PrawfsBlawg

CTA9 rejects pharmacists' religious-conscience claims

The Los Angeles Times has the story, here, about the decision in Storman's v. Selecky:

The right to freely exercise one's religion "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," the 9th Circuit panel wrote.

"Any refusal to dispense -- regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient -- violates the rules," the panel said.

At First Things, Wesley Smith warns that (among other things) the decision "also means that all pharmacists in the state must dispense death to terminally ill patients in Washington who receive lethal prescriptions."  Paul Moses, at Commonweal, weighs in here,  (Rob Vischer, readers might recall, touched on this general issue during his recent guest-blogging stint;  here is an earlier post of mine on the topic.)

Any reactions to or thoughts about the case?

UPDATE:  In a fit of inexcusable blog-myopia, I missed Howard's earlier -- as in, from yesterday -- post on this case.

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

Yankee Stadium "God Bless America" lawsuit settles

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

Litigating the War on Terror # 1: Telecom Immunity

Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week.

Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No. 06-1791. Judge Walker of the Northern District of California upheld the constitutionality of § 802, the telecommunications immunity provision of the FISA Amendments Act of 2008. Section 802 requires the dismissal of any lawsuits against telecom companies for their assistance in the Bush Administration's warrantless surveillance of U.S. citizens' phone calls, upon certification by the Attorney General that the telecom company had acted in support of an intelligence program and on written presidential request and assurances of the lawfulness of the warrantless surveillance, so long as the certification was supported by substantial evidence. The court dismissed (although without prejudice) all constitutional and statutory claims against the telecom companies. I previously defended the constitutionality of this provision.

The court rejected a number of due process and separation of powers arguments. Of particular interest to me was an argument based on the venerable-but-never-fully-understood United States v. Klein. The court adopted the (appropriate) view that Klein prohibits Congress from dictating legal and factual findings in a particular case or requiring resolution of particular cases in certain ways, although Congress may amend underlying substantive law and have that law applied even as to pending litigation. Judge Walker concluded, correctly, that this is what happened here. Congress amended substantive law by creating a new immunity (not an affirmative defense*) that protected the telecoms from liability for constitutional violations for acting on presidential request for a wiretap, but left it to the court to decide whether the certification was, in fact, supported by substantial evidence.

I was lead author on a scholars' amicus brief that argued that the immunity provision did not violate Klein and Judge Walker actually cited our brief at length and adopted part of our core argument. Klein (including § 802's validity under Klein) also is the subject of my current major writing project, coming soon to an SSRN mailbox and the desk of all you Law Review editors.

The closest constitutional issue was over non-delegation. Section 802 authorizes the AG to file the certificate, but it does not explicitly compel her to do so or establish any standard (discernable or otherwise) for when she should file a certification. The court ultimately rejected the non-delegation challenge for three reasons: 1) this was not an open-ended delegation of rulemaking authority to an administrative agency, but rather a narrow, focused command to an individual to take a specific, narrow action; 2) there is greater tolerance for more-open-ended delegations in national security, where there is greater legislative/executive joint action; and 3) the legislative history of § 802 gave enough content and context to guide the AG's discretion as to whether and when to certify. I do not know enough about non-delegation to opine as to how persuasive these arguments are; thoughts from readers who know this area?

The other interesting thing was that the court dismissed without prejudice. Plaintiffs represented to the court that newly disclosed documents suggested that the telecoms had engaged in warrantless wiretapping after January 7, 2007, the end point of the § 802 immunity (that is the date that Congress initially retroactively validated the wiretapping that the President had unilaterally authorized following September 11). So it may be that the plaintiffs can plead around the § 802 immunity.

* Judge Walker pointedly rejected our description of § 802 as an "affirmative defense," insisting that it is an "immunity." I am not sure there is a difference. Most immunities are affirmative defenses (although not all affirmative defenses constitute immunities), in the sense of being a legal rule outside the plaintiff's claim that bars liability on certain new facts, which must be pled and proven by the defendant (or, here, the defendant and the government). I have been arguing that telecom immunity is analogous to official immunities under § 1983 (prosecutorial, judicial, qualified), all of which are immunities that also are recognized and treated as affirmative defenses.

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Constitutional Borrowing

 

Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more.  Lately, I’ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain.  Robert Tsai and I have written a piece on the topic, which is forthcoming in the Michigan Law Review and available on SSRN.  Here is the abstract:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking.  Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion.  Yet the practice itself remains surprisingly underanalyzed.  This Article seeks to bring greater theoretical attention to the matter.  It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation.  Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other.  We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Once sensitized to the phenomenon, you start seeing it everywhere. 

In Heller, to take just one recent example, Justice Breyer chided the Court for not explicitly adopting an interest balancing standard for the Second Amendment similar to the ones used in election-law, speech, and due process cases.  Justice Scalia, writing for the majority, responded that the only proper sources for appropriation were precedents concerning other enumerated rights, such as the First Amendment’s speech guarantee, which allows only limited, categorical exceptions.  Their debate focused on a particular migration while assuming the legitimacy of the practice itself, perhaps too quickly.

While of course borrowing happens all across the law—a commonality that we hope will attract people who work outside constitutional law, including experts on statutory interpretation, common law subjects, and international law—the considerations that arise when constitutional lawyers and judges engage in the practice are particular to that area in several important respects.  We aim to highlight the specificity of constitutional borrowing, for example by drawing out the implications of legal migration for several prominent constitutional theories.  We are working actively on revisions and would welcome comments.

Ricci Overturned by Scotus 5-4

H/t to Scotusblog (via Adler), which is live-blogging. The opinion is here. Reactions?

New Symposium on Originalism in NW U. L. Rev.

Via Tarlton, I just saw word of a great looking symposium on originalism in the Nw U L. Review.

I've posted the Contents after the jump. Congrats to EIC Dave Baltmanis and his team on putting this together.

NORTHWESTERN UNIVERSITY LAW REVIEW

Volume 103       Number 2       Spring 2009

 

SYMPOSIUM

ORIGINAL IDEAS ON ORIGINALISM

FOREWARD: ORIGINAL IDEAS ON ORIGINALISM

Brian A. Lichter & David P. Baltmanis

491

 

CONSTITUTIONAL AMBIGUITIES AND ORIGINALISM: LESSONS FROM THE SPENDING POWER

Lynn A. Baker

495

 

FRAMEWORK ORIGINALISM AND THE LIVING CONSTITUTION

Jack M. Balkin

549

 

THE MISCONCEIVED ASSUMPTION ABOUT CONSTITUTIONAL ASSUMPTIONS

Randy E. Barnett

615

 

TWO CHEERS FOR PROFESSOR BALKIN'S ORIGINALISM

Steven G. Calabresi & Livia Fine

663

 

ORIGINAL INTENTION AND PUBLIC MEANING IN CONSTITUTIONAL INTERPRETATION

Richard S. Kay

703

 

PHONY ORIGINALISM AND THE ESTABLISHMENT CLAUSE

Andrew Koppelman

727

 

ORIGINAL METHODS ORIGINALISM: A NEW THEORY OF INTERPRETATION AND THE CASE AGAINST CONSTRUCTION

John O. McGinnis & Michael B. Rappaport

751

 

RECONCILING ORIGINALISM AND PRECEDENT

John O. McGinnis & Michael B. Rappaport

803

 

DOES THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Michael Stokes Paulsen

857

 

DISTRICT THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Lawrence B. Solum

923

 

AGAINST TEXTUALISM

William Michael Treanor

983

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 

I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.

   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Grouchy Justice(s): NRF's defense of judicial bad behavior...

For those of you who missed it, Noah Feldman's got an unusually interesting take in this morning's NYT on the Sotomayor nomination and why judicial temperament is not a pre-req for being a great Justice. He examines why the "no asshole workplace" is not necessarily a desideratum if we're looking for great constitutional developments, whatever those are. Specifically, we get a flavor of how the friction among Frankfurter, Black, Douglas and Jackson "worked."  

Reactions?  Should Sotomayor be prepared to have her views called "irrational" and not "to be taken seriously" -- as O'Connor was when subjected to Scalia's sharp barbs and male bullying...? Or is it too much to ask everyone on the SCOTUS to also be on good behavior? 

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Chaim Saiman (guest post) on Caperton

In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge’s election campaign. 

Justice Scalia dissented, and concluded his remarks with the following: 

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed.1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed-which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious 

Given the context of the case, I recommend to Justice Scalia the following Talmudic passage (Sanhedrin 7b-8a), in which the Rabbis express their attitude towards substantive issue at hand: 

Someone who had hosted Rav once appeared before Rav as a litigant. The litigant said to Rav: Where you not a guest in my house? Rav answered: Yes. The litigant said: I have a case that requires adjudication Rav answered: I am disqualified from serving as your judge (since I benefited from your hospitality) Rav then turned to Rav Kahana and said “Go and adjudicate this claim” Rav Kahana saw that the litigant was acting confidently Such that Rav Kahana said to the litigant “If you will obey my judgment, then obey it,” But if not I will prevent Rav from aiding you Or to take another example from the Ketubot 105 (which records many such stories), where the Talmud relates that bribes can come in the form of cash as well “in words.” In inquiring what constitutes a “bribe in words”, the Talmud reports Like the case of when [the Talmudic sage] Samuel was crossing a bridge A certain man approached him and gave Samuel his hand for support while crossing Samuel asked him: “What is your business?” He replied: “I have a suit in your court.” Samuel said: “I am disqualified from serving as the judge in your case” 

Now I suppose that one might argue that this is precisely Scalia’s point. He means to draw a contrast between the divinely-inspired Jewish law (which presumably provides solutions to all legal problems), and the merely-mortal Due Process Clause, which does not. This claim gets into several lines of argument too detailed for right now-(but lets recall that the Talmud also distinguishes between rules that are ceilings vs. floors). In any event, if Scalia is going to cite Talmudic law in a case concerning judicial impartiality, he should at the very least inform us that the result he favors lies in sharp contrast to Talmudic conceptions of judicial ethics.

