Justice Thomas’ Originalism and the Civil War

Joey Fishkin

Justice Scalia’s majority opinion in yesterday’s Inter Tribal Council case spoke primarily in a textualist idiom: it framed the case in terms of the purportedly simple question of how to read a very small number of words of statutory text; he even makes the obligatory citation to a convenient dictionary definition (of “accept”).  On the constitutional question of whether the NVRA is within Congress’ power under the Elections Clause, Justice Scalia’s method was pretty ecumenical: a brief originalist invocation of some relevant framers, a structural/functional argument, and a pile of relevant precedents.

In contrast, Justice Thomas’ dissent spoke almost entirely in an originalist mode.  It’s true that he briefly responds to Justice Scalia’s claims about precedent, but that’s not where the action is in this dissent.  Primarily, Justice Thomas offers up pages and pages of analysis of the Constitutional Convention and the deliberate choice, in 1787, to leave it up to the states who would be qualified to vote in federal elections (see p.5-8), along with a related argument that the meaning of “Times, Places, and Manner” in 1787 was relatively narrow (see p.8-12)—that is, that the states retained control over most of the rules of federal elections.  From this, Justice Thomas concludes that if the National Voter Registration Act (NVRA) really required all states to “accept” the federal voter registration form as sufficient, then the NVRA would be unconstitutional.  The federal government, on his view, just doesn’t have the power.

Let’s suppose Justice Thomas is right that in 1787, all relevant constitutional actors would have agreed with him that states’ power to set voting qualifications was broad, and the federal role limited.  This is not a big stretch.  After all, as Thomas points out, at the founding “it would have been difficult to convince States to give up their right to set voting qualifications”; he cites Alex Keyssar’s book for a table of “18th- and 19th-century voter qualifications, including property, taxpaying, residency, sex, and race requirements.”  That last one was key.  Let us all concede: in 1787, the Constitution certainly did not give the federal government any power to tell the states they had to let black people vote.  So, based on this history, we can clearly see that the federal role in elections must be narrow, and states’ powers broad.

Really?

You see the problem.  This analysis seems to, shall we say, bypass a few important events that occurred between 1787 and today, events that are highly relevant to the question of the relative balance of power between states and the federal government in regard to the specific area of voting and elections.  One might begin (but not end) with the events of 1861-70.  How, if at all, should such post-1787 constitutional history affect our reading of the Elections Clause, a chunk of Constitutional text that was written in 1787?  This question is just the latest iteration of an important, recurring question that looms behind many originalist arguments—particularly originalist arguments about federalism.


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Posted 7:03 PM by Joey Fishkin [link]

Competitive Federalism and Collective Action Federalism

Neil Siegel

Mazel Tov to my friend Michael Greve, who has written a comprehensive and insightful book on American constitutional federalism. In The Upside-Down Constitution, he argues that a structural constitutional principle binds together many of the federalism provisions in the U.S. Constitution. According to his theory of competitive federalism, the Constitution requires a system of governance in which states compete with one another for businesses and citizens. Greve does not maintain that the Framers or Founders of 1787 had a commitment to competition among states explicitly in mind. For example, he concedes that his champion, James Madison, missed the crucial importance of mobility to ensuring a competitive constitutional regime. But Greve does argue that a commitment to competition makes the best structural sense of the Constitution that the Framers drafted and the People ratified.

I have advocated a different structural theory of constitutional federalism, one that I have developed with Robert Cooter and refined on my own. The theory of collective action federalism understands the expanse and limits of congressional power in Article I, Section 8, as well as certain limits on state power in Article I, Section 10, and Article IV, in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the powers to tax, regulate interstate commerce, raise and support a military, and act directly on individuals. The collective action principle distinguishes problems whose solution requires separate action by states from problems whose solution requires collective action by states.

The presence or absence of multi-state collective action problems is central to understanding the scope of federal power in the clauses of Article I, Section 8. These clauses mostly concern collective action problems created by interstate externalities and interstate markets. A prominent example is the Commerce Clause, which empowers Congress to regulate commerce “among the several States” but not commerce that is internal to a state.

Collective action federalism’s structural account of Article I, Section 8 draws substantial support from constitutional text, history, and much judicial precedent. For instance, the Framers understood collective action problems well; indeed, the pervasiveness of such problems facing the states during the Critical Period of the 1780s inspired the Constitutional Convention.

The collective action principle also makes functional sense. It flows directly from the relative advantages of the federal and state governments. Much of what the federal government does better than the states is solve collective action problems that the states cannot deal with as effectively on their own.

