Thursday, October 08, 2015

Rethinking the Speakership

Gerard N. Magliocca

The tussle over John Boehner's successor raises deeper issues over the role that the Speaker of the House plays in our constitutional system and whether that should change.

Here's the problem--the Speaker wears two different hats. One is leader of the majority party in the House.  The other is as a constitutional officer who represents the Chamber as a whole and is third in line to the Presidency.  These roles are increasingly incompatible.  Someone can easily command a majority of the majority party but not a majority in the House overall.

But why should this be necessary?  Look at the Senate.   Mitch McConnell is the Majority Leader.  Joe Biden is the President of the Senate.  As a result, Mitch McConnell does not hold his office as a result of a vote of the entire Senate.  If that were necessary, then a couple of Republicans could hold him hostage and refuse to make him Senate leader unless he met their demands.  That would be silly.

So why not bifurcate the roles of Speaker and Majority Leader?  The Speaker could be like the Speaker of the British House of Commons; a member of the majority party who becomes a presiding officer (much like the President Pro Tempore of the Senate).  The Majority Leader would then be the one who does the substantive and partisan tasks.  While the Constitution requires the House to have a Speaker, it says nothing about the Speaker's function.

Wednesday, October 07, 2015

A Vacant Speakership?

Gerard N. Magliocca

Next month the House of Representatives will choose a new Speaker after John Boehner resigns.  Or maybe not.  A faction of the Republican caucus is not inclined to support House Majority Leader in their internal race.  Suppose those dissenters are able to deny him a majority on the floor when he runs against Nancy Pelosi.  What would happen then?

The answer is that the House would be without a Speaker.  This happened several times in the 19th century in situations where no party held a majority, but an extended vacancy in the Speakership has not occurred in modern times.  What is the consequence of a vacancy in the Speakership that occurs in the middle of a Congress?

The answer, I think, is that John Boehner can simply pick the Acting Speaker on his way out the door.  The Rules of the House state:
"In the case of a vacancy in the Office of Speaker, the next Member on the list described in subdivision (B) shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

(B) As soon as practicable after the election of the Speaker and whenever appropriate thereafter, the Speaker shall deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore under subdivision (A)."
Thus, it is possible for the House to simply have an Acting Speaker (or Speaker Pro Temper) for the remainder of this Congress if the House cannot muster a majority for any candidate.  (What happens if Boehner fails to give the Clerk a list is unclear.)  

UPDATE:  Now that the Majority Leader has dropped out of the race, the problem gets worse. 

Monday, October 05, 2015

Trying to Please Everyone=Pleasing Nobody

Gerard N. Magliocca

The Justices are back in business today, and to mark that occasion I want to comment on an op-ed published the other day by Linda Greenhouse in which she discussed the criticism directed at Chief Justice Roberts by conservatives.  Greenhouse argues that an important reason behind these attacks is that the Chief Justice reflects an old-fashioned conservative view based on judicial restraint, as in his two opinions upholding the Affordable Care Act.  Modern conservatives elites, she says, instead take a much more aggressive tack on what courts should do to advance their policy objectives.  Ergo, they are disappointed with the Chief Justice.

With respect, I think that this explanation is incorrect.  First, judicial restraint was missing when the Chief Justice joined or authored opinions invalidating federal campaign finance regulation and a key portion of the Voting Rights Act. Second, conservative academics do not just want their policy goals implemented--their view of what the Constitution requires or permits is more nuanced than that.

What is their problem with the Chief Justice's health care decisions then?  Well, one factor is that we know that the Chief changed his vote after the initial conference.  This leads to suspicions that he did that because he was unduly sensitive to the criticism that would rain down on him if he ruled against the individual mandate.  A second factor is that his opinion in Sebelius was incredibly convoluted.  If he had upheld the ACA on Commerce Clause or Necessary and Proper Clause grounds, then I think many current critics would have been unhappy but would not have smelled a rat.  His comments on the Commerce Clause and Necessary and Proper Clause were probably intended to soften the blow, but they did the opposite.


Sunday, October 04, 2015

Understanding Informal Constitutional Change

Stephen Griffin

In my last post, I suggested that in order to understand how constitutional change in the U.S. has happened, we need to move away from the simple model that assumes uniform amendment difficulty across time and appreciate the relevance of three inquiries: (1) how to conceptualize the baseline against which we measure subsequent constitutional change; (2) why it was exceedingly unlikely that change could occur through formal amendment, especially during and after the New Deal; and (3) the mechanisms of informal constitutional change.  For me, at least, these are hard questions and I’ve spent a lot of time thinking about them over the years.

Unfortunately my answer to the first question runs the risk of being misunderstood given the debate between originalism and nonoriginalism.  Consistent with what I’ve argued previously, the baseline for assessing constitutional change must be historicist.  The self-understanding historical actors have at a given point in time such as 1789, 1801, 1861 and so on forms the baseline of constitutional meaning.  This approach necessarily involves reconstructing the understanding or consciousness that prevailed during different historical eras.  So the expectations of historical actors concerning constitutional meaning are relevant, similar to versions of originalism that use original expected applications.  Hence the potential for misunderstanding.  From my point of view, this does not involve endorsing originalism for the reasons stated in previous posts.  As I argued in “Rebooting Originalism,” originalism typically uses historical evidence while trying to avoid a historicist perspective on the reality of change, a difficult feat.  And originalism’s interest in historical evidence has often been overly selective.  But this is not to deny that evidence about what the founding generation expected the Constitution to mean is relevant to achieving a historical understanding of constitutional meaning.

On the nonoriginalist side of the debate, some might wonder why we should limit ourselves to the historical understanding that prevailed at a given point rather than, say, aspirations about what the Constitution could mean in the future.  I could say immediately that I don’t want to limit anyone, provided it can be shown that historical understandings changed at a later point (roughly the same point originalists make about formal amendments).  The purpose here is to understand the process of constitutional change, especially informal change.  I would argue that you can’t make progress unless you establish relatively firm historical baselines concerning constitutional meaning.  As I’ve argued previously, some of these baselines are “hard limits” that go well beyond the “hard-wired” provisions of the Constitution whose meaning everyone concedes hasn’t changed.  We should also recall that some of the most important baselines have to do with federalism and separation of powers, doctrines which are a mix of text and nontextual principles.  My project is to show how these baselines were institutionalized in the process of state building and that this institutionalization can account for most of the informal constitutional change we have experienced.

Nonoriginalists or living constitutionalists tend to discount the problem of informal constitutional change.  I’ve discussed two ways in which they do this – the sweeping “dead hand” argument and appealing to contemporary social acceptance as some sort of ultimate rule of recognition.  If you reject these arguments but also think it’s implausible that Article V has handled the full load of legitimate constitutional change since 1789, you’re on the right path in my opinion.  It’s a path of course well explored by Bruce Ackerman along with other scholars including yours truly.

