The Faculty Lounge

Dispatch from the Archives: Can Slavery Ever Be Voluntary?

The Library of Virginia has a wonderful blog ("Out of the Box") where archivists tell the stories of people, places, and things found among the library’s collections. This week, the blog told the story of Jane Webb, a mixed-race free woman who, in 1704, offered to serve 7 years as an indentured servant with the owner of her enslaved lover in consideration for her lover’s freedom and permission to marry.  In addition, Webb promised to let the owner (Thomas Savage) “have all the children that should be bornd [sic] upon her body” during the period of servitude.  The owner agreed, and (remarkably) a written contract was executed between Savage and Webb.  At the conclusion of the 7 years, however, Savage refused to release either Webb’s husband or their children; Savage claimed that the agreement entitled him to all of Webb’s children, for a period of time exceeding her indenture.  Over the next 16 years, Webb and Savage battled in successive court cases in which each of them claimed the right to Webb’s children and her (now) husband.  In one of the cases, Savage claimed that Webb’s poverty rendered her unfit to care for her children (as “they may be induced to take ill courses”).  Ultimately, Savage (and his heirs) succeeded: Webb’s case was dismissed in 1727, and, despite her efforts, her children and husband remained bound to Savage.

The case is an interesting on a number of legal/academic fronts (property, evidence, labor, children & the law, etc.) – I’m most interested in Webb’s attempt to bind herself and her unborn children in exchange for her betrothed.  Scholars of slavery in the U.S. have wrestled insufficiently with what can be called “voluntary” servitude and enslavement. For free blacks during this era, a web (no pun intended) of hostile legislation threatened to plunge them into perpetual slavery for even minor infractions; faced with the prospects of familial separation and geographic exile (if trafficked further South), free blacks throughout the South petitioned legislatures and courts requesting enslavement.  Through this mechanism, free blacks transformed themselves into property – and their petitions provide critical insight into the role of law, race, labor, family, and limits of “freedom” in the lives of the nominally free.  Can slavery ever be voluntary?  If yes, what are the implications for our Thirteenth Amendment jurisprudence and courts' refusals to enforce personal service agreements?  I look forward to your thoughts on this.

CFP: Expanding the Civil Right to Counsel: 50 Years After Gideon

The University of the District of Columbia David A. Clarke School of Law announces a call for submissions for its 2013 Law Review symposium on “Expanding the Civil Right to Counsel: 50 Years After Gideon.”  Articles presented during the symposium will be published in the Law Review’s annual symposium issue.  Abstracts are due by November 15^th (details here).

Supreme Court Fellows Program

The deadline for applying for a U.S. Supreme Court Fellowship is November 30 (apply here). 

Over the past forty years, law professors have been well represented among the Fellows contributing to the work of the Supreme Court, the Federal Judicial Ctr., the Administrative Office of the U.S. Courts, and (more recently) the U.S. Sentencing Commission. This is a great opportunity for a sabbatical/leave year for profs whose scholarship would benefit from the experience.

Good luck!

Balloting Behind (Jail) Bars

Thanks to Al and Dan for inviting me to sit a spell in the Lounge! I have been an avid reader for years, and I'm super excited about the opportunity. As Al mentioned, I'm writing a dissertation on slavery and penal systems in the antebellum South - one might think that this credential qualifies me to regularly solve Al's Civil War trivia questions (and yet, one would be wrong . . . I've only gotten one of Al's trivia questions right (!)). In any event, I'm looking forward to talking race, prisons, and property with this group.

First up, jailed prisoners and the franchise. This week, the L.A. Sheriff's Department is bringing the ballot inside the county jail. As part of an initiative to facilitate jailed detainees' access to the franchise, the Department recruited volunteers to assist jailed inmates with registration forms and absentee ballots. While hailed by some as a laudable development, some are questioning whether law enforcement agents are qualified to accurately ascertain eligibility and administer ballots for this election. This is especially tricky in California, where AB 109 (last year's "realignment" bill enacted in the wake of the Supreme Court affirming the prison population reduction order in Coleman v. Plata) has shifted jurisdiction over thousands of convicted nonviolent offenders to local jails. The populations currently being held in the state's local jails, therefore, do not share the same status - some are awaiting trial while others have been convicted and are serving sentences- and many do not share the same eligibility, an issue that may give rise to ballot integrity problems down the road. Several years ago, the ACLU compiled information about the myriad challenges of custodial voting - let's hope LA County is familiar with this history and its relative successes.

