Thursday, April 28, 2016

Constructing Constitutional Authority

Gerard N. Magliocca

Governor Greg Abbott of Texas is in the news again.  After endorsing Sandy's project of calling for a constitutional convention, he recently spoke at an event on the state's challenge to the President's plan on illegal immigration and said that he "double-dare[d] the United States Supreme Court to reduce the Bill of Rights to the first nine amendments." Setting aside the language on double-dares (is raising that a triple-dare or a double-double-dare?), one interesting question his statement raises is this: How do we know that the Bill of Rights consists of the first ten amendments.

This is one of the issues that I'm writing about in my next book (now very much in progress), and it is  fiendishly difficult.  Some Court decisions and commentators said that the Bill of Rights was the first ten amendments.  Others said that the Bill of Rights was only the first eight amendments.  And one Supreme Court case from 1904 did say that the Bill of Rights was only the first nine.  Some of this reflects disagreement on the importance of the Tenth Amendment and some of this reflects a similar disagreement on the status of unwritten rights pursuant to the Ninth Amendment.

Why then do we all think (as I think we all do) that the Bill of Rights is the first ten amendments?  Not because the text says so.  And not because there is clear case law or history saying so. Notable people who said that only the first eight amendments were the Bill of Rights include Justice Hugo Black, Judge Learned Hand, and John Bingham (though not consistently), who are hardly chumps.  Moreover, if you go to the National Archives to see the copy of the Bill of Rights that sits alongside the Declaration and the Constitution under glass, what you see are 12 amendments--the twelve that Congress proposed in 1789.  So was there a particular moment or person that settled the question.  The answer may surprise you--I'll save that for another post.


Chomsky and Moral Philosophy

John Mikhail

Some Balkinization readers might be interested in "Chomsky and Moral Philosophy," a new paper I recently posted to SSRN.  It will appear in the second edition of The Cambridge Companion to Chomsky (J. McGilvray, ed.), which is due out later this year.  Among other things, the chapter draws links between aspects of the natural law tradition in moral philosophy and Chomsky's naturalistic approach to the study of language and mind. It also responds to some of Bernard Williams' skeptical remarks about rule following in Ethics and the Limits of Philosophy.  Here is the abstract:

Every great philosopher has important things to say about moral philosophy. Chomsky is no exception. Chomsky’s remarks on this topic, however, are not systematic. Instead, they consist mainly of brief and occasional asides. Although often provocative, they tend to come across as digressions from his central focus on linguistics and related disciplines, such as epistemology, philosophy of language, and philosophy of mind. Perhaps as a result, moral philosophers have paid relatively little attention to Chomsky over the past sixty years.

This neglect is unfortunate. Chomsky’s insights into the nature and origin of human morality are fundamental and penetrating. They address deep philosophical problems that have shaped the aims of moral philosophy for centuries. They also reinforce many of the lessons Chomsky has taught about the nature and origins of human language. Elaborating upon these themes, this chapter begins by recounting two of Chomsky’s most extensive discussions of moral philosophy, each of which draws attention to the fact that, like linguistic knowledge, moral knowledge is an example of Plato’s problem: a complex mental competence characterized by a profound poverty of the stimulus. The chapter then places these remarks in a broader context by providing a brief discussion of mentalist, modular, and nativist theories of moral cognition from Plato to the present. Finally, the chapter responds to one prominent criticism of Chomsky’s naturalistic approach to moral philosophy, that of the late philosopher, Bernard Williams. I argue that Williams’ “Wittgensteinian” skepticism about moral rules is no more convincing than a similar skepticism about grammatical rules in the context of linguistic theory.

Monday, April 25, 2016

Can Originalists Promote Originalism through Strategic Judging?


Over at Law and Liberty, Steve Smith wonders how it might be possible to give nonoriginalist judges, especially on the left, incentives to decide more cases according to originalism. His solution: "reactivism." After the Supreme Court decides a non-originalist case like Roe v. Wade, or Obergefell v. Hodges, originalist judges should vote strategically to limit its practical effect in later cases, in order to achieve results closer to what would have happened if the Court had decided the case correctly according to original meaning. Originalist judges should do this even if the distinctions they draw to limit the earlier decision aren't the most principled or logical ones. Knowing this, nonoriginalist judges will have incentives to stop producing so many nonoriginalist decisions.

There are three problems with this strategy. First of all, from the perspective of many liberal nonoriginalists, this is what many judges already do whenever they don't like a decision. As liberals see it, conservatives (not just originalist conservatives) have been trying to chip away at liberal precedents for years using distinctions that liberals think don't make much sense. For this strategy to work, then, originalist judges would have to convince liberal judges that they would be doing something much more troubling than what liberals think conservative justices (both originalist and non-originalist) have already been doing to liberal precedents. It's not clear how this strategy will demonstrate to liberal nonoriginalists that they had better behave themselves from now on.
Read more »

Sunday, April 24, 2016

Obergefell, Fisher, and the Inversion of Tiers

Guest Blogger

Maxwell L. Stearns*

My new article, “Obergefell, Fisher, and the Inversion of Tiers,” is forthcoming in the University of Pennsylvania Journal of Constitutional Law. It provides a comprehensive framework that explains the pervasive doctrinal anomalies associated with the tiers of scrutiny doctrines. It also offers a simpler path forward that would produce more consistent and predictable applications within the general framework of existing tiers. The Article does not recommend abandoning the tiers’ doctrines or replacing them with a single tier or a more finely grained menu of tiers. Instead, it demonstrates why a system of tiers approximating ours is an inevitable feature of our constitutional jurisprudence, and it explains how to avoid the doctrinal anomalies that have generated much-deserved critical commentary.
Read more »

Friday, April 22, 2016

"The Second Freedmen's Bureau Bill's Constitution"

Mark Graber

My latest on SSRN and forthcoming in Texas Law Review on the historical evidence that Republicans understood the Constitution of 1865 as protecting positive rights.  Thanks to Joey Fishkin and Willi Forbath.

