Proposition Hate: A Question of Origins

Yesterday, the Supreme Court heard arguments in Hollingsworth v. Perry, a challenge to Proposition 8, a California ballot proposition that amended the state’s constitution to restrict the recognition of marriages to those between heterosexual couples.

During oral arguments, Justice Antonin Scalia and Ted Olson, the lawyer representing the Proposition 8 challengers, had the following exchange:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

(Emphasis added.) The full transcript from yesterday’s oral arguments is available here.

Scalia’s question is deceptively fundamental in nature, and it (surely unintentionally) raises a practical question about his own approach to civil rights. Summarily, his approach is to recognize as protected only those rights clearly shown to be protected within the Constitution’s text or, in some cases, in (very) long-established tradition. For him, unless a claimed right finds clear, preexisting contemplation and protection in the Constitution, the claimed right does not exist.

One practical benefit, at least to Scalia, of this approach is that it is fairly convenient to operate on the back end– that is, the time when a judge is adjudicating a claim of a right violated. Following the alleged violation, the judge simply needs to look to the Constitution to see whether the claimed right is mentioned or clearly contemplated. If not, the claimant does not have a case. If so, the judge proceeds to determine whether there was an infringement of the established right in that particular instance.

Where Scalia’s approach is problematic, though, is on the front end. While principles of democracy and separation of powers properly keep the judiciary out of the legislature’s policy-making business, the historical fallacy of approaches like Scalia’s is that there was a time in the past when policy makers purposely set forth all the rights of the citizenry. Such an exhaustive effort has never been undertaken at the federal level, yet it would appear to be a necessary precondition for Scalia’s approach to make logical sense. If policy makers never set out an exhaustive enumeration of rights, Scalia would have no such source to which to point and state authoritatively that if the claimed right was not included, it did not exist. (Scalia’s inclusion of longstanding history as, along with the Constitution, the other source of rights, conceptually undermines his position, I think, and is a topic best left for another day.)

As I explained at length here, the Constitution’s Bill of Rights is not such a document. Neither its terms nor the intent of its drafters make any claim to exhaustiveness, and the same is true of subsequent constitutional amendments.

Returning to yesterday’s oral arguments, Scalia’s question– “When did it become unconstitutional to exclude homosexual couples from marriage?”– both deeply illustrates his view of civil rights and exposes the flaw in that view. That an asserted right does not appear on a list of rights that neither is nor claims to be an exhaustive list of rights is not a fully sufficient support for the consequential position that the asserted right does not exist. See generally here.

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Another moment during yesterday’s argument of interest, if of lesser importance, came during an exchange between Justice Elena Kagan and the attorney for the Proposition 8 defenders, Charles Cooper.

Did the 13th Amendment Stay in Mississippi Too Long?

Making news today under the sensational headline “Mississippi Finally Gets Around to Abolishing Slavery” is the story of an investigation by two Magnolia State residents that revealed that their state never “officially” ratified the Thirteenth Amendment to the United States Constitution.

Section one of the Thirteenth Amendment provides:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Article V of the Constitution governs the constitutional amendment process and provides two avenues for amending the Constitution: an amendment may be proposed either 1) by two-thirds of Congress or 2) through a constitutional convention on a vote of two-thirds of the state legislatures. Ratification either is by three-fourths of the state legislatures or three-fourths of constitutional conventions in each of the states. Article V appears to leave open the possibility that Congress may prescribe other means by which an amendment may be ratified.

According to the National Archives, Congress delegated the Archives responsibility for administering the ratification process. The Archives describes a relevant part of the ratification process as follows:

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

Assuming these “formalities” constitute legally required steps in the amendment process, a proposed amendment does not become part of the Constitution until three-fourths of the states, acting through their legislatures or constitutional conventions, send a proper copy of their ratifying action to the Archivist.

After a vote of two-thirds of Congress, the proposed Thirteenth Amendment went to the states in 1864. Nearly two years later, when Georgia became the twenty-seventh state to ratify the amendment, the amendment was adopted and became a part of the Constitution. Mississippi did not ratify the amendment before Georgia did; in fact, it, along with other states like New Jersey, Delaware, and Kentucky, originally rejected the proposed amendment.