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).

  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.

Deborah Hellman on Prop 8 decision, Peter Westen, & Equality

Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:

"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.

"Yesterday, that court decided that Proposition 8 – which “added” text to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” – was an amendment to that state’s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state’s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.
The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court’s view, while restricting the designation of “marriage” to gay couples is not irrelevant, it does not constitute an abandonment of the state’s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of “marriage” to some people while still affording others the actual rights they deserve – to be able to form families, have meaningful relationships, etc.

"This decision shows Westen’s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation “marriage” to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to “marriage.” But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that “[d]enying same-sex couples the right to call their relationships marriages treats them as ‘second-class citizens.’” It is this that equality forbids.

"One cannot help but think of Justice Harlan’s famous dissent in Plessy, “as all will admit, … the real meaning of...” the law is “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Today we might say, “as all will admit”, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."

Affirmative Action in Michigan & the Hunter-Seattle Doctrine

What should a law professor think of judge’s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question. The plaintiffs are challenging the constitutionality of a state constitutional amendment (“Proposition 2”) banning the University of Michigan’s affirmative action programs. The district court has ruled against the plaintiffs, and the briefs have been filed in the Sixth Circuit. But one suspects that the doctrinal niceties of the case are dwarfed by the following obvious political reality: No court will ever declare that a state’s voters are constitutionally prohibited from jettisoning affirmative action if they so desire, because judges regard the voters’ power to control such controversial policies as essential to those policies' democratic legitimacy.

At issue in the case is whether Michigan’s affirmative action ban falls afoul of the slippery equal protection doctrine of Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) invalidates this state constitutional ban on affirmative action (“Proposition 2”). These cases have come to stand for the principle that state law may not “allocate governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Washington, 458 U.S. at 469. Invoking this principle, Hunter struck down a city charter amendment barring the city council of Akron from enacting Fair Housing ordinances prohibiting discrimination on the basis of race. Likewise, Washington struck down a state-wide ballot initiative prohibiting school districts from adopting race-based student assignments not required by the Fourteenth Amendment.

As a purely doctrinal matter, it is difficult to see how this doctrine should not also result in the invalidation of a state constitutional ban on affirmative action. In upholding Prop. 2, Judge David Lawson argued that, unlike Michigan’s affirmative action programs, “racial integration programs [like Seattle’s busing program] do not presumptively offend the Equal Protection Clause” and that “[race-based] [d]esegregation [in K-12 education] is constitutionally required in certain instances” whereas “the Supreme Court has never held that affirmative action is required, and Grutter made it clear that it is barely tolerated” (Pages 5-6 of Judge Lawson’s opinion denying plaintiffs’ motion to alter or amend judgment). None of these arguments are very persuasive in the wake of Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), in which the Court held that race-based student assignments in K-12 education are now just as suspect as any other race-based classifications. If Washington’s ban on (presumptively unconstitutional but sometimes permissible) race-based busing is unconstitutional because that ban “mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” then it is hard to see why Michigan’s ban on (presumptively unconstitutional but sometimes permissible) affirmative action is not equally an infringement on these minorities’ power to achieve (admittedly suspect) legislation.

But the doctrinal details are obviously beside the point: It is hard to avoid the conclusion that Judge Lawson simply could not swallow the idea that Michigan’s voters cannot get rid of affirmative action if they so desire. Was this lawless behavior, or was it a judge’s legitimate (albeit clumsy) effort to reconcile norms of federalism and popular sovereignty with a doctrine that seemed to cut too close to those constitutional values?

After the jump, I’ll offer a couple of reasons why federalism and popular sovereignty might not be offended by invalidating initiatives like Prop 2 on Hunter-Seattle grounds. But my larger question is whether readers believe that it is appropriate for an inferior court to take such big structural considerations into account to “construe” and limit a precedent that otherwise seems plainly applicable.

On the specific question of whether the Hunter-Seattle doctrine, rightly understood, interferes inappropriately with federalism, I (a certified federalism nut) think that the question is more uncertain than many allow. The doctrine, after all, does not prevent Michigan from prohibiting affirmative action programs. If the state’s voters want to create a comprehensive code for public universities listing the factors that can play a role in university admissions but leaving out race, then they are free to do so so far as Hunter-Seattle is concerned. The Hunter-Seattle problem arises only because the state has set up a system of administrative discretion in which (for instance) the University of Michigan’s regents have broad discretion to decide whether or not to consider any number of educationally tangential factors – alumni status, geographic origin, poverty, professional experience, extra-curriculars like jazz band or debate club, etc – but must ignore any plea by their constituents to consider race. This is the sense in which Prop 2 is (in Justice Harlan’s words from his Hunter concurrence) akin to “dilut[ing] [a] person’s vote or giv[ing] [a] group a smaller representation than another of comparable size.” If Michigan wants to amend their constitution to get rid of the Board of regents and turn their functions over to the state legislature, they are free to do so under Hunter/Seattle. Likewise, Michigan’s voters could simply enact a “university admissions code” that left out race altogether from the list of permissible factors without offending Hunter/Seattle. But, having given their regents enormous discretion over university policy, Michigan's voters cannot then gerrymander an exception to this broad jurisdiction just for issues especially beneficial to a racial segment of the population.

Is such a doctrine consistent with federalism? Consider the following defense of the doctrine in terms of federalism. Federal regimes are valuable because they protect institutions (states) that are politically accessible to a lot of constituencies. Each state is not a monolithic entity but rather a collection of counties, municipalities, special districts, public universities, and literally hundreds of elected executives (e.g., insurance commissioners, D.A.s, sheriffs, drain commissioners, etc), all unified by a constitutional framework that allows them to make coherent policy without treading too injuriously on each others’ toes. These polyglot entities are superior (in my mind) to the federal government precisely because they radically reduce the costs of political participation by shrinking the size and multiplying the number of electoral districts: The average member of the U.S. Representatives raised roughly $2 million in 2005-2006, while expenditures in state elections tend to be much smaller, ranging from $10,000 per representative in states like Idaho that have electoral districts with very small electoral districts to $500,000 in California’s much larger state senate districts.

But the democratic legitimacy of this highly permeable system is undermined by “carve-outs” that eliminate the ability of certain constituencies – especially racial ones – to take advantage of the access that the system affords. Hunter-Seattle can be regarded as a safeguard against this sort of carve-out by requiring that states' voters or legislatures define the powers of the state's institutions without reference to the interests of particular groups. For instance, if the state wants to centralize municipal benefits policy in, say, a single administrative board, then it can do so under Hunter-Seattle. But a state’s banning cities only from providing same-sex employment benefits comes close to offending the principle of equal political access (assuming that the Hunter-Seattle doctrine extends beyond the racial context).

In this sense, Hunter-Seattle is consistent with that other Hunter doctrine -- Hunter v. City of Pittsburgh, 207 US 161 (1907), which declared that cities lack constitutionally protected property or contract rights against the states that create them. Hunter-Seattle preserves this state discretion to centralize vast swathes of policy-making (university admissions, public employee benefits, etc) just so long as the state paints with a reasonably impartial brush.

I do not pretend that these formulations resolve the predictable questions of what it means for jurisdiction to be defined with "reasonable" impartiality. But I do not think that the threat to federalism or popular sovereignty posed by Hunter-Seattle is plain enough to justify a lower federal court's evasion of the doctrine's plain terms.

Six (!) Catholics on the Court?

So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter.  Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")?  Poor Chris Hitchens!  And now for some bold punditry:  I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.

More on religious freedom, exemptions, and SSM

Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot").  Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).

Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting:  "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these."  In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities.  It is rather that we shouldn’t accommodate bigotry."  And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."

Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots."  (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.")  I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.

Iqbal III: The Death of Supervisory Liability

Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.

More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.

It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.

And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.

Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.

Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.

It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.

Citizenship and the U.S. Territories

Thanks to Dan and Prawfsblawg for letting me stay a little while longer. I have enjoyed blogging about critical race theory, immigration and other law-related matters (here and here).  I look forward to blogging some more about race and immigration law as well as my research and writing projects on property rights and citizenship.    

To begin, I am currently writing a law review article that focuses on the rights of persons who live in the former and current U.S. territories, particularly regarding the nature of their citizenship. I have a draft of a paper, "Examining Birthright Citizenship in the U.S. Territories," (I will post on SSRN at some point) which explores claims by individuals that they were U.S. citizens at birth because they were born in the Philippines when the archipelago was a U.S. territory (1899-1946).  Specifically, they argue that they acquired citizenship by virtue of the Citizenship Clause of the 14th Amendment.  I will be presenting this paper tomorrow at a symposium, "Contested Citizenship," at the University of Oregon School of Law.  The syposium is sponsored by the Wayne Morse Center for Law & Politics and organized by Professor Michelle McKinley.  

Courts have consistently rejected these birthright citizenship claims from the Philippines, with the most recent one, Lucidine v. Winter, decided in March.  The Citizenship Clause provides that a citizen of the U.S. is one who is born "in the United States" and "subject to the jurisdiction" of the U.S.  Although courts have recognized that the Philippine Islands were under U.S. sovereignty during the territorial period, they have held that the Philippine Islands were not part of the U.S. Utilizing a century-old line of cases called the Insular Cases, courts have held that the territorial scope of the Citizenship Clause is limited to the fifty-states. My paper critiques the continued reliance on the Insular Cases and argues for reconsideration of the interpretation of the Citizenship Clause as applied in the territories in light of Boumediene's non-formalistic approach to understanding the application of rights outside of our borders.

Cases concerning the former and current U.S. territories are generally ignored in the textbooks. We should pay attention to them, however, because they provide a more nuanced view of constitutional rights.  As cases involving the rights of persons detained in Guantamo and litigation concerning whether Senator John McCain is a natural-born citizen have demonstrated, questions about what rights are available in the U.S. territories continue to shape constitutional jurisprudence. 