What is the relationship between Greve’s theory of competitive federalism and the theory of collective action federalism? There are obvious similarities in interpretive orientation. While Greve and I agree that each constitutional provision possesses its own distinctive meaning, we are both structuralists at heart on matters of constitutional federalism: we inquire into the underlying purposes of many of the Constitution’s federalism-related provisions considered as an architectural whole. We ask how the federalism components of the constitutional machine work or are supposed to work in practice. And in answering that question, we bring to bear tools and insights of modern economic analysis.
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Posted 12:30 PM by Neil Siegel [link]

The Business-Friendly Constitution

Guest Blogger

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

Sandy Levinson

Michael Greve has written a remarkable book that should be read by anyone interested in federalism.
He also offers an interesting--and quite persuasive--defense of Swift v. Tyson and subsequent "federal common law" and, therefore, critique of Brandeis's success in Erie v. Tompkins in eliminating the ability to provide a national common law to protect, say, the insurance industry against the vagaries of state regulation.

One must begin, incidentally, by clearly distinguishing legal (or constitutionalized) "federalism" from political preferences or policies that instantiate "decentralization." The distinction is crucial, for it underscores that the former is a "locked-in," judicially enforceable legal norm, whereas the latter is only a discretionary decision--often made, ironically or not, by people at the top of a centralized hierarchy who altogether accurately believe that decentralized policy formation or implementation will bring about desirable results.   See, eg, modern China, which I gather is remarkably decentralized in many important ways though not remotely "federal."

So why have "federalism"?  Many modern defenses sound in the importance of "diversity" or, as in the often fatuous comments of Justices O'Connor or Kennedy, the completely unsubstantiated belief that there is a necessary connection between local autonomy and "liberty"--or, in some versions, self-government.  That is not Greve's tack at all.  This is most certainly not a book written from a civic-republican sensibility.

Instead, he is primarily interested in what might be termed the "political economy" of federalism, by which I mean its essential role, for Greve, in liberating business from oppressive regulation by generating competition among the states to attract business (and by eliminating the ability of states that might well be reflecting the views of local communities to freeze out goods produced by companies in business-friendly states).  This requires vigorous enforcement of the dormant commerce clause, on the one hand, and limitations on congressional power, on the other hand, to impose "cartelization" by a coalition of dominant states who wish to limit the autonomy of outliers.  The key examples of the latter, of course, are Hammer v. Dagenhart and its overruling case of Darby Lumber.  He would also happily constrain the power of states to impose punitive damages on vulnerable business.  He is unabashed and admirably candid in articulating what might ne termed a "Coolidgean view" of the constitutional enterprise, by which the business of Constitutionalism is protecting business.

Many things might be said, of course.  A "liberal" or "progressive" will be tempted to say that Greve is basically indifferent about the prospect (or likelhood) of "races to the bottom," where a relatively few states can stymie widely-desired reforms (such as regulating child labor or other working conditions) by holding out and threatening their progressive counterparts with the loss of their manufacturers, for example, to more states with more "business-friendly" policies.    

That being said, one of the things I found most interesting about the long, consistently illuminating, and well-argued book is its orthogonal relationship with what passes these days for "conservatism." Thus, for example, he is withering in his dismissal of "originalism.". No doubt there are overlaps between the political preferences of Greve and, say, Randy Barnett, but there is no agreement at all on the underlying meta-theory of interpretation.  Nor, as already suggested, does he have any patience for Scalia's hostility to the dormant commerce clause (because it is in fact created nearly out of whole cloth by judges) or his tolerance of state imposition of "disproportionate" punitive damages in the name of state autonomy and restricting judicial power.  Nor does Greve seem to have his heart in defending states' rights to stifle alternatives to heterosexuality.  This is a book--and argument--about liberating business, nothing more, nothing less.
Posted 9:42 AM by Guest Blogger [link]

Federal Power over Elections & the Hydraulics of Congressional Power

Joey Fishkin

Today’s Supreme Court decision in Arizona v. Inter Tribal Council of Arizona offers something important, and surprising, to both sides in the long war over procedural and substantive restrictions on voting in the United States.  The holding of the case seems straightforward and modest: When Congress says every state has to “accept and use” a common, federal voter registration form, which is what it said in the 1993 National Voter Registration Act (the NVRA, the “motor voter” law), that means what it sounds like—the state of Arizona can’t say ‘oh, by the way, in Arizona you also need to submit additional documentation with your form proving you’re a citizen, or we’ll toss out your federal form.’