Over time, states that had not ratified the amendment did so, and those that initially rejected it reversed course and ratified it. Mississippi did so in 1995. As today’s story revealed, however, the Mississippi Secretary of State failed to notify the Archivist of their ratification action under the process described above, leading to the attention-grabbing statement that Mississippi had not “officially” ratified the Thirteenth Amendment and abolished slavery.

That view of this story likely is inaccurate.

First, once Georgia properly ratified the proposed amendment in 1865, the amendment became a part of the Constitution and, as such, the supreme law of the land. See U.S. Const. art. IV, s 2. The stance of the Mississippi legislature with respect to slavery was irrelevant because the Thirteenth Amendment applied in that state, just as it did in every other state, regardless of its decision on ratification.

Second, Mississippi probably did all it needed to do to “officially” ratify the Thirteenth Amendment– an act as symbolic in Mississippi as it was in every other state that decided to ratify the amendment after 1865– when three-fourths of its legislature voted for ratification in 1995. Under the Archives’ own description of the role of the notification procedure in the amendment process, the requirement for notice to the archivist would seem to be extinguished once a sufficient number of states had provided the requisite notice such that the amendment was adopted.

All Mississippi needed to ratify the Thirteenth Amendment was a three-fourths vote of its legislature. Having completed that in 1995, well after the adoption of the amendment, no further action was needed to make that ratification “official.”

The First Documented Eminent Domain Case?

My days in the world of condemnation litigation are over, at least for now, but eminent domain issues are not going away anytime soon. See, e.g., here. The notion that a sovereign may take the property of its subjects is an old one, as well, likely as old as hierarchical societies themselves. Our modern vantage point probably obscures our view of the history of this dynamic given the development of the concept of property rights. At least some indigenous cultures had no concept of property rights whatsoever. Even in more developed civilizations, property ownership was not an accouterment of individuals’ initial conditions. Instead, broadening land ownership came as a result of slowly carving away the large holdings of the few.

The earliest exercise of eminent domain authority as we understand it today therefore could not happen until a society had developed to the point that it featured a significant group of private landowners and a sovereign that had at least some conception of limitations on its powers. Compensation, the component so central to our understanding of the exercise of eminent domain authority today, probably came along later, at least as in the nature of an explicit, formal transaction.

The Old Testament Book of Kings, divided into 1 Kings and 2 Kings, describes the approximately four hundred years of Israelite history ending roughly in 600 B.C. Chapter 21 of 1 Kings tells the story of King Ahab and Naboth, the owner of a vineyard near the king’s palace:

Some time later there was an incident involving a vineyard belonging to Naboth the Jezreelite. The vineyard was in Jezreel, close to the palace of Ahab king of Samaria. Ahab said to Naboth, “Let me have your vineyard to use for a vegetable garden, since it is close to my palace. In exchange I will give you a better vineyard or, if you prefer, I will pay you whatever it is worth.”

But Naboth replied, “The Lord forbid that I should give you the inheritance of my ancestors.”

So Ahab went home, sullen and angry because Naboth the Jezreelite had said, “I will not give you the inheritance of my ancestors.” He lay on his bed sulking and refused to eat.

1 Kings 21:1-4. Naboth’s response is the one virtually everyone gives upon first hearing that a government agency wants to take his or her property. The difference for Naboth is that his protest worked. While certain aspects of the scope of the eminent domain authority remain contested today, the government’s power of eminent domain is not subject to serious legal question. (It also is of some note that the interaction tracks modern condemnation law by beginning with an offer, rather than the simple execution of the taking, to acquire the land in exchange for equivalent property or the value of the subject property.)

Given the power dynamics of a premodern, divinely ordained monarchy, it probably is not surprising that Naboth’s bold affront to the king succeeded only temporarily. The story continues, as Ahab’s wife finds the king sulking:

His wife Jezebel came in and asked him, “Why are you so sullen? Why won’t you eat?”

He answered her, “Because I said to Naboth the Jezreelite, ‘Sell me your vineyard; or if you prefer, I will give you another vineyard in its place.’ But he said, ‘I will not give you my vineyard.’”

Jezebel his wife said, “Is this how you act as king over Israel? Get up and eat! Cheer up. I’ll get you the vineyard of Naboth the Jezreelite.”