Read more »

Friday, October 02, 2015

Undocumented Citizens

Joseph Fishkin

The term “undocumented” generates a lot of heat in the current immigration debate.  I understand the argument of those who feel that this word is problematic because it elides a key distinction: it’s not just that this group of people have lost their paperwork—it’s that they have no legal right to be in this country.  That is, indeed, a real distinction.  It is also a distinction that some, including the State of Texas, seem determined to undermine.  When you take away access to crucial documents such as birth certificates from people who have a right to them, you can create new and strange categories of effectively “undocumented” people, in the literal sense of the word.

Texas recently decided to make it much more difficult for U.S. citizen children of parents here illegally to obtain birth certificates.  For some of these children, it is now impossible.  Under the United States Constitution, these children are citizens of the United States.  On paper.  But they don’t have the paper.  And so, functionally, they are essentially stateless.

The Texas Department of State Health Services has created this new category of what I would call “undocumented citizens” by revising its interpretation of a comparatively obscure set of state regulations concerning what documents a parent needs to present in order to obtain a birth certificate for his or her child.  Under the new interpretation, two crucial documents that used to work to establish the parent’s identity—a photo identification card issued by the Mexican Consulate known as a “matricula consular,” and a Mexican passport that lacks a valid visa stamp—no longer count as valid identity documents.  A Department spokesperson argues in comments to news reporters that these documents are not “secure” and might be used for “fraud” or “identity theft.”  They offer no explanation for why the policy changed*—at least not in the news stories or anywhere else I have seen.

In a lawsuit being heard in federal district court today in Austin, a group of Mexican and Central American parents of U.S. citizen children are challenging the new policy, on various grounds including that it violates the Fourteenth Amendment’s guarantee of birthright citizenship.  This is a tricky argument, because of course, these parents’ children are—in theory—definitely citizens, and DSHS does not argue otherwise.  But citizenship is of limited value if you can’t get the documents you need to prove it.

According to the facts alleged in the complaint, the lead plaintiff, Maria Isabel Perales Serna, fled an abusive husband from Mexico to Texas as a young adult.  She has a 14 year old (born in Texas, whose birth certificate she obtained under the old policy, by presenting her matricula from the Mexican consulate).  In 2014, she had a second child.  She took the following documents to the Vital Statistics office in McAllen, Texas: her matricula, her Mexican passport, and the hospital birth records she was given when the child was born.  Vital Statistics rejected these documents and would not give her a birth certificate.  The lack of a birth certificate means her child has not been able to enroll in day care or in Medicaid (the Medicaid story is more complex; people do enroll in Medicaid without birth certificates but that did not work in this case, leading to large unreimbursed medical costs).  Most fundamentally, when you live near the border, you often pass through border checkpoints, even if you never leave the U.S.  Serna alleges that she has been repeatedly stopped by U.S. border patrol agents at these checkpoints who have “questioned her actual relationship with [her younger child]” and “warned that the hospital birth papers . . . were inadequate and that she must obtain a birth certificate at once.”

It’s a little hard to say exactly who the Texas DSHS thinks is committing “fraud” or “identity theft” by showing up with her baby’s hospital birth records, her own Mexican passport, and an additional Mexican consular document, all showing that she is the baby’s mother, in an effort to obtain someone else’s birth certificate.  But apparently the prospect of this fraud is serious enough to interfere with large numbers of children’s fundamental rights.  Some of the parents of older children named in the complaint have had trouble enrolling their children in school without a birth certificate; one was told the birth certificate had to be produced within 30 days, but later school officials decided to allow the child to continue in school during the pendency of this lawsuit.  Meanwhile, the Mexican consulate, while protesting loudly that it is not Texas’ role to interfere with relations between the United States and Mexico, has apparently taken new measures this year to increase the security of the matriculas.  However, these “new” and ostensibly more secure matriculas are not being accepted either.

Read more »

Wednesday, September 30, 2015

On to the Supreme Court: Status update on Roman Catholic Archbishop, Little Sisters, and the other nonprofit contraception accommodation cases

Marty Lederman

Since I last wrote, about the nonprofit RFRA challenges to the government's contraceptive coverage accommodation, a circuit split has developed, by virtue of a pair of decisions by the U.S. Court of Appeals for Eighth Circuit--Sharpe Holdings, Inc. v. HHS and Dordt College v. Burwell.  In each case, the court of appeals affirmed grants of preliminary injunctions in favor of the RFRA claimants.  The court found that the plaintiffs were likely to prevail on showing that the contraception coverage accommodation substantially burdens their religious exercise.  As for the "least restrictive means" part of the RFRA analysis, the court did not assess the merits, but simply concluded that the government had not yet offered evidence, at the p.i. stage, sufficient to carry its burden of showing that denial of the requested exemptions would be the least restrictive means of advancing what the court assumed to be a compelling governmental interest.

Meanwhile, over in the Supreme Court, there are seven petitions for certiorari pending, from cases decided by the D.C., Third, Fifth and Tenth Circuits.  This afternoon, in its brief in opposition to certiorari in Nos. 15-105, Little Sisters of the Poor v. Burwell, and 15-119, Southern Nazarene Univ. v. Burwell, the government informed the Court that certiorari in an appropriate case is now warranted in order to resolve the split created by the recent Eighth Circuit decisions.  

As expected, the government argues that the most suitable vehicle for the Court's review is Case No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell.  As I explained earlier, and as the government elaborates in its brief today, the Roman Catholic Archbishop petition is the best candidate for cert. because of several considerations, including that:
-- The case was decided on the merits (cross-motions for summary judgment), not on a motion for preliminary relief.
-- The petitioners present the full range of insurance arrangements that have given rise to RFRA claims in the nonprofit context, including insured plans, self-insured plans, and self-insured church plans.  (As the opinions in the recent Tenth Circuit case demonstrate, the RFRA analysis is very different with respect to each distinct sort of plan.)  This petition also involves both employee and student plans.
-- The petitioners object to the entire range of the 18 covered contraception methods, not only the four at issue in Hobby Lobby and other cases. 
-- Judge Pillard's two opinions in favor of the government are very thorough (and she addressed the statutory claim, as well).  The en banc petition in the case also prompted two distinct dissenting opinions, by Judges Brown and Kavanaugh, which differ from one another in important respects.
-- Most importantly, the D.C. court of appeals, unlike the other courts of appeals thus far, squarely and thoroughly addressed both the substantial-burden and so-called "strict scrutiny" components of RFRA.  
Moreover, the Roman Catholic Archbishop petitioners, represented by Noel Francisco of Jones Day, have honed their arguments, especially on the "substantial burden" question, to eliminate many that are easily countered (including most of those I discuss here) and to emphasize those that are most likely to engage the Court.  (For what it's worth, I have offered some preliminary thoughts on those arguments in the final sections of this post, beginning with the section entitled "Substantial Burdens and Complicity.")

Some of the other petitions also have one or more of these virtues (and superlative counsel, such as Paul Clement); but no other has them all.

