the so-called "skinny" repeal option, which it appears would repeal the individual insurance-purchase mandate, along with the employer mandate and the medical device tax, and leave everything else in place.

This repeal is hypocrisy of the highest order.  For starters, the repeal was supposed to fix what Trump likes to call the "Obamacare disaster."  What exactly is that disaster? If it's Medicaid, this bill isn't going to touch it. (And it's not Medicaid: It has been documented that the Medicaid expansion (whether you like that program or not)is working quite well. For additional proof, just look at all the GOP resistance to cutting it and the number of red states that have expanded their programs). The "disaster" is the insurance markets--premiums that are too high, not enough competition on the exchanges.  That "disaster" as I have detailed elsewhere, was a tragedy mostly of the Republican party's own making.   Legislation and litigation by the Republican controlled Congress sowed uncertainty into the insurance markets and shut off critical insurance stabilization funds that the ACA as drafted provided.

To be sure, the ACA isn't flawless. The amounts set to subsidize individual purchase of insurance were set too low originally (which is one reason premiums feel too high for many). But the Congress never fixed that either, and it sure isn't doing so now.

Instead, the skinny repeal would exacerbate the very problem the Republicans claim they are repealing the ACA to address. Health experts, republican governors, insurers, hospitals--you name it--agree that repealing the mandate will cause premiums to rise even further and insurance markets to descend into even more fatal instability.  Why?  You can't make insurance more generous without giving something back.  The ACA gives something to the American people at the insurance industry's expense: it changes the way the industry does business by requiring insurers to take all comers at essentially equal rates regardless of health risk. In return, it gave the insurers more customers and an expanded, healthier, risk pool.  Taking away the mandate without repealing the generosity puts the insurance industry in the position of having to find some way to fund this generosity or risk collapse. 

Of course, everyone  (read: voters) likes the generosity--no one wants to be turned away from health care because they have cancer or some other condition.  The Republicans are unwilling to take the direct heat for taking those benefits away from the American people, so they are going to further sabotage the insurance markets and hope the American people are sufficiently ignorant that they will blame it on Obama instead.

But don't take my word for it. If there are any doubts about what effect the skinny repeal will have, consider this statement from the Republican amicus brief filed in the Supreme Court in the 2012 (unsuccessful) challenge to the individual mandate. The brief argued the ACA could not survive without the mandate--that millions of Americans would lose insurance and access to care and that insurance premiums would rise dramatically. Twenty-seven of those Senators are still in the Senate. In their own words:

"The individual mandate is at the heart of the PPACA, and the remainder of the statute necessarily depends on its inclusion because without the mandate, the statute’s reforms cannot work as intended. Indeed, the proponents of the PPACA knew at the time Congress considered the legislation that without the mandate both the number of uninsured and the price of premiums would skyrocket. In short, without the mandate, Congress’ attempted solution to the twin problems of health care coverage and costs  disappears." Br. of U.S. Senators at 10.

(That's what the Congressional Budget Office said today, too. It projected the skinny repeal would cause premiums to rise approximately 20%  and 16 million people to lose insurance by 2026.)

To make matters worse, to satisfy Senate requirements concerning the amount of money the repealer must save, some have suspected the skinny repeal will also need to include a provision gutting the ACA's public health and prevention fund, and possibly also the community health centers fund, raiding that money to pay for the havoc the bill will wreak on the insurance markets.   Cutting public health and prevention money, throwing millions off the insurance rolls, and raising premiums--at the very same time Republican senators themselves have clamored for more funds to address the national opioid crisis?  At the very same time they claim to be rescuing America from a health policy disaster?

It's worse than hypocrisy. It's irresponsible.
Posted 11:14 PM by Abbe Gluck [link]

How Does This Work? The Senate and Health Care Reconciliation

David Super

     Now that the Senate, defying many pundits’ expectations, has voted to begin debate on a reconciliation bill to repeal large parts of the Affordable Care Act (ACA), it may be useful to review the procedural rules and tactics likely to shape this debate. 

     First, and most obviously, a bill considered under reconciliation rules is immune from filibuster.  Instead, the Congressional Budget Act limits debate to twenty hours, equally divided between supporters and opponents.  Thus, Republicans do not need sixty votes to invoke cloture; they only need fifty votes plus Vice President Pence to break ties. 