This paper focuses on the crucial elements of post-Civil War constitutionalism judges and scholars miss when they give the place of pride to the Civil Rights Act of 1866 at the expense of the Second Freedmen’s Bureau Bill. The Republicans who framed the Second Freedmen’s Bureau Bill recognized that persons could transition from slaves to full citizens only if Congress aggressively exercised national power under Section Two of the Thirteenth Amendment. Given the need for a high degree of nimbleness in the managing of that transition, Congress, rather than the judiciary, had to play the lead role in removing all badges and incidents of slavery in American constitutional life. These framers were concerned with economic inequalities or at least basic economic and social needs, but their concerns were not expressed in the form of judicially enforceable rights. The persons responsible for the post-Civil War Constitution believed the general welfare would best be promoted if the party of the majority of the people who remained loyal during the Civil War had control over all three branches of the national government necessary to enact and implement legislative programs that eradicated all traces of the destitution and dependency that had resulted from slavery and the Civil War.

Thursday, April 21, 2016

The Zubik supplemental reply briefs

Marty Lederman

The government and the petitioners yesterday filed their supplemental reply briefs in response to the Court's order.  This latest and final round of briefs largely confirms what I wrote last week, but the new briefs do add important details that demonstrate the wide gulfs that remain between the parties as to all three types of insurance plans at issue (insured plans, self-insured plans, and church plans).

For reasons I'll explain, I think the supplemental briefing has significantly weakened the petitioners' efforts to show that the government's accommodation substantially burdens their religious exercise.  More importantly, perhaps, it has strengthened the government's argument that there are no alternative means of providing contraceptive coverage to the beneficiaries of petitioners' plans that would both further the government's compelling interests and alleviate the alleged substantial burden on the petitioners' exercise of religion.

In this post I will, once again, address the three types of plans separately.  I'll assume that you've already read my post from last week, which will avoid the need for me to reiterate the details about how each type of plan works and the ways in which the petitioners' new proposal would undermine the government's compelling interests.

As I've previously posted, only six of the 37 petitioners offer their students and/or employees participation in an "insured" health insurance plan--the focus of the Court's proposal.  (Three other, individual petitioners are directors of an insured employee plan.)  Three petitioners offer their employees participation in "self-insured" plans that are not "church plans."  And the remaining 26 petitioners, including Little Sisters of the Poor, either offer their employees access to what is known under ERISA as a "church plan," or are in some other respect associated with such church plans.  (This would appear to add up to 38 petitioners, but there are only 37--one petitioner, Southern Nazarene University, uses an insured student plan and a self-insured employee plan.)

I'll start here with the category that covers most of the petitioners--church plans--because that's the category with the most straightforward RFRA disposition:
Read more »

Wednesday, April 20, 2016

Texas’s radical argument on work authorization--and its inconsistency with the 1990 Family Fairness program

Marty Lederman

Monday’s oral argument in the DAPA case confirmed what I’ve tried to explain in several previous posts about the substantive merits of the case:  Although Texas's lawsuit was originally focused on the alleged illegality of DHS’s provisional decision not to remove DAPA-qualified aliens, Texas now concedes that such forbearance of removal is lawful, at least as long as Congress only appropriates funds for DHS to remove 400,000 of the eleven million removable aliens in the United States:  “We admit that they could do forbearance from removal,” conceded the Texas SG.  The gist of Texas’s challenge, therefore, is now on whether the Secretary can also grant work authorization to those DAPA-qualified aliens—individuals who have long been in the country, are not leaving any time soon, and most of whom are already in the “underground” economy because they need to provide for their children, who are U.S. citizens or lawful permanent residents.[1]

Texas’s implausible reading of the work authorization statute

Texas’s reading of the work authorization provision of IRCA (8 U.S.C. § 1324a(h)(3)) is that it allows the Secretary to grant such authorization—which in turn permits employers to hire the aliens in question—only to categories of aliens that Congress has specifically identified, in the statute, as eligible or potentially eligible for work authorization.  As we explain in an amicus brief on behalf of former agency officials, in the Reagan Administration the INS specifically rejected this reading, both in its post-IRCA rulemaking proceeding and in response to a petition urging precisely that limited construction of the statute.  Moreover, Congress thereafter repeatedly ratified the INS’s rejection of that narrow reading.

And for good reason.

Read more »

Friday, April 15, 2016

Does Texas have Article III standing to challenge DAPA?

Marty Lederman

The Court will not reach the merits of the DAPA case, United States v. Texas, if it finds that the plaintiff States do not have standing under Article III to challenge the government’s DAPA policy.

The district court found that at least one plaintiff, the State of Texas, had standing to sue.  In the Supreme Court, Texas offers several arguments in support of its standing, most of which would, if credited, dramatically expand the right of states to sue the federal government whenever their elected executives believe the federal government has misconstrued federal law, or whenever such officials believe a federal statute is unconstitutional.  In today’s political climate, that happens constantly.  Texas’s theories of standing, therefore, could result in state standing in many cases where the Court would otherwise hold that ordinary citizens or taxpayers lack standing to sue based upon a “generalized grievance” that the federal government is acting without legal authority.[1]

For example, Texas argues because the DAPA program allegedly will result in an increase in the number of persons living in Texas, Texas should be able to sue in federal court to challenge the policy because of the money the State will have to spend on law enforcement, education, and medical care associated with the new residents.  Even if Texas’s assumptions about population changes were not too speculative to support standing, the basic form of this argument must prove far too much:  The federal government does countless things every day that will foreseeably result in changes to various state populations.  Can it really be the case that the states therefore have standing to sue to challenge each and every one of those federal actions?  As the Solicitor General writes, such a holding “would utterly transform the judicial power.  Federal courts would displace the political process as the preferred forum for policy disputes between individual States and the federal government because a potentially limitless class of federal actions could be said to have incidental effects on a State’s fisc.”

