The Faculty Lounge

History Office History

 

 

            Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.

 

            In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.

 

            Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.

 

            This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.

 

            Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.

 

“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Public Constitutionalism in the Antebellum Era and Gun Regulation

Robert Leider has a very exciting paper up on ssrn, "Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment."  Cribbing now from his abstract:

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.

This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.

Roisman on Property and Human Rights

I'm delighted to see that Florence Roisman's casebook on Property and Human Rights has appeared from Carolina Academic Press.  Cribbing now from the Press' website:

This book contains materials regarding intersections of property law with civil and human rights claims in the United States and internationally. The chapters cover The Nature of Property, The Development of Civil Rights Principles in the U.S., International Human Rights Law, and Human Rights in the U.S. Roisman addresses homelessness, expropriation, and discrimination on the bases of race, sex, sexual orientation, disability, and other characteristics. Among the recent cases presented are the U.S. Supreme Court’s 2004 decision rejecting a claimed property interest in the recognition of a protective order, a South African case enforcing a right to housing, a 2003 Maryland decision assessing the need for just cause for eviction in Low Income Housing Tax Credit developments, a 2002 9th Circuit opinion regarding disability discrimination, and the Michigan Supreme Court decision overturning Poletown. 

This book looks terrific and I'm looking forward to reading it and I hope teaching from it as well.

Dale on Popular Constitutionalism via the Web

As I'm sitting here working on popular constitutional ideas in the days leading into secession, I see that my friend Elizabeth Dale has a new article up on ssrn on popular constitutional ideas disseminated via the web in Italy in 2010, "From Opera to Real Democracy Popular Constitutionalism Web 2.0."  Here is Elizabeth's abstract:

On March 17, 2011 the conductor Riccardo Muti stood in the orchestra pit at the Teatro dell’Opera di Roma and, in the presence of the Italian Prime Minister, Silvio Berlusconi and the Italian President, Giorgio Napolitano, denounced the Italian government’s cuts to funding for the arts and culture. He then invited the entire audience to join the opera’s chorus in an encore of Va’ Pensiero, the hymn of the Hebrew slaves in Nabucco, to protest the cuts. Within two days of that sing-a-long, the Italian government reversed the course it set more than ten months before and agreed to a tax that would be used to restore funds to the arts and culture budget. In this article, I trace how and why those acts of protest in Italy developed, succeeded, and then were appropriated by transnational activists interested in encouraging popular constitutionalism.   Because that entire process made considerable use of Facebook, blogs, YouTube, and Twitter, this case study simultaneously explores how a popular protest became a successful expression of popular constitutionalism and considers how the messages of that protest evolved across a transnational public sphere that encompassed Web 2.0.

The paper's a fun read; I do wonder how much legal historians are now talking about all popular protests as a form of popular constitutionalism.  That is, I wonder where the democracy ends and the constitutionalism begins.  For Elizabeth's paper, I think constitutionalism and nationalism are used as similar (even if not interchangeable) terms.  From my perspective in the pre-Civil War south nationalism and constitutionalism were certainly allied ideas.  I think the Constitution and constitutionalism has a particular resonance that's distinct from social and economic desires -- though social and economic desires exert a gravitational pull on constitutional thought.  But I don't call every argument made in the secession conventions a branch of popular (or public) constitutionalism.

Because I don't have a picture of an Italian opera house in my files to illustrate this post, I'm using an old opera house from New Castle, Delaware, to illustrate it.  This was the subject of a bookstore trivia question last year.

Mourad on Originalism and History

Adam Mourad has posted "Whose Line is it Anyway? Originalist Historical Methodology and the Problem of Inadequate Interdisciplinary Practice" on ssrn.  His brief abstract is: "This article seeks to outline sound historical practice in the legal context and to provide a critique of originalist historical methodology."  Here is the first paragraph:

Originalism is, by its very nature, a historiographical framework for constitutional interpretation. Any time a jurist chooses to look into the past for answers regarding what a law means, why it was conceived, or how it was understood by those who conceived or ratified it, she engages in history. All three forms of originalism – speaker’s meaning, public meaning, and original interpretive methods – require an examination of the historical record. They require this in order to determine, respectively, what the drafters of the Constitution meant to say, how the words were understood by the ratifiers at the time of ratification, and by what means the words were to be understood. It is plain then that history is the cornerstone of originalist discourse. That is to say that, in order for originalism to meet its theoretical burden, there must be sound historical inquiry to find the most concrete and objective answers to those fundamental questions. The discipline of modern history forces the practitioner, if true to the discipline, to examine vast amounts of evidence, making sure that no opposing views have gone unaddressed. As in the disciplines of philosophy or linguistics, peer review of articles is the mechanism by which the holistic approach is promulgated, a fact wholly missing from legal scholarship of this kind.

