The Faculty Lounge

Starkey on Inconsistent Originalism

I need to offer some kind of prize to people who win a trivia contest, and, hey, this is the faculty lounge.   What we try to do here is talk about scholarship.  So the prize for winning a trivia contest ought to be that we talk about the winner's scholarship.  That's a real pleasure for me to do with our most recent winner (of the two part civil rights trivia), Brando Starkey of Villanova Law School, because he writes on race and law.  Brando's got a lot of papers up on ssrn that interest me -- especially the series on the meaning of Uncle Tom.  But I thought that I'd talk about another recent article, "Inconsistent Originalism and the Need for Equal Protection Re-Invigoration."  Here is the abstract:

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine; that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motive. But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts.  The evidentiary burden is too high. With the Equal Protection Clause no longer an effective tool for stigmatized minorities, it needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional. I argue that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention. Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues. The Equal Protection Clause, I argue, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

This is part of a larger work on "The Intent Doctrine," it appears. 

I continue to be surprised by the extent to which talk of originalism dominates our thinking, but as Brando points out one looking towards an expanded equal protection principle probably needs to deal with rather circumscribed original meaning.  What he does here is point out that sometimes we depart from original understanding -- such as the argument that the fourteenth amendment was colorblind, when substantial evidence suggests that it do not originally prohibit segregated schools.  Pointing out this inconsistency is an important (if somewhat dicey) proposition -- for it argues that the Fourteenth Amendment allows race-conscious discrimination.  All of that goes to show that originalists have departed in certain circumstances from what originalism counsels.  If they have done so in some cases, then perhaps they should do so in others....  There is a lot to this article; I hope you have the chance to read it.

Two Presidents Are Better Than One

With the economy picking up steam, President Obama’s reelection prospects have brightened considerably. The unemployment rate is dropping, manufacturing activity is rebounding (with GM the top automaker again), and the stock market is rising. According to a Yahoo! forecast, the president will win in November with 303 electoral votes.

While this is good news for Obama, it reminds us how the public assigns too much credit or blame to the White House for the country’s well-being (or lack thereof).  As Supreme Court Justice Robert Jackson wrote in 1952, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.” When our political system isn’t working, the public assumes it can solve national problems by electing a new leader rather than making the structural changes that are needed.

Many observers point to Congress with its gerrymandered districts as the source of dysfunction in Washington, and public approval ratings suggest that voters agree. But as I argue in a forthcoming book (Two Presidents Are Better Than One, NYU Press 2013), we can trace the defects in our national government to the decision of the founding fathers to adopt a unitary rather than plural executive.

Designing Compensation for Sterilization Victims

In 1943 the North Carolina Law Review published an article by Harvard Law Professor Thomas Reed Powell on "Compulsory Vaccination and Sterilization: Constitutional Aspects. "  Powell was trying to provide guidance on just what the Constitution  permitted in terms of public health measures, from vaccination through sterilization.  The article reads very much like the opinion of a realist; there are several references to how ambiguous the law is and how difficult it is to predict what will happen in subsequent cases.  "If all this seems sadly vague and amorphous to those who extract certainties out of test tues, it can only be answered that of such is the kingdom of jurisprudence," Powell wrote towards the end.  He thought that the twin Supreme Court precedents of Buck v. Bell (1927) and Skinner v. Oklahoma (1942) offered little "light on what they or their successors would do with milder measures, except to make clear that they would be zealous in insisting upon strong scientific support for the necessity and the efficacy of prophylactic prescriptions and upon adequate procedural safeguards in picking the persons subjected to them."  Later Powell observed that Skinner v. Oklahoma -- which struck down Oklahoma's law that permitted sterilization of those convicted of three felonies -- would not be a "stumbling block in the way of any sane public health program however much it may intrude on privacy and preclude self-determination."

Powell's article was published while North Carolina was in the midst of a decades-long program of sterilization.  Several years after that Duke Law Professor James Bradway -- a famous figure in the development of legal aid and also clinical education -- published a brief article that summarized North Carolina's law regarding involuntary and voluntary sterilization.  He included  the good news for physicians that there were immune from civil liability for participation in what Bradway termed involuntary sterilizations (those ordered by the Eugenics Board), "except in the case of negligence in the performance of said operation."