The district court held that Texas had standing on a different, ostensibly narrower theory—namely, a finding that Texas will bear costs to issue drivers’ licenses to DAPA-eligible aliens residing in Texas.  The court of appeals affirmed this basis of Article III standing.

There are several reasons why such “licensing costs” are insufficient to establish Texas’s Article III standing to challenge the lawfulness of the DAPA policy.  The Solicitor General’s briefs, together with the brief filed by Joe Palmore on behalf of Prof. Walter Dellinger, thoroughly address those reasons.  In this post, I’ll focus upon two aspects of the “licensing costs” theory of standing that warrant greater attention:  (i) that Texas itself has already concluded that it will not be injured; and (ii) that if Texas wishes to change its practices in light of DAPA, the Texas legislature and administrative agency have many options about who should receive license subsidies--including strict compliance with Texas's current statutory criterion.

Read more »

History, Rights and the Moral Reading


On SSRN, I've posted a draft of History, Rights and the Moral Reading, a review of Jim Fleming's new book, Fidelity to Our Imperfect Constitution.  It is part of a symposium that will appear in B.U. Law Review. Here is the abstract:

James Fleming’s book, Fidelity to Our Imperfect Constitution, argues for a "moral reading" of the Constitution, a phrase made famous by Ronald Dworkin. But Fleming's version of the moral reading differs from Dworkin's in two important ways.

First, Fleming argues that Dworkin's attempt to explain and justify judicial protection of constitutional rights in terms of democratic self-government is unduly strained. Moreover, in the quest to re-characterize all of these rights as supporting democracy, there is the danger that we will distort their most valuable features. I show why Fleming's insight is correct. I use the example of the First Amendment's guarantees of speech and press, which many scholars have assumed offers the strongest case for a democracy-based justification of rights.

Second, Dworkin spent relatively little time worrying about how historical argument figured into a moral reading of the Constitution, other than to criticize originalism. Building on Dworkin's argument that good interpretations must satisfy the two dimensions of "fit" and "justification," Fleming asserts that history can be quite important to moral readings. I argue that Fleming offers a better account than Dworkin of why history matters-- and should matter--to a moral reading of the Constitution. I show how his account connects with my own work on how lawyers use history in constitutional argument.

Thursday, April 14, 2016

Making sense of the supplemental filings in Zubik

Marty Lederman

Following the oral argument in Zubik, the Court directed the parties to file supplemental briefs addressing whether the employees of petitioners with "insured plans" could receive contraceptive coverage "through petitioners’ insurance companies," without requiring the objecting employers to provide either of the forms of "opt out" notice (to the government or to the insurance company) that the current accommodation regulation prescribes.  The Court elaborated with a particular hypothetical proposal:
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.  Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.  At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
The parties filed their opening briefs in response on Tuesday.  (They will file simultaneous reply briefs next Wednesday.)

In order to understand the parties' different views on the question the Court posed, it is necessary to separately consider what they have to say about "insured" plans and "self-insured" plans, respectively.  In addition, at the end of this post I offer a few words about the 26 petitioners who do not fall in either category, because they offer (or are otherwise involved with) employee "church plans."  (I discuss the distinctions between these different sorts of health insurance plans in this post, among others.)

Insured plans

The Court's order referred specifically to petitioners that offer their employees access to "insured" health care plans.  In such cases, an employer purchases an employee insurance policy from an insurance company, or issuer, such as Aetna or Blue Cross/Blue Shield, and the issuer itself then bears the costs of reimbursing employees for their health care expenses.

As I noted in this post, five of the petitioners currently offer their employees participation in insured plans:  Catholic University, Geneva College, Oklahoma Baptist University, Oklahoma Wesleyan University, and Priests for Life.  Three of those five petitioners (Catholic University, Geneva College, and Oklahoma Baptist University) also offer their students an insured plan, as does a sixth petitioner, Southern Nazarene University.  (Three other individual petitioners--Alveda King, Janet Morana and Father Frank Pavone--are directors of Priests for Life.)

Read more »

Randy Barnett's Republican Constitution


On SSRN, I've published a draft of Which Republican Constitution?, a review of Randy Barnett's new book, Our Republican Constitution.  The article is part of a conference on the book held in March at the University of Illinois, and will be published in Constitutional Commentary. Here is the abstract:

Randy Barnett argues that the American political tradition, understood in its best light, features a "Republican Constitution." But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties; and demands a government which derives its powers from and is ultimately responsive to the great body of the people.

Instead, Barnett's "Republican Constitution" is far closer to what most historians of the Founding would regard as the opposite or complement of the republican tradition. This is the tradition of natural rights liberalism, which begins with John Locke and evolves into classical liberalism in the nineteenth century. This tradition celebrates individual autonomy, views the state as organized to protect the natural rights of individuals, fears the tyranny of majorities, and treats liberty as a negative freedom — a protected space in which individuals, free from state control, may accumulate property and pursue happiness.