National Voter Registration Form

Indeed the holding looks even more modest than that: the Court notes that Arizona is free to ask the relevant federal agency, the Election Assistance Commission (EAC) (currently hobbled by Republicans in Congress who won't confirm any Commissioners) to please include its proposed citizenship documentation requirements on the federal form, in special instructions that apply only to Arizona residents; if the agency won’t do that, the Court says, Arizona could then sue.  The Court says very little about how that case might be resolved.  (In a little shout-out to administrative law final exam question writers everywhere, the majority raises but doesn’t answer the question of what admin law has to say about appealing the inaction of an agency that can’t say no because it can’t act at all.  “It is a nice point,” the Court says.)  So on the specific fight at issue in this litigation, the Court basically seems to have kicked the can down the road.  Today’s ruling nonetheless stands for at least the modest proposition that the feds, rather than Arizona, are in charge of the voter registration form and its procedural requirements.  Arizona can’t just impose additional documentation requirements on its own.

However, underneath this simple, modest holding we can see some deep movement in the tectonic plates, some shifts in the balance of federal power under the Elections Clause and under the Reconstruction Powers, that might have the effect of raising the stakes in Shelby County v. Holder (the blockbuster case still outstanding this term, regarding Section 5 of the Voting Rights Act) and other cases about the modern sweep of Congressional power under the Reconstruction Amendments. Congress only has so many different powers, and when you pare back one, you raise the stakes for others.  You might call it the hydraulics of Congressional power.  That’s how this case will really matter in the long run.

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Posted 9:51 PM by Joey Fishkin [link]

The concept of "surplus" in The Upside Down Constitution

JB

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

A key concept in Mike Greve's book is the idea of "surplus." This concept helps Greve explain the political motivations for the New Deal and the way that the New Deal inverted the proper form of federal-state relations.

Greve argues that the New Deal was not, as generally believed, an increase in federal power at the expense of the states. Rather, it was an increase in government at all levels. Increases in federal power served the interests of state political elites, because it allowed them to collect more "surplus." As he points out (p. 201), "Far from trampling on the states, the expansion of federal commerce powers enhanced their capacity to collect surplus. Even the Commerce Clause, exhibit A in every account of a supposedly nationalist New Deal, was a state-friendly doctrine and a response to state demand."

The expansion of state capacities during the New Deal lead to what Greve calls "cartel federalism."  As he explains early in the book (p. 4) in this cartel version of federalism states do not lose power vis a vis the federal government. Rather, they actively collude with the federal government to maximize "surplus": States will accept increased federal power "only if the move promises to enhance their surplus capacity—very roughly, their ability to tax citizens in excess of the cost of providing public services."

In competitive federalism, by contrast, "states’ attempts to collect surplus will induce exploited citizens to exit—to 'vote with their feet.' This 'Tiebout competition' will discipline the junior governments in the same way in which market competition disciplines private producers." (p. 7)

Cooperative federalism is good for individual citizens "because it promises to reduce government abuse and exploitation all levels." But it is bad for states (or more correctly, state political elites), because they want to maximize their surplus. So states will use the federal government to form what are in effect regulatory cartels. They will do so in order "to improve their position—the `power, emolument and consequence of the[ir] offices,' in Hamilton’s words; their 'surplus,' in the parlance of public choice economists. Much like private producers in economic markets, states 'as states' seek supracompetitive returns. To that end, they need a central government that stands ready to prevent competition among states and to cartelize the political market." (p. 7)

So far, so good. But what exactly does Greve mean by "surplus?" This idea provides the central motivation in Greve's book for explaining why good states do bad things. However, the word is used in different ways in different parts of the book. As far as I can determine, the term "surplus" refers to three different kinds of phenomena:
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Posted 4:31 PM by JB [link]

Michael Greve’s The Upside Down Constitution: Parasitic Federalism and the Ambiguities of Constitutional Structure

Guest Blogger

Gillian Metzger

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).


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Posted 9:24 AM by Guest Blogger [link]

Symposium on Michael Greve, The Upside Down Constitution

JB

This week on Balkinization we will be holding an online symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).  Participants will include Sandy Levinson (Texas), Neil Siegel (Duke), Gillian Metzger (Columbia), Michael McConnell (Stanford), Rick Hills (NYU), and Ernie Young (Duke).  Michael Greve will write a response.
Posted 9:20 AM by JB [link]