The Court originally was scheduled to consider some of the petitions--those that are fully briefed--at its "long" conference tomorrow.  Last week, however, it postponed consideration of those petitions, presumably so that it can consider all seven of the pending petitions at a single conference.  With the government's filing today in Little Sisters, only one brief is outstanding--the petitioner's reply brief in Little Sisters itself.  As soon as that brief is filed, it is likely that the Court will set all of the petitions for consolidated consideration, perhaps as early as at its October 30 conference.

Monday, September 28, 2015

My Puzzle About Martin Shkreli

Mark Tushnet

Amid all the hullabaloo about the price rise Martin Shkreli sought for the generic drug he acquired, I still haven't seen a good explanation for why he was able to (attempt to) do it. It's reasonably clear that the company he acquired was sitting with a potential pot of money in its hands, because it clearly wasn't selling the drug at a profit-maximizing price. Shkreli saw that, bought the company, and raised the price (presumably, testing where the profit-maximizing point was). My question is, why didn't the company he acquired raise the price itself? (And no, it wasn't a nonprofit, nor was the drug under patent, though the latter point doesn't seem relevant to my puzzle.) Assuming that it's publicly held, would the original company be liable to its shareholders for failing to maximize profits?

Another way to put the point is that this appears to be a real-life example (appropriately adapted) of the joke about Chicago economists who don't bend down to pick up a $20 bill lying on the ground, asserting that it must be counterfeit because otherwise somebody already would have picked it up. Here the original company (and everybody else other than Shkreli) are the Chicago economists, leaving money on the table.

Sunday, September 27, 2015

Eric Cantor Complains About Republicans Taking His Hostage-Taking Strategy Seriously


In his analysis of Speaker John Boehner's resignation, former House Majority Leader Eric Cantor explains our current political dysfunction in explicitly constitutional terms. But he has no one to blame but himself and the Republican leadership of which he was a part:

But somewhere along the road, a number of voices on the right began demanding that the Republican Congress not only block Mr. Obama’s agenda but enact a reversal of his policies. They took to the airwaves and the Internet and pronounced that congressional Republicans could undo the president’s agenda — with him still in office, mind you — and enact into law a conservative vision for government, without compromise.

Strangely, according to these voices, the only reason that was not occurring had nothing to do with the fact that the president was unlikely to repeal his own laws, or that under the Constitution, absent the assent of the president or two-thirds of both houses of Congress, you cannot make law. The problem was a lack of will on the part of congressional Republican leaders.

Now we see that these same voices have turned to the threat of a government shutdown or a default on the debt as the means by which we can force President Obama to agree to their demands. I wonder what they would have said, if during the last two years of President Bush’s term, the Democratic congressional majority had tried something similar.

In my 2014 essay, The Last Days of Disco: Why the America Political System is Dysfunctional, I argued that, in order to finally realize a conservative political revolution, Congressional Republicans had repeatedly tried to run domestic policy out of Congress even when they did not control the White House. This constitutional innovation was unlikely to succeed because of the way that American government, and especially the Presidency, have developed during the twentieth century.

Yet it is worth asking why Congressional Republicans believed in this strategy, and why they keep returning to it.

The answer is that it worked-- not just in the distant past, but only five years ago. And Eric Cantor and John Boehner were key figures in that success.
Read more »

Saturday, September 26, 2015

Doug Kendall, Patriot and Visionary


Doug Kendall, the Founder and President of the Constitutional Accountability Center, died today at the age of 51 from colon cancer. The CAC website has a tribute to Doug's life and work.

Doug organized the Constitutional Accountability Center to promote his deeply held belief that the Constitution is at its core a document of progress.  He maintained that our Constitution's text, history and structure pointed toward ever greater protection for freedom and equality.  In an era when conservative originalists claimed a monopoly on constitutional fidelity, Doug Kendall spoke confidently and eloquently for a progressive constitutional faith. He defended the great achievements of American constitutionalism and argued that they were fully consistent with the Constitution's text and history.  He yielded to no one in his devotion and commitment to fidelity to the United States Constitution.

Doug gave these ideas life through his tireless efforts in scholarship, litigation, and institution-building. And he succeeded beyond what anyone could have imagined when he began. He was a great man doing great things. We are all in his debt.

Friday, September 25, 2015

Looking for Race in a New Place

Mark Graber

My colleague Donald Gifford and Brian Jones from Villanova have just published a fascinating article on the influence of race on tort law.  Gifford, the author of a leading casebook on tort law, and Jones perform an empirical study of tort doctrine in American states which concludes that states that signed up for the Confederacy and states whose juries have substantial African-American representation are presently making best efforts to prevent as many torts cases as possible from being resolved by juries.  We know from numerous comparative politics studies that increases in access to the ballot in many regimes typically corresponds to decreases in the issues actually resolved by democratically elected officials.  Gifford and Jones in "Keeping Cases From Black Juries: An Empircal Analysis of How Race, Income Inequality, and Regional History Affect Tort Law" suggest the related concern that increases in African-American representation on juries corresponds with decreases in the cases judges are willing to have resolved by juries.  The abstract for this highly recommended paper is as follows:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend. 

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state. 

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

My brief in Evenwel v. Abbott -- the Supreme Court's newest one person, one vote case

Nate Persily

I have filed this amicus brief for political scientists in Evenwel v. Abbott, the one-person, one-vote case the Court will hear this term, which poses the question whether districts must be drawn around eligible voters rather than on the basis of total population.  I have discussed the case extensively on Scotusblog and earlier at Politico.  The basic argument in all of these pieces is that no dataset exists that would allow for accurate, timely redistricting on the basis of eligible voters.  This argument is one I made long ago in this Cardozo Law Review piece on "The Law of the Census." At the time, though, I never thought the Court would consider changing the one-person, one-vote rule in such a radical way.

Making Votes to Grant Review Public

Mark Tushnet

Jeffrey Fisher argues in the New York Times today that the Supreme Court should make public the votes to grant or deny review. The aim is to provide greater information to the public, so that we might learn whether, for example, specific justices have patterns in their votes to grant or deny review. I've heard this idea bruited about, but it ignores dynamic effects.

The first thing that would happen, I'm sure, is that the announced votes in all granted cases would be unanimous. From a justice's perspective, what's the point of saying, "Four of you are wrong in forcing me to hear this case on the merits"? (Felix Frankfurter occasionally did that in workers' compensation cases, but he was a jerk, and by the time he started doing it his colleagues knew he was.) Time enough to dis them after the argument. The mechanism here would be that the vote on granting review would be treated as a straw vote the first time around, with the "official" vote taken afterwards.

Because we do sometimes see dissents from denials of review, the effects of Fisher's proposed rule on denials might be a bit different, but not much, I think. The same "straw vote" mechanism would work, except that the judges who wanted to grant review would have to decide not, as is the current practice, whether to note their dissent from denial, but rather whether to "change" their vote when the second round of voting occurs. On the margin, we might see a few more dissents from denial of review than we see now, but my guess is that the effect would be small.

