The Eight-State Solution

Mark Tushnet

Posted 10:01 PM by Mark Tushnet [link]

The Endless Perpetuation of a Racial Entitlement Not to be Discriminated Against: When Will it Ever End?

Joseph Fishkin

The Voting Rights Act had a relatively rough day in court today as the conservative justices asked Solicitor General Don Verrilli and LDF’s Debo Adegbile rather skeptical-sounding questions about the 2006 reauthorization.  (The oral argument transcript for Shelby County v. Holder is available here.)  Section Five of the Voting Rights Act singles out some jurisdictions with long histories of discrimination for special scrutiny; it requires them to submit all changes to their voting laws to the DOJ or a court.  From the skeptical-sounding Justices, I hear three arguments for why the reauthorization of Section Five might fail the new congruence and proportionality test the Court has devised (or whatever test the Court decides to apply to Congress’ use of its Fifteenth Amendment enforcement power).  Put simply, they are:

(1) The South has changed.  As Burt Rein, counsel for Shelby County, put it: “the problem to which the Voting Rights Act was addressed is solved.” (tr. pg. 65)

(2) Today, sure there may be race discrimination in voting, but it’s equally bad in the North and the South.  Massachusetts is just as bad as Mississippi, if not worse. (see CJ Roberts on p.32)

(3) This one is the most novel: Section Five of the VRA amounts to a “racial entitlement,” and the Court must strike it down. This one is Justice Scalia’s particular contribution.  He argues that the Court must step in to correct what amounts to a political process failure: no one but the judiciary can stop the “perpetuation of [a] racial entitlement” once enacted.  This argument represents a clever, indeed somewhat mind-bending, twist in the long trajectory of process theory arguments and representation-reinforcing judicial review.

The first of these three arguments is straightforwardly about Congressional power and federalism: is there enough wrong to justify the remedy?  The second turns to claims of dignity and equal treatment—not of people, but of states.  The third mines a special vein of political and constitutional concerns that link Shelby County v. Holder with Fisher v. University of Texas (the other high court case this term instigated by Ed Blum and the Project on Fair Representation).  For Blum, and for Justice Scalia, these cases are in part about the need for courts to use the clear command of constitutional law to override suspect legislative judgments (of Congress, in reauthorizing the VRA) and educational judgments (of the University of Texas)—judgments that are suspect because they seem infected with a suspicious desire to achieve some conception of fair representation (in legislatures, on college campuses) on the basis of race.

This last argument presses toward a place I doubt most of the Justices in the conservative majority want to go.  But they don’t need to.  The project of anti-anti-discrimination includes a multitude of helpful tools.  In this case, arguments (1) and (2) may do the job nicely.  I’d bet on (2), with a minor assist from (1).  More about all three, especially Justice Scalia’s distinctive third argument, below.

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Posted 11:33 PM by Joseph Fishkin [link]

A Second Constitutional Convention

Gerard N. Magliocca

In news that will warm Sandy's heart, the Indiana Legislature is poised to pass a resolution petitioning for a national constitutional convention.  Here is the current language:

"That the General Assembly finds and declares that this resolution is passed in accordance with the method provided to states in Article V of the Constitution of the United States for proposing amendments to the Constitution of the United States.
    (b) That the General Assembly further declares that such a step is necessary to restore the operation of the constitutional system of the United States according to the intent of those who created it; that is, to return to an appropriate balance between the federal government and the states by specifically defining, and in so doing, limiting certain powers of the federal government.
    (c) That the General Assembly further declares that the convention for proposing amendments called for in this resolution shall be understood to be strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress.

Posted 8:59 AM by Gerard N. Magliocca [link] (46) comments

Sanford Levinson on the Three Fifths Compromise

JB

The New York Times' Room For Debate is holding a discussion on "The Constitution's Immoral Compromise," the infamous three-fifths clause of Article I, section 2, clause 3. Sandy's essay is here.

