An idea whose time has gone

Andrew Koppelman

Posted 4:17 PM by Andrew Koppelman [link]

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

JB

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.



Posted 6:31 PM by JB [link]

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.
Posted 2:30 PM by Andrew Koppelman [link]

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.
Posted 12:24 PM by Marty Lederman [link]

New Annual Book Review Issue of Tulsa Law Review Now Available

Linda McClain

Posted 12:51 PM by Linda McClain [link]

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

JB

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.
Posted 8:11 AM by JB [link]

Originalism in the Marriage Equality Cases

David Gans

Posted 11:58 AM by David Gans [link]

Are we really all living originalists now?

Guest Blogger

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Posted 5:26 PM by Guest Blogger [link]

Good news for Americal political thought buffs

Sandy Levinson

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Posted 12:03 PM by Sandy Levinson [link]

Living Originalism and Same-Sex Marriage

JB

Two interesting amicus briefs in Obergefell v. Hodges, the same-sex marriage case currently before the Supreme Court, go to the heart of the issues discussed in Living Originalism.  And they exemplify the ongoing debates over the future of originalism as an approach to constitutional interpretation.

The Cato Institute brief, authored by William Eskridge (Yale), Stephen Calabresi (Brown/Northwestern), and Ilya Shapiro (Cato Institute), argues that a constitutional guarantee of same-sex marriage is consistent with the original meaning of the Fourteenth Amendment. The Fourteenth Amendment was designed to enforce equality before the law and ban class legislation.  The brief draws the crucial distinction between the original meaning of equal protection of the laws and the original understanding of equal protection of the laws, arguing that only original meanings, and not original understandings, control.

This brief is closest to my own position in Living Originalism.  The way I would put it is that although we are not bound by the original expectations of the framers, we should look to the principles they espoused, and draw analogies to the historical problems that they faced and sought to remedy, when we fashion constructions of the Fourteenth Amendment to resolve contemporary questions of constitutional law.  Or put in the words of Robert Bork, our "responsibility is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know."

It follows, then, that we should ask what the principles of class legislation, caste legislation, and equality before the law mean in practice in today's world in the context of gays and lesbians who seek the right to marry.

The second brief of Scholars of Originalism, joined by Larry Alexander (San Diego), Bruce Frohnen (Ohio Northern), William Kelley (Notre Dame), Nelson Lund (George Mason), Bob Pushaw (Pepperdine), Maimon Schwarzchild (San Diego), Steve Smith (San Diego), Lee Strang (Toledo), and William C. Duncan (Marriage Law Foundation), seems to have been filed largely to oppose the presentation of originalism in the Cato Institute Brief.

I say this because it is not clear which, if any, Justice is supposed to be swayed by the argument in the Originalist Scholars brief.  The only two originalists on the Court (Scalia and Thomas) are unlikely to recognize same-sex marriage in any case, and none of the other Justices are actually committed to originalism, especially the stringent form the Originalist Scholars advocate in their brief.  As far as I can determine, the Originalist Scholars Brief is designed to deny that that Cato Institute Brief is really originalist. Thus, it seems to reflect a sort of intramural scrum between different conceptions of originalism, rejecting the Cato version in favor of something believed to be more pure, authentic, or echt.  It is yet another example of the continuing debates within originalism over who has the best version.

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Posted 5:42 PM by JB [link]

Religion doesn't exist, so we must protect it

Andrew Koppelman

Posted 8:03 AM by Andrew Koppelman [link]

“You didn’t see him lying so grotesque and pasty beside the gravel road in France”

Mary L. Dudziak

The line in my title appeared in a note found in the pocket of journalist Ernie Pyle when he was killed by a sniper in Okinawa on April 18, 1945.  There was more that Americans would not see, including Pyle’s own body, neatly arranged and straightened, with folded hands. A photo quickly taken of Pyle was censored out of concern that it would hamper morale, since Pyle’s work was so closely followed and he was so popular.

A post about Pyle, with the arresting quote, by Mark Stout was on War on the Rocks this morning, as I was on my way to Rutgers to discuss, in part, the censorship of war photographs this Tuesday. Censorship of even this peaceful image of a dead journalist is one part of the broader story about the distance of most Americans from the cost and consequences of war, even when it comes to still images, and even in the context of the massive mobilization of World War II.

Americans did not see the crumpled body in France, and did not see Pyle’s own body, because of a government policy to, in essence, curate the photographic record of the war to calibrate the emotional response of Americans to war. Initially bad news was suppressed, but by 1943, out of concern that Americans needed to rededicate themselves to the war effort, photo censorship was eased so that images of dead American soldiers could now be shown. But they were bloodless bodies, like this famous photograph, the first photo of dead WWII U.S. soldiers to appear in Life magazine. It was not until May 1945 that, as George Roeder put it, blood was spilled on the pages of Life for the first time, in this image.