As an aside, one of the "surprises" noted by department personnel interviewed for this article was that several of the jailees registering to vote signed up as Republicans. The characterization of this demographic tidbit as a "surprise" brings to mind the work of Professor Janai Nelson of St. John's University School of Law. Nelson has an article forthcoming in the Florida Law Review (on ssrn here) in which she argues that felon disenfranchisement laws "reflect a misguided perception" of how a criminally detained or incarcerated individual might vote. Although not limited to the partisan question of whether this population might vote a Republican or Democratic ticket, Nelson's analysis is worth a read. Have criminal disenfranchisement schemes persisted for so long in the U.S. because of a presumption of how members of this population might vote if given the opportunity? (Nelson suggests that the answer is yes.). I'd love to hear your thoughts!

The Texas “Ten Percent” Policy and School Quality

In judging the affirmative action program in Fisher v. University of Texas, an important question is the extent to which the Texas legislature's “ten percent” policy provides an effective race-neutral strategy for promoting diversity in the UT student body.

Under the Texas policy, the state's public undergraduate institutions admit all applicants whose grade point averages are in the top ten percent of their high schools’ graduating classes. (UT-Austin can limit top ten percent admissions to 75 percent of its entering class.) If colleges draw from the top ten percent at all high schools, their entering classes could mirror the ethnic and racial diversity of the high schools' students. 

As I’ve written before, the Texas policy may be even more valuable in the incentive it provides for improving the educational quality of public high schools. Consider the potential impact if there were wider use of high class rank admissions policies.

Bilder on Farrand on the Constitutional Convention

Mary Bilder's paper, "How Bad Were the Records of the Constitutional Convention," which will appear momentarily in the George Washington Law Review's symposium on the 100th anniversary of Max Farrand's edition of the Constitutional convetion is now up on ssrn.

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them -- Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records. The Article also describes the story of the records after the Convention but before they were published, including the physical limbo of the records in the aftermath of the Convention and the eventual deposit of the records in March 1796 amidst the rapid development of disagreements over constitutional interpretation. Finally, the Article offers a few cautionary reflections about the lessons to be drawn from the official records. Particularly, it recommends using caution with Max Farrand’s records, paying increased attention to the procedural context of the Convention, and recognizing that Constitutional interpretation postdated the Constitution.

Constitutional Thought at VMI

In honor of Governor Romney's address at VMI today I thought that I'd post a little on constitutional ideas at VMI before the Civil War.  (That is, recycle a July 4 post from a while back, about the July Fourth orations that were given at VMI before the war.)  There's an important and exciting literature on July Fourth orations as a way of understanding the American character -- and legal and constitutional thought in particular.  I think that Michael Kammen's A Machine That Would Go of Itself is probably the best-known, but there are also some important articles that look at July Fourth in the pre-war South.  Paul Quigley is the person who's done the best and most recent work on this, I think.

Turning now to Lexington ....  In the 1850s a number of lawyers gave addresses on July 4  (or in some cases July 3) -- which was also the date of VMI's graduation --  including RMT Hunter, who was then a US Senator, Governor Henry Wise, B.J. Barbour, and Lexington Law Professor John White Brockenbrough.  There's some good stuff in there.   Let me start with Henry Wise's talk -- it was in essence a dedication speech for VMI's statue of Washington -- which gained notoriety during the war when the United States took it from the campus -- and then afterwards when it was returned.  (A post-war picture of the statue is on VMI's website.)  There are a lot of Washington statues in the pre-war south that generated comment -- the one at the North Carolina and South Carolina capitols, the Washington Equine Statue (lately a subject of monument trivia here), and the VMI statue, for instance.  There's a pretty cool article to be written here, I think, that examines how Washington statues in the 1840s and 1850s were used to promote nationalism.  

The VMI statue was cast from Jean Antoine Houdon's statue of Washington in the Virginia capital, which Houdon had created using casts and notes that Houdon had taken of Washington.  So it is supposed to be the most realistic statue ever made of Washington.  (The statue of Washington at the South Carolina monument is also cast from Houdon's -- so there are some cool connections between VMI, Richmond, and Columbia.)

Public Constitutionalism in the 1830s: The Toast

I talk every now and then here about how constitutional ideas appear in public -- often in really abbreviated form, sometimes even as bumper stickers.  A few words can often convey a whole lot about our intellectual world in a short compass.  One of the sources I've been using of late to gauge public constitutional ideas are debate topics at college literary societies.  My hypothesis is you can tell a lot about what's on the students' minds by their weekly debate topics and if you put all the ideas together over a span of years, you can help to map the minds of southerners.