Now North Carolina is debating what, if anything, it ought to do about that.  In 2003 then Governor Mike Easley issued an apology to victims.  At the end of last month the "Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics" recommended that each now-living person who was sterilized receive $50,000.  The kin of those who have already passed away will receive nothing under this plan.  And while one might think that the victims would have no children, a fair number of people who were sterilized had already had children.

I've been following this with increasing interest over the last six months or so and am now mightily interested in it.  (Here's Debra Goldschmidt's CNN story on this and also a link to a discussion I had earlier in the week at the legal talk network with James Bowden and Craig Williams on this).  There are several issues that especially interest me in all of this.  First, just how did the government's program function?  Who was selected for sterilization; how did the administrative agency -- the state Eugenics Board -- operate; what are the demographic data on the gender, age, race, and family status of those sterilized?   (North Carolina's first sterilization act, passed in 1929, was struck down by the North Carolina Supreme Court in Brewer v. Valk in 1933 because it didn't afford enough due process.)  Judging from the Eugenics Board Meeting minutes that are on the North Carolina Sterilization Victims Compensation Fund website the hearings were perfunctory and often no family members challenged the petition for sterilization.  And rather hauntingly -- though understandably -- there were well-established administrative procedures for this, including a type-script manual produced in 1948, and pre-printed sterilization petitions for state officials to fill out.

Buying Our Way Out of Slavery (and War)

Over at The Atlantic blog, Ta-Nehisi Coates has a terrific post on Ron Paul's suggestion that the Civil War didn't need to be fought -- that we could have freed the enslaved people of the South with a federal government program that would have paid slave owners.

As an initial matter, that would have been seen as unconstitutional according to the Southern doctrine of the time -- the federal government could not purchase freedom for slaves.  This was something southerners worried about and they found it a nineteenth century version of redistribution of wealth.  I'll need to go back to Calhoun's writings to get chapter and verse on this, but that's my recollection.

But let's leave aside the constitutional arguments; I find them so often to be constructed covers for ideology.  That was certainly the case for the old South.  Southerners blended their belief in the centrality of slavery with their interpretation of the Constitution to create a doctrine that would not allow the federal government to interfere with slavery.  They took several pieces that recognized slavery -- like the fugitive slave clause and the three-fifths compromise and combined that with the idea that all states are equal and that the federal government could do nothing that would interfere with a state's equality.  That meant to Southerners that the federal government could not exclude  slavery from the territories, because that would have been discriminating against south states' citizens.  South Carolina Theology Professor James Henley Thornwell summarized  in an article in the Southern Presbyterian Review in early 1861 the Southern argument about equality of the states:

The Southern man, politically is the slaveholder; the Northern man, politically, is the non-slaveholder The rights of the South are the rights of the South as slaveholding; the rights of the North are the rights of the North as non-slaveholding. This is what makes the real difference betwixt the two sections. To exclude slaveholding is, therefore, to exclude the South. By the free-soil doctrine, therefore, she, as South, is utterly debarred from every foot of the soil, which belongs, ofvright, is much to her as to her Northern confederates.

Why So Little Concern About Downer Pigs?

With all of the attacks on the federal government’s power to mandate the purchase of health care insurance, one might have expected more criticism of the Supreme Court’s decision last week in National Meat Association v. Harris.

In that case, a unanimous Court invalidated California’s effort to exclude unhealthy, "downer" pigs, sheep and goats from the food supply, on the ground that Congress had reserved regulatory authority over slaughterhouses to the federal government. Even though California’s law was prompted by video footage documenting the ineffectiveness of federal regulation, the Court denied Americans the ability to turn to their state legislatures for protection.

Why so little concern? Perhaps the health care mandate is more salient, while the risks from food poisoning seem remote. Still, from a federalism perspective that worries about an expansive national government, the preemption of state regulation seems particularly troublesome in National Meat Association. State governments traditionally have assumed responsibility for protecting the public health. After the federal government has seized that responsibility and failed to carry it out properly, critics of federal power should be especially angry.

From my perspective, it would be better if efforts to contain Congress were directed at policies that compromise the public's health rather than at those that will enhance it.

[cross-posted at Health Law Profs blog]

 

Teaching Repressive Regimes How To Do It Right

Howard Wasserman flags Dahlia Lithwick's story about how prosecutors in Illinois are prosecuting two individuals who recorded their interactions with police on the grounds that the officers did not consent to the recordings.  These felony prosecutions may be consistent with the state's two-party consent rule.  And maybe they even comply with the Constitution.  (It appears that Judge Posner wasn't troubled.)  But it seems clear to me that if police or prosecutors in Cairo, Damascus or Beijing emulated this action, they would be accused of repression.   