The article covers a lot of ground, though it focuses particular attention on Robert Natelson's article "The Founders’ Hermeneutic: The Real Original Understanding of Original Intent," which appeared in Ohio State Law Journal back in 2007.  It is a particularly important pro-originalism article.  

I am skeptical of the originalism project, so I am particularly interested in Mourad.  Yet, I think everyone interested in the methods of originalism (and applied legal history) will enjoy this article.  The image is of the Washington Equine Statue in Richmond, Virginia.  When it was dedicated right before the Civil War it evoked very different interpretations of the Constitution.

Marzen on Advocacy and Migration in Reaction to the Kansas-Nebraska Act

Professor Chad Marzen of FSU's Business School has posted "Law, Popular Legal Culture, and the Case of Kansas, 1854-1856" (forthcoming Wyoming Law Review) on ssrn.  His abstract is as follows:

In the wake of the movie Lincoln and the 150th anniversary of events such as the Emancipation Proclamation and the Battle of Gettysburg, more attention and discussion in 2013 is likely to be directed to the causes, effects, and legacy of the Civil War, in law and social impact.  This article contends that there is one historical time and moment which should not be overlooked – the Kansas-Nebraska Act of 1854 and period of time with events relating to Kansas from approximately 1854-1856 which preceded the onset of the Civil War. 

This Article applies Professor Friedman’s framework of popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act in 1854. Instruments of popular culture, including circulars, handbooks, music, poetry, speeches, and especially newspaper heavily influenced migration to Kansas from 1854 to 1856 as a direct response to the notion of popular sovereignty embraced by the Kansas-Nebraska Act. 

This article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.

I think Marzen is exactly correct to urge that we pay significant attention to how people tried to implement constitutional ideas -- in this case popular sovereignty.  While much of my attention of late has been on how people outside of the courts appealed to constitutional ideas to mobilize support for slavery (and here), in the years leading into Civil War people on all sides of the dispute over slavery appealed to the Constitution and law -- and tried to remake it.

The image is from Gettysburg, where a lot of people interpreted the Constitution -- in radically different ways.

An interesting paper from Jack Balkin

Has been posted on Balkinization and on SSRN The First Amendment is an Information Policy. This paper sounds like it could have interesting implications for an issue which I intend to return to on the scholarship front, that is, what happens when some of what appears in law reviews has been "sponsored" or "commissioned" ? And when I say "sponsored" or "commissioned" I am not referring to law school summer research grants. Such grants are never conditioned on the topic or on the author reaching a particular result.  The only string attached are usually that the faculty member actually produce something that results in a publication.

In contrast, in, what for lack of a better word I will call "commissioned" or "sponsored" scholarship, the author has been paid precisely because of the viewpoint he or she espouses.  Drug company sponsorship, or worse ghostwriting (i.e. paying a doctor to add his or her name to an article) has long been a problem in medical journals relating to pharmaceutical drug research and has led to some overhauls on most medical journal's requirements about financial disclosures. Most law reviews don't have such policies. Should they? A few have implemented them.  Perhaps more will come. But the fact that there is some interest in financially supporting the production of law review scholarship to promote a particular point of view raises some interesting questions about the reliability of the information, whether "the marketplace" is a good sorter of the best ideas, as the "marketplace of ideas" metaphor is often used to imply.  And, more prosaically, illustrates that somebody thinks law reviews are worthwhile enough to pay for the production of these sorts of articles. Who is doing this, how much of this goes on and what difference it makes are big unknowns at this point but may bear some investigation. 

In the meantime, going back to Professor Balkin's paper, I think there might be some interesting implications for these questions given what looks like his thesis --- that one purpose of the First Amendment is to generate information.  Stay tuned.