Although Barnett identifies his "Republican Constitution" with the Founders, it is really a sympathetic restatement of late nineteenth-century classical liberalism, which combined dual federalism with police powers jurisprudence. Conversely, his constructed foil, which he calls the "Democratic Constitution," is really a version of early twentieth-century progressivism which arises in opposition to the Gilded Age. Barnett's imagined opposition between "Republican" and "Democratic" visions of the Constitution at the Founding is really an idealized version of the struggle between classical liberalism and progressivism at the beginning of the twentieth century. This is an important clash of values, and it had momentous consequences for the way we understand constitutional law today. But it is not an adequate account of Founding-era thought.

By taking the word "republican" and pasting it onto the classical liberal tradition, Barnett has buried a truly important tradition in American constitutional thought — the actual historical republican tradition. This tradition is especially relevant today. Our contemporary politics is full of anxieties about republican themes: corruption, oligarchy, self-dealing, and lack of devotion to the public good. Barnett's classical liberalism is too thin to meet these contemporary concerns. By insisting that the central if not sole purpose of government is to protect natural rights — including, most prominently, the right to acquire and accumulate property — his account seems to talk past what concerns many people today about our political and constitutional system, not only on the left, but also on the right. It actually disables us from focusing on the important connections between democracy and political economy that the historical theory of republicanism was centrally concerned with.

The American constitutional tradition, understood in its best sense, has always drawn on elements of both the republican and liberal traditions, and applied them to the problems and circumstances of the age. It has employed the best parts of each tradition to critique and transcend the blindnesses and limitations of the other. That is as true of the founding period as it is of the present. No reconstruction of the American constitutional tradition can afford to discard one-half of this dialectic.

Wednesday, April 13, 2016

The “Lawfully Present” Confusion in the DAPA Case

Marty Lederman

With Monday’s filing of the reply briefs by the government and the intervenors, the briefing in the DAPA case, United States v. Texas, is now complete.  (All of the briefs can be found here.)  Oral argument is next Monday.  

The challengers’ arguments about why DAPA is unlawful have been something of a moving target throughout the litigation. 

Forbearance of removal.  When this case started—and even earlier, when public criticism of the DAPA program began—opponents’ arguments focused on the claim that the Secretary of Homeland Security lacks authority to forebear removal of the parents of U.S. citizens, i.e., that he must remove, or at least endeavor to remove, virtually all aliens who are “removable.”  Although this argument, about whether the aliens in question must be removed, continues to dominate many public discussions of the case, Texas and the other plaintiffs quickly pivoted away from it early in the litigation, and they now concede that the Secretary can lawfully opt not to remove any and all DAPA-eligible aliens.

Work authorization.  Accordingly, the focus of the litigation shifted to a challenge to the Secretary’s practice of granting work authorization to DAPA aliens.  As I explained at length in earlier posts, this is, in effect, a challenge not to the DAPA policy itself, but instead to a 30-year-old regulation promulgated by the Reagan Administration, providing that the Secretary may authorize all “deferred action” aliens, along with several other categories of aliens not specified in the statute itself, to work upon a showing of need—an authorization that, in turn, gives employers the legal right to hire such aliens.  This Reagan-era rule went through several rounds of extensive notice and comment review; Congress subsequently ratified it, repeatedly; and for several decades after 1987, no one challenged it.  (Part II of the Argument in this amicus brief on behalf of former immigration officials, on which I worked, offers a detailed account of the history of that rule and of Congress’s embrace and ratification of the agency’s longstanding interpretation of the immigration laws to afford the Secretary the power to provide such work authorization.  See also pages 30-32 of the brief for former INS commissioners.) 

“Lawful presence.”   The challenge to the work authorization rule continues to be a significant component of Texas’s argument (see pages 50-53, 56-59 of its brief, and pages 23-28 of the brief for the House of Representatives).  However, it is no longer the lead argument.

Texas’s primary emphasis—and the main theme of not only its brief (see pp. 45-50) but many of its amici’s briefs, as well—has now shifted again.  Texas now leads with the argument that the DAPA program is unlawful (indeed, unconstitutional) because the agency has purported to magically transform certain unlawful conduct by aliens into lawful conduct.  As Texas writes on the very first page of its brief, “when Congress has established certain conduct as unlawful, the separation of powers does not permit the Executive to unilaterally declare that conduct lawful.” 

This mantra is repeated throughout Texas’s brief.  “Such an exercise of [removal] discretion cannot convert an alien’s unlawful conduct into lawful conduct.” (p.15)  “[A] decision not to initiate enforcement action cannot transform unlawful conduct into lawful conduct.” (p.41)  “Practical constraints on one enforcement mechanism have never justified declaring unlawful conduct to be lawful.” (p.45)  “Forbearance from removal, however, cannot transform otherwise unlawful conduct into lawful conduct.” (p.54)  “[DAPA] dispenses with immigration statutes by declaring lawful conduct that Congress established as unlawful.”  (p.71)  “[T]he Executive seeks to make unlawful presence lawful.  Under the Constitution, the Executive cannot exercise such legislative power.”  (p.73).  Etc.

Indeed, by Texas’s own account this notion—that DAPA “declares unlawful conduct to be lawful”—is what “vividly distinguishes this claim from ordinary assertions that an agency exceeded statutory authority,” and thereby allegedly establishes that DAPA violates the Take Care Clause.  (p. 72)  To similar effect, see also the brief for Texas Governor Abbott and five other governors (p.31):

The limits on the Take Care claim are important to recognize.  Mere non-enforcement or under-enforcement of a statute does not give rise to a constitutional claim.  Nor does the Take Care Clause apply when the executive exercises prosecutorial discretion or prioritizes some forms of enforcement over others.  Rather, the Clause kicks in only when the executive branch purports to suspend or grant dispensations from statutory law—that is, to declare that those in violation of the law are acting lawfully and are entitled to affirmative benefits Congress has denied them.  