It's worth noting that the choice was not necessarily between the three-fifths clause or no constitution at all.  The compromises that people reach depend on the agenda before them and the suggestions made in the course of deliberations.  The North agreed to a package of provisions that benefited the South, including the electoral college and the fugitive slave clause.  We do not know whether a different package of provisions without the three-fifths clause but retaining the others would have satisfied the Southern delegates. It might be, as Hank Chambers suggests, that the result would have been more representation of property of all types, and a far less democratic system than the one that ultimately developed.  Such a compromise might have prevented the Civil War, but also entrenched the power of  large landholding families, akin to what happened in other nations, for example, in parts of Latin America.
Posted 8:18 AM by JB [link]

A Fixed Star in our Constitutional Constellation

Gerard N. Magliocca

If I had to choose one Supreme Court opinion to read, it would be West Virginia State Board of Education v. Barnette.  I suspect that many of you share my view.  A question that I have been pondering in recent months is why this case is so special.

One answer is that Barnette is brilliant prose. Most Supreme Court opinions are dull, but Barnette has many lines that sparkle. Another idea is that Barnette represents a classic jurisprudential duel between Justice Jackson's approach (whatever you want to call it), and Justice Frankfurter's impassioned dissent in favor of judicial restraint.  In that sense, Barnette is a great case for law professors to use in class. A third thought is that the subject matter of Barnette (forcing schoolchildren to salute the flag when that is contrary to their faith) touches on many of the concerns that drive modern constitutional law (respecting diversity, regulating schools, free exercise of religion) in a visceral way.  

My answer, which is part of an article that I'm writing called The Canonization of the Bill of Rights, is that Barnette is exceptional because it is the case that made the Bill of Rights into a powerful force in constitutional law.  Until the 1940s, the Supreme Court rarely referred to the Bill or Rights, and when it did the citations were brief and uninspired.  Barnette, by contrast, cites the Bill of Rights many times and does so in a way that makes it clear that the Bill is extremely important.  Barnette was the product of many forces (the fight against Fascism, FDR's unprecedented use of the Bill of Rights as a rhetorical trope, and the collapse of Lochnerian jurisprudence), but the case crystallized those trends in a way that changed the Constitution forever.
Posted 9:50 AM by Gerard N. Magliocca [link] (10) comments

Marriage and chess

Andrew Koppelman

Posted 9:50 AM by Andrew Koppelman [link]

The 2012 Election and the Constitutionality of the VRA

Nate Persily

Below is the introduction to a new paper completed by Charles Stewart III (MIT), Steve Ansolabehere (Harvard) and me concerning racial polarization in the 2012 election and its relevance to the constitutional challenge to section 5 of the VRA the Court will hear on Wednesday:

     Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act,  we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 election.    In particular, the brief and a subsequent Harvard Law Review article that expanded upon it,  highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time.  Although some states had improved and others worsened in the gap in candidate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA.

    We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data.  Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in support for President Obama’s reelection.  This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered states.
Posted 10:54 PM by Nate Persily [link]

Education Reform: Agendas, Influence, and Capital

Frank Pasquale

In 21st century America, inequality is the foundational social reality. Institutions that reinforce inequality thrive; those that counteract it are targeted as socialistic or Luddite. Even more insidiously, the same movements that try to fight extreme inequality are, as often as not, co-opted by its beneficiaries.

Co-optation is a particular danger in the education sector. Aaron Bady is one of the best writers & thinkers on the topic. To understand co-optation in higher ed, one could do worse than dive in to his latest salvo against Silicon Valley-style "disruption" in the classroom:

[Clay] Shirky thinks in terms of “disruption” and what can come of it, in theory. I think in terms of what the “disruption” of the University of California system looks like in practice, as a complex of politicians, financiers, and career administrators move in lock-step to transform it into a self-sufficient corporate entity, and to enrich private industry in the bargain. I see a group of decision-makers . . . for whom “online” is code word for privatization. If I am against MOOC’s [Massive Open Online Courses], I am against the way “MOOC” is being experienced in California, in practice: as an excuse to cheapen education and free the state . . . from its responsibility to educate its citizenry.

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Posted 2:29 PM by Frank Pasquale [link]

Ordered Liberty: Response to Mark Graber

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

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Posted 9:24 AM by Guest Blogger [link]

Ordered Liberty: Response to Gerard Magliocca

Guest Blogger

James E. Fleming & Linda C. McClain

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)


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Posted 9:42 PM by Guest Blogger [link]

Law lives through categories; technology disrupts categories

JB

A discussion about drones with my colleague Oona Hathaway led me to propose a simple way to think about technological change and legal interpretation: Law lives through categories, but technology disrupts categories.  The problem for lawyers--and many other people besides--is what to do when technological change disrupts the categories through which we understand the social and legal world.