I assume that government officials in these countries are paying close attention to these laws and will adopt similar provisions shortly.  Meanwhile, perhaps we can look forward to an Illinois Spring, with citizens across the Prairie State recording their interactions with police officers and posting them to YouTube.  Unless Illinois prosecutors take action against Google for  publication of un-consented-to videos.

Cornell on Popular Constitutionalism and the Original Debate Over Originalism

The ever-thoughtful Saul Cornell, who holds the Paul and Diane Guenther Chair in History at Fordham, has a new article, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" in the Yale Journal of Law and Humanities.

Saul takes on a number of recent debates in originalism -- such as the extent to which we should be looking at the meaning among the voters, rather than the drafters, of the Constitution and its amendments.  One of his key themes is that whomever we're looking to -- whether it's the drafters or the voters or some even larger public -- that there needs to be much more attention to the intellectual context.  As Cornell provocatively phrases the issue (at page 335): " Until  Originalists  recognize that they must master the basic techniques of intellectual history and understand the major modern historical debates about eighteenth-century political and constitutional history, and gain something more than a passing knowledge of Foundingera sources, their claims will continue to generate ideological manifestos masquerading as serious scholarship."

There's a lot more that should be said about Saul's article and also about the shifting approaches of both originalism and popular constitutionalism.  I've been spending a lot of time of late thinking about Southern ideas of constitutionalism in the thirty years leading into Civil War.  I'm particularly interested in two issues -- first, the feedback loops between public ideas about the Constitution and judicial ideas.  Such as, how did southern ideas make Dred Scott look like a legitimate decision.  And,  second, how did those public ideas about constitutionalism shape the South's move towards secession?  The public ideas helped frame the South's complaints about Lincoln's election and also the ways that Southern politicians and voters responded; they also legitimated the South's actions.  While Saul and many of the other originalists are focused -- completely understandably on the eighteenth century and the post-war period -- I think their work on whose ideas matter and why those ideas matter will help us understand the constitutional origins of the Civil War.

Lakhdar Boumediene on His Being Held at Guantanamo

Just in time for the start of the semester, Lakhdar Boumediene, the lead plaintiff in Boumediene v. Bush (2008) has a column in the New York Times about his experience being held at Guantanamo for seven years.  If you teach the case in class, this should be added to your syllabus immediately.

His story is chilling and heart-breaking and will help your students understand the human carnage that Guantanamo has wrought.  As a parent of two young children, I could barely hold back tears reading his story.  As an American who thinks his government should be better than this, much better than this, I felt the same.

Here are the first two paragraphs:

ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

Historian Loose in Public?

Everyone once in a while I talk about a legal historian who is loose in public -- like me wandering around the aisles of Target (near the coal mines of Midlothian, Virginia), or more seriously James R. Stoner of LSU teaching at Glenn Beck's  University -- but right now I want to ask about an exchange between Fox News' Megyn Kelly and Newt Gingrich, who is trained as a historian.  (Watch it here.)  And what I'm particularly interested in is how he sets up a distinction between his views as a historian and those of lawyers.

Close readers of the faculty lounge may recall that Ms. Kelly is a graduate of Albany Law School (and co-author of "The Conflicting Roles of Lawyer As Director," in Litigation back in 1996). I'd thought of her as a light-weight pretty much, though perhaps that is unfair.  At least she had the starch to take on Gingrich's attack on the Supreme Court.  Kelly described the plan this way (from the transcript at the Wall Street Journal's Law Blog):

You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. 

I hadn't heard of that idea, though I'm not following the primaries much.  In the words of my favorite librarian, "I'm bored by this."  (She was referring to Obama's acceptance speech in Denver, but that apt phrase applies to a lot of politics!) In fact, this is the first debate that I watched much of.  This is what interests me about the exchange.  Gingrich defended the plan "because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people."  He continued:

There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. ....  I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.  We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

This is to me the most interesting part of the exchange.  Kelly says that the people who criticized Gingrich's plan "are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible."  The exchange continued:

Gingrich: "I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? ....

Kelly: Something that was highly criticized.