So she wrote letters in Ahab’s name, placed his seal on them, and sent them to the elders and nobles who lived in Naboth’s city with him. In those letters she wrote:

“Proclaim a day of fasting and seat Naboth in a prominent place among the people. But seat two scoundrels opposite him and have them bring charges that he has cursed both God and the king. Then take him out and stone him to death.”

So the elders and nobles who lived in Naboth’s city did as Jezebel directed in the letters she had written to them. They proclaimed a fast and seated Naboth in a prominent place among the people. Then two scoundrels came and sat opposite him and brought charges against Naboth before the people, saying, “Naboth has cursed both God and the king.” So they took him outside the city and stoned him to death. Then they sent word to Jezebel: “Naboth has been stoned to death.”

As soon as Jezebel heard that Naboth had been stoned to death, she said to Ahab, “Get up and take possession of the vineyard of Naboth the Jezreelite that he refused to sell you. He is no longer alive, but dead.” When Ahab heard that Naboth was dead, he got up and went down to take possession of Naboth’s vineyard.

1 Kings 21:5-16. Easy enough, it ultimately appears, for the sovereign in this case.

While some may believe that, had Naboth been aware of all of the terms of Ahab’s offer, Naboth would have seen it as one he could not refuse, others may see it as a precursor to the Lockean-American notion that a government’s deprivation of one’s life is on par with a government’s deprivation of one’s liberty or one’s property.

Jezebel earned herself a generally negative reputation for behavior like that depicted in the above-quoted story, but, at least in the case of Naboth, she may have been nothing more than a student of history. Cf. 2 Samuel 11 (telling the story of King David, Bathsheba, and Uriah).

As for Ahab (and Jezebel) and the feeling that the end result here is a deeply unjust one, there is some divine, and moderately gruesome, justice to be had. See 1 Kings 21:17-29; see also 2 Kings 9:30-36. It is unclear whether such results obtain today.

Review of a Review of a Review: On Barnett and Amar on Amar and “America’s Unwritten Constitution”

Professor Randy Barnett is a right-libertarian constitutional scholar who unsuccessfully argued Gonzales v. Raich, 545 U.S. 1 (2005) on behalf of medical marijuana users and unsuccessfully argued Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___ (2012) on behalf of the healthcare law challengers,  and who has appeared in these pages before. See here; see also here. Akhil Reed Amar is a leading progressive constitutional scholar who recently published an extensive book entitled America’s Unwritten Constitution: The Precedents and Principles We Live By. Earlier this month, Barnett published a review of Amar’s book in the Wall Street Journal. A few days later, Amar responded at length to Barnett’s review.

As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:

Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.

Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.

This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.

In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.

Amar sets out to refute this charge:

You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”

Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.

Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)

Preeminent Domain

Briefly: I have tried to come up with ideas, conduct research, and write legal material fit for publication in the past, see e.g., here and here, but I was not successful until I collaborated with a senior colleague beginning last year, and I found myself in print last month, see here. The Michigan Real Property Review published our article on the effects of certain state constitutional amendments and legislation passed in the wake of the United States Supreme Court’s decision in Kelo v. New London, 545 U.S. 469 (2005). In short, our conclusion is that Michigan law currently treats private landowners very favorably when it comes to compensation for the taking of real property.

The full article is available here.

Surely You’re Joking About the Criminal Justice System, Mr. Feynman!

Earlier this year, a friend sent me a copy of Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character), the oral memoir of Nobel Prize-winning physicist Richard P. Feynman. Upon completion, as the title implicitly promises, the reader is left with a strong sense of Feynman’s character: extremely self-confident, but never taking things too terribly seriously. While he credits the latter– a sort of everyman approach to life’s puzzles and adventures– for allowing him to take creative approaches to problem solving in physics and otherwise, it may be something of an outer surface he projects on top of his self-assured and extremely intelligent individuality. He doesn’t not remind me of Randy Pausch, late author of The Last Lecture. Still, Feynman is able to illustrate his developing personality over time, and stories about his time in Los Alamos, Brazil, and Las Vegas are fun and show readers a very well-rounded individual who could do plenty more than model nuclear physics.