Thursday, September 24, 2015

On Amendment Difficulty and Informal Constitutional Change

Stephen Griffin

Continuing with these posts on the new originalism and living constitutionalism.  The conventional approach or simple model of the difficulty of amendment starts with the observation that Article V imposes a high bar by requiring super-majorities to pass any formal amendment.  At the same time, the existence of judicial review creates an avenue by which the Constitution may be adapted to the changing needs of society.  Thus, the simple model concludes, the difficulty of amendment results in the Constitution changing “informally” through judicial interpretation.  The simple model has two elements – amendment difficulty due to formal rules and the backstop of judicial review allowing for compensating informal change.  Both are implicitly assumed to be uniform across American history.

I do not subscribe to the simple model.  Recently I have been cited for the view, expressed in a 1995 symposium in Constitutional Commentary, that Article V is the most regrettable feature of the Constitution.  If I may interject a personal note, my view is presented much more fully in my 1996 book American Constitutionalism: From Theory to Politics (and more recently in Long Wars and the Constitution).  To describe my approach in very general terms, I think we can make greater progress in understanding amendment difficulty and informal constitutional change from a historical point of view by consulting the extensive scholarship on state building and American political development.  We can use this literature to focus attention on specific periods – call them crises of constitutional change – that illuminate why the Constitution has changed in recent times principally through non-Article V means rather than formal amendments.

To be sure, the theory of constitutional change I presented in American Constitutionalism was over-complicated.  For one thing, I explored at length the possibility of understanding informal constitutional change by comparing the state and federal experience.  I’m not sure that argument works so I wouldn’t make it today.  Nevertheless, there were other features to the theory I presented that are still worth considering.  An elaboration and update of that theory follows.
Read more »

Wednesday, September 23, 2015

Does Respect Require Antiperfectionism? Gaus on Liberal Neutrality

Andrew Koppelman

Gerald Gaus has developed the most sophisticated presentation of the antiperfectionist idea that official neutrality between contested conceptions of the good is demanded by mutual respect among citizens. However, other aspects of his own political theory -- in particular, his demonstration of the legitimacy of social coordination toward common ends -- inadvertently strengthen the case for perfectionism.

I elaborate in a paper forthcoming in the Harvard Review of Philosophy, just posted on SSRN here.  This is a paper in philosophy, not law, but it obviously has legal implications.

Tuesday, September 22, 2015

The Future of the Party and Campaign Finance — A Response to Bob Bauer

Joseph Fishkin

Heather Gerken

Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.

An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.

The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the Super PACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.

We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.

It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.

Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.

cross-posted on the election law blog

Monday, September 21, 2015

A "stamp of animus"? Plaintiffs in Miller v. Davis ask court to order Deputy Clerks to issue unadulterated marriage licenses

Marty Lederman

The plaintiffs in the Kim Davis case have now made a motion to Judge Bunning to require the Deputy Clerks in Rowan County to go back to issuing marriage licenses in the form that Deputy Clerk Mason was issuing while Clerk Kim Davis was in federal custody--rather than the radically adulterated form that Davis directed Mason to issue once she returned to work.  (For much more on the machinations that led to this motion, and the differences between the two marriage license forms, see my post from Saturday.)

The plaintiffs are also asking the judge to require the Deputy Clerks to reissue, in proper (i.e., pre-Sept. 14) form, any licenses that they issued over the past week, and to specifically order Kim Davis not to interfere with the Deputies' issuance of licenses.  For the time being they are not asking the judge to hold Davis in contempt of his orders; but they are asking the judge to put Davis on notice that any violation of the new order--that is, any interference on her part--"will result in civil sanctions, including but not limited to (a) the placement of the Rowan County Clerk’s Office into a receivership for the limited purposes of issuing marriage licenses, and (b) the imposition of civil monetary fines as appropriate and necessary to coerce Davis’ compliance with this Court’s Order."

What is the ground for plaintiffs' complaint about the Davis-prescribed, adulterated form of marriage licenses?  They do not invoke the Fourteenth Amendment in so many words but, as I read it, they are alleging that the use of the altered forms violates their rights under the Fourteenth Amendment in two respects:

(i) First, although the plaintiffs do not argue that a marriage performed pursuant to such a license would be invalid under Kentucky law (to the contrary--see the quotation from Pinkhasov v. Petocz in footnote 2 of the plaintiffs' filing), they assert that couples acting in reliance upon such licenses will live under the shadow of possible future challenges to the validity of their marriages:
Because a valid license is a prerequisite to solemnization, see KRS § 402.080, and because Kentucky courts have yet to address whether defects in a license of this magnitude can void the marriage, any marriage performed pursuant to the licenses issued last week by Davis’ office is potentially open to a future challenge to its validity. . . .
[E]ven if the altered licenses were ultimately determined to be valid at some future point,  . . . Davis’ interference has caused substantial injury to Plaintiffs and members of the putative class by intentionally creating uncertainty surrounding their exercise of the fundamental right of marriage."
Presumably it is plaintiffs' view that the creation of this "uncertainty" violates their Fourteenth Amendment rights:  Davis's "intentional creation of such uncertainty surrounding the exercise of a fundamental right like marriage," they write, "--an uncertainty not faced by couples in other counties – is a significant burden and injury that Plaintiffs and members of the putative class ought not bear."

(ii) Second, and more interestingly, plaintiffs allege that their (presumably federal) rights have been violated because they have been subject to "humiliation and stigma associated with the receipt of marriage licenses that are effectively imprinted with Davis’ opprobrium."  They write:
The marriage licenses currently issued by the Rowan County Clerk’s Office are so materially altered that they create a two-tier system of marriage licenses throughout state.  The adulterated marriage licenses received by Rowan County couples will effectively feature a stamp of animus against the LGBT community, signaling that, in Rowan County, the government’s position is that LGBT couples are second-class citizens unworthy of official recognition and authorization of their marriage licenses but for this Court’s intervention and Order.
For more on the possibility that such a "stamp of animus" might violate the Fourteenth Amendment, even if the same license form is used for same-sex and opposite-sex couples alike in Rowan County, see Mike Dorf's post from earlier today.  (I contributed a comment to that post with respect to this Fourteenth Amendment question.)

Saturday, September 19, 2015

Don't be surprised if Kim Davis is remanded to the custody of the federal marshal . . . again

Marty Lederman

Just over a week ago, on September 11, Judge Bunning issued the following order when he released Kim Davis from federal custody:
"Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.  If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."  
When Davis returned to work as Rowan County Clerk three days later, on Monday, September 14, she ordered Deputy Clerk Brian Mason to change the form of marriage licenses that he issues in Rowan County.  The first such license Mason issued on Monday, for example, reads:  "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials "BM"], Notary Public." 

This is very different from the licenses Mason had issued while Davis was in custody, in at least three respects.  On the new licenses, pursuant to Davis's order, there is no indication of (i) the Office from which the license was issued, (ii) the County, or (iii) Mason's title or authority as Deputy Clerk.  (Nor is there any mention of Davis herself, of course--but that was also true of the licenses that Mason issued while Davis was in custody.).  From all that appears on the face of the license, Mason has issued it in his capacity as Notary Public, not Deputy Clerk--even though Kentucky law authorizes only Clerks and Deputy Clerks to issue such a license.  