Law Professors: Lou Dobbs is on Our Side

A couple of weeks ago, Lou Dobbs discussed what he called "an apparent threat to America's sovereignty," namely certain remarks made by U.S. Supreme Court Justice Ruth Bader Ginsburg. I will warn you, her words are shocking. But I feel you need to see them. This is the actual transcript of what she said at a symposium at the Mortiz College of Law at Ohio State University.

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor.

Don't you see? Lou Dobbs is not just fighting against foreign influence, he is fighting for law-review-article influence. 

This is, indeed, a truly grave "threat to America's sovereignty." We need America's sovereignty to continue to be held, as it always has been, by America's law professors.

I hope all of you professors will join me in roundly condemning Justice Ginsburg and supporting Lou Dobbs – as he has supported us. And if Justice Ginsburg continues her assault on America's sovereignty, let us band together and fight back. We have the power write a bunch of really confusing scholarship about the Third and Ninth Amendments, and we should not be afraid to use it!

Assigning Cases Decided Mid-Semester?

In constitutional law this week I'm teaching a Supreme Court standing case from this Term, Summers v. Earth Island Institute, to supplement the students' casebook. I decided the case was valuable enough to add it, even though we will cover it well out of turn from our other coverage of standing, which our casebook placed at the start of this semester. Was this case covered in many con law courses this semester? What criteria do professors use--or from the student perspective, appear to use--when deciding whether a hot-off-the-press case or other legal authority is worth assigning as a mid- or end-of-semester supplement?

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

Stimulus Blogging III: Conditional Grants & the Tenth Amendment

Legal controversy over ARRA, the stimulus legislation, continues.  This week, a student in South Carolina filed an original petition in the South Carolina Supreme Court, seeking a declaration that the legislature could act to apply for more than $700 million in funds for S.C. education that the Governor has refused to request.  Last time I posted, I argued that under ordinary principles of statutory interpretation, the statute can plausibly be read to permit legislatures to "apply" for education funds, and almost certainly to apply for federal unemployment subsidies.  But, as I noted, the Congressional Research Service thinks that the statute should not be read that way, in order to avoid the 10th-Amendment question that, according to CRS, would be posed otherwise.  (The South Carolina AG also suggested this argument in a footnote to their memo on the question).

CRS (and, to the extent he takes this position, the SCAG) is off-base on this one, I think.

Although the 10th Amendment bars Congress from "conscripting" state non-judicial officers, a conditional offer of funds is not conscription.  The Supreme Court has said as much repeatedly, most notably in South Dakota v. Dole and New York v. United States.  (As an aside, I've argued, drawing on the work of Rick Hills and others, that the best explanation for that combination of rules is that it forces Congress to internalize the costs of enacting and enforcing legislation.)  So, ARRA is a conditional offer.  Where's the conscription?

CRS's argument, as I understand it, is that allowing the legislature to "apply" in place of the governor would be, in effect, allowing Congress to enlist the state's legislature to conscript its governor.  That's, um, a strange argument.  For one, if the legislature applies itself, it isn't forcing the governor to do anything; in fact, it's acting without the governor at all.  (Although para. 42 of the S.C. complaint also asks the Court to hold in the alternative that the legislature can force the Governor to apply.)  For another, there's nothing at all unusual about a decision by some state officials that binds other state officials.  No one would argue that a joint decision by governor and legislature to accept federal funds is a prohibited "conscription" because it also binds inferior state officers, such as the Secretary of Education. 

I think the conceptual problem that trips up CRS is the potential puzzle over what the federal-law consequences should be if state law does not ordinarily authorize the actor specified by federal law to bind other state officials.  So, in Jack Balkin's example, what if a federal statute says that the capital-house janitor can accept federal funds?  Are the conditions attached to those funds binding on the state? Or, more realistically, what if the state treasurer, a person with no real policy authority, cashes a $700 million federal check?  Is the state now bound, at least by estoppel, to follow the accompanying federal terms? 

These are interesting questions (and I've addressed them in depth elsewhere), but at this point they have nothing to do with the stimulus.  Even unelected state officials, such as state Secretaries of Education, routinely accept federal money in ways that bind states, and no one has ever suggested that these decisions would so undermine federalism norms that they should be problematic under the 10th amendment.  Hard to see how, if these are fine, a decision by an entire state legislature would be a problem.  Plus, the question for now is -- can the feds cut the check?  Also hard to see how disbursing money is conscripting anyone to do anything.   

--Brian Galle

Socio-Economic Rights

The United States has recently seen high numbers of home foreclosures because more people are in dire economic straits.  Typically people in the U.S. place the burden on our political officials to assist with such problems, or we hope for charitable efforts.  Judicial action is usually not the solution to poverty or homelessness because the U.S. Supreme Court has rejected arguments that socio-economic rights can be implied in the Constitution, unlike the right to privacy.

In my recent book, Constitutional Rights in Two Worlds:  South Africa and the United States, I contrast the Supreme Court's approach with that of the South African Constitutional Court.  Indeed, one reason I became so fascinated by the South African Constitution was because it contains such rights provisions.  I couldn't imagine how these rights could be enforceable given problems with judicial competence and scarce resources.  How could a court order the government to provide people with houses while other people needed medical treatment?  Did such provisions mean a homeless person could essentially walk in off the steet and demand housing or shelter from a government agency?  Well, the Constitutional Court's resolution of these questions revealed my limited view regarding what was possible.

The Constitutional Court's leading case is Republic of South Africa v. Grootboom (2000).  It has become one of the most noteworthy human rights decisions in the world.  The Court ruled that the government violated the Constitution's right to access adequate housing by having no policy for assisting the homeless (Irene Grootboom lived with a group of squatters on a field with no real shelter from the elements, or sanitation).  It did not make a difference that the government was trying to build many small homes for those in dire straits, because the government had no plan for those who could not get into homes soon.  And many of these people faced such a bad situation because of the racist travel, living, and work restrictions that existed under Apartheid.  The Court, however, rejected any individual right to housing on demand.  Instead, as Cass Sunstein has said, the Court adopted an "administrative law model" of deference that involved determining if the overall policy was not reasonable.  The Court also paid heed to separation of powers concerns by allowing the government to develop a legitmate policy for the homeless.  The Court ordered the South African Human Rights Commission (SAHRC) to monitor compliance.

Now, in the interest of full disclosure, the story did not end happily ever after.  The government eventually constructed a small building with toilets and showers for Grootboom's community, but never provided the resources to take care of the building.  And the SAHRC failed to ensure vigorous enforcement of the order for a variety of unsatisfactory reasons.  Thus, Ms. Grootboom never lived in a proper place until her unfortunate death this past year.  Many South African scholars have therefore criticized the Court for having been timid.   But the decision opened the door to a number of other substantial lawsuits that have helped those without basic socio-economic rights to obtain judicial assistance, and to improve their situations.  Moreover, the Constitutonal Court has gotten smarter about how to ensure implementation.  I will write more about this later, and about the relevance of these decisions to U.S. Supreme Court views of socio-economic rights. 

Addendum:  Chapter 2 Section 26, South African Constitution Housing provision:  (1) Everyone has the right to have access to adequate housing; (2)  The state must take reasonable and other legislative measures within its available resources, to achieve the progressive realization of this right; (3) (addresses evictions). 

  

Stimulus Blogging II: Can Legislatures "End Run" Governors?

Some recent news reports have mentioned that governors who earlier said they would reject stimulus money now have "backed off" and certified that they will take federal money.  But, as I described in my first post, "certification" is only one of two steps states must take to receive much of their stimulus money.  For most of the important grants, including education and unemployment, the states also have to apply.   Gov. Sanford (SC), for instance, maintains that he won't apply for education dollars, and several other governors say they won't apply for unemployment (and possibly TANF) money.  Reports are that the state legislatures are going to try to "make end runs around their governors and accept the money."  Can they do that?

Whether they can turns on the question I flagged in my first post: we know that state legislatures can "certify," but can they also "apply" in place of the governor?  South Carolina's attorney general has opined that the answer is no (and Prawfs guest Tommy Crocker agreed).  I think that the AG is about half right on educational dollars, and not at all right about unemployment.  Here's why.

First, let's recall that ARRA (i.e., the stimlus legislation) requires governors to certify that they'll take federal money, but also allows state legislature to certify if the governor doesn't.  The SC AG argues that this certification power is insufficient to empower the legislature, acting alone, to obtain federal money. For instance, the education provisions of ARRA state that "the Governor" has to submit certain information to the federal Dep't of Education before federal money can flow.  SCAG argues that this application language would be meaningless if the SC legislature could trigger federal money simply by certifying.

But SCAG simply assumes that the South Carolina legislature can't apply as well as certify.  True, the statute says "the Governor" must provide the required information.  But if the certification clause allows a legislature to stand in the governor's shoes for certification purposes, why can't it also fill his/her role for application, too?  That seems to me at least a plausible way to synthesize the two clauses; otherwise, the clause permitting the legislature to certify doesn't accomplish much, other than to obtain some small pots of money for which no application is needed.  So, at a minimum, I think a federal agency authorized to implement the statute could opine that legislative application would be sufficient, and stand a good chance of obtaining some kind of judicial deference to that view. 

For other provisions, such as the unemployment money, the argument that legislatures can apply is even stronger, because the statute does not mention "the Governor."  Instead, the section simply requires an agreement between the Secretary of Labor and "any State," ARRA section 2002, or for other provisions the "option of a State," ARRA Section 2005(b), or the "request" of "each State," ARRA section 2101(a)(3)(A).  Since ARRA specifically uses the term "governor" elsewhere, there is a strong implication that where that word is not used, action by the governor is not required.  So the legislature or its designee would be able to apply for unemployment and TANF benefits.

There might be an argument, though, that these readings empowering the state legislature to act should be set aside because of constitutional concerns.  That is the interpretive move made by the Congressional Research Service memo I mentioned last time (as well as by a second memo that I think hasn't been made widely available, but which I have, if anyone is interested).  CRS, following some earlier suggestions by Jack Balkin, thinks that empowering the legislature might violate the anti-commandeering aspects of the 10th Amendment.  I've already said a bit about that point on Jack's blog, but I'll follow up on the avoidance point here a little later this week. 