Ninety-five percent of the book is Feynman telling stories, but he steps back at the end to offer some broader, more philosophical observations on the world after relating his time attempting to hallucinate with Dr. John C. Lily. Feynman expressed concern that, despite all of the scientific advances of the twentieth century, he was not living in a truly scientific age writ large because people continued to adhere to beliefs and take actions even though these approaches wouldn’t stand up to logical examination. Simply, Feynman wanted to apply the scientific method to everything and ask, for example, what educators were thinking about their new models for teaching reading when literacy and reading test scores were not improving as a result of these new approaches.

Another example is how to treat criminals. We obviously have made no progress– lots of theory, but no progress– in decreasing the amount of crime by the method that we use to handle criminals.

Richard P. Feynman, Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character) 340 (W. W. Norton & Company 1985).

There’s a lot to be said about our criminal justice system and its failures, with particular comment on incarceration rates, racial prejudices, narcotics policy, and the death penalty, among other topics, but the semi-stated assumption in Feynman’s observation, that the goal of the criminal justice system is to reduce crime, seems worth examining in the first instance.

In discussing the theories that guide our criminal justice system, two apparently competing approaches are most prominent. One is the rehabilitative theory, which argues that the purpose of the system is to limit recidivism by teaching convicts how to become functional, productive members of society. The retributive theory, by contrast, is focused on punishment, attempting to balance the scales for the wrong done to the victims of the crime by exacting punishment on the convicted criminal.

Notably, both of these theories look at how we should treat a person following conviction. While Feynman may be making indirect reference to the rehabilitative approach– by processing all criminals through a rehabilitative program we build up the particularly (legally) depraved among us and thereby reduce recidivism and thus decrease crime rates– I read him as criticizing the failure to reduce crime in the first instance, which is the reading that gave me pause. That’s because the “science” of criminal justice does not appear to address reducing crime in the first instance.

There probably are a few reasons for the preference for an ex post approach over an ex ante one. First, there is a fear in criminal justice about the possibility of prosecuting “thought crime” that causes many to put on the brakes when it looks like things are moving toward punishing a person who is contemplating but has not actually begun to physically commit a crime. Second, there’s the possibly more monumental task that would be reforming the conditions of society generally such that fewer people committed fewer crimes, recognizing that there are a variety of individual and societal factors that drive criminal behavior.

Feynman’s criticism, and its incorporated assumption, therefore probably is slightly misguided. His broader point nevertheless is well-taken. For all the resources we expend on the criminal justice system, things don’t seem to be improving. While critics have identified numerous possible points of causation and adverse consequences, meaningful reform does not appear forthcoming.

More recent students of Dr. John C. Lily. (Click photo for sonic evidence.)

Thinking Positively About Negative Implications

The Constitution’s Commerce Clause, Article I, § 8, has been in the news this week, but it’s the Clause’s negative implication– known as the Dormant Commerce Clause– that provides the conceptual starting point for this post and its ultimate conclusion about the full meaning of First Amendment speech rights. If the Commerce Clause is an express grant of authority to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the Dormant Commerce Clause is an implied restriction on state authority over a regulatory area– interstate commerce– that belongs to Congress. State regulation that affects interstate commerce must bear a rational relationship to a legitimate state concern and the benefit the regulation affords to the state’s interest must outweigh the burden on interstate commerce. This (implied) proscription applies even in the absence of affirmative federal regulation of the precise subject matter the state sought to regulate. It is enough that Congress could regulate the aspect of interstate commerce; it need not actually have done so.

A related concept is that of implied preemption. In general, implied preemption is a decision to resolve conflicts between federal and state law by choosing the federal law in most every instance. One application of implied preemption comes where Congress so occupies a regulatory field– immigration might be an example, Arizona and Alabama notwithstanding– that any state regulation in that area is preempted, even if Congress hasn’t passed a statute addressing the particular issue.

There is a concept at work both with the Dormant Commerce Clause and implied field preemption that has to do with the virtue and authority of silence. Both doctrines place silence on authoritative par with sound, inaction equal to action. They recognize and protect the full scope of the grant of authority, even if the authorized body never exercises the authority to the fullest extent.

Calvin College is one of the nation’s leading Christian Reformed colleges, and while it has a reputation for social conservatism, it also has a reputation for hosting progressive, secular music concerts. About a year and a half ago, these two interests clashed, however, when the school cancelled a scheduled performance by indie act The New Pornographers on the sole basis of the band’s name, and even in full recognition of the fact that the band does not “endorse[] pornography.” There’s no legal question that the private college may host or not host whatever entertainment it chooses, but the story still took on a community discussion that proceeded along free expression lines.