Once Mason began to issue such licenses, Davis's attorney issued the following statement:
"The license that went out today does not violate Kim Davis's conscience.  If it's satisfactory to the ... court, then I think we will have found that win-win solution that we have been asking for all along."
Also on Monday, Kentucky Governor Beshear was quoted as saying that the licenses Mason was issuing "are going to be recognized as valid in the Commonwealth."  And a spokeswoman for Kentucky Attorney General Jack Conway likewise said that although the Attorney General had not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid.

As I wrote on Monday, I think that's probably correct as a matter of Kentucky law.  KRS § 402.100 requires that the license include, inter alia, "the date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license."  If "Morehead" suffices for "place," then these requirements would appear to be literally satisfied by Mason's new licenses, although nothing on the face of such a license indicates that it was issued by a Clerk or Deputy Clerk (it describes Mason as a "Notary Public").

Moreover, even if the new form does not conform completely to Kentucky statutory requirements, it's not obvious that the remedy for such an inadequacy would be to find that marriages were void because the officiant was not authorized to perform the ceremony.  (The license is an authorization for an individual to join two others into marriage as a matter of Kentucky law.)  Especially in light of the Governor and Attorney General's public assurances, it is highly unlikely that any future court or Kentucky official would conclude that such a marriage is invalid, even if it does turn out to be the case that the new form does not technically comply with Kentucky law.

That does mean, however, that all is well in Rowan County.  For one thing, as I noted on Monday, Davis appears to be acting in violation of the judge's September 11 order that she must not "interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples."  Indeed, counsel for Deputy Clerk Mason suggested as much yesterday in a report filed with the court.  That report explains what happened on Monday, and raises the question whether Davis (and therefore Mason) is violating the court's injunctions:
Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian Mason, and CJA having been appointed to represent him in the above styled matter, pursuant to the order of September 8, 2015, makes the following report.
Mr. Mason informs me and the record confirms such, that he has issued the appropriate marriage licenses for same-sex marriage pursuant to the court's orders, and has continued to do so in light of changes that had been made by the Clerk, Ms. Davis. 
He is the only deputy clerk that is doing so by mutual agreement between the others wherein Mr. Mason agreed he would take care of those matters himself if it would ease the stress of the situation, although they all stand ready to do so in his absence as they had promised the court. 
On September 14, 2015 Ms. Davis came into their office and he [Mason] tells me the following:  
Kim Davis came to the office and confiscated all the original forms, and provided a changed form which deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court's styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign.  There is now a notarization beside his initials in place of where otherwise signatures would be.
I discussed with Mr. Mason in my opinion he had done nothing wrong and is continuing to follow his sworn testimony to the court, however it also appears to this counsel those changes were made in some attempt to circumvent the court's orders and may have raised to the level of interference against the court's orders.  Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order, but is issuing licenses which had some remote questionable validity, but now with these changes may in fact have some substantial questions about validity.
It is part of this report to notify the court of the changes and it is expected there will be other parties to the action that will bring a request to this court for a review on whether or not her [Davis's] actions are against the orders of the court and the likelihood that the validity of these marriages licenses would have to be entertained if not in federal district court, state courts. A gain Mr. Mason's concern is he does not want to be the party that is issuing invalid marriage licenses and he is trying to follow the court's mandate as well as his superior ordering him to issue only these changed forms and only with initials and only as notarized, which in the last example I have seen are not even notarized.  To date, upon the filing of this report the circumstances remain the same, and counsel addresses this court with the newest information he has available.
To similar effect, the named plaintiffs in the case, in a pleading concerning their motion for class certification, yesterday suggested not only that Davis is acting in violation of the injunction, but also that the resultant "two-tier system of marriage licenses issued in Kentucky"--the tiers being those licenses issued in Rowan County (to same-sex and opposite-sex couples alike), on the one hand, and those issued in all other Kentucky counties, on the other--might itself violate the Equal Protection Clause, even if all the licenses are valid under Kentucky law:
Davis has modified the marriage licenses currently provided by her office to state that they are issued only “Pursuant to Federal Court Order #15-CY-44 DLB.” . . .  Additional material alterations made by Davis to the licenses issued by her office include requiring her clerk to issue licenses in his capacity as a “notary public” rather than a deputy clerk of the Rowan County Clerk’s Office. . . .   These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two-tier system of marriage licenses issued in Kentucky, and do not comply with this Court’s September 3 Order prohibiting Davis from interfering with the issuance of marriage licenses.  Plaintiffs are exploring legal options to address these material alterations.
[UPDATE:  To clarify, then, there are a few different issues in play:

1. Is Davis in contempt of the September 11 injunction?  [Answer:  Almost certainly, yes.]

2. If so, what should the sanction be?  [Answer:  It probably would not be wise to jail her -- fines ought to do the trick.]

3. Do the new Davis-prescribed licenses comply with Kentucky law?  [Answer:  probably]

4. If not, would that affect the legality of resultant marriages under KY law?  [Answer:  almost certainly not]

5. Do the Davis-amended licenses violate the 14th Amendment, as plaintiffs suggest, even if they do not affect the legality of the resultant marriages under Kentucky law, and even if same-sex and opposite-sex couples are treated equally within Rowan County?  The theory here presumably would be that Rowan County is symbolically disfavoring same-sex marriage by virtue of appending an effective asterisk, or "issued under protest" message, to all licenses in Rowan County (same-sex and opposite-sex alike).  [Answer:  I'll need to think about this further if and when plaintiffs offer the argument.  Cf. Palmer v. Thompson.  In the meantime, check out Mike Dorf's thoughtful post on this question.]  

6.  If the Davis-prescribed licenses do not affect the legality of resultant marriages and do not otherwise violate the Federal Constitution, should Judge Bunning amend his order to permit Davis to demand that Mason issue them?

It's also worth remembering that all the licenses currently being issued are to couples who are not (yet) plaintiffs in the case -- and that raises a legal question of Judge Bunning's authority to protect such nonparties.  For this reason, plaintiffs are now asking the judge to rule on their motion for class certification.  If Judge Bunning certified the class, that would resolve this issue.]

Donald Trump and Constitutional Change

Joseph Fishkin

For those who persevered through the full 3-hour slog Wednesday night, perhaps the saddest moment in the Republican presidential debate came at the end, when moderator Jake Tapper asked what he characterized as a “lighthearted” question: which woman should the Treasury department put on the $10 bill?  This question is a softball; there are lots of reasonable answers.  Several participants offered some—Rosa Parks [Marco Rubio and Ted Cruz], Susan B. Anthony [Rand Paul], Clara Barton, founder of the Red Cross [Scott Walker], even Abigail Adams [Chris Christie].  Oddly, Jeb Bush and John Kasich either could not come up with a deserving American woman, or are extremely cosmopolitan in their outlook on U.S. currency: they named, respectively, Margaret Thatcher and Mother Theresa.  The two candidates currently at the top of the opinion polls, Ben Carson and Donald Trump, along with Mike Huckabee, suggested members of their families: Huckabee’s wife, Carson’s mother, and Trump’s daughter.  On the $10 bill.  Really?  (Perhaps I am overthinking this, but I wondered whether perhaps some of these debaters had prepared an answer to a question calling for a woman, perhaps to talk about a woman who inspires you, something of that sort.  Caught in the headlights and unable to summon up a plausible American woman worthy of being placed on the $10 bill—which by the way seems quite revealing and not in a good way—they instead offered up the women they’d talked about in debate prep.)  At any rate, no harm done.  It’s a very, very safe bet that Ivanka Trump’s visage is not going to be featured on the $10 bill.