Gingrich: Not by anybody in power in 1802.

Shouldn't the immediate response by Kelly be something along the lines of, but I wouldn't expect the people in power to criticize the plans of those in power.  But instead, Gingrich continued talking and attacked both lawyers and (what a surprise) law schools!

Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy.  Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country.  That would be the end of our freedom.  So I would suggest to you, actually as a historian, I may understand this better than lawyers.  And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.

A couple of observations here.  First, I find it important that Gingrich is setting up historians (or maybe history) as a better example of how to interpret separation of powers than generations of legal precedent.  Second, Gingrich's examples are really selective and I should think not the best for how to approach separation of powers.  Third, I love the way thath law schools are credited (or perhaps Gingrich would say charged) with establishing American culture.  I didn't realize we had as much power as Gingrich thinks we do.

Finally, this political focus on constitutional interpretation outside of the Supreme Court may help stimulate more research on public ideas about constitutionalism in US history.  At least I hope so.  I especially hope that it inspires work on how public ideas about constitutionalism shaped the secession movement.   This is what I spend much of my time writing about these days and it seems like no one cares much about the public interpretations of the Constitution in the pre-Civil War era.  But maybe there's hope!

Now that I'm reading the Gingrich white paper on this, I see that it cites Larry Kramer's The People Themselves!  He quotes Kramer's discussion of the 1958 decision in Cooper v. Aaron for the proposition that "The lawyer class began a grand-scale power grab with the Warren Court in the 1950s." (at page 8).  At pages 23-24, in the section on "Reestablishing a Balance of Power Today," he says this about law schools:

The majority of lawyers are being educated in law schools that primarily teach an all powerful model of the federal judiciary and later become members of legal professional associations that largely embrace this philosophy.  As the executive and legislative branches vigorously reject judicial supremacy, emphasize the importance of originalism in constitutional interpretation, and reassert their constitutional powers to check and balance the judicial branch, we can expect law schools to take notice.  It is important for every law student to explore the historical legal and non-legal materials to understand why judicial supremacy constitutes a fundamental violation of American constitutional thinking, a radical departure from the constitutional system that the Founding Fathers invented, and a dangerous model for the survival of a free society.  Legal educators should allow for a robust dialogue in the law schools about the importance both intellectually and for the health of the country to return to a more modest sense of the role of the judiciary.

In fact, a bunch of legal historians appear in the white paper -- Appendix D has a bibliography of "Relevant Source Materials on the topic of Judicial Supremacy and Executive and Legislative Powers to Check and Balance the Judicial Branch."  Among the scholars cited there are Erwin Chemerinsky, Saul Cornell, Don Fehrenbacher, Robert George, Mark Graber, Daniel Hamilton, Morton Horwitz, Daniel Hulsebosch, Frank Michelman, Chris Tomlins, Mark Tushnet, Robin West, and Gordon Wood.

Update as of December 18: At the end of the debate, Ms. Kelly commented something to the effect of "Gingrich provided a strong response on the judiciary, which would play well with the base, but might prove a problem for him going forward in the general election."  That seems like it is already the case; yesterday's LA Times has a story that discusses Gingrich's suggestion (in the white paper linked to above) that in some cases he might ignore a Supreme Court ruling.

Hiring Announcement: Religious Liberty Litigation Clinic

From an email that I received earlier today:

The Becket Fund is assisting with a search to fill a clinical teaching position at a prestigious west-coast law school.  The person selected will head up a privately-funded religious liberty litigation clinic for law students.  The main qualifications for the position are (1) experience teaching or litigating constitutional law issues and (2) interest in religious liberty issues.  The salary for the position will be $161,000.   It is a two-year position with potential for tenure.  Anyone interested in the position can contact Eric Baxter at the Becket Fund, ebaxter@becketfund.org .  Please contact the Becket Fund for additional information at (202) 349-7221.

Here's a link to the Becket Fund's home page.

Warhol and 1960s Jurisprudence?

The American Society for Legal History had a lovely reception at the High Museum of Art in Atlanta last week and the gallery with the From Picasso to Warhol exhibit was open during the reception.  So I wandered around it with a few friends from the conference.  I'm woefully ignorant of twentieth century art -- I would have been much more comfortable if the exhibit had been on pre-Civil War landscape art.  Alas, this was far outside of my area of knowledge.  (I clearly needed to have read their material for teachers, "learn the lingo"!)