We usually talk about First Amendment speech in terms of things actually said, and the legal and political questions usually have to do with whether the First Amendment protects words actually spoken or actions actually taken. But maybe the First Amendment is about more than fostering a broad cacophony of speaking and a mess of expressive acting. Maybe there’s a negative implication of the First Amendment and its protected rights, a Dormant First Amendment.

The Dormant First Amendment might recognize that, just as someone has a right to say something, he also has a right (or at least a strong interest) in not hearing something. For example, we might see Calvin College not as restricting someone else’s speech in cancelling the concert but as preserving its own interest in not hearing something it found distasteful. The former formulation carries a negative connotation, but the latter should carry a positive one. Rather than the First Amendment (conceptually, not mechanically– although I do appreciate that that statement may impair the impending metaphor) being a one-way ratchet that directs only more and more speech-volume, why not a multifaceted approach that values discernment, distillation, refinement, taste?

It may be true that the First Amendment was meant to create a marketplace of ideas, as courts have said. Marketplaces are loud, noisy places, and the merchant who hawks her wares the loudest may be more likely to survive there, but not everyone survives in a market because customers don’t do everything sellers’ advertisements tell them to do. Perhaps people would make better decisions if they patiently heard every pitch from every market participant, but at the very least, the First Amendment is about a right to speak, not a right to be heard. Moreover, if the First Amendment is about everybody being able to say whatever they want, is it really so offensive to that principle to say that people ought to be able to use their discretion to decide when to step to the side of the spray of the verbal fire hose?

As for how the idea of the Dormant First Amendment would work practically I’m far from sure, and if there are any readers who aren’t practically dormant at this point, comments, as always, are welcome below. The real thrust of this post is to suggest the possibility that, like the Dormant Commerce Clause and implied preemption doctrines place Congress’ inaction on authoritative par with its action, the First Amendment might also have a negative implication that places an individual’s desire to avoid speech on protective par with his or her desire to engage in speech.

Remembering to Vote: Memory and Suffrage

Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. Perez, Perry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).

Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.

In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and  voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.

As a legal matter, Heller argues that it’s appropriate for courts to consider literature:

Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.

Id. at 4.

The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:

Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”

Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.

Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.

The full text of the article is available for download here.

Behind the Curtain: Class Actions and the NBA Lockout

I have written before about class actions, the most popularly familiar form of aggregate dispute resolution. See here; see also here. They are one of the most interesting areas of legal procedure because they are relatively new and, as a result, still developing in meaningful ways. Class actions are a creation of Federal Rule of Civil Procedure 23 (and subsequent state analogues), enacted in 1966, nearly thirty years after the enactment of the general, modern Federal Rules of Civil Procedure, and three interacting planes of activity guide their development. There is a constitutional level: the Constitution’s due process guarantees constrain the dispute-resolution process. There is a rule-based level: the class action, so different from traditional, one-on-one litigation, is a creation of Rule 23. (I also would put other legislation, like CAFA, on this level.) And there is a “business” level: the motivations of the litigants, which often are or act like businesses, sets up, drives, and shapes (through developing litigation strategies) the judicial interpretations of the Constitution, Rule 23, and other legislation, and even triggering new legislation. There are any number of reasons why this area might be called “complex litigation,” and the ever-shifting, interactive push of these three levels of activity certainly creates complexity.

Class actions have been in the news lately, first with the lawsuits filed against law schools by former students, and, more recently, the antitrust complaint professional basketball players filed against the NBA. David Boies, the high-profile litigator who previously represented the NFL against the class of football players that sued it this summer and Jamie McCort in her divorce from Los Angeles Dodgers owner Frank McCort, is serving as class counsel in the players’ class action against the NBA.

In an interesting publicity move, Boise and Billy Hunter, leader of the now-disbanded players’ union, held a small press conference with twelve members of the media last Tuesday to discuss the players’ case against the NBA. Boies apparently walked through the complaint with those present and offered his commentary and legal strategy explanations. While he certainly was posturing with the public (no doubt Hunter’s aim in calling the meeting), Boies’ remarks hit on a number of class action legal issues. Jonathan Abrams, on Grantland‘s Triangle blog, has helpfully presented Boies’ comments in context with relevant portions of the complaint itself. It’s a bit lengthy, so rather than reprint it here, I encourage you to read it in full: “NBA Lockout Talking Points From The Players’ Attorney.”

