Monday, August 31, 2015
The Construction of Original Public Meaning
I've posted a draft of my latest article, The Construction of Original Public Meaning, on SSRN. It's a response to a really wonderful recent work of scholarship, Founding-Era Translations of the Constitution, by Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn.
Sunday, August 30, 2015
Could Donald Trump win the Republican presidential nomination
The quick and dirty answer to the question is yes. And the reason has to do with the formal rules adopted by the Republican Party with regard to the allocation of delegates to the 2016 Convention, to be held in Cleveland in June. Four states are allowed to have their primaries in February--Iowa, South Carolina, New Hampshire, and Nevada--and then the scramble begins. A whole bunch of states will have their primaries before March 15. AND THE RULES REQUIRE THAT ALL OF THESE STATES OPERATE ON THE BASIS OF PROPORTIONAL REPRESENTATION (as is true for the first four states). Then things get interesting, for it is up to the states themselves to decide whether delegates will be allocated by proportional representation or winner take all. The current calendar for the Republican primaries indicates that the following states will be holding their primaries after March 15: Arizona, Utah, Wisconsin, Connecticut, Delaware, Maryland, Pennsylvania, Rhode Island, Indiana, Nebraska, West Virginia, Oregon, California, Montana, New Jersey, New Mexico, South Dakota, and DC. Apparently dates are not yet firmed up for New York, North Dakota, Utah, Colorado, Idaho, Kansas, Maine, Washington, and Wyoming. Game theory suggests that there will be advantages to coming late precisely because it looks almost certain that there will be at least five or six candidates still duking it out by the Spring. (I was on a program several weeks ago with the leader of the Travis County Republican Party, who predicted that there will be at least 5 or 6 candidates in the Texas primary on Super Tuesday, March 1. It seems altogether likely that Trump will have more delegates on March 15 than any other single candidate, even if, as I am assuming, he has, say, "only" 30% of the total. But if six or seven others are dividing up the remaining 70%, that obviously means that none of the others is likely to be all that close to Trump.
The Living Constitution: A Reconsideration
Tuesday, August 25, 2015
Batson (A Footnote to Sandy Levinson)
A small footnote to Sandy Levinson's insightful post on the separation of criminal law and procedure from constitutional theory. A few years ago I wrote a short paper on remedies for Batson violations. The impetus for the paper is that in Batson the Supreme Court did not identify the proper remedy for a Batson violation. The Batson Court addressed remedies in a single ambiguous footnote that identified two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these were the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. (Subsequent Supreme Court cases also have not clarified what the appropriate remedy is for a Batson violation and the Court has never overturned a remedy imposed by a trial judge.) I was interested in exploring the kind of remedies trial judges have imposed and identifying any relevant differences between the practices of federal and state courts. I soon faced a problem: although Batson challenges are not uncommon, it was very hard to find instances where trial judges ever got to the remedy question because almost all challenges failed. In the course of the project I contacted hundreds of prosecutors and defense lawyers around the country to ask them to tell me of cases where they themselves had encountered a successful Batson challenge or to tell me about cases they knew about in which a trial judge had reached the remedy stage. The overwhelming response, even from trial lawyers with decades of experience, was that nobody knew of any successful Batson challenge. The lawyers I spoke with also had a fairly consistent explanation as to why Batson challenges failed: a judge who holds that Batson has been violated is ruling that (a) the attorney standing before the court discriminated on the basis of race and (b) when asked to explain his actions, the attorney (offering up a race-neutral reason for the strike) lied to the court. Few judges want to label lawyers who appear regularly before them bigoted liars. Here, then, bridging the divide between criminal and non-criminal cases in constitutional law is instructive. Batson represents an unusual context in which the specific state actor alleged to have violated equal protection is right there before the judge (and will be again tomorrow and next year). This isn't usually so in other kinds of equal protection cases: the lawyer is there only in a representative capacity and if an equal protection violation is found to have occurred it isn't the lawyer who is smeared. The failure of Batson (if failure there is) might well lie in the Court's own failure to recognize the impediments to applying equal protection when the alleged bad state actor is also the attorney arguing the case.