The Guantanamo Quagmire: What Criminal Sentencing Can Teach Us

Jonathan Hafetz

In last month's speech at the National Defense University, President Obama renewed his pledge to close the Guantanamo Bay detention center. As initial steps, Obama lifted his prior ban on transfers of detainees to Yemen (home to approximately half of the remaining 166 detainees) and announced that he would appoint a senior envoy from the State and Defense Departments to oversee the transfer of detainees to third countries. Obama also expressed his intention of ending the transnational armed conflict with al Qaeda and associated forces (i.e., the "war on terror"), which would eliminate the basis for the continued indefinite detention of Guantanamo detainees under the 2001 Authorization for Use of Military Force (AUMF). But the conflict does not appear to be ending anytime soon. And even if Obama can overcome the substantial political obstacles to moving Guantanamo detainees to the United States, it would not resolve the underlying problem of continued law-of-war detention under the AUMF. Indeed, that problem is likely to grow more acute in light of the recent statement by the military commissions' chief prosecutor that fewer Guantanamo detainees will face charges than originally expected.

I’ve just posted a forthcoming article that suggests a new approach to this issue—one that seeks to reexamine long-term AUMF detentions through the lens of criminal sentencing. As the article explains, criminal sentencing offers two main insights: first, it highlights the importance of a judicial proceeding focused not merely on whether a person may be detained (as the current habeas litigation does), but also on how long that confinement should last; and second, it underscores the value of examining multiple factors about an individual, including whether continued confinement is proportional to that individual’s past conduct, and not merely assessing future risk (as the administrative review process now does). These two proposals are severable, as adoption of a standard that considers a broader range of factors about an individual may be implemented whether review of continued detention is conducted by a court or an administrative body, such as the current Periodic Review Board.

Criminal sentencing might, at first blush, seem irrelevant to AUMF detention, which is premised on the non-punitive rationale underlying traditional law-of-war confinement (i.e., temporary confinement intended not to punish, but merely to prevent a combatant’s return to the battlefield). However, criminal law notions of culpability and individual responsibility permeate the detention of terrorism suspects under the AUMF. Criminal sentencing, with its potential for calibrated assessments and the imposition of liberty-restrictions proportionate to an individual’s conduct, also has a greater potential to curb over-detention. It is unnecessary to determine that AUMF confinement formally constitutes punishment—thus triggering the panoply of criminal trial rights—to acknowledge that criminal sentencing can inform the design and operation of a detention review system conducted pursuant to law-of-war principles. If, as Bobby Chesney and Jack Goldsmith have previously argued, the emerging model of national security detentions properly incorporates heightened procedural safeguards drawn from criminal law in determining who may be held, that hybrid model can likewise constructively draw upon other facets of the criminal law that bear on the question of how long the confinement should last.

The aim, in short, is not simply to provide new solutions to the seemingly intractable problems posed by Guantanamo. It is also to underscore the need for a normative and conceptual shift in the evolving jurisprudence of detention, one that more accurately reflects the nature of the armed conflict the U.S. is now waging.

Posted 9:41 AM by Jonathan Hafetz [link]

Reflecting on PRISM: The Institutional Failures that Led to Surveillance Culture

Guest Blogger

Anjali Dalal

We live in a culture of secret surveillance, a topic I have written about recently, here. PRISM and the Verizon order are instances of how such a culture can manifest. And though they are the focal point of current public outrage, they are merely symptoms - the visible manifestations of a more serious ailment: institutional failures that allow the development of secret surveillance.

There are two components of secret surveillance – the act of surveillance and the secrecy under which it takes place. Importantly, neither component is necessarily problematic. Surveillance and secrecy are in fact both necessary for effective law enforcement and national security. Law enforcement agencies surely do not have to publish the names of people they are investigating and wire-tapping (with warrants!) has led to numerous convictions. The problem arises in the secrecy of the process by which we arrive at PRISM and the Verizon order. Secrecy of process threatens both the deliberative process and public accountability. There are two important measures that have contributed to this secrecy of process. I’ll take each in turn.

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Posted 10:57 PM by Guest Blogger [link]

On the importance of nomenclature: "Surveillance state" or "police state"

Sandy Levinson

I find it extremely interesting that the term "surveillance state," which Jack and I first used in our own writing about half a dozen years ago--and I am positive we were not the first--has apparently entered into ordinary discourse.  Thus the New York Times, in its story today about Edward Snowden, writes that

he said he had been selective in what he disclosed, releasing only what he found to be the greatest abuses of a surveillance state that he came to view as reckless and having grown beyond reasonable boundaries....  'If you realize that that’s the world you helped create and it is going to get worse with the next generation and the next generation and extend the capabilities of this architecture of oppression, you realize that you might be willing to accept any risks and it doesn’t matter what the outcome is,' Mr. Snowden said. 