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Posted 11:36 PM by David Super [link]

Trump as a Different Type of Failure

Guest Blogger

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Posted 3:25 PM by Guest Blogger [link]

Due Process of Lawmaking and the Obamacare Repeal

Abbe Gluck

                In 1976, former Oregon Supreme Court Justice Hans Linde published a provocative article--Due Process of Lawmaking--which suggested, among other things, that legislation that was the product of lack of deliberation or process could be constitutionally invalid. Today, the U.S. Senate is moving to a vote on a mystery Obamacare repeal the contents of which no one-- not even the Senators being asked to vote--knows.    

                So what will they do instead? Instead of having the hard debate about what a health care system really is supposed to do for its citizens  (this is the debate about the tension between solidarity and "every man for himself" that we have seen underlying some of the principled Republican resistance to earlier versions of the repealer), the Republicans are going to pass a bill whose content they don’t know and, if they cannot agree on such a bill, they are going to simply repeal the core components of the ACA without a replacement, throwing the insurance markets that they claim they are working to save from the “Obamacare disaster”  into even greater disarray. (For my previous documentation of how it was largely the Republican sabotage of the law, not the ACA itself, that caused the instability, please see here.)

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Posted 2:12 PM by Abbe Gluck [link]

No Recess Appointments?

Gerard N. Magliocca

Mao Zedong used to write poems to express displeasure with colleagues who were about to be purged. The President uses tweets. In the case of the Attorney General, though, there is a problem. How can the President get a new person confirmed without making all sorts of commitments to the Senate about the Russia investigation and other matters?

The answer is that he could wait until the Senate is in recess to fire the Attorney General and then make a friendly recess appointment who would not need Senate confirmation. But this is only an option if the Senate chooses to go into recess. Under the Supreme Court's decision in Noel Canning, the Senate can block recess appointments by holding pro forma sessions while in recess.

I think that the Senate Majority Leader should be asked whether the Senate will hold such sessions during the August "recess." If his answer is no, then he is giving his tacit approval to the Attorney General's replacement at that time by someone who not be vetted by the Senate.


Posted 10:21 AM by Gerard N. Magliocca [link] (21) comments

Death and the War Power

Mary L. Dudziak

Some time ago, I began thinking about how war death matters to the history of war politics and war power through musings on this blog. Responses to those posts -- even in the comments(!) -- were helpful and thought provoking. It has taken me a while to figure out the pieces of the resulting argument and how they fit together, but this inquiry is now the centerpiece of my current book project.

Today I've posted my first publicly available paper developing the argument that the distance of American civilians from the carnage of their wars matters to how we think about war powers, particularly the atrophy of political restraints. Here's the abstract:

Death and the War Power

In the vast literature on American war powers, attention is rarely paid to the product of war – the dead human body – and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress and courts are in the foreground. Killing in war is thereby a background phenomenon – an aspect of the social context within which the war powers are exercised. This Essay puts death at the center of the analysis. Drawing upon the insights of important recent historical works on death, I argue that the dead body has a political life. The political history of American war death recasts an important problem in the history of American war powers: the atrophy of political restraints on presidential power.

Using historian Drew Gilpin Faust’s idea of a “republic of suffering” in the Civil War as a point of departure, the Essay argues that the culture of American war changed when American wars became only foreign wars. The principal character of American civilians’ relationship to war death in the 20th century was distance from the carnage. Distance accomplished two things: first, a “republic” framed in relation to war death was lost; and second, the U.S. government could exert control over what civilians at home could perceive. Massive mobilization during World War II might appear to be a challenge to the argument that distance from the battlefield matters, so the Essay examines the American civilian experience with war’s violence during that war. Using censored and uncensored World War II casualty photographs, I show the way the very view of war death was managed by the U.S. government for the purpose of maintaining domestic mobilization. Civilians therefore engaged a curated view of death meant to enhance their support for the war effort.

The change over time in the civilian experience with war is not recognized in the literature about war and American law. Instead, legal scholars tend to use the Civil War as a more important historical example than Cold War conflicts, even though the Cold War era bears more resemblance to the present context (militarily and in the impact on U.S. civilians). Meanwhile, cultural distance from war death has increased, helping to produce the profound apathy that characterizes contemporary American war politics. This apathy enables the current legal structure of war authorization: Congress fails to act, and presidents rely on new interpretations of outdated authorizations, or their own constitutional power. Ultimately, I argue, a crucial and unexamined factor in the atrophy of political restraints on presidential power to use military force is the distance between American civilians and the carnage their wars have produced.
Posted 12:39 PM by Mary L. Dudziak [link]

Pardons Are For The Guilty

Gerard N. Magliocca

Tomorrow the Trump du jour will be whether the President might pardon his aides, his family members, or even himself. I want to make one observation about this; a quote from the Supreme Court's 1915 opinion in Burdick v. United States, which addressed the pardon power:

"This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession."