Friday, August 21, 2015
Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform
More on the separation of criminal law (and procedure) from "constitutional theory"
I want to elaborate some on Mark Graber's extraordinarily incisive and important post on why "constitutional theorists" are obsessed by, say, Obergefell and have almost literally nothing to say about Ferguson. With regard to the self-conscious group of "constitutional theorists" in the legal academy, I think it's fair to say that extremely few are in fact interested in issues raised by the criminal justice system, save, of course, for such issues as the validity of criminalizing "hate speech" or abortion, etc. or, on occasion, capital punishment. TWith regard to "constitutional criminal proceure," I think it's accurate to suggest that only Akhil Reed Amar, among "major constitutional theorists," has written extensively about the subject; his views are typically interesting and idiosyncratic. Frankly, I have no idea to what extent they have been influential among the "criminal procedure" community.
Of Ferguson and Constitutional Theory
Thursday, August 20, 2015
Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory
Collected Posts on The Myth of the Cultural Jew
Here are the collected posts for the Balkinization symposium on Roberta Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (Oxford University Press 2015):
Seven Jews—Twenty-One Opinions!!: A Response To My Colleagues
Wednesday, August 19, 2015
Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew
Jewish Law as Invitation
Tuesday, August 18, 2015
Cultural Judaism as an American, Jewish (and Israeli) Identity
The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall
Monday, August 17, 2015
Stephen Griffin's New Book!
Congratulations to Stephen Griffin, who has just published Broken Trust: Dysfunctional Government and Constitutional Reform. I hope to say more in a future post about this short and engaging book that deepens existing critiques of the institutional breakdown in American politics and suggests a possible source of constitutional improvement. In the meantime, I will simply note that this was be a great challenge for students taking constitutional law just starting the new school year.
The Relevance of Intellectual History to Constitutional Law and Constitutional Change
Myth and Mystification in Religious and Secular Judaism
For the Symposium on Roberta Kwall, The Myth of the Cultural Jew
Jewish Identity Without Law or G-d
Sunday, August 16, 2015
The Wrong Myth?
A symposium on Roberta Kwall, The Myth of the Cultural Jew: An introduction
Friday, August 14, 2015
A Note on Interpretation and Construction in the New Originalism
Steve Griffin has begun a very interesting set of posts on constitutional theory and interpretation, using the New Originalism as a foil. At this point in the process, I wanted to offer my own thoughts on an important issue that Steve raises about what the New Originalism is committed to. Knowing Steve's work, I expect that he will concur with some parts of what I say and differ with other parts.
Collected Posts: Deconstructing Ferguson One Year Later
Tracey L. Meares, Yale Law School
A Third Reconstruction?
Thursday, August 13, 2015
Can the New Originalism Account for the Constitution, the Law of the Constitution, and our Constitutional Tradition?
Detecting Discrimination In Policing (Or, The Dangers of Counterfactual Causal Thinking…)
First Government opposition brief in nonprofit cases challenging the contraceptive coverage accommodation
On Wednesday, the Solicitor General filed this brief in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life. He argues that Supreme Court review is not warranted because all six courts of appeals to have ruled thus far have "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries." He does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell, principally for the reasons I discussed in this post.
Wednesday, August 12, 2015
Have the Politics of Ferguson Improved? How Can We Tell?
David Schleicher, Yale Law School
Tuesday, August 11, 2015
The New Originalism and Living Constitutionalism: A Reconsideration
Is Scott Walker Running for Dictator?
Scott Walker has announced that he will be prepared to go to war against Iran on his first day of office, presumably after "tearing up" the Iran agreement. There can be little doubt that the next president, even an uneducated lout like Gov. Walker, has the constitutional power to tear up the agreement. As Marty Lederman has ably demonstrated, the Deal is neither a treaty nor even an executive agreement truly binding on the United States. It is, I think it's fair to say (though Marty will correct me if I'm wrong)* a memorandum or understanding between the current President and Iran (and the other signatories) as to what they will do in the relatively near future should certain contingencies take place, i.e., life those sanctions the President has unilateral authority to lift in return for Iran's agreeing to comply with the deal. And so forth. So the question is whom we might be trusting to make such determinations in the future, insofar as the Iran Deal, whatever one thinks of it, highlights the power of the Executive Branch vis-a-vis Congress, certainly as a practical matter, perhaps as a constitutional matter.