The brief filed on behalf of the House of Representatives beats the same drum  repeatedly:

-- “The Executive does not have the power to authorize—let alone facilitate—the prospective violation of the immigration laws on a massive class-wide scale.” (p.2)

-- “According to petitioners, Congress has given the Executive absolute discretion not just to decline to enforce the immigration laws against more than 4 million people, but to affirmatively authorize those people to keep right on violating those laws.” (p.15)

-- “There is an obvious difference between declining to devote resources to enforcing a law in some circumstances and ‘purport[ing] to alter [the law] and to establish with the force of law that otherwise-prohibited conduct will not violate’ it.” (p.16, quoting Utility Air Regulatory Group v. EPA).

-- “Petitioners identify no other context in which ‘enforcement discretion’ includes the power not just to overlook past violations of the law, but to license future violations as well.” (p.17)

* * * *

What is the basis for this central argument, found in so many of the bottom-side briefs? 
Read more »

To Alter or Abolish


On SSRN, I've posted a draft of a new article, To Alter or Abolish, that Sandy and I wrote for a symposium on the Declaration of Independence. It will appear later this year in Southern California Law Review. Here is the abstract:

For most Americans, at least, the most famous part of the Declaration of Independence is its claim that "all men are created equal," and endowed with "certain unalienable rights." But around the world, the Declaration's assertion of the right of "the People" to alter or to abolish government-- and to declare independence-- has been far more influential. During the Civil War, the South relied precisely on this right as its justification for secession. As a result, Americans have tended to downplay these aspects of the Declaration. But in other parts of the world, the Declaration continues to inspire countless movements for revolution, self-determination, and secession.

There are any number of books and essays that call upon us to take the Declaration’s language seriously-- which usually means taking seriously its inspiring passages about human equality and inalienable human rights. This essay asks what it would mean to take seriously the other parts of the Declaration, and in particular, its assertion of the right of a self-defined "People" to alter or abolish government. Doing so turns out to create an enormous number of theoretical and practical problems, which have played out both in domestic and international politics from the Declaration's day to our own.

Tuesday, April 12, 2016

What Obergefell v. Hodges Should Have Said


On Friday, April 15th, the Yale Information Society Project will hold a conference at Yale Law School entitled, What Obergefell v. Hodges Should Have Said. 

Legal scholars will present their versions of how the U.S. Supreme Court should have written the Obergefell opinion, which held that the Constitution requires states to recognize same-sex marriage.

The conference is co-sponsored by the Program for the Study of Reproductive Justice at Yale Law School; the Yale Chapters of the American Constitution Society and the Federalist Society; and is also supported by a grant from the Oscar M. Ruebhausen Fund.


Lecture by William Eskridge on the history of same-sex marriage litigation
(40 minute lecture plus 20 minutes Q and A)

Lunch will be served.

1:30pm-1:45pm Break

1:45pm-2:00pm Introduction: Jack Balkin

2:00pm-3:15pm Panel One
Jack Balkin, Sherif Girgis & Robert George (presented by Sherif Girgis), Andrew Koppelman (presented by Priscilla Smith)
Moderator: Linda Greenhouse

(2:45-3:15 Q and A)

3:15pm-3:30pm Break

3:30pm-4:50pm Panel Two
Jeremy Waldron, Reva Siegel & Doug NeJaime, Helen Alvare
Moderator: Jack Balkin

(4:20pm-4:50pm Q and A)

4:50pm-5:05pm Break

5:05pm-6:25pm Panel Three
Katherine Franke, John Harrison, William Eskridge
Moderator: Reva Siegel

(5:45-6:25 Q and A)

The Digital Transformation of Education


On SSRN, I've posted a draft of an article written with Julia Sonnevend, a professor of Communications at Michigan, on the digital transformation of education. It will appear in a volume of essays on Education and Social Media published later this year by MIT Press. Here is the abstract:

This essay explains how digital networks and digital media will affect education. The digitally networked environment frees education from traditional spatial and temporal limitations. In the process, however, new constraints and limitations emerge that were always present in the traditional model but now become newly salient.

Digital media enable a "superbroadcasting" model of education, but this model is only appropriate for some kinds of learning. The remaining aspects of education do not scale well and remain labor and time-intensive. We have already seen hybrid models of education that attempt to combine scalable aspects of education with labor-intensive practices. Some of these hybrid models will improve the educational experience for many students and expand educational access for those who would not otherwise afford an education. But hybrid models may also produce winner-take-all effects and disrupt labor markets for new educators.

While transcending older limitations, digital education faces new limitations -- because of limited Internet access, language barriers, disputes over standards and interoperability, fights over intellectual property, and, ironically, the very scalability that makes digital education so promising and attractive. The growth of digital educational enterprises will depend on the degree to which they can lower the cost of the labor-intensive elements of education that do not scale well or shift the cost or the responsibility for providing them to other actors.

Digital education models threaten both traditional incumbents and professional educational norms. They blur distinctions between education and community service; between professionals and amateurs; between education and entertainment; between teaching and curation; between hierarchical and peer-based methods of learning; and between instructing specific students and speaking to the world at large.

Digital networks disaggregate educational practices into multiple tasks that might be performed by many different actors, and, in the process, alter the tasks, norms, and identity of professional educators. Digital networks disrupt the traditional organization of education and make informal education increasingly salient. And just as digital networks challenge professional norms of education, they also challenge professional control over archives, and thus control over cultural memory itself. Digital networks, in short, cause us to rethink what education is, how we perform it, who participates in it, and what we want from it.