Gerald Ford, the story goes, would carry this quote in his pocket and pull it out as a justification when he was asked about why he pardoned Richard Nixon.

We'll see if "All of This President's Men" are willing to, in effect, confess guilt.
Posted 9:56 PM by Gerard N. Magliocca [link] (52) comments

Fault Lines in the Constitution

Sandy Levinson

My wife and I have co-authored a book, directed primarily at 10-18 year olds, titled Fault Lines in the Constitution:  The Framers, Their Fights, and the Flaws that Affect Us Today.  It focuses very much on structural features of the Constitution, though rights appear in the context of chapters on habeas corpus and the broader problem of emergency powers.  The book will be published on September 1 by Peachtreec Publishers.  Cynthia and I will talk about the book at the National Book Festival in Washington on September 2.  

One of the central issues raised by the book, both explicitly and implicitly, involves civic education.  What should youngsters be learning about the Constitution?  Readers of Balkinization will not be surprised to learn that we believe that students need to learn far more about the structural aspects of the Constitution and, of course, to learn how crucial these aspects are.  My own hope is that student readers will ultimately argue as vigorously with one another about the presidential veto power or the allocation of voting power in the Senate as they do about the implications of the rights provisions of the Constitution.The general topic of civic education will be the topic of a major conference at the University of Texas on February 16-17.  I am organizing a panel on constitutional law casebooks and their implicit pedagogicalthursts with an all-star cast of casebook editors. There will also be a panel specifically on Fault Lines.  But most of the panels are being organized by my daughter Meira Levinson, who teaches at the Harvard Graduate School of Education and has written extensively on civic education; they will address some of the general problem of civic education in contentious societies and times like our own.  As we get close to the time, I will certainly set out the complete program. 

As part of our efforts to promote the book, we are posting columns on a blog site every couple of weeks of so, The most recent discusses the shooting at the Republican practice for the congressional baseball game several weeks ago and the potential implications had it turned into a genuine massacre of dozens of senators or representatives.  The Constitution is quite terrible with regard to "continuity in government," something we are all too confident is rarely brought up in those few civics courses that continue to be taught.  Indeed, it is interesting to note the consequences even of John McCain's illness, for his inability to vote would have doomed the bill with the loss of two Republican votes, given that the vote would then have been 50-49, whereas if McCain had been there, and voted yes to proceed with the debate, then the vote would have been 50-50, with Pence being able to break the tie. 



Posted 5:38 PM by Sandy Levinson [link]

The Definition of "Emolument" in English Language and Legal Dictionaries, 1523-1806

John Mikhail

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Posted 7:16 AM by John Mikhail [link]

It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"

Priscilla Smith

It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.

We’ll see about that. Maybe they’ll add back in coverage for preexisting conditions, reduce by a million or two the number of people who will lose health care. We’ll find out. What I doubt will change is the way the bill guts health care provided for women. First, they will undoubtedly mess with the preventive services package, gutting the required coverage for contraception or creating a refusal clause you could drive a truck through. Think women shouldn’t have sex unless they would welcome a pregnancy? No problem. Sign here. How about prenatal and delivery services for those women who get pregnant? Is “maternity” care still on the chopping block? We’ll see.

One thing you can be sure of though is that the new version of the healthcare bill will “defund” Planned Parenthood. The Republicans claim they are “defunding” Planned Parenthood because they don’t want to support Planned Parenthood’s abortion care. Of course, the federal government doesn’t fund abortions, or even Planned Parenthood in any case. They cover non-abortion services for women on insurance programs like Medicaid and in block grants like Title X, and Planned Parenthood is an eligible provider of preventive services. In fact, Planned Parenthood is one of the best providers around of prenatal care, preventive health services, cancer screenings, vaccines, and primary care for kids. In many areas of the country, it’s the only provider of those services. Blah Blah Blah.

You’ve heard it all before – at least I hope you have. The main message we hear is that Planned Parenthood is great health care, vital for many women in the country. Your daughter, sister, wife, mother, cousin have probably gone there if you haven’t gone yourself. There are not six degrees of separation from you and Planned Parenthood. You are closer to PP than you are to Kevin Bacon that’s for sure. It’s a great message; I have nothing against it; it’s true; it probably tests well in focus groups, etc.