Even more interesting in this regard is Ross Douthat's column in yesterday's Times, which  not only uses the term "surveillance state," but also goes on to include the following remarkable paragraph: 

For us, the age of surveillance is more likely to drift toward what Alexis de Tocqueville described as “soft despotism” or what the Forbes columnist James Poulos has dubbed “the pink police state.” Our government will enjoy extraordinary, potentially tyrannical powers, but most citizens will be monitored without feeling persecuted or coerced.  

So my question for the day is this:  Why has "surveillance state" apparently become so widely accepted as a "neutral" term describing the present United States (and, no doubt, other countries as well, and perhaps all that have the technological capacity), while "police state," even if modified by "soft" or "pink" or, to adopt an adjective from the 18th century referring to one type of despot, "benevolent," still presumably raises all sorts of hackles and undoubtedly would generate accusations of ideological shrillness (perhaps like using "constitutional dictatorship" to refer to at least aspects of the American system, even if most of it these days is dysfunctional and incapable of any cogent action regarding many of our most crucial challenges)?

I'm far more interested in the question of nomenclature than of debating the propriety of Mr. Snowden's actions.  One might believe that it is and should be a criminal offense to disclose the secrets of a surveillance or police state.  That's for another discussion.  I simply want to know how the contemporary United States is best described by people seeking to understand the nature of the political regime (which is far more important in many respects, obviously, than the contingent identity of the person who happens to occupy, perhaps like the Wizard of Oz, the White House.
Posted 11:28 AM by Sandy Levinson [link] (78) comments

Shelby County v. Holder: The Yale Law Journal Online Symposium

Joey Fishkin

As we all wait to hear what the Supreme Court decides to do with Section 5 of the Voting Rights Act in Shelby County v. Holder, the Yale Law Journal Online has a symposium up with four short essays on the case and its implications:

— Ellen Katz starts things off with a question: will the Court conclude that Section 5 is “A Cure Worse Than the Disease?”  She argues that that would be a mistake, and that reliance on this analogy is dangerous: it “threatens to leave the underlying condition unaddressed and Congress without the power to address it.”  She argues that the aspects of Section 5 to which some Justices object are really a matter of statutory interpretation rather than the statute itself, and that the right solution here ought to be reinterpretation, not constitutional invalidation.

— Looking ahead, Guy-Uriel Charles and Luis Fuentes-Rohwer argue that it’s time to start “Mapping a Post-Shelby County Contingency Strategy.”  The authors imagine a new regime in which what they call institutional intermediaries—public-interest groups, advocacy organizations, even political parties—could potentially take over some important roles that Section 5 plays today.  They describe this “emerging ecosystem” and imagine changes that could make it more effective.

— Justin Levitt’s essay considers “Section 5 as Simulacrum”: the imaginary statute the Court appears poised to strike down—a sort of “editorial cartoon” of the statute—as distinct from the statute that actually exists. He maps out a number of important dimensions on which the two differ, from the machinery of the coverage rules to the role that “racial essentialism and racial entitlements” play in what Section 5 permits or requires.

— My own essay for the symposium focuses on “The Dignity of the South”: the striking claim by the Shelby County plaintiffs that singling out the covered (mostly Southern) states for special scrutiny is constitutionally suspect because it violates those states’ “equal dignity.”  I argue that the best way to understand this claim—which the Civil War ought to have foreclosed—is in the context of the long and surprisingly robust tradition of Southern and ex-Confederate arguments that aim to restore the lost dignity of the South.  Along the way the essay discusses Chief Justice Rehnquist the amateur historian, John C. Calhoun in a toga, and zombies. (Ok, not really, but sort of.)

I learned from all the other participants’ essays; I recommend them all.

Now back to your regularly scheduled June vigil.
Posted 8:49 PM by Joey Fishkin [link]

Does Sebelius Have a Racial Subtext?

Stephen Griffin

Doesn't anyone think the maps showing which states have rejected the Medicaid expansion look a bit familiar?  Subtract Oklahoma, and you are basically looking at a map of the Confederacy, at least as far as the south is concerned.  (Note: some of the maps available on the web are inaccurate -- you have to verify the information state by state and some legislatures are still considering the matter).  But I'm sure about my own state because the Louisiana legislature just finished its session without approving the Medicaid expansion -- opposed of course by our Republican Governor Bobby Jindal.  There is no question that the vast majority of the people affected -- often described accurately as "poor" and "minority" are, in fact, also "African American" and "Hispanic" and, in the South at least, tend to vote Democratic in presidential elections.  The Sebelius case itself highlighted how some states, particularly such as Alabama, historically had extremely low rates of reimbursement under Medicaid which tended to exclude poor blacks from the program.  But opting out of a program that would have been initially totally federally-funded really takes the anti-minority cake in my humble opinion.  It is not news that obeisance to the values of federalism have historically operated against the interests of blacks and minorities.  I'm afraid that when Chief Justice Roberts and six other justices paid homage to those values and created the opt-out, that also created the opportunity for the white south (now the Republican white south) to rise again.  But is anyone really proud of the result?  Justice Kennedy likes to argue that federalism always promotes liberty.  Has the "liberty" of poor blacks and Hispanics been enhanced by the benighted actions of state legislatures operating directly contrary to their interests, actions that may actually kill some of them (as Paul Krugman points out today)?  I think not!
Posted 5:45 PM by Stephen Griffin [link] (23) comments