So I'm surprised that I haven't done more with toasts at public occasions before now.  G. Edward White made effective use of dueling toasts between Andrew Jackson and John C. Calhoun in The Marshall Court and Cultural Change.  But it's only recently that I've realized how many toasts are out there in newspapers. Take, for instance, the toasts that were given at a Fourth of July celebration in Surry County Virginia in 1832 -- the first fourth following Nat Turner's rebellion.  Those toasts included:

"The Surry Troop of Cavalry--Men prepared to march at a moment's warning--who can view them and fear an insurrection."

"The People, too wise to be led into Nullification and too honest to be bribed by appropriations for internal improvement."

"United we stand, divided we fall."

"Robert Y. Hayne: One of the brightest stars in the Southern Constellation."

"Principles and not men."

And how about these, given at Red Oak in Brunswick: "tools made to work in clay can never make an impression on old hickory."

"The North and the South.  Their mutual interests legalize their union.  But when one seeks to oppress the other, their Union is disgraceful and meretricious. 9 cheers."  (This is a focus on utility as it relates to Union earlier than I'm used to seeing it.)

And how about this praise for someone who gave a revealing Democratic address at UNC in 1847: "John Y. Mason, our distinguished representative in Congress.  The talented, firm, and patriotic statesman; his faithful adherence to his constituents will deserve their everlasting gratitude."

There's a lot to talk about here, once I start to compile a comprehensive list of the toasts.... I am in need of a photograph of the Brunswick Court House to illustrate this post.  I have designs on getting that on my next trip to Richmond to use the State Library, which I hope will be soon.  For now one of the Davidson College literary society buildings will have to suffice.

Contracts v. Bankruptcy (or Alien v. Predator?)

From our friend and bankruptcy expert, Regent law professor Scott Pryor:

When I teach bankruptcy law I regularly invoke the competing themes of property and contract. Without belaboring the argument, property is a baseline concept from which American common law generally and the Fifth Amendment to the Constitution generate substantive legal protections. While I also believe the right to contract is natural to humans, I argued in Principled Pluralism and Contract Remedies (abstract here) that state-sanctioned remedies for breach of contract were discretionary. In other words, a polity need not provide a judicial forum for rectification of rights arising from breaches. In case anyone wonders how someone who teaches contract law could continue to justify collecting his paycheck, I went on to argue that even if not required to do so, civil governments have the legitimate discretionary authority to provide judicial remedies for breaches of contracts, and that providing such remedies contributes to human flourishing. The well-nigh universal regime of contract remedies for contract breaches seems to bear out my conclusion.

Two clauses of Article I of the U.S. Constitution are relevant to the intersection of property, contract remedies, and bankruptcy in the American context. First, Section 10, clause 1 provides that "No State shall pass any Law impairing the Obligation of Contracts" while Section 8, clause 4 empowers Congress "To establish uniform Laws on the subject of Bankruptcies throughout the United States." Oh, and we can't forget about the Tenth Amendment, which, when it comes to the system of dual state-federal sovereignty in the United States, preserves (at least sometimes) the States from federal interference.

Taken together we can conclude that (i) states cannot impair remedies for breach of contract (i.e., cannot discharge contract debts) but that (ii) the federal government can provide for discharge of debts while (iii) neither can take away one's property and, finally, (iv) when it comes to debts of municipalities, the federal bankruptcy powers cannot interfere with them without the consent of their State.

So what? Let's consider the bankruptcy of the City of Stockton, California. Like many municipalities (and states, for that matter) Stockton owes its retired employees far more in pensions than it can hope to pay. (Check the news report here and see here for my previous post on the topic.  For a slightly different take on the immediate cause of Stockton's financial crisis, check the NYT article here.)

Stockton filed bankruptcy to avoid paying the benefits it had contracted to pay but could no longer afford. But wait, the retirees argued, Stockton is an instrumentality of the State of California and, as we have seen, the U.S. Const. Art. 1, Sec. 10 specifically prohibits the states from messing around with contracts. While admitting that the federal government's constitutional bankruptcy power can discharge most contractual obligations, the retirees asserted that it cannot be permitted to do so in Stockton's case without contradicting the constitutional text. The irresistible force meets the immovable object.

An ingenious argument but Bankruptcy Judge Christopher Klein didn't buy it. (Judge Klein's lengthy opinion, Assoc. of Retired Employees, et al. v. City of Stockton (In re City of Stockton) can be found at 2012 WL 3193588.) First, he observed that § 904 of the Bankruptcy Code clearly prohibits the court from granting any interim relief to the retirees. Second, and much more fully reasoned (in anticipation of an appeal, one suspects), Judge Klein concluded that the Bankruptcy Clause in effect trumps the Contracts Clause, at least in this case. In short, the City of Stockton can "interfere" with its "Obligation of Contracts" because the State of California has permitted it to file for relief under Chapter 9 of the Bankruptcy Code.