But one thing you don’t hear about is that making Planned Parenthood or any otherwise eligible medical provider ineligible to provide covered health care services in a federal program because they provide constitutionally-protected abortions using their own non-government funds is, you guessed it, unconstitutional.

I don’t mean that I think it is unconstitutional or that current case law should be interpreted as saying it is unconstitutional. No. The claim that defunding Planned Parenthood is unconstitutional is far from off-the-wall, because the Supreme Court has already said that it is unconstitutional. In 1986, the Supreme Court summarily affirmed a Court of Appeals decision that held unconstitutional an Arizona law that “defunded” Planned Parenthood because it provided abortions with its own private funds. Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986), aff’g mem., 789 F.2d 1348, 1350 (9th Cir. 1986). In Babbitt, the Supreme Court held that a state cannot withhold family planning funds from an organization that uses its own non-state funds to perform abortions.

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Posted 2:14 PM by Priscilla Smith [link]

Gunner Gorsuch

Gerard N. Magliocca

Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.

Is this a fair characterization? Sort of. I think Greenhouse is being too harsh when she calls Justice Gorsuch the President's judicial "avatar." (Though that may have been a title selected by the editor rather than by her.) And I think we can cut Gorsuch some slack--he's new on the job.  Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years. Still, so far I do find the new Justice's prose rather grating.

Here is a small example. In his dissent in Pavan v. Smith, Justice Gorsuch says twice that the Court's summary reversal of the Arkansas Supreme Court was inappropriate because the state court reached its decision in good faith. Early on he says that the opinion below "did not in any way seek to defy but rather earnestly engage Obergefell." Then at the end he says that the Arkansas Supreme Court should not reversed summarily "for seeking faithfully to apply, not evade, this Court's mandates."

With respect, these statements are preposterous. Justice Gorsuch has no idea if the Arkansas Supreme Court was "earnestly" or "faithfully" trying to apply Obergefell. What I assume he meant was that the Supreme Court should presume earnestness or faithfulness and thus not use summary reversal as the method of review of a lower court judgment. These, though, are two very different concepts.

Furthermore, a little digging shows that the trial judge in Pavan, who was reversed by the Arkansas Supreme Court, was not so confident in the earnestness and faithfulness of those Justices and said as much. The State Supreme Court then admonished him in their opinion for criticizing them.

My point is that Gorsuch's conclusion was reasonable in saying the case did not warrant summary reversal and should be full briefed and argued. His way of explaining that--pretty imprecise.

Posted 3:06 PM by Gerard N. Magliocca [link] (31) comments

"For a Generation"?

Mark Tushnet

Posted 6:38 PM by Mark Tushnet [link]

Complicity: Internal and External View, or, "Well, Mussolini Made the Trains Run on Time"

Mark Tushnet

Posted 11:59 AM by Mark Tushnet [link]

Sex and the Constitution

Andrew Koppelman

Posted 11:02 AM by Andrew Koppelman [link]

How Could Religious Liberty Be a Human Right?

Andrew Koppelman

A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class. 

I develop this argument in a forthcoming article in the International Journal of Constitutional Law, now available on SSRN, here.
Posted 10:32 AM by Andrew Koppelman [link]

Carl Schmitt in Contemporary U.S. Legal Theory

Mark Tushnet

Posted 3:36 PM by Mark Tushnet [link]

Some Legal Realism About Legal Theory

David Pozen

Read more »
Posted 11:24 PM by David Pozen [link]

"I Don't Care About My Dignity"

Gerard N. Magliocca

The President's recent tweets made me think about Andrew Johnson's ill-fated campaign for Democrats during the midterm elections of 1866. Johnson's conduct during what was termed "the swing around the circle" was widely seen as an fiasco because he got into shouting matches with hecklers and made several wacky statements ("Why don't you hang Thad Stevens?") When some of the President's supporters told him that some of his comments were undignified, the President was heard by reporters to reply "I don't care about my dignity," which became a national headline.

Two years later, one of the articles of impeachment against President Johnson alleged that comments such as these were a high crime and misdemeanor. Article Ten stated:  "Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof" did "make and declare, with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces . . . amid the cries, jeers, and laughter of the multitudes then assembled in hearing." [I love the touch about "with a loud voice."] Article Ten concluded with the following:

Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 

Hail to the Chief.


Posted 9:59 PM by Gerard N. Magliocca [link] (31) comments