A Nifty Legal Dance

Guest Blogger

 
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Posted 8:57 PM by Guest Blogger [link] (9) comments

Constitutional Moments

Gerard N. Magliocca

Without getting into the allegations now being made against Judge Edith Jones (of the Fifth Circuit), a pretty good argument can be made that George H.W. Bush's decision to nominate David Souter instead of her in 1990 was the most important constitutional action of the last two decades.  According to media accounts, Souter and Jones were the two finalists, and the President made a list of "pros and cons" on a pad for each candidate before going with Souter.  Imagine how different the Supreme Court's doctrine would look now if Justice Jones had been nominated and confirmed.
Posted 1:35 PM by Gerard N. Magliocca [link] (17) comments

The Curious Case of Professor Miller's Tweet

Jason Mazzone

University of New Mexico psychology professor Geoffrey Miller recently asserted via his Twitter account that you have to be thin to complete a dissertation. Criticism was swift and loud. Inside Higher Ed quotes a nutrition professor at UC Davis--one Linda Bacon--urging the University of New Mexico to take "disciplinary action" because, among other sins, Miller's tweet showed allegiance to students "who may have discriminatory attitudes." In response to the numerous complaints about the tweet, the chair of Professor Miller's department has vowed (by video "interview" nonetheless) that "we"--presumably the university--"will investigate and take appropriate measures."

You don't have to have spent much time on a university campus to recognize the performers and performances of this oft-aired drama: Professor says something stupid. Offense is taken. Stupid comment is circulated, causing more offense. Complaints are filed. Demands for justice are made. Campus officials promise an investigation and (notwithstanding a little thing called the First Amendment) raise the possibility of punishment. Nothing of importance ultimately results. The incident is forgotten. Lather, rinse, repeat.

The only interesting question in this ritual is why, out of the surely millions of offensive (or potentially so) remarks made annually in educational settings, only some, like that by Professor Miller, generate widespread attention and condemnation.

Perhaps the amount of attention is purely random. But perhaps not. I see that Professor Miller has authored a series of articles that, at least according to their titles, are not likely to have earned him Colleague of the Year from those who populate modern American academia. A few of the post-tenure works listed on the CV of this evidently prolific author: "Ovulatory cycle effects on tip earnings by lap-dancers: Economic evidence for human estrus?;" Intelligence and semen quality are positively correlated;" "Humor ability reveals intelligence, predicts mating success, and is higher in males;" "Female orgasm rates are largely independent of other traits: Implications for 'female orgasmic disorder' and evolutionary theories of orgasm;" "Women who prefer longer penises are more likely to have vaginal orgasms (but not clitoral orgasms): Implications for an evolutionary theory of vaginal orgasm;" and "Ovulatory cycle effects on tip earnings by waitresses in family restaurants." I have no idea whether any of these studies are sound (and I definitely lack the inclination to find out). But I'd wager they made a lot of noise.              









                
Posted 11:33 PM by Jason Mazzone [link]

The Voting Rights Act & Commandeering

Jason Mazzone

With the Supreme Court poised to decide Shelby County v. Holder, here is a question: why isn't Section 5 of the Voting Rights Act (the pre-clearance provision) a form of unconstitutional commandeering? Let's say a covered jurisdiction wants to shut down a polling location and send voters across town in order to save money. Section 5 prohibits that change unless the covered jurisdiction demonstrates to the satisfaction of the Attorney General (or the district court) that the change does not have a racially discriminatory purpose and will not have a racially discriminatory effect. If the proposed change is rejected, the jurisdiction must keep the polling place open. In other words, the VRA will require the state to operate, staff, and pay for a designated polling place--and the state will lack any ability to refuse the federal command. That would seem to be exactly what Printz and New York (the Court's anti-commandeering cases) forbid.