Addictive Junk Foods

The New York Times has a very provocative article coming out in tomorrow's magazine about the junk food industry.  It is definitely worth a read.  The author draws parallels between the big food industry tactics and big tobacco.  This is an analogy made earlier by Kelly Brownell  Rudd Center for Food Policy and Obesityand his co-author Kenneth Warner in this article "The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food"? The Perils of Ignoring History.  One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls "the bliss" point.  What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.

A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn't make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: "The targeting would hypothetically enable Coca-Cola to target to teenagers who've bought soda in the last month..."

I have long wondered why it doesn't bother people more than it seems to that so much money is spent pitching directly to kids,  since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example.  Is Ronald McDonald the New Joe Camel?

However, just as this issue is getting more attention (again - it saw a good run in the 1970s in the FTC's ill-fated  "Kid-Vid" investigation),  the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a "chilling effect."  See here and here . It appears it was the government not the marketers, which was "chilled." FTC weakens proposals.  The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the "Nanny state" a ban is arguably far more intrusive on liberty than a ban on marketing -- except the marketers' liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers' liberty, not advertisers. So this is a bit of a puzzle. 

The New Originalism

Long-time readers of the faculty lounge may recall my interest in public conceptions of the Constitution (and here) in the old South.  One of the things that interests me is how though they sometimes had versions of originalism, they more frequently relied on other modes of interpretation.   When they made appeals to history, it was more to frame general principles than to provide an interpretation of a particular constitutional provision.  In fact, they tended to frame the constitutional interpretation in terms of general principles, whether drawn from history or from observations of political philosophy.  They saw the Constitution as not just a document but as a set of principles -- such as adherence to Union, expansion, and economic development -- that helped propel and united the country.

Sometimes antebellum southerners went so far as to suggest that they reject older principles of  constitutional interpretation.  James Bruce, for instance, one of the wealthiest Southerners of the antebellum era and a supporter of federal and state spending on internal improvements -- like transportation -- criticized the narrow construction of the Constitution in a graduation address at UNC in 1841.

It is high time that the South was giving up its old prejudices and antiquated modes of thinking—that it was breaking the ties which unite it to a departed age, and bind together the living and the dead. Our ancestors used the lights of their age, why should we reject the brighter ones of our own? They ran ahead of their times, why should we lag behind ours? They were dissatisfied with their condition, and improved it, let us do likewise; they were wise in their generation, let us be wise in ours.

I am hoping that there will be increasing talk of how public ideas of the Constitution related to political and judicial behavior in the old South.  The scholarship on public constitutionalism runs alongside recent talk of the new originalism -- that is, recent literature on original intent and constitutional interpretation (and I think to applied legal history, too.)  Next week the Fordham Law Review is hosting a conference on the new constitutional originalism.  Cribbing now from the conference website:

Originalism—the thesis that legitimate constitutional interpretation is bound by original meaning or intent—has emerged as an influential and controversial approach to how we interpret our Constitution. While some claim that constitutional interpretation and legitimacy require unearthing original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government. 

The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis. 

Free speech and off-label use marketing

Makers of pharmaceutical drugs got a fairly significant victory in their quest to have the FDA's regulation of off-label use marketing ruled unconstitutional.  In United State v. Caronia the 2nd circuit overturned the conviction of drug re Alfred Caronia for conspiring to "introduce a misbranded drug into interstate commerce," finding that he was convicted in violation of his First Amendment rights on the basis of his speech promoting the drug Xyrem, a drug to treat narcolepsy, for other uses.

As this article in Forbes notes, the decision is potentially a game-changer since the industry has been paying billions of dollars in fines for violation of the off-label use marketing rules. Does Misdemeanor Misbranding Survive Caronia? 

There is reason to think that a blanket invalidation of FDA rules relating to off-label use marketing is still aways off since this is still just one circuit and the conviction in Caronia relied so heavily on the speech in question. It is still possible to argue that the misbranding question (which is the actual legal authority under which the off-label use regulation is predicted) is generally unaffected and that, in any case, this decision by no means signals that speech cannot be evidence of misbranding conduct. For more on the case see Free Speech and Off-Label Use Conviction  And there is evidence that settlements related to marketing practices continue. Shire Takes $57.5 Charge to Settle Marketing Probe .Yet, it hardly seems like the FDA would want the same Supreme Court that decided Sorrell to review Caronia. And indeed, word is that the FDA is not seeking review. FDA Won't Appeal Free-Speech Marketing. I wouldn't either.That doesn't mean that this decision represents a good development. To the contrary, as I have warned elsewhere, it may well make a good deal of law that we have generally thought of as well-settled, suddenly unstable. 