 

So as I was standing in front of the Warhol collection of Campbell's soup cans, I asked -- sort of jokingly, actually -- a friend what she thought the analog in jurisprudence was to these pictures.  And she said quickly and quite matter-of-factly, "oh, something we've known all along but only came to see as fundamental recently."  [pause] "Something like Roe v. Wade, or maybe Griswold v. Connecticut."  Perhaps that's a well-known explanation-- or maybe not.  I'd certainly never heard it before.  

But it seems apt -- that in the 1960s things that had been commonplace became art, just as doctrine emerged in constitutional law that was taken as commonplace.  Courts began to recognize as fundamental rights things that had not been recognized before, though once we saw those rights we had a sense (or many people had a sense) that the values behind them had been around for a long time.  This leaves a question whether there is merely a spurious correlation here or whether artists and judges were drawing on a common well of cultural ideas.

Margaret Hu on U.S. v. Jones

Margaret Hu, a visiting assistant professor at Duke Law School, has posted over at the ACS blog on  U.S. v. Jones. Margaret's research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.  

Was this book really last checked out in 1887?

It says something more than a little disturbing, I suppose, about my scholarship that I'm reading a book that -- before the books.google crowd arrived in Widener library to scan it --  was last checked out in 1887.  Or at least the most recent due date is 1887.  Ah, well, that's one of the hazards of working on legal thought before the Civil War.

I'm doing a little reading this evening on  jurisprudence in pre-war literary addresses at Davidson College.  Reverend Sparrow's address, "The Duty of Educated Young Men of this Country," which I linked to in the last paragraph, is pretty typical of addresses in the 1830s -- moderate and focused on the role of education in moral and economic progress.  (Rather more practical than Emerson's American Scholar address from two years earlier, but in the same vein.)  President R.H. Morrison's inaugural address and Sparrow's inaugural address as professor of languages in 1838 are similar.

There were, however, already hints on that campus of the more extreme views that were brewing in the next several decades.  James Henley Thornwell -- who was a key figure in South Carolina during secession -- gave an address there in 1838 that was an early formulation of such key southern constitutional ideas as the need to calibrate a people's freedom to their social condition.  (It was also an attack on Utilitarians like Bentham.)  This becomes very important by the 1850s when southern political theorists emphasize how not everyone is fit for freedom, so it is not surprising, but I have not seen a lot of statements like that on college campuses in the 1830s.  Thornwell, you may recall, was an important pamphleteer during the South's secession debates.  Already in 1838 there are the seeds of Thornwell's ideas in that speech at Davidson.

I think the Davidson addresses will make a nice comparison with those at the University of North Carolina, where the addresses seem to have been a little more moderate than either Davidson or Wake.   Davidson, close followers of the faculty lounge may recall, is where D.H. Hill was teaching when he published his college algebra text, which has questions like 

A Yankee mixes a certain number of wooden nutmegs, which cost him 1/4 cent apiece, with a quantity of real nutmegs, worth 4 cents apiece, and sells the whole assortment for $44; and gains $3.75 by the fraud. How many wooden nutmegs were there?

Fun in math class, eh? (Am I right in thinking that 4x-1/4x=375?)

Also, on the issue of emancipation and the generosity of North and South, try this problem:

A gentleman in Richmond expressed a willingness to liberate his slave, valued at $1000, upon the receipt of that sum from charitable persons. He received contributions from 24 persons; and of these there were 14/19ths fewer from the North than from the South, and the average donation of the former was 4/5ths smaller than that of the latter. What was the entire amount given by the latter?

Hill also gave an interesting address at Davidson in 1855 when he was hired there, on "college discipline."  It explained Washington College's honor system (and Davidson's as well, I guess) as part of Protestant thought that encouraged individuals to take responsibility for their actions rather than imposed rules from above.  Or some such.  

B.H. Palmer, who gave college literary addresses all over -- including UNC -- gave one there in 1852, "Baconianism and the Bible."  So did George Howe of the Columbia Theological Seminary (where Palmer and Thornwell also taught.)  Judge John Belton O'Neall gave an address at Davidson in 1850  (sorry I don't have a link to this on the internet) and Senator Robert Strange gave one in 1847.  This will come as no surprise that the addresses at the antebellum University of Alabama were more extreme in their proslavery views than those at UNC, Wake, and Davidson, and even more so I think than UGA.  Never ceases to surprise me what we can learn from reading a people's literary output.