Comparative Con Law v. State Con Law

Professor Paul Horwitz's illuminating post on Prawfs Blog yesterday entitled "Of Canapes and Comparativism" struck me as exactly right in arguing that the perceived lack of prestige in doing state constitutional law work is one reason the field lags behind the trend favoring global comparative constitutional law.  I do want to respectfully question his suggestion or implication that state constitutional law is more likely to provide useful knowledge for the future lawyers we educate ("those young lawyers...will surely be exposed to comparative state law issues.").  I have a unique perspective on this as I taught state constitutional law focusing on Montana for several years (at Univ. Montana Law School), but have done most of my work in the global comparative area since coming to Drake.  I actually think the global comparative field provides more educational benefits to most of our students in the long run.

As Paul acknowledges "even though comparative constitutionalism may provide greater contrasts and interesting data, surely we get some value from comparative state constitutionalism, especially in these days of same sex marriage litigation." He's right that there's great value in studying state con law.  Yet the profound "contrasts" revealed in the global context are invaluable.  Among the standard justifications for studying global comparative constitutional law is that one gains a better understanding about the underlying, non-obvious assumptions, of American constitutionalism.  This in turn allows one to be more critical regarding certain arguments made by American courts.  State constitutional law, in my view, simply does not challenge these assumptions so clearly and thus does not deepen student understandings of their own system, or foreign systems, to the same extent.  Indeed, many states often follow federal precedents in interpreting analogous clauses in their constitutions.  And those states, like Montana, that do something different (say on rights questions) still make fundamentally American assumptions about constitutional law, the role of courts, having an underlying common law system, etc.

  

Actually, the biggest difference I saw between state and federal constitutional law was that state budget and financial provisions were far more constraining (and detailed).  Balanced budgets are often required.  But this is hardly a novel concept to American law students who follow debates in the newspapers all the time about this issue.  Indeed I believe that our graduating students don't generally have great difficulty learning state con law for the bar or learning about the legal issues there in practice, even if they didn't take a law school course on the topic.  But what is dramatically different is learning how, for example, the South African Constitutional Court has ruled that socio-economic rights are judicially enforceable, and then seeing how that Court develops a comprehensive jurisprudence implementing such rights without endangering separation of powers and without exhausting state resources (I will discuss this in future posts as our U.S. Supreme Court has essentially said courts lack competence here).  Students are also exposed to the differences between parliamentary and presidential systems, American standing doctrine vs. abstract review, etc. 

In sum, I think students can experience close to a "paradigm shift" in their view of how constitutional law works in a global course (I couldn't figure out how to fit Karl Popper in here from the prior posts so readers will have to settle for Thomas Kuhn).  My views of American constitutional law shifted dramatically after spending a year in South Africa learning about their new constitution.  In addition, students learn about different cultures and histories, as well as about how those differences influence constitutions, courts, societies, and individuals.  This will serve them well as lawyers and citizens in being able to think more creatively, and in allowing them to analyze various problems with more cultural sensitivity in an increasingly diverse American society.  This is not to denigrate state constitutional law or to disagree with Paul on the need for more work (and cocktail parties) in the area.  Rutgers-Camden has a great state con law center, and scholars such as Alan Tarr (Rutgers), Robert Williams (Rugers), Jim Gardner (Buffalo), and Jim Rossi (FSU) do tremendously important work on such issues.  But even Rutgers has recently focused some of its activities on what is called "sub-national federalism" issues globally, after years of domestic focus.  

One somewhat connected critique might be that if global con law is so different, then doesn't that add to the argument against the U.S. Supreme Court citing to foreign constitutional law.  I don't think so.  The Court has in general cited to Western democracies.  How these nations address similar issues can be illuminating because they share certain basic values, but are also different enough to provide novel views. (Addendum:  I want to acknowledge Paul's Canadian heritage and add that he probably therefore knows more comparative con law than I do!  I also want to say that it was hard to write everything above without once referencing the word "globalization," but it was worth the try.)   

Stimulus Blogging: A Cameo

Greetings again to Prawfs readers.  I'm here as unofficial guest-blogger to say a few words about the recent efforts by (republican) governors to turn away some of the money marked for states in the recent stimulus legislation.  The act has the euphonious acronym "ARRA," for reasons you don't really want to know.  (Possibly they wanted to conjure subliminal images of Meryl Streep singing and dancing.) 

So, ARRA provides a number of grant programs for states.  The big-ticket items are education funding and extra money for unemployment insurance.  Both streams of money come with some strings attached.  In the case of education, states have to promise to make a number of reforms,with some more detail on those reforms yet to be spelled out by Arne Duncan and the kids at the DOE.  The unemployment insurance pool requires states to agree to expand eligibility for unemployment benefits, including allowing workers whose last job was only part-time to claim benefits (this is already the law in some states, but not all). 

Like most conditional grant programs, the money and strings are optional; the legislation says that money can only start flowing if the governor of the state "certifies" that he will accept the money.  And then the two big grant programs both require some kind of application from the state.  As you might have heard, various republican presidential hopefuls/current governors have made noises about either not filing the certification or not submitting an application.  At this point, it looks as though everyone will certify, but some will not apply.  So after all that effort to pass the thing, some of the money won't go anywhere.

But...ARRA allows state legislatures to certify when the governor won't.  Maybe this provision applies to the application process, too.  But the Congressional Research Service, among others, thinks that provision is maybe unconstitutional.  Will states get their money, or will Sarah, Haley, Rick, and Bobby get the last word?  Stay tuned for my next post. 

Preview on Iowa Gay Marriage Decision

Thanks to the Prawfs Blawg gang for this opportunity to blog.  I originally planned to blog about a book I've just had published called "Constitutional Rights in Two Worlds, South Africa and the United States" (Cambridge University Press).  But that will have to wait.  The Iowa Supreme Court has announced it will issue its decision on gay marriage Friday morning April 3.  Since I'm "on the ground" here at Drake Law School in Des Moines teaching constitutional law, I thought I'd provide a little background.  An Iowa district court judge ruled in 2007 that the state prohibition on gay marriage was unconstitutional.  That decision, however, was stayed though one male couple managed to marry.  The judge ruled the law violated the fundamental right to marry, and that it did not even meet rationality review under equal protection.  It's very difficult to know though how the Iowa Supreme Court will rule.  Yet I suspect the decision will have major ramifications, especially if the court supports gay marriage.  Suddenly, the "all American" "heartland" would be on that side.

The district judge who issued the ruling did not have a particularly liberal reputation beforehand.  The Iowa Supreme Court has a very solid reputation but it does not have a tendency to be one of the nation's trend setting state supreme courts.  The state precedents are also a bit unclear and allow both sides to make their cases.  For example, in Racing Association of Central Iowa v. Fitzgerald (2004), the Iowa Supreme Court said reasonableness review under the state constitution's equality provision must not be "toothless."  This could support gay marriage advocates.  Also, in the 19th Century, the court issued some progressive racial equality decisions at odds with U.S. Supreme Court approaches.  Yet opponents of gay marriage can point to cases like Ames Rental Property Association v. City of Ames (2007) that upheld a law banning households of more than three unrelated people from living together even though the court acknowledged that the law was "imprecise and based on stereotypes."  Then in State v. Mitchell (2008), the court upheld a child endangerment conviction for a women who cohabited with a sex offender, along with her child, even though no conviction would be possible if the woman was married to the offender.  The court said that, "A law need not right all possible harms in order to be constitutional."  So we'll see what happens...    

SCOTUS Digs Philip Morris

Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report.   I'd be curious to hear rank speculation about why the case got DIG'd in the comments. In the meantime, here's a snippet of Lyle's work, and some links to my own recent and forthcoming work in the area of punitive damages. 

Mrs. Williams’ lawyers told the Court this time: “Twelve years after the tragic death that gave rise to this action and nine years after the lengthy trial of this case, with four appellate reviews in Oregon, and five years after the first of three trips to this Court, it is time for this litigation marathon to end.”  The marathon, however, may not be over yet.  Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry. Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.   Philip Morris must take an affirmative new step to revive this issue, according to lawyers involved. The verdict stood at nearly $143 million a year ago when Philip Morris filed its latest petition in the Supreme Court.  Under Oregon law, the interest rises at 9 percent a year, indicating that the award is now worth something around $156 million.  Mrs. Williams’ 40 percent share would thus appear to be somewhere above $60 million.  (The compensatory award of $521,485.50 has not yet been paid, because Philip Morris’ various appeals sought a new trial on the entire verdict.)

TRO issued in Pennsylvania case

Order here. (H/T: Jeff Spangler, commenting on an earlier post).

Nothing surprising or detailed. The DA argued Younger abstention, which the court rejected for the obvious reason that there is no pending prosecution. The court was admittedly cursory in the merits analysis, emphasizing that this was just a motion for a TRO and the only issue is a reasonable likelihood of success on the merits. The court did not seem to recognize that the "retaliation" would come only if the prosecutor actually filed charges, not from the mere threat.

I wonder how long before the DA makes this go away quietly--this cannot be good for him.

On moral panics and the definition of sexting

I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone. It is not clear whether that person disseminated the video. Arrest warrants were issued for all three of them and the girl and her male friend both have been charged with child pornography, which carries stiff mandatory minimums in Oregon.

I seriously doubt this case qualifies as "sexting." True, the word is a largely meaningless media-created one. But the paradigm that has been established (as described in the Oregonian story) is girls taking pictures/videos of themselves and sending/posting them between one another or to boyfriends. This story seems quite different, because it appears the subject of the video was drunk and the story does not make clear the connection between filmer and subject. But simply referring to this as sexting solely because it involves minors and a cell-phone video fails to capture how this departs the core definition. The word sexting is intended to describe something that is different than child porn (because it is self-depicting, consensual, non-exploitative, and, arguably, harmless). If so, the word cannot be used too broadly or to try to cover situations that do not share the elements or core characteristics of the paradigm.