Is there a relevant distinction? Two possibilities come to mind. (1) Perhaps the anti-commandeering prohibition is confined to Congress's use of a power under Article I (Printz and New York involved federal statutes enacted under the Commerce Clause) and so does not apply to congressional power exercised under the Reconstruction Amendments. (2) Perhaps what matters is that under the VRA state government does have the ability to avoid compliance--through the pre-clearance procedure--and so the state is no more commandeered than is a state subject to a court-issued injunction in response to a finding of a constitutional violation.

Do readers have other thoughts about why the anti-commandeering doctrine does not (or perhaps does) apply to render section 5 unconstitutional?              
Posted 12:52 PM by Jason Mazzone [link] (9) comments

Law Schools and the University: Who is Supporting Who

Mark Graber

Posted 8:08 PM by Mark Graber [link]

Bleg answered (with a followup)

Mark Tushnet

Posted 3:38 AM by Mark Tushnet [link]

A bleg on the Supreme Court and novel technologies

Mark Tushnet

Posted 7:11 PM by Mark Tushnet [link]

Obama's National Security Speech--Eloquence, Yes; Change, Less Certain

Jonathan Hafetz

President Obama's speech today at the National Defense University represents a renewed effort to frame U.S. national security policy and to impose a sense of order and coherence amid mounting criticism of drone killings and Guantanamo. While the speech could help shift the direction of U.S. counter-terrorism policy, the President's rhetorical eloquence masks deep and unresolved divides.

The President sought to grapple with the related questions of "what war" and "how long."  In terms of the former, the President spent considerable time contextualizing the fight against al Qaeda as part of a broader struggle against terrorism and extremist violence.  This is important.  If the "war on terror" is ever going to end (more on that point below), the U.S. must internalize the reality that terrorist violence comes in many shapes and sizes, and will not cease even if al Qaeda vanished from the Earth tomorrow.  The President here wisely underscored that force alone is insufficient to fight terrorism and that other elements of "soft power" must be employed to win what he described as "a battle of wills and ideas."

President Obama also reiterated that the U.S. is not at war with terrorism but only with al Qaeda and associated forces.  But while this point may bear repeating, it is not new.  The Bush administration took  the same position, its rhetoric of a global war on terror aside.  The real question has always been--and remains today--how expansive this "limited" war is (and it has expanded under Obama), and how long it will last.

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Posted 6:08 PM by Jonathan Hafetz [link]

More on compromise

Sandy Levinson

Two friends made important points about m previous post.  Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances.  In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten."  

My friend Akhil Amar has made another point with regard to the compromises on slavery.  The three-fifths clause, for example, was far worse than extending the slave trade until 1808, as awful as that was, precisely because the latter included a time limit--it was "sunsetted--whereas the 3/5 clause, like the fugitive slave clasue, afflicted our politics forever, or at least until destroyed by the slaughter of war. 

So, to return to the capitulation of Senators Leahy, Shumer, and Franken to mean-minded Republican homophobia, how does one classify it?  Is it truly "rotten," which means that one should condemn them?  I have a hard time believing it meets the tests for ultimate "rottenness," though, frankly, I think it comes close.  But it may be a mistake to assess any given compromise in terms of some acontextual metric of awfulness;  it is necessary also to ask about the goodness of what one is getting in return.  That is, one really does have to engage in cost/benefit analysis.  Thus the alliance with Stalin is justified because the good of defeating Hitler, for which the alliance was absolutely necessary, dominated the evils of Stalin.  So it probably is necessary, against my own desire not to, to discuss the merits of the immigration bill.  I.e., is it really so good that it is worth betraying one's principles, or is it only a marginal improvement over the status quo (not least because it makes the necessary path to citizenship far too long)? 

But Akhil's point is also absolutely crucial:  The Democrats are not entrenching Graham's bigotry into the indefinite future.  What they're doing is saying, "well, we don't have the votes now to prevail, but the minute we do, we will vote to welcome same-sex partners to the US on the same terms that we're willing to accept heterosexual partners of US citizens."  So, again, on the scale of compromises, this is far less bad not only than the 3/5 compromise, which required an unattainable constitutional amendment to get rid of, but even the extension of the slave trade until 1808, which entrenched that for 20 long years.  Here, the compromise is "entrenched" only so long as the Republicans have enough votes to be be obstructionists.  Once the immigration act is passed, then there is nothing whatsoever that should prevent the senators in question from offering a free-standing bill and doing whatever it takes to break a filibuster.  This compromise may be a lot like Bush v. Gore, good for this case (or case) only.  That is surely easier to accept than something truly entrenched (though it is important to acknowledge that the costs of the compromise are paid for by others). 