And as I was sitting here using the library catalog to see just how many Davidson addresses there are -- a surprisingly large number, actually -- I realized that one was in a volume of addresses that patrons could check out.  Then I realized; wait a minute, I've checked it out!  In fact, it's sitting next to me on my desk.  So scanned it in and here is Reverend Archibald Baker's 1845 address, available no where else on the internet.  It's a pleasantly moderate speech.

The image at the upper right is of Davidson's Philanthropic Literary Society building, which was constructed in 1850 I am reliably informed.  The image on the lower left is of the Eumenean Literary Society Hall, which is directly across from the Philanthrophic Hall.  I had a lovely time there yesterday talking with John Wertheimer's American legal history class and also his honors students.

FERPA, The First Amendment And Student Self-Regulation At UVa

When the editors of the Cavalier Daily discovered that one of the paper's writers had been plagarizing, the incident triggered an Honors Committee avalanche that would be a great fact pattern for a course in education law.  The WaPo has the details here.

C. Edwin Baker Lecture, West Virginia University

On October 10 (tomorrow) at noon Vincent Blasi of Columbia Law School will speak on "The Versatility and Integrity of Ed Baker" at West Virginia University's law school.  Anne Marie Lofaso of WVU will also speak on "Ed Baker's Autonomy Theory of Free Speech: His Final Thoughts on Freedom of Expression."  James Weinstein of Arizona State University will present a response to Ed Baker's autonomy theory.

The program, which is the inaugural Baker Lecture for Liberty, Equality, and Democracy, will be webcast live.  The lecture series is named for renowkned constitutional scholar C. Edwin Baker, a long-time professor at the University of Pennsylvania.  Cribbing now from WVU's website announcing the lecture: 

C. Edwin Baker (May 28, 1947 – December 8, 2009), the Nicholas F. Gallicchio Professor of Law and Communication at the University of Pennsylvania Law School, was a leading scholar of constitutional law, communications law, and free speech. Baker was considered one of the country’s foremost authorities on the First Amendment and on mass media policy. His most recent scholarship focused on the economics of the news business, political philosophy, and jurisprudential questions concerning the egalitarian and libertarian bases of constitutional theory. Baker was a native of Madisonville, Kentucky. He received his bachelor’s degree from Stanford University and his law degree from Yale University. He was a law and humanities fellow at Harvard University in 1974, a fellow at Harvard’s Shorenstein Barone Center in 1992, and a Radcliffe fellow there in 2006.

WVU also houses Baker's personal papers and much of his library.  

I only had the pleasure of meeting Ed Baker once -- back in the summer of 2008 at the SEALS conference.  My memory of him is as a wonderfully thoughtful and supremely unassuming and kind man.  I'm very sorry that I did not have more of a chance to learn from him in person.

The image at the top right is of Professor Baker. 

Roadside Crosses and the Establishment Clause

 As I mentioned, I am teaching a Supreme Court seminar this Fall.   For one assignment, students write a cert pool memo on a pending petition, and then conference in groups of nine to decide the petitions.   As one of these petitions, I selected an interesting Establishment Clause petition.  

Davenport v. American Atheists involves a challenge to a road side cross erected by a private organization to honor fallen highway patrol troopers.   The Tenth Circuit held that the crosses violated the Establishment Clause under the endorsement test.    SCOTUS Blog has identified Davenport (and its companion petition, Utah Highway Patrol Ass'n v. American Atheists) as a "petition to watch."

I'll be comparing my students' results with the Court's decision.   I am not a First Amendment scholar, and I'd be curious to hear whether others think these petitions will be granted.  

Fourth Circuit Issues Opinion in Legislative Prayer Case

Yesterday, in a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of citizen plaintiffs, and against a county board of commissioners, in a challenge to the board's pre-meeting prayers.  The case is Joyner v. Forsyth County.  The 49-page opinion (which includes a dissent of approximately 20 pages) can be found here (Wilkinson writing the majority opinion and joined by Keenan; Niemeyer dissenting).  Perhaps one of our con law experts will blog on the case.

From the opinion I note that James Michael Johnson (Alliance Defense Fund) argued the case on behalf of the board.  Johnson is the founding dean of the Pressler School of Law of Louisiana College.