As the dissent noted: "The majority has chosen to apply heightened scrutiny to this case, though we have not done so in other cases involving the use of speech as evidence of intent—for example, in antidiscrimination actions or prosecutions for criminalinducement, attempt, and conspiracy—cases I cannot meaningfully distinguishfrom this one. The majority’s decision today extends heightened scrutiny further than the Supreme Court ever has, and calls into question a fundamental regime of federal regulation that has existed for more than a century. I respectfully dissent." (dissenting opinion at 30)

The Scylla and Charybdis of Central Hudson

I have said elsewhere ("A Necessary Cost of Freedom"?) that the Supreme Court's decision in Sorrell v. IMS Health may have, for all intents and purposes, done away with the Central Hudson test which any regulation relating to commercial speech must pass.  That test, for those unfamiliar with the doctrine (and really who is familiar with it outside of those litigating around it?), has 4 parts. The first two elements are almost never controversial. Prong 1 is whether the product or service is legal and whether the speech in question about that legal product or service is truthful and not misleading. (There is a wealth of complication here is this deceptively simple requirement but that is a post for another day. Suffice it to say that this is not usually where the fights are).  Prong 2 asks whether a substantial government interest is involved. Again, this is not usually the question around which a fight arises.

The fights usually arise around prongs 3 and 4. Prong 3 requires that the government show that its regulation "directly advance" the goal in prong 2 and Prong 4 requires that it does so without being "more extensive than necessary" to advance that goal in prong 2.

As we look at the many public health issues - off label use marketing, junk food marketing and others - you might notice a problem.  Regulatory efforts which are effective are likely to be fairly broad - say banning certain types of advertising altogether or banning in particular venues and thus will very often run afoul of prong 4.  In contrast, when agencies or legislators try to very narrowly tailor a particular rule, chances seem very good that it will be harder and harder to measure effectiveness or to attribute any change to a particular measure so narrowly tailored provisions may fail prong 3.  This last observation may be exacerbated by courts willingness to interpret the standards for the admissibility of expert evidence under Daubert to require unrealistic standards for causation or, at the very least, to give an advantage to those entities able to marshal a great deal of evidence to cast doubt on a particular claim. The Most Influential Supreme Court Decision You've Never Heard Of.

This may be only one of many reasons not to mourn the potential irrelevance of Central Hudson, although I caution that nominally it is still good law and the Court took pains not to overrule it.  But many an effective intervention could easily get crushed between the jaws of prongs 3 and 4, particualrly in the current environment where courts seem inclined to treat claims for freedom for commercial speech so generously. That is probably bad news for the public health community and perhaps for the regulation of the marketing practices of the financial industry. 

Drone Strikes and the Imperial Presidency

As today's New York Times observes, the Obama administration's policy of drone strikes provides a troubling example of unconstrained executive power. Senator Angus King (I-ME) put it well when he criticized a regime in which the president is "the prosecutor, the judge, the jury and the executioner."

The article considers the possibility of a special "drone court" as an external check on the president and identifies the problems with that approach. Indeed, experience teaches us that external checks on the executive branch do not work very well. Both Congress and the courts generally have acquisced or even abetted the expansion of presidential power.

Hence, in my forthcoming book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch (NYU Press), I observe that we need a strong internal check on the executive branch and that a two-person, bipartisan presidency would provide the right kind of check. As the founding fathers recognized and decision making research confirms, policy is better made when people with different perspectives work things out together.

George W. Bush’s invasion of Iraq and Lyndon B. Johnson’s escalation of the Vietnam War are illustrative—a single misguided decision maker can make choices very harmful to the country. In the words of Woodrow Wilson, the “whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man.”

Of course, there are many questions raised by a two-person presidency. How would two executives make decisions, why wouldn't they end up fighting with each other, etc.? These are all good questions, and I answer them in Two Presidents. For a summary of my answers, see Chapter 1.