The Oregonian story engages in this error, probably in an attempt to spice the story up by placing it in the sexy national obsession du jour. The piece cites statistics of teens and twenty-somethings who say they have sent or posted nude/partially nude photos of themselves. And it cites critics who insist "sex-crime laws were never meant to apply to teenage girls sending naughty photos of themselves to boyfriends, for example." (emphasis mine). What the author ignores, of course, is that those statistics and criticisms have absolutely nothing to do with this case, because the filmer was not posting a video/photo of herself or sending it to her boyfriend.

Actually, this is how moral panics pick up steam. We define some objectionable category of conduct broadly (often overly and inappropriately so). In doing so, we make the conduct appear far more pervasive than it really is and potentially more dangerous than the core really is. Policymakers might use the Oregon case as grounds to go after everything they can label as "sexting," even if the cases really are dramatically different.

All that said, we should be more thoughtful about legal categories. This may not be "harmless" sexting, but I am not sure it qualifies as child pornography, either. There must be other options. We can say the filmer did something wrong, without calling it child pornography and subjecting her to the mandatory minimums and sex-offender-registration requirements that come with it. But that may be less a problem of sexting and more a problem of a different moral panic over child pornography and child abuse.

Why do conservatives like the non-delegation doctrine?

My inspiration for this question is George Will's column denouncing the Emergency Economic Stabilization Act as an excessively broad delegation of power to the Secretary of the Treasury to spend federal dollars. Quoting Gary Lawson and Jeff Rosen, Will repeats the old saw that turning over a blank check to an executive official to spend money as that official pleases violates Article I, section 1's assignment of "legislative" powers exclusively to the Congress.

I do not want to discuss the objective merits of the doctrine (although, to put my own ideological priors on the table, I think that the doctrine is silly). Instead, I am curious about why any good conservative would endorse the doctrine, especially as applied to executive officials controlled by the President and especially as applied to federal money. It seems to me that George Will's column and the argument that he presses flies in the face of at least three principles of conservatism: (a) textualism, (b) flexibility in spending, and (c) Presidentialism.

First, are not we conservatives supposed to care about limiting judicial review as closely as possible to the enforcement of plain constitutional text? The non-delegation is the smokiest of penumbras, inferring that somehow broad power to make policy is "legislative" power without anywhere identifying the textual basis for this strange equation. As Vermeule and Posner pointed out in Interring the Non-Delegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002), the textual basis for this inference is weak: "Legislative" power might simply be power resulting from any legislation. Just so long as Congress can retract its grant of statutory authority, it has not delegated anything "legislative" to the Secretary of the Treasury. In short, the non-delegation doctrine is the Roe v. Wade of separation of powers doctrine, having only the loosest mooring in text.

Second, are not we conservatives against micro-managing policy through centralized and hard-to-change directives? Conservatives, after all, are the ones who championed block grants against categorical grants during the 1970s, arguing that rigid statutory definition of spending priorities led to bad policy-making. If a block grant to the states is okay, then block grants to the Secretary of the Treasury are equally acceptable, right? When Will denounces TANF, then I'll take seriously the denunciation of EESA.

Finally, I thought that conservatives liked Presidential power. Whatever happened to a robust definition of Article II?

I do not mean to suggest that Will is denouncing EESA only because it gives power to a Democratic Administration. The problem is actually worse than Will's being unprincipled: He has confused principles. Will and other conservatives are confusing their policy priors with their constitutional and interpretative priors. Conservatives like limited government, and they think that the non-delegation doctrine will get them to this goal. But the doctrine flies in the face of their constitutional commitments to a robust executive and textualism and their policy commitment to re-inventing government to be less shackled by centralized red tape.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

Rosenkranz on "An American Amendment"; or, Do 9 and 11 Equal 28?

Nicholas Quinn Rosenkranz has posted on SSRN a short paper called An American Amendment.  It argues, in an admirably succinct fashion, for a constitutional amendment banning the reliance on foreign law in interpreting the Constitution.  The proposed amendment reads, in its entirety: "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations."

It's a fun paper, and the kind that will draw scads of downloads.  Our guest blogger Austen, having written about these issues, might want to weigh in.  But let me say that although I enjoyed it, I think it's seriously flawed.  Of course, there is even less chance of such an amendment getting off the ground in 2009 than there was when his paper was orally delivered in 2007, so nothing much turns on it.  But it still compels this response.

I have, I think, three major problems with the article.  

The first is its somewhat bizarre tone.  For whom is this paper intended?  Its central premise is that reliance on foreign law is illegitimate because "the project of constitutional interpretation, properly understood," is only concerned with the original expected public meaning of the text at the time of ratification, and so foreign law is simply irrelevant.  For those who agree with this interpretive approach, it says nothing they would not already agree with.  For those who don't think constitutional meaning can be so cabined, it offers nothing to change their minds; understandably, perhaps, in a paper this short, it simply proceeds by way of ipse dixits about how to interpret the Constitution.  So what does it achieve?  It makes me think of Judge Posner's recent critical remarks, in his new piece in the Georgetown Law Journal, observing that much constitutional scholarship is just by and for other constitutional scholars.  This paper is even more circumscribed: it's written by and for, and by way of reassuring, constitutional scholars who already accept particular contestable interpretive premises.  

Second, and giving rise to my subtitle, Rosenkranz argues that his proposed 28th Amendment would "fit nicely within our constitutional tradition," given the presence of the Ninth and Eleventh Amendments.  But the first has had little meaningful effect on the courts, and the second has been read in ways that are hardly reflective of the text.  As simple as his proposed text is, what reason is there to think it would not give rise to the same interpretive ambiguities that afflict other amendments?  For instance, what would "construed" mean in this context, and why would it forbid citation of foreign law by way of illustration or comparison?  Of course, given my own priors, I think of this (constrained) interpretive freedom as endemic to, and not incidental to, the task of constitutional interpretation.  Rosenkranz apparently thinks otherwise; but surely he is aware that even meta-rules cannot perfectly cabin the scope of their own interpretation, as the Eleventh Amendment itself demonstrates so well. 

Third, given Rosenkranz's premise, the scope of the amendment is woefully incomplete.  Rosenkranz argues that allowing the Court to cite foreign law declares "nothing less than the power of foreign governments to change the meaning of the United States Constitution."  He adds in a footnote: "If the Court cites foreign sources, presumably it is relying upon them at least in part.  The Court has no business spending government money to print its thoughts in the United States Reports unless those thoughts are in the service of an exercise of the judicial power."  If that is so, then surely we should amend his amendment to ban the citation of any non-authoritative sources: Rosenkranz's own article, say, along with all other law review articles and, indeed, opinions of lower courts.  We could add to that still other non-authoritative "thoughts," like Justice Scalia's occasional rhapsodies on such matters as the nobility of military academies and the actions of the President at post-9/11 memorial services, all of which are irrelevant to and detract mightily from the persuasiveness of his own interpretive method.  He would certainly save us in printing costs, but only at the expense of a good deal of candor about the actual sources of judicial opinion.

I have other quibbles with the piece.  He says -- another ipse dixit -- that the "current predilection for use of current foreign law is as a mechanism of constitutional change."  Yes, if you accept his premises; no, if you think of it as a mechanism, one among many, of constitutional interpretation or implementation of a document whose aged and ambiguous interpretive status both permits and allows some recognition of contemporary social facts.  And he says the citation of foreign law differs from constitutional amendment because the latter requires the concurrence of individuals with "a different -- and exclusively American -- geographic perspective."  The two may differ in legitimacy, but surely not in the sources they draw on; of course citizens may be influenced during the amendment process by arguments drawn from a variety of foreign sources, as, indeed, the Framers were.  Finally, he writes that the amendment is not far-fetched because the citation of foreign law has drawn great political and theoretical attention, and "could conceivably inspire a sufficiently broad and deep consensus for constitutional change."  I don't think so.  The public is not that interested in the issue, and even most of those who express concern about it really like the issue for what they think it signals about political and constitutional ideology.  We might get broad consensus on this issue, but it would be decidedly shallow.  Remember, along these lines, the 27th Amendment.

A fun piece, as I say.  But I don't find it persuasive, and I'm a little bewildered by how persuasive it doesn't seek to be.  As with some but not all constitutional scholarship, it strikes me as preaching to the converted.

Tri-4-Gey, and an update from Steve Gey

The folllowing is a press release that I thought would interest the academic legal community as well as the numerous fans of Professor Steve Gey outside the professoriate. I am also posting Steve's most recent update, which is both, and again, heart-breaking and inspiring.

Warriors against ALS Continue Battle for Ailing Professor

 

For the third consecutive year, a group of rowdy devotees are raising money on behalf of their favorite law school professor as he combats a fatal illness. Their story is one of love for a great man, dedication to a cause, and hope for the future. Competing in a triathlon is not easy, and fundraising during an economic crisis has proven difficult. However, knowing that every cent raised brings happiness and meaning to their hero’s final years keeps this team swimming, biking, and running to the finish line.  

 

In December of 2006, the colleagues, students, and friends of Professor Steven Gey received devastating news: he had developed a particularly aggressive form of amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s Disease. Except in very few cases, the victims of this cruel disease endure slow paralysis and, eventually, death.

 

For those who know him, it is difficult to think of Professor Gey as being mortal. Sporting a thick Groucho Marx mustache, his explosive personality and endearing charm have made him a favorite at Florida State University’s College of Law since he first began teaching there in the 1980s. Blessed with the ability to speak almost as fast as he is able to think, Professor Gey’s unorthodox and impassioned teaching method has cultivated generations of students entirely devoted to him, whether or not they agree with him. As one former student, Sean Park, put it, “time was always short in his daily schedule, but whenever you had his attention, the spotlight was on you.”