You might think it would be equally safe to assume that Donald Trump’s comments in the debate are not going to be a source of constitutional meaning.  But there, you would be wrong!

I am thinking specifically of Trump’s interpretation of Section One of the Fourteenth Amendment, with respect to birthright citizenship. The Amendment’s text reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

This powerful piece of constitutional text has ensured for 150 years that whatever else happens to people at the bottom rungs of American society, whose own legal status in our polity may be doubtful, their children, at least, are full legal citizens of the United States.  Birthright citizenship is a deeply American idea.  We do not have populations here like the Rohyinga of Myanmar, the Turks of Germany for much of the twentieth century, and so on—populations excluded from full citizenship despite living in a place for generations, by virtue of legal rules that visit the legal status of the parents onto their children.  In the U.S., birthright citizenship predated the Fourteenth Amendment, but the Amendment is what made it a national, uniform, settled constitutional rule.  Of course, in a democracy no constitutional question is ever completely settled.  Today, as in other periods of nativist agitation such as the 1890s and 1920s, there is a non-trivial movement on the extreme anti-immigration right to question birthright citizenship.  Some hope to find a way to read it out of the Fourteenth Amendment.

Enter Donald Trump.  He is definitely not the first American to question birthright citizenship, but he does so loudly, a lot, and on a big stage.  At Wednesday’s debate he argued: “I believe that a reading of the 14th Amendment allows you to have an interpretation where [birthright citizenship] is not legal.”  In fact, pushing several extra steps (as always), he claimed the Fourteenth Amendment says “very, very clearly to a lot of great legal scholars — not television scholars, but legal scholars—that [the usual interpretation] is wrong.”  Birthright citizenship “can be corrected with an Act of Congress,” he said, and “probably doesn’t even need that.”  He allowed, “It’s probably going to have to . . . go through a process of court, probably ends up at the Supreme Court,” noting again, “some of the greatest scholars agree with me.”  (Rand Paul then jumped aboard the train and filled out some specifics.  He said that the application of the Fourteenth Amendment to the children of illegal immigrants “hasn’t really been completely adjudicated,” and offered a slender reed of an originalist argument that “the original author of the Fourteenth Amendment said on the Senate floor that this was applying to slaves, and did not apply to others.”)

So, the question is: is this crazy talk?  Is this “off the wall,” in Jack’s extremely useful phrase?

Or, on the other hand, is there an argument here that constitutional lawyers and judges will soon take seriously, one that might in the not-too-distant future find its way to the Supreme Court, where some Justices will nod sagely and even decide they agree with it, conceivably even making it the law of the land?

Yes—and yes.

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Friday, September 18, 2015

The Problematic Living Constitution: The Dead Hand and the RoR Fallacy

Stephen Griffin

I’m continuing with this series of posts on the new originalism and living constitutionalism by distinguishing between theories of constitutional change and the most popular version of the idea of a “living” Constitution.  The last post argued that one key distinction is that theories of constitutional change are historicist while standard-form living constitutionalism is not.  This post hits closer to the living Constitution’s home base by contending that the main negative and positive arguments typically employed by living constitutionalists are flawed.  One negative move used against originalism by living constitutionalists is typically known as the “dead hand” argument.  I have to admit I never found this argument very persuasive and so I didn’t pay much attention to it in my prior work.  But this may be misleading, because some of the arguments I endorse as supporting my line of inquiry into the theory of constitutional change might be identified by other scholars as “dead hand” arguments – specifically, arguments about the difficulty of making formal changes through Article V.

I still don’t think of my own position as involving a commitment to “dead hand” arguments because in their typical form, such arguments simply sweep too broadly.  Here I have little to add to Jack Balkin’s dead-on-target discussion in Living Originalism that such arguments indict the entire project of limiting and empowering government through a written constitution.  They are quasi-Jeffersonian arguments against the project of constitutionalism as such (although I believe a soon to be published article in APSR will show that Jefferson’s position was more nuanced).  I would just add that this round of argument seems to assume there are only two kinds of clauses in the Constitution – “hard-wired” provisions that everyone believes should be followed as written and abstract clauses, the “glittering generalities” of the fourteenth amendment, for example.  I would contend that a third category of constitutional provisions should be recognized, exemplified by the list of enumerated powers granted to Congress.  The commerce and declare war clauses, for example, cannot be said to be “hard-wired” because there are longstanding disputes over their meaning.  Yet these clauses also have a solid core of determinate meaning that makes them very different from the sort of rights provisions usually relied on by living constitutionalists.  I’m enough of a living constitutionalist to think that further inquiry into either semantic meaning or historical purpose will not yield much of contemporary value with respect to the generalities of the fourteenth amendment.  Yet the “hard-wired” clauses are not the only provisions that impose hard limits on what government can do, at least absent an account of how their meaning can change legitimately outside Article V.  These hard limits, for example, are of crucial significance in the traditional war powers debate.  It is unclear, however, whether the leading versions of living constitutionalism can accommodate the limits imposed by this third category of constitutional provisions.

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Slavery and the Constitution

Mark Graber

Sean Wilentz in the September 16 edition of the New York Times presents the romantic Lincolnian story of the Constitutional Convention.  In this narrative, “proslavery delegates” who “fought to inscribe the principle of property in humans in the Constitution . . . were crushed.”  The resulting “Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans,” and “without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

A reader of Wilentz’s oped piece would be stunned to discover that at no point in the written record (which is admittedly incomplete) did any proslavery delegate propose to “inscribe the principle of property in humans in the Constitution” or that, contrary to his claim that northerners refused to accede to slaveholding demands for opening the international slave trade, Virginians led the fight against that commerce, which many northern delegates were perfectly willing to stomach in return for commercial concessions.  More to the point, southerners for the most part got what they wanted at the constitutional convention.  Whether that was a pro-slavery constitution depends on one’s perspective and hindsight. 

All parties to the debate over whether the constitution was pro-slavery or anti-slavery in 1787 rely on selective quotations. Proponents of the antislavery constitution cite the northern Quaker who declared that the power to abolish the slave trade after 20 years encompassed the opportunity “of abolishing slavery forever.”  Proponents of the proslavery constitution are fond of quoting Charles Cotesworth Pinckney, who informed South Carolinians that “We have a security that the general government can never emancipate them, for no such authority is vested.”  Madison more accurately captured the spirit of the drafting convention when during the debate over the Connecticut Compromise, he observed, “the real differences of interests lay, not between the large & small but between the N. & Southern States.”