Free speech and the rating agencies

Now that the United States has sued Standard and Poor's over the subprime mortgage fiasco, see The S&P Lawsuit, it will be interesting to see whether S & P will raise a First Amendment defense as it has in some of the civil cases.  Some observers say that the courts are likely to give it a chilly reception. S&P Lawsuit First Amendment Defense May Fare Poorly, Experts Say. I am inclined to agree, although not because the case law wouldn't permit the courts to consider this defense. Rather, I suspect the implications for permitting the rating agency's opinions to be treated like fully protected opinions and subjected to a New York Times v. Sullivan standard, a standard under which a certain amount of falsity is protected as a necessary evil so that we can protect the speech that we value, would have intolerable implications for 10(b)5 and maybe fraud cases generally. 

Hobby Lobby and the Corporate "Soul"

That the old saying that a corporation has "no body to kick, no soul to damn" may have to be revised. While it still has no body to kick (or, for that matter, to send to jail -  BP pleads guilty to manslaughter), recent lawsuits filed on behalf of corporations challenge the ACA on the grounds that its mandatory coverage for contraception and some other post-intercourse medications intended to prevent pregnancy, violates the plaintiffs' rights to free exercise of their religion under the First Amendment and is in conflict with RFRA (The Religious Freedom Restoration Act, 42 U.S.C. sec. 2000bb et seq.)  So perhaps a corporation has a "soul" after all, or at least a religion it wants to exercise. Hobby Lobby is only one of several of these cases. Hobby Lobby complaint.

To quote the Hobby Lobby complaint, while neither Hobby Lobby nor Mardel (another plaintiff in the case) are religious orders, churches, or other exempt organizations but instead are "privately held, "for-profit" corporations organized under Oklahoma law, the owners aver they (the owners) are "Christian and, from the beginning, ...sought to run Hobby Lobby in harmnoy with God's laws and in a manner which brings glory to God." Complaint at para 18- 24.  (As a pleading aside, imagine how, if you are the defendant, you respond to this allegation: "admit"? "deny" "insufficient information"? And if you are the plaintiff, how do you prove that it is true? ). The ACA, the suit alleges, makes this impossible in that the company must pay for insurance coverage which includes medications and devices which, in their view, their religion forbids.

The Hobby Lobby case is actually one of many cases brought on behalf of many companies and individuals seeking to undermine the Health Care Act on religious grounds. The ones brought on behalf of corporations open up a new front - the free exercise clause - on what I have described in my book Brandishing the First Amendment, as an agressive use of the First Amendment to repel legislation aimed at regulating business. However, with this new free exercise claim, proponents may have  have exceeded the bounds of what the public thinks is reasonable when it comes to anthropomorphizing the corporate "person."

The issue is complicated further because these various lawsuits often have slightly different facts, some of which may make a difference. Hobby Lobby is a closely held private company and so the notion that there is some sort of greater identity between the owners and the company has, at least at first glance, some appeal. But then consider Martha Stewart: if suits like this are successful, how should publicly traded companies be treated? And what of the views of the shareholders? Should the corporation be able to claim it is exercising their religious beliefs as well? 

Another complication is that not all these suits raise precisely the same objection. Rejection of coverage for contraception is probably what gets the most press and which would be the most widespread public pushback since contraception generally is very popular. However, despite some claims in the press to the contrary, the Hobby Lobby suit does not raise an objection to what the plaintiffs call "non-abortion-causing contraception drugs and devices" (complaint at para. 57), but rather only to those drugs or devices which constitute (in their view, and this is contested by some in the medical community) "abortifacients." 

Other law suits, such as the one filed by Annex Medical, Inc. in the 8th Circuit, do  object to providing contraception coverage. And the ferocity of the objection is fairly intense because in the Annex case, Annex Medical has fewer than 50 employees, so it is  exempt from the mandate in any event. Yet, according to the plaintiff in that case, the owner's religion requires him to pay for medical coverage for his employees, and because there are no options which do not include coverage for contraception the exemption is not sufficient.  Annex Medical - Order issuing preliminary injunction. Positions like these suggest that the Administration's recent announcement that it would provide a further exemption Exemption will not satisfy many because it will not extend to fully for-profit businesses like Hobby Lobby.