I’ve argued in the past that the most important presidential war power is the power to narrate a context as a war, thereby enabling the popular mobilization for war that supports presidential war power. Censorship, or the curating of a pictoral record of war, increasing or decreasing the violence in the images, was used to maintain that mobilization. Censorship is a feature of all wars. In a distant war, without access to the site of battle or the dead themselves, the very sights (and sounds) of World War II were produced by the government for the homefront through both propaganda and censorship. In this way, power over culture helped maintain support for presidential power, not only for overseas deployments, but for the ongoing management of most Americans’ isolation from what war could really look like.

More of Ernie Pyle’s note is in Stout's post, here.
Posted 8:03 PM by Mary L. Dudziak [link]

More Questions for Ross Douthat

Nelson Tebbe

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Posted 5:53 PM by Nelson Tebbe [link]

The "runaway convention" red herring

Sandy Levinson

An interesting article from the Washington Post notes that 27 states have petitioned Congress to call an Article V constitutional convention in order to propose a balanced budget amendment, and similar proposals are apparently pending in nine additional states totally controlled by Republicans.  Fred Wertheimer is quoted as saying that we are at the brink of a genuine "constitutional crisis" should the magic number of 34 be achieved and Congress does its duty, indicated by use of the word "shall" rather than "may" in Article V, to call a new convention.

As is common in such discussions, the article quotes someone who is terrified by such a convention because of the prospect that it could (like the Philadelphia Convention) be a "runaway" and propose the world's worst amendments.  (Readers can fill in their own candidates.)  So, understandably, some people believe that states could limit the agenda of an Article V convention.  Michael Stokes Paulsen (who sometimes contributes to Balkinization) is cited as arguing, I believe correctly, that any Convention would have plenary authority to propose whatever it wished, including the parade of horribles.  Indeed, he seems to agree with Charles Black, who notably argued that "limited convention petitions" should be rejected by Congress as invalid, since the only genuine Article V petitions would be those calling for an (unlimited) convention. 

But, surely, it is paranoid to believe not only that a convention would "runaway" (which is thinkable, albeit unlikely), but also, an more importantly, that the proposals of such a "runaway" convention would get the approval of the legislatures of 3/4 of the states.  There are all sorts of political checks on what the convention can do, which are ignored by those who prattle about runaways.  Yes, the Philadelphia Convention ran away successfully because, among other things, it was presided over by George Washington and defended by a wide array of elite leaders (who, even then, had real trouble, managing to win by only a 30-27 vote in New York).  And this was in the context of reasonably widespread agreement, at least among political elites, that the political system established by the Articles of Confederation was "an inbecility," to quote both Virginia Gov. Edmund Randolph and Federalist 15.  As many people have commented, there is no George Washington on the scene, and, much to my dismay, political elites fall over themselves praising our dysfunctional Constitution and the political system that it established and maintains.  Arkansas Sen. Tom Cotton apparently wrote his honors thesis at Harvard on the wonders and glories of the US Constitution, and Texas Sen. Ted Cruz (also educated at our finest elite schools) memorized the Constitution and won't a word of criticism of it (though I suspect he does not in fact support slavery, as the 1787 Constitution did without using the magic word). 

What is a significant problem is that Article V provides not an iota of a clue about how an Article V convention would be organized.  Who would choose the delegates, and what would the voting rules be (for starters)?  My own proposal is lottery selection of roughly 750 American citizens good and true, because I believe that both elections and appointments have their own problems.  Elections, especially in the age of Citizens United, would invite single-issue campaigns like no other, financed by billionaires; appointment, on the other hand, would assure that the delegates would be unimaginative lackeys of those appointing them, who would fear any show of genuine independence, let alone "running away."  But the point is that serious people should recognize that the fear of "runaway convention" is not remotely a good reason for opposing a new convention. 

Holding a new constitutional convention might well highlight a sense of "constitutional crisis," but, for some of us, on both the right and the left, the "crisis" has long since arrived, as is illustrated by some blend of a) the patent incapacity of Congress to respond effectively to any of the major challenges facing the country today and/or b) the equally patent extension of Executive Branch authority/power to move into the breach and make "necessary and proper" decisions required to meet these challenges and/or c) the willingness of a Supreme Court that currently has no members committed to a serious theory of "judicial restraint" to step in and offer its own adjustments to public policy.  I strongly believe that the most important single sentence in our history if John Marshall's reminder in McCulloch that the Constitution is designed "to endure" and, therefore, must "be adapted to the various crises of human affairs."  The central question is who will do the adaptation and what will remain of a defensible and desirable "republican form of government" after the adaptations take place. 