Saturday, April 09, 2016

Expressive Legislation

Guest Blogger

Ed Rubin

Tennessee, never far behind when it comes to passing legislation that is far behind, is about to follow North Carolina in enacting a “bathroom bill,” which would require transgender students to use bathrooms assigned to their original gender. As Rich Schragger points out, this type of legislation, among its many defects, overrides the ability of municipalities to reach their own resolutions for a given issue. The Tennessee version displays another vice that conservative legislatures seem to be indulging in with increasing frequency – the enactment of expressive or symbolic legislation.

In addition to the bathroom bill, the Tennessee legislature has recently enacted, or is currently considering, bills that declare the .50 caliber Barrett the state rifle of Tennessee, declare the Christian Bible the state book of Tennessee, grant pastors the right to refuse to conduct same sex marriages for religious reasons, and deny funds to the University of Tennessee’s diversity office – which total one quarter of one percent of the higher education budget—because that office issued fairly standard memos about holiday celebrations and gender neutral pronouns.

Expressive legislation is hardly a new phenomenon, of course. The landscape is dotted with government buildings bearing the names of obscure individuals whom some legislator wanted to honor, and the calendar is filled with weeks, or months, named after causes championed by various constituencies. Most of this is fairly harmless. Enacted as a courtesy to the sponsor, it occupies relatively little legislative time and elicits relatively little opposition. But the recent spate of expressive legislation advanced by conservative legislatures, in Tennessee and elsewhere, is distinctly different. Because it engages current political controversies, it winds up being intensely debated in committee and on the chamber floors. The Tennessee legislature, which is limited to meeting only 90 days every two years on substantive matters, seems to have had time for little else besides its array of symbolic bills. In addition, this legislation is designed to antagonize or insult specific sectors of the population –in Tennessee’s case, gun control advocates, non-Christians, transgender citizens, and gay or lesbian citizens.

Opponents of Tennessee’s expressive legislation have pointed out that it does not achieve any practical purpose, but is likely to result in positive harm to the state because it contravenes national norms. It will hurt the tourist trade and the convention trade (both important for the state’s faltering economy), discourage firms from locating in Tennessee and discourage many people who might to choose to relocate there. But contravening national norms, whatever its consequences, seems to be the precise purpose of this legislation. It is a device by which majorities in the nation’s conservative states – primarily in the Old Confederacy, of course – can cry out against social trends that are moving strongly in the opposite direction. While gun control may not be making much progress (although its opponents seem to fear it will), there is little question that secularism is on the rise across the nation, that there has been dramatic progress for LGBT in the past decade, and that the current generation of college students holds increasingly progressive attitudes about diversity and sexual identity issues. State legislatures are generally unable to alter these trends. Even as expression, many of the statutes they are enacting are likely to fail. Tennessee’s Bible bill, and any interpretations of the pastor bill that go beyond existing Supreme Court doctrine, will be invalidated by the federal courts, while its restrictions on diversity efforts may well endanger essential federal funding for the University. It only purpose, then, is as a cri de coeur against modernity.

Maybe it’s best, from a progressive standpoint, that these highly conservative state legislatures (Republicans in Tennessee hold comfortable super-majorities in both houses) occupy themselves with expressive legislation rather than attempting to achieve more substantive goals. The proper response in this case might be to accept these statutes with a resigned shrug when they don’t infringe on individual rights (as in the case of the state rifle law or the pastor bill) and oppose them when they do (as in the case of the bathroom or state book bills) through federal action or privately-organized boycotts. But a better strategy might be to try to shame these legislatures out of occupying themselves with this sort of political grandstanding and address substantive issues. Sandy Muir thought that state legislatures functioned as schools (William K. Muir, Legislature, 1985), educating their relatively untrained members through the process of confronting serious issues. Perhaps legislators like those in Tennessee are simply uneducable, but perhaps they would learn something about the complexities of current issues involving their state’s economy, health, education and welfare if they felt compelled to confront them.

Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt University. You can reach him by e-mail at ed.rubin at Law.Vanderbilt.Edu

Thursday, April 07, 2016

RBG, Originalist

David Gans

After Justice Antonin Scalia died, many speculated that originalism would die as well, without one of its most tireless adherents on the bench.   Not if Justice Ruth Bader Ginsburg has anything to say about it.  While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction.  Her masterful originalist opinion in Evenwel v. Abbott, decided earlier this week, is just the latest example of progressive originalism in action. 

Evenwel, a case engineered by conservative activist Ed Blum, concerned the question whether states are required under the Fourteenth Amendment to draw legislative districts composed of substantially equal numbers of eligible voters.  In rejecting this radical claim, Ginsburg proceeded in originalist fashion: “We begin with constitutional history.”  

Justice Ginsburg’s opinion, joined by five other members of the Court, including Chief Justice John Roberts and Justice Anthony Kennedy, walked through the Constitution’s text and history in painstaking detail, demonstrating that the Constitution’s Framers—both at the Founding and after the Civil War—affirmed total population as the Constitution’s basis of representation, insisting that all persons deserve representation.  In the words of Senator Jacob Howard—whose speech introducing the Fourteenth Amendment in the Senate was quoted at length by Ginsburg—the total population rule “is the safest and most secure principle upon which the government can rest.  Numbers, not voters; numbers, not property; this is the theory of the Constitution.”  As Ginsburg observed, “[t]he Framers of the Constitution and the Fourteenth Amendment comprehended” that “representatives serve all residents, not just those eligible or registered to vote.”  Evenwel is a huge win for our democracy, affirming that all persons, whether or not voters, count in our polity. 

Evenwel moves the law decisively in a progressive direction.  Before this week’s ruling, a number of lower courts had held that the decision whether to use total population or some other metric was up to the states, relying on a 1966 ruling that permitted Hawaii to draw district lines based on the number of registered voters to account for the state’s substantial temporary military population.  Rather than rely on that precedent, Justice Ginsburg anchored her opinion directly in the Constitution’s text and history, making clear that counting all persons is “the theory of the Constitution” when it comes to representation.      