The circuits are split on these suits, (the 10th Circuit denied Hobby Lobby's request for an injunction, a denial which was upheld by Justice Sotomayor acting in her capacity as the Circuit Justice for the 10th Circuit).  Hobby Lobby - Supreme Court Order Although their different facts may suffice to reconcile apparently contradictory results, these various claims seem destined to make their way to the Supreme Court.

Whatever one thinks about the sincerity of the objections raised in these law suits, one thing that is notable is that they seek to elevate the free exercise claim of the corporate entity over constitutional and statutory rights of employees, many, if not most of whom may not share their employers' interpretation of what their faith requires of them.

Indeed, it is clear that not even all those who identify themselves as a part of the same faith community as Hobby Lobby's founders agree that their faith precludes accepting the insurance mandate. For example,  one commenter quoted in the Christian Post noted: "I'm still not seeing a cause for alarm here. The majority of the U.S. thinks women's healthcare needs should be included in insurance plans […] I'm a Christian, and if I start a business then I expect I'll have to comply with all the government regulations that come with incorporation. I wouldn't expect special treatment for my personal religious beliefs. "  (emphasis added)  Christians Question Hobby Lobby's Defense, Biblical Stance Against Obamacare

"Others question why Hobby Lobby has chosen to address the contraceptive mandate but not other morally questionable issues within government, such as the funding of wars in Iraq and Afghanistan" Id. And some have raised the issue that "many of Hobby Lobby's products are made in China," a country with laws which violate many of the precepts the Hobby Lobby founders say they attempt to observe in the running of their business. Id.

There are several strands that are interesting here and they all probably deserve separate posts. One is the resistance to women's full exercise of constitutionally and statutory rights. Another is the framing of this issue as one that purports to put those of faith at odds with the government, (although that obscures that the First Amendment not only promises free exercise but also freedom from religion). But for me the most interesting aspect  is this attempt to raise the free exercise claim on behalf of the corporate entity.

If we take the Hobby Lobby pleading at face value then it would seem that what its owners are attempting to do is to create some sort of hybrid for-profit religious corporation that doesn't exist under current law, at least not as they would like it to exist. And the Greens (Hobby Lobby's founders) would seem to be trying to engage in what might be called "selective piercing" or the corporate veil:  that is, they wish to pierce it for purposes of their religious beliefs, beliefs which they would like to exercise by denying even those employees of other faiths a benefit the law would otherwise provide, but presumably they would like the corporate shield to remain intact for other purposes, like protection against individual liability.

I wonder if those pursuing these lawsuits have thought fully through the possibilities that might arise if they are successful with these suits. If they succeed, why should such companies not also receive special tax treatment? (I think there is a movement afoot with the social benefit corporation model to do something like a hybrid). And if they do not receive special tax treatment, perhaps, no organization should if all organizations have potentially equal capacity to exist as moral, not just business entities. These may be questions for tax scholars and theologians, but it looks like a bumpy road ahead.

Thomas on Stanton on Abortion

Tracy Thomas' new paper, "Misappropriating Women's History in the Law and Politics of Abortion," is likely to get some attention in the on-going debate about late nineteenth century feminists' attitudes towards abortion.  Cribbing now from her abstract:

Over the past twenty years, prolife advocates have sought to control the political and legal narrative of abortion by misappropriating women’s history. They claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” Conservatives, led by the lobbying group Feminists for Life, have used historical feminist icons like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul, to support their anti-abortion advocacy. Federal anti-abortion legislation has been named after these feminist heroines, amicus briefs to the U.S. Supreme Court proffer evidence that these women were outspokenly against abortion, and political forums for college students popularize the notion that feminists historically opposed abortion. The need to create a history of anti-abortion feminists seems important today because abortion has come to be equated with women’s rights. The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. 

This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. This paper tests the veracity of the claims of a feminist history against abortion by focusing on Elizabeth Cady Stanton, “the brilliant chief philosopher and leader” of the nineteenth-century women’s rights movement. Stanton has quite literally been the poster child for the historical campaign against abortion, appearing on posters, commemorative coffee mugs and federal legislation. This analysis offers a detailed account of Stanton’s views related to abortion based on original historical research into the archives of Stanton’s papers. Like other works of legal history, it is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context. 

The evidence shows that Stanton did not talk about abortion per se. She did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women. Instead Stanton reframed this debate as one of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law. Stanton thus seems an unlikely spokesperson for the modern anti-abortion movement committed to opposite ends.