I would hope that those who exercise their freedom to offer comments will confine themselves to addressing the central question of whether it really makes sense to fear a "runaway convention."  There are all sorts of reasons to be hesitant to support a new convention (as my friends and family constantly tell me).  But is that fear one of them? 
Posted 5:03 PM by Sandy Levinson [link] (190) comments

Conscience Wars

Guest Blogger

Doug NeJaime and Reva Siegel



Posted 9:30 PM by Guest Blogger [link]

Constitutional design and contemporary dysfunction (and timidity): The APSA Presidential Address

Sandy Levinson

For obvious reasons, I was extremely interested in the title of the Presidential Address delivered by John H. Aldrich at the 2014 meetings of the American Political Science Association:  “Did Hamilton, Jefferson, and Madison ‘Cause’ the  U.S. Government Shutdown?  The Institutional Path from an Eighteenth Century Republic to a Twenty-first Century Democracy,” just published in the March 2015 issue of Perspectives on Politics, one of the two major journals published by the APSA.  Aldrich offers an overview of American political history designed to explain the consequences for governance of the particular form of party polarization that we have today.  Part of his analysis emphasizes the demise of strong parties in favor of candidate-centered elections; this is helped along, of course, by the rise in the early 20^th century of party primaries and the secret ballot.  Like Rick Pildes (himself borrowing from earlier political scientists), Aldrich also emphasizes the collapse of the schizoid Democratic Party following the Voting Rights Act of 1965, when the “big tent” of Northern liberals and Southern white racists disappeared, with many of the latter, of course, migrating to the Republican Party in the aftermath of Barry Goldwater’s vote against the Civil Rights Act of 1964 and, more importantly, Richard Nixon’s  “Southern Strategy” in 1968.  

Aldrich also pays attention to the importance of veto points created by the political system set down in 1787, with its emphasis on separate and autonomous "branches" that can "check and balance" one another and thus, among other things, prevent any legislation from passing.   He begins his “conclusions” as follows:

My central argument is that what many are calling the ‘dysfunctional’ government of today is the consequence, in part, of a stream of institutional design decisions made throughout  American political history.  In many respects, the Constitution was designed for a different place and time, designed to solve a different set of problems than our own. …

Aldrich concludes his “conclusions” by suggesting some “strateg[ies] for reform,” which depend, of course, on the diagnosis of the problem.  If, for example, we view representatives as motivated primarily by a desire to be re-elected (as David Mayhew famously suggested, then “we must find a way to reshape districts such that they are more likely to be mixtures of partisanship and ideology” rather than self-consciously designed to be controlled by the median voter within a given political party instead of the electorate in general.  But if we are persuaded by some interesting evidence that “Congress is filled with those committed personally to the expression of ideology” (and who are selected because they are viewed as reliable adherents to the ideology), “then we must find a way to recruit and elect sufficient moderates.” He also suggests that perhaps the Supreme Court needs to rethink its views about money being “speech” and try to move closer to a “one voice, one vote” standard in place of the electorate’s de facto choice of choosing among candidates who have been able to survive the money primary and onslaught of “independent ads” purchased by ideological groups. 

All of these, of course, are worth discussing.  But, as one can imagine, I strongly regret that Prof. Aldrich (whom I do not know), given the title of his presidential address and the beginning of his “conclusions,” didn’t even address the possibility that perhaps we should think about reforming the Constitution itself.  I will confess to some narcissistic disappointment that he did not cite either of my two books on the subject, which I suppose simply underscores the view that I’m not thought to be a “real political scientist” by denizens of the discipline.  But I take this also as evidence of the fact that even someone as astute as Prof. Aldrich clearly is—not to mention someone who seems to express some worry about the contemporary “dysfunctionality” of our political system—seems incapable of moving beyond basically anodyne suggestions into more radical suggestions that perhaps a Constitution that was designed (and perhaps designed well) to confront a “somewhat different set of problems from our own” needs to be rethought every now and then.  

Robert Dahl, perhaps the greatest political scientist of my lifetime, moved over the course of his career from a quite complacent defender of what was called “interest group pluralism” (especially as found in New Haven, Connecticut) to a vigorous critic of our political system for its patently undemocratic aspects.  Interestingly enough, Aldrich doesn’t cite any of Dahl’s work, including his 2002  book How Democratic Is the United States Constitution?, though he does cite (and discuss) Thomas Mann’s and Norman Ornstein’s It’s even worse than it looks:  How the American constitutional system collided with the new politics of extremism.”   But one vital difference between Dahl (and myself), on the one hand, and Mann and Ornstein, on the other, is that for all of the bite of their critique, they carefully avoid any suggestion that we need to think of constitutional reform. That simply isn't thinkable within the Beltway.

It is easy enough to say that Prof. Aldrich is simply being prudent.  The worst feature of the  Constitution is Article V itself, which not only makes significant amendment near impossible, but, perhaps as importantly, infantilizes our discourse by making any suggestion of constitutional reform sound utopian and quixotic, not the kind of thing that persons who want to be thought “reasonable” would ever suggest.  I wish that Prof. Aldrich, who I am sure is a fine representative of contemporary American political science, were less “reasonable.”

Posted 4:13 PM by Sandy Levinson [link] (70) comments