The Contracts Clause is a limit on the States; the Bankruptcy Clause permits the federal government to do what the States cannot; and the Tenth Amendment implies that a State can acquiesce to this exercise of federal power. QED. But stay tuned; one suspects there's more to come.

Syllabus Studies: Obama's Current Issues in Racism and Law Syllabus

As the sands of time drip from the summer hourglass, I am rushing to finish up a bunch of projects.  My essay on David Rabban's Law's History is almost in draft form; and some other big projects are all sprinting towards the finish line.  But right now I want to talk about a paper that Stacey Gahagan and I have been working on for a while now: a paper that we call "Reading Professor Obama."  The title is a riff on James Kloppenberg's fabulous intellectual history of Obama, Obama Reading: Dreams, Hope, and the American Political Tradition, which reconstructs the Obama's intellectual culture from college through the presidency.

What we have done is gone back and looked at the syllabus for his 1994 course on "Current Issues on Racism and the Law" at the University of Chicago.  This got some attention back in 2008 when the New York Times first posted on it and then ran commentary by a number of distinguished law professors -- like Pam Karlen, Akhil Amar, and Randy Barnett.  (I blogged about it back in August 2008.)

We contribute two things to the discussion that I think are important.  First, we went back and tried as best we could to see just exactly what he assigned -- often it was a little unclear what pieces of articles and books he was assigning, but we made an educated guess about this.  And then we read that work to see what kind of ideas students would likely take away.  In contrast to those who link Obama closely to Derrick Bell -- and in spite of the fact that Obama assigned a lot of excerpts from Bell's Race, Racism, and American Law casebook -- Obama's readings from people like Anthony Appiah and George Fredrickson reveal that he likely departed from Bell's ideas about the permanence of racial classifications and of racism.  Moreover, his concluding assignment was Cornell West's essay written in the wake of the 1992 LA Riot.  The essay's final sentences -- and therefore the last words that Obama assigned -- are “Let us hope and pray that the vast intelligence, imagination, humor and courage in this country will not fail us. Either we learn a new language of empathy and compassion, or the fire this time will consume us all.”

Our second insight -- really Stacey deserves the credit for this -- was to look pretty closely at the class presentation topics that Obama suggested for the students.  For after the first four classes, groups of students made presentations on topics of their choice, though Obama provided twelve broad categories for them to choose from, including "the all-black, all male school," "racial gerrymandering," "welfare policy and reproductive freedom" and "reparations."  We looked closely at the topics and the questions Obama posed for the students on each one.  Stacey linked those questions to the burgeoning critical race theory (CRT) literature in the early 1990s.  This suggests that Obama was deeply interested in issues that were in discussion in CRT circles.  Now, one might think -- in fact, I think -- that no matter one's orientation towards CRT, a course on "current issues in racism and the law" should address a lot of these same issues.  Still, reading this syllabus makes me think that Obama had a closer affinity for CRT than one might expect given his usual and well-known posture of refusing to take sides on controversial issues.

I don't think this changes in significant ways how we think about Professor Obama, but I think that it suggests he was further from Derrick Bell's ideas than many have appreciated, while perhaps more sympathetic to key CRT ideas than we appreciated.  This distance from Bell is particularly important given the discussion last spring about the "rediscovered" tape of Obama introducing Bell.  

Anyway, the paper's up on ssrn and we'd be most interested in your thoughts.  And we'd be most, most interested in the thoughts of people who took that course -- especially if any of you still have the readings packet.

Narrative History and Multivariate Analysis

I'm delighted to see that the summer 2012 issue of Green Bag is up on the net; hard copies will be arriving soon.  I have a short review of the first volume of G. Edward White's Law in American History in the issue.  

Close readers of faculty lounge will recall that I'm a huge fan of White's work -- and that I wrote a little bit about the first volume earlier this year.  Anyway, the essay is titled "Multivariate Analysis Through Narrative History," which alludes to how White depicts law as interaction with many variables -- like economy and political ideology -- and how it sometimes alters the trajectory of our nation, too.  One of the things that White does that's particularly interesting is show how law is a part of culture -- and where many histories of law focus on law as the center piece of analysis, White shows that law is often the dependent variable or an incidental independent variable.  Thus I toyed with the idea of calling this something like "embedded legal history" -- as in law embedded in culture.  

A lot of people are going to be engaging the book and White's methodology for a long time to come.