Work like this impresses me with how sophisticated legal history has become in recent years -- and how much we're now putting historical actors into their context, to understand them on their own terms.

Commemorating and Teaching the Emancipation Proclamation (and Farewell!)

Today marks the 150^th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes?  I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.

Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership.  Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!

Ranking the Amendments

Earlier today, sports blog Deadspin posted a list ranking the amendments to the Constitution. According to editor-in-chief Tommy Craggs’ algorithm – which is not explained in the blog post – the Fourteenth ranks first, followed by the Fifth and Fourth, respectively. The Second ranked dead last.

I’m sure we all have our favorite amendments (“favorite,” in terms of our scholarship and “favorite,” in terms of our personal constitutional politics); where would you rank the Second? Or any of the others? Given the choice, I’d probably rank the Fourteenth and the Second close together; both are ambiguous enough to remain subject to highly-contentious judicial construction. I’d probably rank the Third somewhere near the top, since the prospect of quartering a slew of soldiers in our NYC apartment seems particularly unsavory to me.

Are there others?

 

Cornell on the Second Amendment's History

Check out Saul Cornell's piece at the Daily Beast on the history of the second amendment.  Here is a short excerpt:

If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.

I'm sure Saul's Well Regulated Militia and the rest of his body of work of applied legal history will be getting renewed attention in the coming months.

“Civil Rights” Acts (Or, How The Post Office Gets It Wrong)

The Postal Service has commissioned a commemorative “forever” stamp in recognition of the sesquicentennial of the Emancipation Proclamation.  Stamps are (appropriately) not shipped until January, but are available for pre-sale now. The Emancipation Proclamation stamp is one of three stamps in a “civil rights set” that the Postal Service has commissioned for 2013.  One of the other stamps commemorates the birth of Rosa Parks.  The third stamp in the set has yet to be revealed. 

I think the stamp is a great idea (and I will use these throughout the next year); I wonder, though, why the Proclamation is lumped together with the civil rights movement. Presumably, the historians at the Postal Service are aware of the Proclamation’s history (including the 1862 Preliminary Proclamation) and desired effect; it was never intended to – and never did - grant “rights” to any person. The Proclamation effectuated a war goal, and clarified for Union forces how enslaved refugees (or “contraband”) ought to be treated under the rules of war (in parts of the Union-occupied Carolinas, for example, several thousand persons were “freed” due to the Proclamation).  While its symbolism sent a powerful message to enslaved people in the Confederate and border states (and more broadly, to the nation and Europe), relatively few walked free because of its dictate. In fact, outside of Union-occupied territory, tens of thousands of enslaved men and women would subsequently have to risk life and limb to reach Union lines in order to realize the Proclamation’s promise. Steve Hahn’s excellent book (A Nation Under Our Feet, on Amazon) is great on this point – between Fort Sumter and Appomattox, enslaved folks took emancipation into their own hands and (at least physically) freed themselves. Do these self-emancipators have a place in traditional tellings of this story?  Do they have a place in our legal histories of this period? Was the Proclamation a "civil rights" act?

Sexiest Man Alive

Confession. 

The NYT piece, you know, that one, the joyless, unwitty, matronly rebuke of irony.  It did irk me, of course.  But it wasn’t just that.  The staid op-ed just served as a convenient provocation...... 

For about an year, I’ve been thinking, in spite of myself, about irony and its relationship to political authority.  And it seemed to me that authoritarian governments obsess over regulating its traffic.  These governments might look the other way, at least sometimes, with regard to other perceived vices—drugs, porn, illegal booze, gambling.  But it’s irony—that spiky variety of humor—that keeps them up at nights in their totalitarian beds. 

Makes sense, I suppose; the logic (or momentum) of irony won’t broke sacred cows but authoritarian leaders justify their rule as unquestionable and worthy of deference; divine bovines, such leaders keenly cry out for ironic taunting. 

It is in democracies where rambunctious irony is embraced, and the case can be made (or, has been sought to be made, anyway) that biting satire breeds the sort of impiety and insolence that helps to underwrite constitutional democracy. 

But that’s just me; ask a better (if you'll pardon the dumb pun) authority.  The People’s Republic of China.  Ask, oh I don't know, the Party Leaders who they think is the Sexiest Man Alive.