 

It has been just over two years since his initial diagnosis, and the disease is taking its toll. Professor Gey jokes that being hand-fed and spending all day, every day, in pajamas makes him “feel like Hugh Hefner without the baby rabbits.” But this humor belies the truth: ALS has ravaged his body. Always wafer-thin, his weight dropped to a paltry 90 pounds at one point during 2008, prompting him to joke: “I won’t have the chance to die. I’ll just float away.” But even now, after losing control over his limbs and lungs, the kinetic fire in his eyes continues to burn mischievously. His abilities to motivate and influence those around him—the same characteristics that make him a powerful professor—have inspired a fundraising effort of monumental proportions.

 

After learning of Professor Gey’s illness, many of those who love him chose to proactively channel their grief into raising awareness about ALS. In the spring of 2007, a small group of students led by Atlanta-based lawyer Kristina Klein, a graduate of FSU law school, initially set out to raise a couple thousand dollars towards ALS research by competing in the Red Hills Triathlon in Tallahassee, where Professor Gey still resides. This modest goal snowballed into a three-year philanthropic endeavor. Over $40,000 were raised in 2007; the following year, the team doubled in size and raised another $60,000.

 

This year, the 60 members of the Tri-for-Gey III team aim to bring the total to $150,000—no small feat in the midst of a global economic crisis. With less than three weeks left until the April 4^th triathlon, they are still $30,000 short of their goal, but they hold out hope that they will succeed.

 

Hope is all they have left.

 

The members of Team Gey are diverse. They are Christians, atheists, and Jews; they hail from Norton, Kansas, and Bowling Green, Kentucky. Very few are true athletes. To the contrary, many are doughy white-collar workers who, until recently, had not seen the inside of a gym since leg warmers were in style—the first time. Yet everyone who started the race succeeded in making it across the finish line. This determination evidences the formation of a positive-feedback cycle based on devotion and a sense of responsibility: the Team Gey members continue to be inspired by Professor Gey’s staunch will to live, which is in turn bolstered by the team’s determination and constant outpouring of love.

 

Orlando-based lawyer Melanie Shoemaker Griffin, a three-year Team Gey veteran and former student of Professor Gey, refers to his powers of motivation as “heroic.” She hopes that “as a result of Team Gey's efforts, I will see a cure for ALS found during my lifetime and know I played a small part in saving millions of lives.”

 

Another competitor, Atlanta-based lawyer Ranney Wiesemann, has never met him, but the devotion of co-workers inspired her to join the team. “As long as Professor Gey continues his courageous fight against ALS, I will be right there beside him,” she says, looking forward to the opportunity to meet him after this year’s triathlon.

 

It is no small wonder, then, that Professor Gey has drawn two conclusions from his experience with ALS. First, “fatal diseases are a bummer, but second (and more important), people's responses to fatal diseases make the human race look downright respectable.” In a recent letter to the team, he expressed regret that “I will never be able to repay any of you for what you've done. But please understand that if you could cash out gratitude, you would all be rich beyond belief.”

 

And yet his happiness is all the riches that the members of Team Gey seek.

 

Professor Gey’s story is a timely reminder that the ongoing debate regarding stem cell research has a very human face. Many argue that degenerative disorders such as ALS can be treated, if not cured, by such research. Never one to shy away from controversy, Professor Gey is a strong proponent of stem cell research and applauds President Obama’s recent reversal of the ban put in place by the previous administration.

 

Some who adore Professor Gey abhor the use of human stem cells for research; others roundly support it. Both wish that he could be cured. Reinforcing his legacy as an educator, Professor Gey continues to compel those who love and respect him to address and fully analyze a sensitive issue that, for the sake of comfort, they may have otherwise ignored.

 

Back in December of 2006, after she first proposed the idea of the Tri-for-Gey, Kristie Klein made a pact with Professor Gey: he would keep living as long as the team kept competing in the triathlon. He has thus far held up his end of the bargain and continues to insist that the team live in the moment. Just yesterday, he wrote: “For now, let’s all celebrate the fact that I’m still living and you are all still crazy.”

 

Perhaps they should also celebrate that their fundraising efforts have produced an immortal gift for future generations of ALS victims: hope.

 

Donations can be made in Professor Gey’s name at www.active.com/donate/Tri-For-Gey-III. Professor Gey personally receives an update every time a donation is made, and all proceeds will go to ALS-Therapy Development Institute, the world’s largest ALS research center.

 

 

Select Quotes from Professor Gey in letters to the Tri-for-Gey team:

·         “The basic plan now is the same as it was a year ago: figure out how to deal with an ever-diminishing number of body parts, until some doctor trips over a cure to ALS while trying to develop a new and improved version of Rogaine.”

·         “It's probably safe to say that I'm on track to fulfill the usual prognosis for all ALS patients, which basically gives me the life expectancy of a hummingbird. I've just decided to act as if that's not the reality, and I'm happy to say that all of you are helping me perpetuate my self-delusion.”

·         “If you crazy people are still willing to get up at the crack of dawn and jump in a frigid lake, and then run and ride yourselves silly, then I may as well try to stick around to see what you all look like in wetsuits.”

·         Regarding his new-found freedom to watch French movies: “Indeed, my present circumstances have given me a whole new perspective on the nouvelle vague. I now find Jean-Luc Godard’s Weekend oddly comforting. So you see? This whole fatal disease thing isn't all that bad after all.”

 

Informational Websites:

• Tri-for-Gey Fundraising website: http://www.active.com/donate/Tri-For-Gey-III
• Tri-for-Gey III Facebook page: http://www.facebook.com/home.php?#/group.php?gid=39048938733
• Tri-forGey II Facebook page (photos from last year’s triathlon available): http://www.facebook.com/home.php?#/group.php?gid=4961478062
• St Petersburg Times article featuring his students’ devotion: http://www.tampabay.com/features/humaninterest/article463230.ece)
• Professor Gey is the author of a myriad of controversial articles (http://www.law.fsu.edu/faculty/profiles/gey/vita.pdf)

 

Please direct any questions to Julia Breslin (jibreslin@gmail.com) or Melanie Shoemaker Griffin (mshoemaker@deanmead.com). 

Steven G. Gey Call for Papers

On behalf of the AALS Section on Constitutional Law, I am pleased to pass on this announcement:

At the 2010 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel exploring the distinction between “interpretation” and “construction” in constitutional law.   One paper from an untenured, non-adjunct, faculty of law member will be included.  Its author will join a panel that will include Professors Mitch Berman, Rick Hills, and Keith Whittington, among others. The author must be teaching at an AALS member or AALS fee-paid law school.

 

To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to Pam Davis:  pddavis1@samford.edu.  She is the assistant to executive committee member Brannon P. Denning.   Please include your name, institutional affiliation, and contact information on a cover sheet only.  All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law. 

 

Submissions must be received by no later than May 1, 2009.  Late submissions will not be accepted.   The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel.  If you have any questions, please e-mail Professor Denning (bpdennin@samford.edu).

From the panel description:

Recent work in constitutional theory has posited a distinction between “constitutional interpretation” and “constitutional construction.”  The core idea is that interpretation is concerned with the linguistic meaning of the constitutional text, whereas construction implements and supplements that meaning.  This idea is related to other recent conversations in constitutional theory, including discussion of “the new doctrinalism,” constitutional implementation, and the distinction between constitutional rights and remedies.

 

Constitutional theorists have discussed the interpretation-construction distinction in diverse ways.  Some scholars have suggested originalist constitutional interpretation can be reconciled with a living-constitutionalist approach to constitutional construction.  Others have suggested that judicial review should be limited to the activity of constitutional interpretation, while the political branches should bear primary responsibility for construction.  Some originalists criticize the distinction on the ground that it opens the door to judicial construction that is unconstrained by original meaning.  In an earlier era, legal realists critiqued the distinction on the ground that interpretation of linguistic meaning and construction of legal doctrine cannot be separated in practice.

 

This program will evaluate and explore the interpretation-construction distinction from a variety of angles.  The questions raised may include the following: (1) Does the interpretation-construction distinction capture a real difference between modalities or stages of constitutional practice?  (2) What is the basis for the distinction?  (3) Is constitutional construction by judges legitimate or should construction be limited to the political branches, or is the elaboration of constitutional doctrine an integral part of the judicial enterprise?  (4) What norms should govern constitutional construction?  (5) What role should precedent, historical practice, politics, social norms, and/or considerations of justice and morality play in the construction of constitutional doctrine?  (6) Should constitutional construction be confined by the limits imposed by constitutional interpretation, or should constitutional actors sometimes adopt amending or saving constructions that are inconsistent with the constitutional text?

Justice Thomas' struggle to reconcile textualism & federalism in Wyeth

Last week, the Court struck an unexpected blow for federalism, deciding in Wyeth v. Levine that Diana Levine's state-law claim for negligent failure to warn was not preempted by the FDA's regulation of Phenergan's labeling under the Food, Drug, and Cosmetic Act. Among the many interesting aspects of this unexpected (by me, at least) 6-3 victory for federalism was Justice Thomas' concurrence -- a concurrence that contradicts the popular notion that conservative justices are indifferent to federalism when preemption benefits industry. But while Justice Thomas' rejection of implied preemption seems to me to be a principled legal theory, it also strikes me as utterly misguided effort -- less a capitalist plot than a textualist blunder.

Justice Thomas' Wyeth concurrence argues that implied "frustration-of-purpose" preemption should be rejected, because the inquiry into statutory purpose is somehow untethered to text. Thomas' dissent in Altria Group v. Good argued that "no explanation [of statutory purpose] is necessary [to explain the scope of the cigarette Labeling Act's preemption clause, because] the text speaks for itself." In short, Thomas seems to draw a sharp line between statutes that have preemption clauses and statutes that do not, adhering to a presumption against preemption only for the latter.