The crucial compromise that proslavery and antislavery forces reached in 1787 was over the structure of the national government.  Contrary to Wilentz, southern delegates did not seek to inscribe “the principle of property in humans in the Constitution.” They sought to structure a federal government that would always be friendly to proslavery interests.  Contrary to Wilentz, slaveholders thought they succeeded.  The main demand slaveholders made at the constitutional convention was that total population, including slave population, be the means for allocating representation in all elected governing institutions.  Southerners wanted representation by population because everyone in 1787 was confident that population was flowing southward.  Georgia with a tiny population in 1787, consistently voted against state equality in the Senate, confident that in 20 years that state would have a population greater than Pennsylvania.  What slaveholders got was a House of Representatives they were likely to control, a 3/5s clause that augmented southern control of the House of Representatives and the presidency, and a Supreme Court whose members were likely to be appointed by the Virginians who were likely to hold the presidency.  Given their expected control over national institutions, slaveholders did not need or ask for many parchment protections for their human property.  At the very least, they could veto any proposal that damaged their interests.  More likely, from their perspective, they could pass affirmative legislation, such as fugitive slave laws, that placed the federal government on the side of human bondage.  South Carolinians in 1787 had no interest in state rights, particularly when compared to the delegates from the small New England states.

What seems relatively clear when examining the constitutional convention becomes less clear when the ratification conventions are added to the analysis.  Framers in different state conventions had very different ideas of the constitutional status of slavery.  Framers in New England ratified a constitution that had more to do with commerce than slavery.  Attitudes towards slavery ranged from “none of our business” to the more Lincolnian hope that slavery was on “a course of ultimate extinction.”  South Carolinians ratified a proslavery constitution.  Many insisted that northerners would become increasingly proslavery over time once they realized the profits to be made in the slave trade and commerce in slave goods.  Virginians ratified a constitution they expected to be controlled by Virginians.  “We will soon outnumber them,” George Nicholas said, so that “this Government will be very shortly to our favor.”

The main lesson these debates teach is twofold.  First, structures are more important to constitutional framers then rights.  When thinking about what a constitution protects, we should first look to whose rights and interests constitutional structures privilege and not to the parchment barriers enumerated in Bills of Right.  Both the persons responsible for the Constitution of 1787 and the persons responsible for the Constitution of 1868 were more concerned with the sort of government structures that might protect certain rights and interests than with enumerating rights provisions explicitly protecting those rights and interests.  The framers in 1787 sought to construct a government that would be sympathetic to southern interests.  The framers in 1868 sought to construct a government that would implement the constitutional ban on slavery in good faith.  Second, constitutional development is often driven by the failure of constitutional structures to function as expected.  Framers consistently fail to anticipate the future.  Slavery became a polarizing issue because population went northwestward instead of in a southerly direction.  Emancipation occurred in 1865 because contrary to the framers' expectations, the north had more troops than the south, unbeknownst to the framers, the north had more railroads than the south, and, frankly, because a Confederate general misplaced his orders at Antietam.  The Republican Party after 1868 soon lost its strong commitment to protecting persons of color.  Our constitutional politics today is contentious, not because we fail to appreciate the Constitution in its pristine form, but because we are trying to perform the impossible task of operating the Constitution in its pristine form.

[The longer version of this essay can be found in Dred Scott and the Problem of Constitutional Evil]

Wednesday, September 16, 2015

Citizens United and the Future of the American Political Party

Joseph Fishkin

Heather Gerken

The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.

First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.

In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”

The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.

While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.

Cross-posted on the Election Law Blog

Stanley Fish’s Defense of Kim Davis

Nelson Tebbe

Richard Schragger, Micah Schwartzman, and Nelson Tebbe

Stanley Fish has written a defense of Kim Davis, see here and here, and it is worth parsing his arguments, because they have become staples of both left and right critiques of the secular state for some time now. Fish argues that rights-based liberalism is not “neutral” but is an exercise of power. In particular, the public/private distinction—which makes Davis’s “private” exercise of religion irrelevant to her “public” exercise of her duties—is a creature of law and the forceful imposition of a worldview that many do not share. Davis (and many other religionists) do not believe in a clean division between public and private. To impose such a division on her and others is to impose upon them a construction of the world that is as much a religious establishment as is any official church. Liberalism is a “religion” just like any other; it just happens to be the state religion.

Davis is a good test for these kinds of arguments, which take aim at the supposed pretensions of liberalism to neutrality among religions and between religion and irreligion. (Whether liberalism does so is asserted, usually without support.) One could reject the public/private distinction. Davis could then exercise her official duties as she would exercise her private duties to God; these would be one and the same, and where they conflict, Davis would apply God’s law (as she sees it). Public officials who assert that they are servants of God can take this position.

Fish, however, isn’t willing to jettison the public/private distinction altogether. Critics of the secular state can argue vociferously against the distinction, but when push comes to shove the alternative isn’t very attractive. That’s because rejecting the public/private line would be countenancing an actual establishment of religion. Davis can reject gay applicants for marriage as inconsistent with God’s law according to this argument; but she can also enforce God’s laws in every other way. If we accept that Davis is compelled by God, then her religious exercise is burdened if she signs the marriage license, if she happens to be in the room when the marriage license is issued, if she sees LGBT people walking down the street, or even if she happens to know that the state of which she is a member countenances gay marriage. Her claims of complicity with violating the tenets of God’s law are totalizing.

If we accept Davis’s claims then we’ve replaced one establishment with another. And so Fish ultimately ends up playing the same game that he argues so forcefully against: finding a place to draw the line between public and private. For Fish, it seems, that line should be drawn at accommodating Davis’s religious objections by giving her an opt-out from signing marriage licenses. But what’s the reason for giving Davis an opt-out without also allowing her to create an establishment of her own? Why stop at an exemption? After excoriating the state for choosing where the line should be drawn, Fish draws his own: where it is relatively easy for the state to accommodate religious people (including religious government officials) it should. But why? Because it is fair or good or just? Fish doesn’t give us a reason—perhaps an exemption is required because the exercise of state power should always be resisted. Or perhaps giving an exemption keeps the peace. But notice how far we’ve come: from a deep critique of liberalism’s power grab, to a much more manageable dispute about the contours of religious exemptions.
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Tuesday, September 15, 2015

Revenge Pornography and First Amendment Exceptions

Andrew Koppelman

The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “revenge pornography,” which some states have attempted to prohibit.

These prohibitions restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden.

Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse.

I elaborate in a paper forthcoming in the Emory Law Review, available on SSRN here.

Monday, September 14, 2015

Kim Davis developments [UPDATED as of Monday evening]

Marty Lederman

Kim Davis has recently filed a couple of briefs in the Sixth Circuit, and she attached the transcript of the September 3 contempt hearing to one of them.  Moreover, she made a statement this morning announcing what she's going to do now that she's back at work.  Therefore it's now finally possible to figure out where things are heading, at least to a certain extent.