A final point:  I remain truly uncertain why a decision striking down DOMA would automatically mean the end of the prohibition on same-sex partners, even if the decision is based, as it should be, on equal protection.  If it's based on "federalism," then there's simply no reason to believe that the US has a constitutional duty to recognize marital status as defined by a foreign country's law.  (If there were, this would generate a potential problem with regard to polygamous marriages recognized as thoroughly legal in other systems.) 
Posted 5:33 PM by Sandy Levinson [link] (20) comments

How (and why) rotten compromises are made (and justified?)

Sandy Levinson

The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners."

Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.”

Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.”

But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.”

Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor.

Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South.  As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair.  And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate.  As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell.  But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)" 

But, of course, this is far too facile.  Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion).  And most of those who counseled FDR to accommodate to racism paid little or no price themselves.

One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s.  At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community. 

Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry?  Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)?  This is a genuine question.  The answer may well be yes.  The best is often the enemy of the good.  And, let me say, I'm not at all interested in hearing from anyone who is opposed to the immigation bill, not because there's nothing that can be said against it, but becaues that's not really my topic.   Perhaps another way of defining the topic is why should Democrats capitulate to an uncompromising bigot like Lindsay Graham and the faction of the Republican Party for which he speaks?  Is it a good enough response to say that without getting their votes, there is no immigration bill, and one properly pays the "necessary" price to get the greater good (even if those actually bearing the cost are fellow American citizens who happen to be involved in same-sex relationships)?

UPDATE:  This just in from Gail Collins's column in the Thursday, May 23, Times:

The most painful low point in the committee’s deliberations came at the end, when the Democrats gave up on an amendment allowing same-sex spouses the same right as heterosexuals to apply for permanent resident status for their partners. It’s not every day when you hear a senator announce that he had decided to support a move that involved “rank discrimination.” But the Republicans who were needed to get an immigration bill through the Senate had made it supremely clear that if any hint of gay marriage entered the legislation, they were going to take their toys and go home.

Decide for yourself how you feel about this one, people. Stand up for equality or finally get a major bill through the Senate? Defend equality or cave in and hope that the Supreme Court bails you out when it rules on the Defense of Marriage Act next month?

She makes a very good point.  Presumably, if the Court does strike down 'DOMA, as most people seem to think it will--and if it does it, as it should, on equal protection rather than "federalism" grounds--then that might mean that such a bigoted provision of the revised law, assuming it passses, would be unconstitutional.  I say might because existing doctrine is that the US, as a "sovereign power," has plenary (unfettered) discretion to determine who comes in to the country. 
Posted 10:15 PM by Sandy Levinson [link] (55) comments

"Declare Victory and Get Out?" The Future of the AUMF

Stephen Griffin

Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF.  Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out.  In a world in which we did not have to contend with political parties, I would favor the latter option.  What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance.  Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure.  It's as if the presidents don't want the war to end.  Why might that be?  In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation.  In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."

My title is a reference to Vietnam.  There may have been a moment during that war when key elements in both parties could have supported leaving South Vietnam, even knowing that this may have eventually guaranteed victory by the North.  In addition, there is plenty of evidence we are now in a sort of post-Vietnam moment in which a war-weary public and substantial elements in both parties are questioning the purpose and costs of a permanent war against a now ill-defined terrorist threat.  Hence declaring victory or peace or both is more realistic than many in the DC village might concede.

Yet the logic of the argument I present in Long Wars urges caution, since we still must contend with polarized political parties.  This means concretely that President Obama knows he will be blamed for any future terrorist attack, when it succeeds or fails.  That means to create the kind of breathing space we need, members of Congress would have to agree to, yes, blame themselves as much as the president in the case of a future terrorist strike.  Or move beyond the politics of blame.  Is this beyond them?  If you think so, this counsels either reworking the AUMF along the lines suggested by Professors Chesney, Goldsmith and Waxman or at least staying with the current AUMF and admitting we want the president to do everything he can to protect us.  If you (and I'm really talking to Congress here) can bring yourself to trust that the government is doing everything it can to prevent another terrorist strike and hence not go looking for someone to blame when it happens, we can all create a breathing space for peace together.  If, however, you want to retain the option to blame the president and the executive branch, then you will have to give them the power to prevent those attacks.  The best way to do this is openly and democratically.  But if you can't bring yourself to do this, the president will remain in the same position, responsible for now covertly preventing an attack in a way that may result in a constitutional crisis in the future.  That's the dilemma past presidents have faced, given the dysfunctional structure of what I call the post-1945 constitutional order.


Posted 11:55 AM by Stephen Griffin [link] (27) comments