One of the first things Boies mentioned was the issue of forum selection. To have the authority to hear a case, a court must have jurisdiction. Often, however, there will be more than one court that could properly exercise jurisdiction over a case, and that secondary distinction is termed one of venue. Plaintiffs often have a choice of venue, or forum, and the decision operates on multiple levels. There is strategy involved: even though the case is in federal court, the federal court may be required to apply certain aspects of state law, so geographic location becomes important. Similarly, if the trial is to be before a jury, plaintiffs may find they prefer juries in certain states over those in others. Plaintiffs also may be angling toward certain judges if they are known to be expert (or not expert) in a certain variety of procedural or substantive law. The cosmetics also matter: where outside perception is relevant, where a plaintiff sues can affect appearances in the mind of the public. Any number of other factors may influence the decision of where to sue, and Boies’ statement on forum selection hit on a few of them:

There were a number of people who wanted to be in California. Billy [Hunter] has a great fondness for Oakland. He lives out there. One of the key representatives, Mr. Powe, is a resident out there in Richmond, California, which is in the Oakland division of the Northern District of California. I also think that we think that district has a practice in moving cases along very quickly. They’ve got a lot of expertise in antitrust cases and we think it will be a good forum for us to proceed with this lawsuit.

A major issue in class action litigation is defining the represented class. Because class actions almost always settle once the court certifies the class, the certification stage is the real battle. The defendant’s aim, therefore, is to show that the group of plaintiffs lacks the cohesion required for certification under Rule 23 by emphasizing the differences in the situations of the would-be class members. Conversely, the plaintiffs will try to emphasize commonality and similarity across the proposed class. When there are undeniable differences, plaintiffs have other techniques, including the creation of subclasses. In the NBA suit, the complaint names the plaintiffs as “Carmelo Anthony, Chauncey Billups, Kevin Durant, Kawhi Leonard, Leon Powe and all those similarly situated,” and Boies explained:

I think it was people who believed they wanted to participate as plaintiffs and there were people whose lawyers believed would fairly represent the interests of the class. For example, although it’s not actually a legal requirement necessarily, in general when you’ve got a class action, you want to have a mix of people. For example, one of the subclasses in the complaint are players under contract because players under contract have particular claims that are based on the fact that the owners got together and all agreed that they would breach those contracts. So they have a certain set of claims. You then have NBA players who are not under contract and they have many of the same claims, but some different ones. And then you have the so-called rookie subclass of people coming into the league.

The remainder of the remarks from Boies and Hunter and excerpts from the complaint deal with the substantive law and factual history of the dispute. It’s a neat way to catch up on what’s been happening with the NBA labor dispute and get a sense of where it may go from here, at least as far as the litigation is concerned. Even if you don’t like watching the NBA, I recommend the NBA lockout– it’s much more interesting and entertaining.

LST Speaks Out On Recent Law School Class Actions

Plaintiff classes of recent graduates have brought suit against more than a dozen law schools across the country, including Thomas Jefferson School of Law in San Diego, New York Law School in Manhattan, and Thomas Cooley Law School in Michigan (Miami, FL campus coming soon!). The directors of Law School Transparency published a column in yesterday’s New York Post commenting on the suits and the larger state of legal education:

These problems affect more than just the legal profession. This year, ABA-approved law schools will get at least $4 billion in taxpayer support, thanks to the government’s decision in 2010 to directly lend to students. But when graduates can’t find jobs that allow full loan repayment, they either default or sign up for hardship programs. The taxpayers are on the hook for the lost interest income and unpaid loan principal.
…
In all of this mess, one thing is for sure: Continued pressure from lawsuits, Congress and other reform advocates will push law schools to honestly evaluate the American legal-education model. And reimagining a broken model will take a lot more than simply getting people their day in court.

Kyle McEntee & Patrick J. Lynch, “Do law schools defraud students?,” New York Post (Oct. 11, 2011). Read the full column here. More on LST here. More on legal education here.