Legal doctrines often take the form of differentiation and division into different situations--to which different legal norms and legal solutions apply.  Law divides the world into categories in order to specify which norms should apply in which situation.  Legal categories, in turn, are often premised on distinctions that rest on the way we understand the world to be, what is possible and what is not possible, what is costly and what is cheap, and so on.  Moreover, legal categories often reflect a balance of competing interests or principles; a balance that applies differently--for the most part--within each category.

Technological change disrupts our understanding of what is possible or impossible, what is relatively expensive or inexpensive. It makes possible or gives new incentives for activities that were either impossible or prohibitively costly. It introduces new combinations of properties or features that we hadn't imagined before. It brings new participants into systems and activities from which they had been previously excluded.  It changes the balance of principles that previously justified the categories we had chosen.

Each of these changes may confound existing legal categories. Then we must decide what values are more important, and that we really want to protect, in the context of changed conditions.  Categories often reflect a balance of considerations, and when we change our categories, we may have strike a new balance, which inevitably means giving up something-- often something that we would not rather have to give up.

As a result, it is difficult to say that we can simply preserve our existing values-- and the balance between conflicting values-- in the face of technological change. Rather, what change does is put values that people once imagined (correctly or not) were fairly well accommodated once again in conflict with each other. Technological change exacerbates the tensions between these values, and seems to demand from us a new accommodation, a new set of lines, and a new set of categories.  This demand appears as a demand from the outside-- i.e., from "technology"--but is really a demand from inside, from our moral imaginations.  Crafting a solution is difficult precisely because it disrupts existing settlements, compromises or ways of living. It may require us to sacrifice some values for others in a new set of contexts.  What technology does, in short is disrupt our moral sense of propriety, and force us to imagine a new sense of propriety.

Of course, to speak in terms of "technology" doing things is apt to be misleading.  "Technology" does not do things by itself. Its effects depend on the choices that people make, and the way that people apprehend, interpret, and make use of the possibilities opened up by technological change.  People experiment, imagine, and try out new uses for new tools. They organize to protect their (sometimes newly discovered) interests and agendas.

The military and civilian use of drones for example, or the interfaces through which we communicate digitally were not inevitable; they did not have to happen precisely as they have. Rather, people made choices that were opened up by technological change. They took advantage of new capacities and possibilities and created a new social reality.  When we say that technology disrupts law, what we really mean is that people, using the capacities and tools available to them, and using these tools to understand and imagine the world in new ways, have disrupted the social life and social norms around them.  The consequences for law may often be quite dramatic.

Posted 1:42 PM by JB [link]

Ordered Liberty: Response to Michael Dorf

Linda McClain

Jim Fleming


For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)




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Posted 1:30 PM by Linda McClain [link]

The First Amendment is an Information Policy

JB

My latest article, The First Amendment is an Information Policy, is now up on SSRN. Here is the abstract:

This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

Posted 8:05 AM by JB [link]

Ordered Liberty: Response to Eric Blumenson

Linda McClain

Jim Fleming

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)


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Posted 10:14 PM by Linda McClain [link]

Liberalism’s Errant Theodicy

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)



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Posted 3:00 PM by Guest Blogger [link]

Finding Common Ground: The Liberal Virtues In Ordered Liberty

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

Eric Blumenson


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Posted 12:00 PM by Guest Blogger [link]

Ordered Liberty and the Focus of Contemporary Progressive Constitutional Theory

Mark Graber

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)


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Posted 11:58 AM by Mark Graber [link]

Ordered Liberty and Guns

Gerard N. Magliocca

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)


 Ordered Liberty:  Rights, Responsibilities, and Virtues is a thoughtful defense of the liberal tradition in the spirit of the late Ronald Dworkin.  I must admit that I am a skeptic when it comes to any theory of adjudication.  It is sometimes hard to distinguish between comforting justifications for rights that your fellow travelers like and reasons that can convince people who are not in the choir.  Accordingly, I am curious to know how the right identified in Heller fits into Fleming and McClain's framework.