Teaching Civics and American Government 101 in Law School?

Many, if not most, U.S. law schools require Constitutional Law I (federalism and the separation of powers) in the 1L year. In addition to the usual challenges 1L students face -- e.g. learning to read and brief cases, reading an authoritative but perhaps ambiguous and/or vague text, etc.  -- students in Constitutional Law I may face the additional challenge of trying to learn a subject where a basic knowledge of American history and governmental institutions is assumed. That assumption, however, may not be justified. Many students may be completely unprepared: foreign students, students with an undergraduate education that permitted them to avoid any class in American government, students with an inadequate civics foundation in secondary school, older students who took relevant classes but did so a very long time ago, etc. It is hard to talk effectively about competing constitutional interpretive methods and theories without a basic understanding of institutions and history.

Does this mean that U.S. law schools should teach Civics and American Government 101? It would be a terrible mistake to make Con Law I itself that course. That course should be more ambitious and, among other things, engage students with analyzing and framing arguments for and against competing interpretations of the text using different methods of interpretation.

To date my (modest) strategy to cope with the knowledge gap has been to teach a couple supplemental 2-hour sessions that are optional and to recommend a variety of books and resources for background. This crash course method is geared more especially to subjects particularly relevant to the course. Has anyone developed or tried anything more systematic?

Note to any pre-law advisors who may read this post: please be sure to tell your advisees to take at least one course in American government and history so that they can handle a graduate-level course that will assume the basics.

The Ten Commandments and Public Schools

Al's colleague at North Carolina, Gene Nichol (pictured), has a thoughtful editorial in today's local Raleigh newspaper, addressing a state law that permits public school administrators to display "documents and objects of historical significance that have formed and influenced the United States legal or governmental system and that exemplify the development of the rule of law, such as the Magna Carta, the Mecklenburg Declaration, the Ten Commandments, [and] the Justinian Code ...."

And if, like me, you need a refresher on the "Mecklenburg Declaration," click here for background information.

Article III Tenure for Bankruptcy Judges and the Prestige of Office

Many thanks to the Faculty Lounge for having me guest blog this month. 

In late June, the SCOTUS handed down Stern v. Marshall, its most recent decision to touch on Article III, legislative courts and the increasingly complicated world of bankruptcy adjudication. Congress could greatly simplify this area by just giving bankruptcy judges Article III tenure. Many of the constitutional complications would simply disappear (well, except perhaps that pesky Appointments Clause issue) and bankruptcy could be streamlined. So why not give bankruptcy judges Article III tenure? We could even make the judges PAS appointees.

The last time that was seriously tried in Congress, the proposal was killed by the political opposition. Who were the chief opponents of Article III tenure for bankruptcy judges? It wasn't Congress, but the Article III judiciary itself. 

One of the arguments offered against tenure was that so enlarging the Article III judiciary would diminish the prestige of individual membership in the Club. That diminished prestige would, like flagging judicial compensation, make it more difficult to attract the best legal talent to the federal bench in the future. 

Assuming, arguendo, we ought to pursue a certain level of judicial prestige as a recruitment incentive, is minimizing the growth in the size of the judiciary the best way to do it and what is the background level of prestige that ought to be maintained?

Prestige (ill defined in the marketing literature) seems to me to be a subjective reaction elicited from others in response to the perceived status of a position, product, etc., that one usually associates with being elite (e.g. high quality and possibly scarce in supply). That suggests we need to know who the relevant "prestige" community intended to have this reaction is. If the goal is to assure effective recruitment of well-qualified candidates to be federal judges, then presumably the target market should be peers of federal judges who are talented enough to do the job. 

But who is that relevant community? Partners at (especially large) law firms, federal legislators, officers in the executive branch, state judges, law professors, the practicing bar generally, the legal press and media that will transmit the message to these groups? Those groups have grown significantly over time. What year should form the baseline ratio of judges to lawyers that maintains the requisite prestige? 

One could always aim to increase federal judicial prestige by increasing the number of lawyers to judges. That may increase the prestige component of federal judicial "compensation."

But if we were to eliminate the initial stipulation that prestige ought to be something we pursue, would it just be better to compensate judges with other perks of office, e.g. better compensation (which I suppose might in turn have some positive effect on prestige)? Do we really want to encourage recruitment of judges who seek the position, in not insignificant part according to the prestige rationale, for the fawning of others?