If Blum tries to engineer a new test case by convincing a state or local government to draw districts based on the number of eligible voters, Ginsburg’s affirmation of constitutional principles of representational equality offers a powerful argument to challenge the exclusion of children, un-naturalized immigrants and others who are not eligible to vote.    
Ginsburg’s originalist turn is nothing new.  In 2011, at a panel discussion on the 40th anniversary of the decision in Reed v. Reed, in which then-lawyer Ginsburg convinced the Supreme Court to strike down state-sponsored gender discrimination as a violation of the Equal Protection Clause for the first time, Ginsburg said that she “counts [herself] an originalist.”   Responding to the argument that the Framers of the Fourteenth Amendment did not mean to prohibit sex discrimination, she explained that the text of the equal protection guarantee and the full sweep of our nation’s constitutional history—from the Declaration of Independence, to the Fourteenth Amendment’s universal guarantees of equality, and, finally, to the Nineteenth Amendment’s protection of a woman’s right to vote—invalidates state laws that deny women equal citizenship stature.  

Justice Ginsburg’s opinions on the Supreme Court embrace originalism as well.  In 2012, in NFIB v. Sebelius, Justice Ginsburg laid out a powerful originalist case for upholding the constitutionality of the Affordable Care Act, demonstrating that the original meaning of the Commerce Clause gives Congress broad power to solve national problems.  Ginsburg’s separate opinion in NFIB told how the Framers at the Constitutional Convention in Philadelphia designed Article I’s grant of powers to give broad powers to the federal government “in all Cases for the general interests of the Union, and also those to which the States are separately important.”  This key idea—contained in Resolution VI of the instructions given to the Committee of Detail, which was body tasked with writing the Constitution’s actual language—had not previously been cited by any Justice of the Supreme Court, but Ginsburg made it the linchpin of her partial dissent, showing that the “ACA addresses the very sort of interstate problem that made the commerce power essential in our federal system.”  

In 2013, in Shelby County v. Holder, Justice Ginsburg delivered another brilliant originalist dissenting opinion, taking the Supreme Court’s conservative majority to task for gutting the Voting Rights Act. The majority, she wrote, had turned a blind eye to the fact that “the Constitution vest powers in Congress to protect the right to vote, and in particular to combat racial discrimination in voting” and ignored the Reconstruction Framers’ purpose “to arm Congress with the power to protect all persons within the Nation from violation of their rights by the States.”   The Amendment’s Framers, Ginsburg argued, had given Congress—not the courts—broad power to select the remedy for racial discrimination in voting.  By refusing to follow this text and history and second-guessing Congress’ judgment that the Voting Rights Act was still needed to stamp out state-sponsored racial discrimination in voting, she wrote, “the Court errs egregiously.” 

As NFIB and Shelby County exemplify, over the last decade, Justice Ginsburg has powerfully shown that the Constitution’s text and history point decidedly in favor of progressive outcomes.  Now, in Evenwel, she has shown that progressives can win at the Supreme Court using originalist arguments, moving the law more in line with the inclusive democracy reflected in our Constitution.   
With a vacancy on the Court to be filled and the votes of some of the Court’s current conservative Justices sometimes in play, Justice Ginsburg may have a host of new opportunities to move the law back in line with the Constitution’s text and history.  On so many of the biggest questions in constitutional law—from voting rights, to the powers of the federal government, to access to courts, to the protection of fundamental rights and equality under the law—the Constitution’s text and history favor progressives.   As Evenwel shows, Justice Ginsburg is an originalist to reckoned with. 

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted on Text and History.  

Sixth Annual Book Review Issue of Tulsa Law Review Now Available

Linda McClain

Ken Kersch and I are pleased to announce the publication of the sixth annual book review issue of the Tulsa Law Review (Volume 51, Issue 2) and our third co-edited issue. Since Sandy Levinson and Mark Graber passed the baton to us in the fall of 2012, we have endeavored to carry forward the interdisciplinary conversation that they envisioned. As in our two prior co-edited issues, both the books under review and reviewers in this issue come from an array of disciplinary backgrounds—law, political science, history, philosophy, and anthropology. When possible, we have carried on the practice of grouping books for review together when they address similar problems or different problems that speak to each other in interesting ways. In this issue, twenty-six reviewers evaluate forty-six books. The subject matter of these books is diverse, ranging from historical topics, such as the impact of royalist thought on the American revolution and the dynamics of Progressive-era state-building, to present-day issues such as the social construction of race and controversies over regulating hate crimes in cyberspace. The books reviewed here also reach beyond national borders, both in focusing, within the U.S., on state constitutions and state courts, and, beyond the U.S., on comparative constitutional law, international courts, and global migration. We are  delighted that Sandy has contributed a characteristically thought-provoking essay on three recent books about Lincoln. Following Sandy and Mark’s example of rotation in office after a term of co-editing three issues, we are pleased to announce that the new editors of the Tulsa Law Review, beginning with Volume 52, are Professors Stuart Chinn, of the University of Oregon, and Julie Novkov, of Albany University, SUNY. Both Professors Chinn and Novkov are dually trained in law and political science and  share a commitment to interdisciplinary exchange and the importance of publishing and reviewing scholarly books. We are confident that the annual book review issue will flourish under their co-editorship.

Wednesday, April 06, 2016

John Kasich and the Natural-Born Citizen Clause

Gerard N. Magliocca

Since it now seems likely that we are heading for a contested Republican National Convention, I want to push back against Jack's post from a few weeks ago that the current rules governing that assembly will probably not be changed because neither Cruz nor Trump has an incentive to do so.