1.  Judge Bunning construes his Preliminary Injunction to cover the Deputy Clerks

The judge is of the view that the P.I. enjoins the Rowan County Deputy Clerks, as well as Davis, under FRCP 65(d)(2)(B), because (i) they are Davis's "employees"; (ii) they are on notice of the injunction against her in her official capacity; and (iii) as I described in my first post, they are themselves authorized by Kentucky law to issue marriage licenses.  Judge Bunning therefore threatened to hold the Deputies in contempt, too, if they continued to refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the licenses (although he also asserted that he was willing to do so earlier, and would have issued them prior to the P.I. but for Davis's direction to him not to do so).

2.  Davis is moving to overturn Judge Bunning's expansion of his injunction to cover nonparty couples

As I wrote last week, Judge Bunning expanded the terms of his preliminary injunction so that it now prohibits Davis (and the Deputies--see above) “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky.”  I surmised that he did this in order to protect members of the class that the individual plaintiffs are seeking to certify, in the event the judge later certifies such a class.  But it turns out I was wrong:  Judge Bunning's rationale for expanding the injunction is that he had before him two companion cases, Nos. 15-46 and 15-62, each involving one other plaintiff couple (David Ermold/David Moore, and James Yates/Will Smith, respectively), "that involve, in essence, the very same allegations with the same lawyers."  "[I]t just makes judicial sense," he said at last week's hearing, "to have the Circuit review the decision for all three of [the cases].  I'm not granting a class certification motion.  But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling."

Davis argues that Bunning should not have expanded the P.I. beyond the four named plaintiff couples, and is asking the court of appeals to reverse that expansion.  I'm not up to speed on the various procedural nuances of this motion, but Davis actually might have a point on the merits.  If Judge Bunning simply wanted to make sure his preliminary injunction covered the other two couples who are suing in the companion cases, it's not clear why he didn't simply extend the injunction to cover those couples or, at most, to cover all couples who have filed or do file such cases.  The judge has not (at least so far) offered a justification for having expanded the P.I. to cover couples who appear at the Rowan County Clerk's Office but who do not file a suit.  (Perhaps he assumes that any couple turned away by Davis would promptly file a suit; but that might not be a valid assumption.)

Accordingly, I think there's at least some chance that the court of appeals will limit the P.I. to the named parties.

Five of the six plaintiff couples (including both of those in the companion cases) have already obtained licenses on which Davis's name does not appear.  Only Shantel Burke and Stephen Napier have not yet done so.  Therefore, if the court of appeals were to amend the injunction to be limited to the parties, that order would then cover only one remaining couple (Burke/Napier), at least until such time as Judge Bunning certifies a class in one or more cases before him.

3.  Davis is instructing the Deputy Clerks to further alter the licenses they issue . . . and Deputy Clerk Mason is doing so

As I noted earlier, Davis had argued that deleting her name from the licenses issued by Deputy Clerks in Rowan County would be an adequate accommodation of her religious obligations.  Among the alternatives that Davis argued would "accomplish" the state interest "without substantially burdening Davis’ religious freedom and conscience" was this:  "Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form."  Similarly, at the contempt hearing she testified that she would not have any objection "if there were a way to issue a marriage license from Rowan County that did not depend on [her] authorization and bear [her] name."  And her lawyer also stated that if the form had "no personal authority, no Kim Davis name on it, available in a Rowan County Clerk's office, . . . this case would be over."

Davis should therefore be satisfied with the status quo, then, right?  After all, Deputy Clerk Mason is issuing licenses that do not bear Davis's name.

Now that her name has been removed, however, it turns out that the solution Davis earlier proposed does not suffice from her perspective.  In her statement this morning, Davis said that she has ordered that the licenses issued by the Deputies in Rowan County may not include her name or title or "authority" [it's not clear what that means, since the form doesn't mention her "authority" in the first place], and that such licenses will bear the notation "Issued pursuant to a federal court order."

[UDPATE:  The first couple to receive a license today from Deputy Clerk Mason was Carmen and Shannon and Wampler-Collins (who as far as I know are not plaintiffs in a case).  Their license reads:
"Issued this 9/14/2015 [crossed out:  "in the office of ________, _______" (blanks are designated for "name" and "county")], Pursuant to Federal Court Order No. 15-CY-44, DLB, [crossed out:  "County Clerk"] Morehead, Kentucky by Brian Mason [signature initials] [words "Deputy Clerk” not added]"

That is to say, it reads:  "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials]."  No indication of the Office, the County, or Mason's title or role (and no mention of Davis, of course).

A spokeswoman for Kentucky Attorney General Jack Conway said today that although the Attorney General has not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid.  That's probably correct as a matter of Kentucky law.  KRS § 402.100 requires that the license include, inter alia, "the date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license."  If "Morehead" suffices for "place," then these requirements would be literally satisfied by hte Wampler-Collins, although nothing on the face of the license indicates that it was issued by a Clerk or Deputy Clerk.  If Judge Bunning has any serious doubt about whether such a license would be valid, he might enjoin Davis and Mason from enforcing such revisions.  Even if the new form does not conform completely to Kentucky statutory requirements, however, it's not obvious that the remedy for that inadequacy would be to find that the subsequent marriages were void because the officiant was not authorized to perform the ceremony.  Perhaps Kentucky might take action to insist upon a particular form going forward.  It is highly unlikely, however, that any future court or Kentucky official would conclude that a marriage is invalid just because Mason issued a form that turns out to have been in technical noncompliance with Kentucky law, especially now that the Attorney General has publicly opined that they are valid.]

There is also some chance that a couple who receives such a bowdlerized license might argue that it violates the federal Constitution for Rowan County to issue such an "under protest" license.  (It appears from Davis's statement that the County will issue such licenses to all couples, both same-sex and opposite-sex; but that remains to be seen.  Obviously, the federal constitutional problems would be more acute if the notation in question appears only on the licenses of same-sex couples.)  I might have more to say about the merits of such an argument if and when we see it.

At a minimum, Davis appears to be in violation of the judge's order of 9/11, which stated that "Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.  If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."

Davis is interfering with the efforts of the Deputy Clerks to issue licences, by ordering Mason to amend the license form.  I doubt anyone will (or should) care enough to try to have her held in violation of the order, but she is, indeed, violating it.

4.  Davis continues to press her claims against the Kentucky Governor

Meanwhile, Davis continues to urge the federal courts to order the Governor to amend the marriage license form to conform to her preferred amendments--but the courts are unlikely to grant her any such relief.

On Friday, Judge Bunning ruled that Davis's federal claims against the Governor, under the First Amendment, have little to no likelihood of success, and that her claims under Kentucky law, including Kentucky RFRA, are barred by sovereign immunity.  "Davis’ claims brought under state law should therefore be brought in Kentucky state court," he explained.

The Governor himself has made similar arguments, as well as others, in the court of appeals, and that court is likely to agree with Judge Bunning.  (For what it's worth, in the Sixth Circuit Davis argues that her Kentucky RFRA claim is not barred by sovereign immunity because denial of that claim is itself a violation of her federal constitutional rights.  But that argument is groundless.)

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