This theory, however, pulls the hat lining out of a hat and calls it a rabbit: Preemption clauses do not magically resolve questions of preemption unless they are themselves clear -- and they rarely are. Generally, such clauses provide that a vaguely defined category of state laws (e.g., "requirements") may not bear a vaguely defined connection to ("related to," "with respect to," "based on", etc) a vaguely defined category of federally protected activities. These clauses do not specify in their text that the presumption against preemption should not be used to interpret the clause's own scope. How, then, is it especially 'textualist' to read them as rejecting a presumption about which their text is silent? Likewise, there is no textualist reason to reject implied "frustration-of-purpose" preemption: If a statute's text, fairly interpreted, bars anyone from interfering with some private activity, then a textualist ought not to think that an additional clause is needed to specify that "anyone" includes "states." Where a federal regulatory requirement is best read as a ceiling on further interference with the regulated activity, then that requirement is itself a sufficient preemption clause -- at least, if you take text seriously.

Justice Thomas' theory, in other words, treats preemption clauses as self-interpreting, even when they are as clear as malted milk. (Justice Thomas authored one of the more egregious ERISA preemption opinions in Egelhof v. Egelhof, 532 U.S. 141 (2001), in which he adopted the fiction that ERISA "plainly" preempted a state probate code having no special relationship to employment benefit plans). This sort of textualism treats the preemption clause as a ventriloquist's dummy: The judge puts words into the statute and blames some wooden prepositional phrase -- "related to," "with respect to," "based on," etc -- for the result, when any 1L can see that the clause cries out for as much explanation as any theory of implied preemption. Frankly, I'd prefer preemption based on a libertarian's love of free markets over preemption based on worship of empty text: At least the former takes responsibility for its policy choices.

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

The Connecticut Legislature's preposterously unconstitutional attack on Catholicism

The Judiciary Committee of the Connecticut General Assembly is now considering a bill to re-organize the governance of the Roman Catholic Church. I do not mean simply that the Assembly is considering an ostensibly secular bill that has some subtle and insidious purpose to target the Roman Catholic Church and is, therefore, unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. The Assembly placed the purpose of the bill right in the title: It is "An Act Modifying Corporate Laws Relating to Certain Religious Corporations," and it provides that "[a] corporation" that is "organized in connection with any Roman Catholic Church or congregation in this state ... shall have a board of directors consisting of not less than seven nor more than thirteen lay members" elected by the congregation, which board shall exercise the "general administrative and financial powers of the corporation."

I do not mean to bring this legislative oddity to anyone's attention on the ground that it raises any interesting constitutional issues. Facial discrimination against a specific sect -- not even against religion in general -- fails even the narrowest theories of free exercise of religion currently on offer. (Section 1(h) of the bill makes a pious gesture of avoiding free exercise problems by declaring that "[n]othing in this section shall be construed to limit, restrict or derogate from any power, right, authority, duty or responsibility of the bishop or pastor in matters pertaining exclusively to religious tenets and practices").

The only interesting question suggested by Bill 1098 is why the CT legislature would propose a bill that would serve only to provide some lucky lawyer with some section 1988 "prevailing party" fees during a lean period for the bar. What, in short, is the political function served by an obviously unconstitutional bill? I see three conceivable explanations: (a) The CT Assembly's leadership is actually innocent of any familiarity with simple constitutional doctrine -- even the sort of doctrine that is so basic that it normally percolates into popular culture -- and therefore thinks that this bill is a serious legislative proposal; (b) The CT Assembly's leadership wants to placate some interest group with an empty gesture by proposing a bill that it knows will go nowhere but Injunctionville after it leaves the state house; or (c) The bill was introduced with the secret support of the Catholic hierarchy as a way of exciting sympathy for Catholics by a show of anti-Catholic demagoguery. Both (a) nor (b) tend to re-enforce Fred Schauer's jaundiced view of legislatures' interest in honoring constitutional norms, while (c) seems too kookily conspiratorial for a state legislature.

Perhaps there is some fourth explanation that I am missing? Do any readers know the real story behind the Judiciary Committee's constitutional tomfoolery?

Sports and Con Law Explained

(Image courtesy of Courtoons)

Cert Grant in Salazar v. Buono

I'd like to post more later on the Supreme Court's recent cert grant yesterday in Salazar v. Buono.  There is so much going on with that case, it's hard to write a paragraph-long post.  To sum up, there was a cross in the Mojave National Preserve (government land), which is pretty clearly unconstitutional under the Court's precedents.  It was challenged.  Wanting to protect the cross, Congress intervened by giving the cross and the land under it to the VFW, in exchange for land owned by the VFW.  And the issue is (1) does that cure the constitutional problem, and (2) assuming it doesn't, does anyone even have standing to bring a challenge anymore?  Hopefully, this afternoon will give me some time to return to this...

Is Kiyemba Cert.-Worthy?

My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go).

Then, I read Judge Randolph's opinion. It was mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because, in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." He then cites a number of precedents in supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among others), and admonishes the district court for failing to follow binding precedent.

What's fascinating--and ironic--of course, is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted, Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents become worth revisiting?

All of this leads me to wonder if Randolph may have written an opinion that the Court--which might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial. What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the immigration laws is correct (my own view is that this, too, was an open question).

It's a messy case with unique facts and a very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C. Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.

What is the Second Amendment for? (Part Four)

This multi-part post canvasses possible accounts of the Second Amendment’s purpose (a matter that I have discussed in greater detail in a recent article). Justice Scalia’s opinion in District of Columbia v. Heller doesn’t answer this question, beyond saying that the right to bear arms is tied to a natural right of self-defense. This does not tell us what interest stands behind the right of self-defense and how bearing arms is connected to that interest.

After discussing one failed argument for a relationship between arms possession and a right of self-defense, I then discuss what is probably the most popular interpretation of Scalia’s statement – namely that a legal system in which there is a right to self-defense makes us safer from violence at the hands of our fellow citizens and that the right to bear arms can be justified on the same basis. I argue that even if it is true that a system of private arms possession makes us safer than one in which we are forcibly disarmed, this is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government to disarm the population. 

The primary goal of my article is to explore autonomy arguments that I believe are occasionally voiced by Second Amendment advocates (often without their being even aware of the difference between these arguments and those that appeal to safety). The idea that there is a natural right to bear arms – that is a right to bear arms when living independently of any governmental authority – makes a good deal of sense. In the Lockean state of nature we each have an entitlement to defend and enforce natural rights privately. Each of us is like a private police force. This is true even though private enforcement leads to feuding. The likelihood of feuding does not put on us a duty to submit to governmental authority. We have an autonomy right to enforce our vision of natural rights and bear the costs of our mistakes. But, in the interest of avoiding conflict, we may choose to submit to governmental authority (something we presumably have done).

A natural right to bear arms can be derived from this natural entitlement to private enforcement of rights, because arms allow us to execute our judgments about natural rights more effectively. This is true even though feuding becomes more deadly when we are armed.

But it does not follow from the fact that we have this right to bear arms in the state of nature that we have a right to bear arms against the government. We relinquish our entitlement to private enforcement when submitting to governmental authority. Since the right to bear arms is tied to this entitlement, it appears that we would also alienate our right to bear arms.

Last time I considered an anarchistic argument for the Second Amendment, which claims that we have a right to bear arms against the government because we have returned to the state of nature to some extent. One benefit of this argument is that it could work even if the collective exercise of our rights to bear arms makes us less safe than we would be if we were forcibly disarmed. Under this theory it is not safety that justifies the Second Amendment, but Lockean autonomy.

But there is another autonomy argument that does not depend upon the anarchistic assumption that we have escaped the authority of the government. There are a number of rights that we take ourselves to have against the government that appear to preserve part (although not all) of the entitlement to private enforcement that we possess in the state of nature. One example is the privilege against self-incrimination (which I have analogized to the Second Amendment here). Someone asserting the privilege appears to claim an autonomy right to make her own assessment about her possible wrongdoing. Although this idea is deeply attractive, it is also in tension with governmental authority, which exists to keep people from relying on their own judgments about the scope of their own and other people’s wrongdoing.

A similar problem exists with the right of a plaintiff to bring a civil lawsuit. This right has many of the “feuding” costs that we associate with the state of nature. People bring more suits than they should because they tend to read the scope of their rights in their own favor. Although the idea that we have a right to a civil suit is also deeply attractive, once again it is in tension with governmental authority.

The idea, then, is that the right to bear arms is like these rights to private participation in rights-enforcement that we retain even within a system of governmental authority. The complete entitlement to private enforcement that we possess in the state of nature is not retained of course (or we would be back in the state of nature, with all its costs). But part of it is retained, not because we are made safer as a result, but out of respect for Lockean principles of autonomy and individualism.

The trick, of course, is determining just how much of the natural right to bear arms is reserved. I discuss these issues, once again, in the recent article.

"Hands Off" Religious Doctrine

In January 2008, the AALS Law and Religion Section's program examined the rule, or claim, that the Constitution requires government to adopt a "hands off" approach to religious doctrine.  The papers -- by Kent Greenawalt, Sam Levine, Andy Koppelman, Chris Eisgruber & Larry Sager, Bernie Meyler, and me -- have been published in the Notre Dame Law Review, and are available here.  Take a look!

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

• Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.

What is the Second Amendment for? (Part Three)

The previous two installments to this post are here and here. At this point, some of you might be asking: How many parts can there be to this post? Aren’t two enough? Well, in a recent article I identified nine distinct arguments (of varying degrees of persuasiveness) that have been offered in favor of the Second Amendment. And that’s ignoring the collective-right interpretation rejected in District of Columbia v. Heller. In short, the question of the purpose, or purposes, of the Second Amendment is much more complicated than has generally been assumed.

In the last post, I addressed the argument that the Second Amendment protects our interest in security from violence at the hands of our fellow citizens. This heart of this argument is the empirical judgment that a system of private arms possession is better at making us safe from private violence than a policy of compulsory disarmament. Notice that the idea is not merely that the choice to arm dominates, in the sense that it makes one safer with respect to any given population. For that could be true even though the collective result of each of us making the dominant choice is that we are all less safe (due to the mutually-imposed risks of accidental or improper use of arms).