There are many possible permutations in a contested convention, but let me throw out one that is a real possibility.  Under the current rules, only two names can be placed in nomination for President--Trump and Cruz.  Why?  Because the rules say that you need to win at least 8 states to be nominated. This is a crucial point because, as long as this rule stays in place, the GOP will not have an "open" convention.  This structure, of course, works well for Trump and Cruz by excluding John Kasich or a dark horse like Paul Ryan from consideration on a second ballot.

Trump, though, may conclude that he will lose this two-way contest because Cruz will do better on subsequent ballots.  Is there a way out of this dilemma?  Maybe.  Trump could put a motion on the floor that only his name can be put in nomination because Cruz is constitutionally ineligible to be President.  Can he get a majority of the delegates to vote for this?  Maybe, but it may depend on what John Kasich does. A Trump/Kasich coalition may have a majority (so could a Cruz/Kasich coalition).  What would Trump have to give Kasich for these votes? The Vice-Presidency? A rule change to allow Kasich's name to be placed in nomination for President? (By saying, for instance, that you just have to win at least one state to be nominated.) In turn, what would Cruz have to offer Kasich to stop this outcome?  Maybe the same things.

One takeaway is that John Kasich, not the Supreme Court, may end up being the final authority on the meaning of the Natural Born Citizen Clause as applied to Ted Cruz.

Tuesday, April 05, 2016

Counting All Persons is the “Theory of the Constitution” When It Comes to Representation

David Gans

One hundred and fifty years ago, the Framers of the Fourteenth Amendment debated our Constitution’s system of equal representation, affirming that every person counts in our system of representative democracy.  Earlier this week, in Evenwel v. Abbott, in a landmark opinion written by Justice Ruth Bader Ginsburg, the Supreme Court reaffirmed that the Constitution’s text and history secure equal representation for all, rejecting the far-reaching claim—never accepted by any court in history—that the Constitution requires states to draw districts composed of an equal number of eligible voters.  Evenwel’s bid to rewrite the Constitution to require excluding children and huge portions of the immigrant population from representation in state legislatures—a bid financed by Ed Blum—did not get a single vote.   

Drawing extensively on the historical material laid out in CAC’s brief, Justice Ginsburg’s opinion showed that the Constitution’s Framers—both at the Founding and after the Civil War—created an inclusive democracy founded on the idea that all persons—whether or not they have the right to vote—deserve representation.   As we continue to celebrate the 150th anniversary of America’s Second Founding this year, Justice Ginsburg’s opinion is an important reminder that the Fourteenth Amendment helps to ensure, as Lincoln promised at Gettysburg, a “government of the people, by the people, and for the people.”  As Evenwel makes clear, our foundational constitutional principles call for counting all persons.     

Justice Ginsburg’s opinion shone a light on a long forgotten aspect of the Fourteenth Amendment: the Framers’ decision to reaffirm total representation as the basis for apportioning representatives in Congress.   As Ginsburg showed, the Framers debated questions of representation at great length, choosing to reaffirm the total population, because, in the words of Senator Jacob Howard, it “is the safest and most secure principle upon which the government can rest.  Numbers, not voters; numbers, not property; this is the theory of the Constitution.”  As Justice Ginsburg’s opinion made clear, the Framers of the Fourteenth Amendment refused to countenance the exclusion from representation of children, women and others not eligible to vote.  The “theory of the Constitution” when it comes to representation is that all persons deserve to be counted.

Justice Ginsburg’s opinion, joined by five other members of the Court, explained that Evenwel’s claim has “no mooring in the Equal Protection Clause” and could not be squared with the Fourteenth Amendment’s command for counting all persons for purposes of apportioning representatives to Congress.  “It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.”  While the Court did not decide whether states must count all persons when drawing state legislative districts, it is hard to see how, after Ginsburg’s recounting of fundamental principles of representational equality written into the Constitution, a state could justify denying representation to children, unnaturalized immigrants, and others who are not eligible to vote.   As Ginsburg explained, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.” 

Justice Ginsburg’s embrace of equal representation for all persons as the “theory of the Constitution” provoked separate concurring opinions by Justice Thomas and Justice Alito, which sought to undermine the constitutional text and history so powerfully laid out by Justice Ginsburg.   Justice Alito, joined by Justice Thomas, dismissed the significance of the Fourteenth Amendment’s textual requirement to count all persons, viewing that part of the Fourteenth Amendment simply as a power grab designed to perpetuate the dominance of the North and to punish the South.  As Alito put it, “[t]he bottom line is that in the leadup to the Fourteenth Amendment, claims about representational equality were invoked, if at all, only in the service of the real goal: preventing southern States from acquiring too much power in the National Government.”  Alito’s dismissal is in line with past cases, such as Shelby County v. Holder, that turn a blind eye to the Reconstruction Amendments and view enforcement of fundamental principles of political equality with suspicion.   

Both Alito and Thomas sought to back away from the principle of representational equality, what Senator Jacob Howard had called the “theory of Constitution” when it comes to representation.  But five other Justices, including Chief Justice Roberts and Justice Anthony Kennedy, joined Justice Ginsburg’s opinion, which followed the Framers of the Fourteenth Amendment and embraced the fundamental principle that all persons are entitled to be represented.  As Ginsburg wrote, “it remains beyond doubt that the principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters.” 

Ed Blum engineered the Evenwel case, seeking a constitutional rule requiring states to exclude children, unnaturalized immigrants and others from representation in state and local legislatures.  In rejecting that fatally flawed argument, Justice Ginsburg’s opinion offers good reason to celebrate the Second Founding’s affirmation that all persons, whether voters or not, count in our polity. 

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.  

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