Some of the objections that the authors discount to a strong understanding of rights could be applied to gun ownership.  For instance, a communitarian may say that the widespread possession of guns breeds irresponsible behavior and harms social welfare.  Likewise, a minimalist may say that the courts are ill-suited to make judgments about gun regulation--those choices belong to elected officials.  On the other hand, the authors say that they are developing "an account of responsibility that takes rights seriously, avoids submerging the individual into the community, and appreciates the value of diversity in our morally pluralistic democracy." Gun rights are an excellent example of tolerating diversity as between urban and rural citizens by respecting individual autonomy.  Or are they?  I can't tell because the book mentions guns only in passing once (unless I missed something).

Put another way, what is included in the "liberal theories of rights" that Fleming and McClain affirm so well and what "inculcates civic virtues" in the way that they want?  Many Americans believe that gun ownership is included and is part of being a responsible citizen.  Are they wrong?

UPDATE:  Normally, I open my posts to comments, but as this is part of a symposium I will not do so this time.






Posted 11:09 AM by Gerard N. Magliocca [link]

Ordered Liberty: A Response to Sotirios Barber

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)



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Posted 6:00 AM by Guest Blogger [link]

On Fleming and McClain’s Ordered Liberty

Guest Blogger

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

Sotirios Barber



Posted 7:30 AM by Guest Blogger [link]

Online Symposium on Fleming and McClain, Ordered Liberty

JB

This week we'll be hosting an online symposium on Jim Fleming and Linda McClain's new book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).  Participants will include Sot Barber,  Eric Blumenson, Mike Dorf, Mark Graber, and Gerard Magliocca. Jim and Linda will offer a response.
Posted 6:00 AM by JB [link]

Ronald Dworkin: A Eulogy

Guest Blogger

Jim Fleming


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Posted 9:40 PM by Guest Blogger [link]

What Were Dworkin's Most Important Ideas?

Stephen Griffin

The passing of Ronald Dworkin stills a great and powerful defender of the American liberal tradition.  From a historical point of view, how did Dworkin contribute to that tradition, especially as it relates to our understanding of the Constitution?  To my mind, two of Dworkin's early contributions still stand out for their historic significance.  It is hard to recall now, but liberalism in constitutional law before Dworkin was often skeptical that moral values could take a leading role in constitutional interpretation.  The origins of this skepticism are well described in Ed Purcell's essential book The Crisis of Democratic Theory and exemplified by Herbert Wechsler's critique of Brown and John Hart Ely's reluctance to concede that democracy had to be defended using moral arguments that were inevitably controversial.  From the beginning, Dworkin was a determined critic of moral skepticism.  Like John Rawls, his writings created an inviting space in which there could be a reasonable debate between opposing values.  Although I may be wrong, I have always thought that Dworkin's "right answer" argument could be understood as an anti-skeptical thesis.  If one was not a skeptic about moral values, then some version of the "right answer" thesis followed.  Anyway, that's the thought that occurred to me after I was lucky enough to study Law's Empire in Dworkin's seminar at NYU in 1986.  He was of course a brilliant teacher and a wonderfully engaging person.

The other early, important idea was that of rights as trumps.  Here the argument was that if you had a constitutional right, if you really had a right, then you had something that could not be overcome by a passing majority or what I believed Rawls referred to as "the calculus of social interests."  Again, it is hard to recall that the constitutional law of the time seemed to be dominated by a Frankfurterian balancing of the interests approach.  There were exceptions, such as the flag salute case in which Frankfurter dissented.  But a Frankfurter-influenced legal academy sometimes seemed reluctant to argue for rights that could stand as pillars of freedom and equality that could not be eroded.  This insight has perhaps been absorbed into the general corpus of liberal thought.  But Dworkin was an early and distinctive voice in support of this valuable idea.  We will all miss the author of these and many other contributions to the liberal tradition.
Posted 6:49 PM by Stephen Griffin [link]

Reagan’s Former AG Schools Hans von Spakovsky on Voting Rights

Doug Kendall

Posted 10:29 AM by Doug Kendall [link] (7) comments