The idea must instead be that we are all truly safer when allowed to bear arms than we would be in a system of compelled disarmament. Although this is indeed possible, I argued last time that it is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government.

The primary goal of my article is to explore autonomy arguments that I believe are occasionally voiced by Second Amendment advocates (often without their being aware of the differences between these arguments and those that appeal to safety).  One benefit of autonomy arguments is that they could work even if, as many gun control advocates claim, private arms possession makes us less safe.

To get a feel for these autonomy arguments, it is best to begin with the idea of the Lockean state of nature. In the state of nature, each of us is entitled to defend and enforce natural right privately. For example, if you have violated my natural rights (e.g. to life or property) or indeed someone else’s natural rights, I may punish you.

The problem with the state of nature, of course, is that creates excessive conflict, because we tend to read the scope of natural rights in favor of ourselves and our kin. We would all be better off, and our natural rights more secure, if we gave over our power of enforcement to the government, even though it too can make mistakes about the scope of our rights.

But it is crucial to see that for Locke the fact that the state of nature can descend into a state of war does not mean we have a duty to submit to governmental authority. We may remain in the state of nature if we choose. To force us to submit to the government, even if it is for our own good, would violate our autonomy. Our ability to enforce our visions of natural rights (and bear the costs of our mistakes) is of value, despite its costs.

A natural right to bear arms can be derived from this autonomy interest in private enforcement of rights, because arms allow us to more effectively vindicate this interest. In a very real sense, guns increase our autonomy. Of course, for just this reason they exacerbate the problems of the state of nature. Feuding becomes more deadly when people are armed. But one cannot point to these costs to claim that we have no right to bear arms in the state of nature – for if that argument worked, there would be a duty not merely to disarm, but to submit to governmental authority. And that is contrary to Lockean values of autonomy and individualism.

So far so good. But to say that there is a natural right to bear arms does not mean that governmental authority is limited by this right. The whole point of the social contract, by means of which the authority of the government is created under Lockean consent theories of the state, is that we give over some of our natural rights to the government. Foremost among these alienated natural rights is the right to private enforcement. Since the right to bear arms is tied to the right to private enforcement, it appears that we would also alienate our right to bear arms.

The justification I am considering today assumes, however, that we have returned, at least partially, to the state of nature. One reason might be because the government cannot promise the level of protection from violence that is a requirement for governmental authority. Returned to the state of nature, we regain our natural right to bear arms even though – and this is important – the collective exercise of our right to bear arms can make us less safe than we would be if we were forcibly disarmed. Under this theory it is not safety that justifies the Second Amendment, but Lockean autonomy.

The argument has some plausibility given the circumstances of the founding of the Republic, since there was no regular police force at the time. Particularly in the backcountry, American citizens were, at least partially, in the state of nature. This arguably returned to them some of their alienated natural rights, including the right to bear arms. Notice that it follows from this theory that not all governments have a duty to allow private arms possession. A government that offers its citizens sufficient protection from violence would be within its authority if it forcibly disarmed the population in the interest of public safety. The theory is anarchistic in the sense that it depends upon our escaping, to some extent, the authority of the state.

I discuss this theory in greater detail – including some of its problems – in my article. One of the biggest problems with theory is its anarchistic premise that we have escaped the authority of the government. In my next post, I will consider an autonomy argument that does not depend upon anarchistic premises.

 

What is the Second Amendment for? (Part Two)

As I’m sure you all know, in District of Columbia v. Heller the Supreme Court held that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. In this series of blogposts, I’m asking the following question: What are these interests? (This is a topic I have pursued in greater detail in a recent article.). It is not enough to say, as Scalia did, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

My first post discussed one conception of a right of self-defense, which failed to justify a right to bear arms. Today I am going to consider an alternative argument – that the right of self-defense and the right to bear arms can be justified on safety grounds.

But first a quick distinction between two senses in which possessing a firearm might increase one’s safety. There are good reasons to believe that possessing a firearm makes one safer compared to a fixed population. Firearm possession is, as the game theorists say, the dominant strategy.  If no one else owns a firearm, one is safer if one is armed.  If everyone else owns a firearm, one is safer if one is armed. That means that each individual will tend to have a strong desire to own a firearm and will rightly point to considerations of safety as the ground for this desire.

But that does not mean that a system of private arms possession, in which others are also allowed to own firearms, makes us safer. The mutually-imposed risks of accidental or improper use of firearms might make us all less safe than we would be in a world of compelled disarmament. Guns might, as the game theorists put it, present a prisoners’ dilemma. 

But let us assume, as is surely possible, that a system of private arms possession does make us safer than a policy of disarmament. One reason could be because a policy of disarmament would primarily affect only the law-abiding, leaving criminals with guns. If so, we would be safer if we let the law-abiding have guns as well. Another (less likely) reason is because a system of private arms possession would be very good at keeping guns out of the hands of those who would use them improperly, such that the predominant use of guns would be in justified self-defense.

Whatever the underlying reason, we are now assuming not merely that firearm possession is the dominant strategy, but that a system of firearms possession makes us safer than a policy of disarmament. The question remains, however, why we have a right to bear arms. To see why there is a problem here, consider the safety argument for a right of self-defense.

Imagine that the government prohibited all acts of self-defense, even when retreat is impossible. If confronted by a violent attacker, we could not defend ourselves, although we could inform the attacker that his actions are illegal and subject to punishment by the government. I think just about everyone would agree that we would be less safe in such a world. But why does it follow from this that there is a right of self-defense?

It appears that when Scalia speaks of the rights of self-defense and bearing arms, he means that these rights are pre-existing limits on the authority of the government. Individuals enjoy these rights even if they are not legally recognized. But does it follow from the fact that self-defense makes us safer that it is beyond the authority of the government to prohibit it? Keep in mind that the whole point of governmental authority is to obligate us to do what the government says even if it is wrong. If we were obligated to do what the government said only when it got things right, governmental authority would evaporate. The minute people disagreed with a law, they would conclude that the law was outside the government’s authority and could be permissibly ignored.

I’m not saying that there are no limits on the government’s authority. We can assume that the government would be acting outside its authority if it prohibited free speech or imposed cruel and unusual punishments, even if there had been no 1st or 8th Amendments. But the question remains why self-defense is among those limits. The fact that allowing self-defense is a good idea cannot be the reason, since governmental authority can obligate us to obey even the government’s bad ideas.

Nor do I think we can say that there is a right of self-defense because we have no duty to obey laws that are wrong concerning issues of public safety. The government constantly passes laws that impact our safety, laws that we think are binding upon us even when they are misguided.

Here are two other possibilities. The first is that laws that are manifestly bad at promoting public safety are beyond the government’s authority, and a law prohibiting self-defense would be such a manifestly bad law. (Notice that governmental authority would not evaporate if we were freed of an obligation to obey manifestly bad laws.) Another possibility is that we have a right to a certain minimal level of security (say, a level higher than what we would experience in the state of nature) and the government, by prohibiting self-defense, would take us below that threshold.

Of these two, I like the first better. One problem with second is that it is not clear that a government that prohibits self-defense would take us below the threshold of safety that is our due, since it may be doing a sufficiently good job at protecting us from violence in other respects that we are safer than we would be in the state of nature, even though we cannot engage in self-defense.

But let us assume that both of these are arguments for a right to self-defense. It is hard to see how a right to bear arms follows from this right of self-defense. Second Amendment advocates are fond of the following syllogism: There is a right of self-defense; arms are an important instrument of self-defense; therefore there is a right to bear arms. But this is too quick. As we have seen, even though we are clearly made safer by a system that allows self-defense, it does not follow that we are made safer by a system in which people possess arms for use in self-defense. The mutually imposed risks of the misuse of arms may make us less safe compare to a system in which we are disarmed (but can otherwise engage in  self-defense).

Of course, we are now assuming that a system of private arms possession does make us safer. But it still does not follow from this that we have a right to bear arms. After all, even if it is true that such a system makes us safer, it is hardly manifestly true. It is a matter about which reasonable minds differ. Therefore, it is hard to see how this is an issue that it outside the authority of the government to decide. By the same token, it is very unlikely that the contribution of private arms possession to our safety is so profound that the government can satisfy its obligation to provide us with a minimal level of security only by providing us with arms. (It would be odd to say, for example, that countries that prohibit arms are not providing their citizens with a level of safety better than they would experience in the state of nature).

Of course one can always conclude that the Founders simply wanted to constitutionalize this empirical judgment that a system of private arms possession makes us safer, even though there is in fact no genuine right to bear arms. But I would prefer a reading of the Second Amendment that makes better sense of why people think arms possession is truly a right.

Furthermore, if the safety argument does stand behind the Second Amendment, the argument for incorporation into the Fourteenth Amendment seems very weak. After all, if the Second Amendment does not protect a right, but simply constitutionalizes a (controversial) judgment about how best to promote public safety, it is hard to see how it can be “fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

It is for this reason that I think that the most promising argument for the Second Amendment points instead to an autonomy interest in firearms possession, which might be worth protecting even if we are all made less safe as a result. I’ll talk about that in subsequent posts.

What is the Second Amendment for?

Thanks to Dan for inviting me back on Prawfsblog. I thought I would devote the first half-dozen or so posts to a topic I have spent some time on recently – the purpose, or purposes, of the Second Amendment.

Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is – what are these interests?

I do not think this question was answered in Scalia’s opinion in Heller (although I’d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.

One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I’m threatened.

But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.

Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms. 

I’ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence.  (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.

Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope – including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states. 

As we’ll see later, I think the safety argument has problems (unrelated to the empirical question of whether private arms possession does indeed make us safer). Although the "excuse" argument above fails, autonomy arguments for the Second Amendment are the most promising, not the least because they make the Second Amendment more like other provisions in the Bill of Rights. The Fourth Amendment, for example, is commonly understood as protecting our interest in privacy, which has value even though its protection increases our vulnerability to crime. The Second Amendment might be similar. I’ll explore a number of possible autonomy arguments in subsequent posts.

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?