Ok -- now back to work on another review of a very important book that's coming out soon from Cambridge, David Rabban's Law's History: American Legal History and the Transatlantic Turn to History.  It will surprise no one (at least none of you who follow my writing closely, which may be none of you!) that I'm deeply interested in Rabban's story of the post-Civil War turn to history in American jurisprudence -- or that I see this as related in significant ways to the controversy over slavery.  This is a major, major work of intellectual history and you should all be eagerly awaiting its appearance in December 2012!

How Closely Is Roberts Following Marshall?

One thing that I have not yet seen any commentary on is Chief Justice Robert's quotation from the essay that John Marshall published in defense of McCullough in the Alexandria Gazette.  Marshall wrote "“The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”  (This was conveniently reprinted by Gerald Gunther in a wonderful little volume, John Marshall’s Defense of McCulloch v. Maryland (1969).  Gunther prepared this as he was working on the volumes on the Marshall Court for the Holmes Devise History of the Supreme Court, which G. Edward White eventually finished and published in 1988 as The Marshall Court and Cultural Change.)

Close followers of this story may recall that after McCullough Marshall  took to the papers to defend the decision, under the name "A Friend of the Constitution."  It wasn't until later that we learned Marshall was the author.  The Supreme Court wasn't leaking as much back then, I guess.  So ... that leads to a question: do we think that Chief Justice Roberts is off posting on a blog somewhere under a pseudonym defending the decision?

The Possible Irrelevancy of Fisher: Intent and Affirmative Action

I’m starting some preliminary research on an article that I’d like to write about Fisher, the Texas affirmative action case.  It seems as though many expect the Supreme Court to declare affirmative action unconstitutional.  But would such a holding be inconsequential?

The Supreme Court currently requires that claimants prove intent to discriminate under the Equal Protection Clause, an exceedingly heavy burden.  But if universities change their admissions policies, still take race into account yet deny that they are actually doing so, how could white claimants prove that they are the victims of intentional discrimination?  Indeed, it seems as though the Court has painted itself into a corner here.  By requiring that racial minorities prove the impossible—that the state intentionally discriminated against them on the basis of race—the Court has amassed some very unhelpful case law to potential white litigants should affirmative action ever be made unconstitutional.

Sure there will be some racial disparities in admissions data.  But that shouldn’t mean anything.  Just ask Warren McCleskey. 

If the Supreme Court strikes down affirmative action, expect to see some folks running away from an intent standard but only in affirmative action cases.  Statistics will quickly become dispositive.  Disparate impact will suddenly become king.  Hypocrisy will ensue.

Boston Archdiocese Restrictive Covenants

Jack Sullivan has an extensive story about restrictive covenants that the Boston Archdiocese and the Springfield Archdiocese place on property that they sell in the summer issue of CommonWealth.  Sullivan lists some of the restrictive covenants.  One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials.  One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography.  A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

Property professors will love this -- and I'm going to use some of these examples in my property class this fall. There are a ton of interesting things to talk about here.  I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club.  And some of these are understandable when the church is thinking about protecting its schools, such as the restriction of property for use by a charter school.  I'd want to look at Massachusetts competition law on this; my guess would be that's a reasonable restriction, but I'd want to know a lot more about the neighborhood and alternative property the charter school.  This restriction on use might be struck down as unreasonable.  

What interests me in particular are the restrictions on abortion.  Couple of things to think about here.  The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement.  Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.  (I get the restatement's references to constitutional rights in this private law context is odd and I'm always somewhat confused by it.)  But even if Massachusetts doesn't follow § 3.1, I would be surprised if a court thought that restriction were enforceable.  That seems like an expansive intrusion the rights of the new owner, the kind that courts would likely think goes too far.  Another problem is that the benefit is probably not even appurtenant to any surrounding property.  That seems like the benefit's probably in gross and thus the burden is unlikely to run.  I looked at a couple of these deeds a few months ago and they say that the restrictions are for the benefit of the property the church retains, but in some cases that property is miles away from the property that's being sold.  And then there's the issue of Shelley v. Kraemer. Assuming Shelley continues as good law, the enforcement of the covenant through the courts would be state action.  This would be subject to an analysis the same as a municipality passing a zoning ordinance that restricted abortion, I would think.  Perhaps it could pass, but I'd be very skeptical.

But my guess is that these restrictions, as so many, are really more about making a statement about the seller's values than thinking that they're really going to be enforced.  Anyway, lots of things to talk about in there and just in time for planning the fall property class!

Bumper Sticker Popular Constitutionalism

Continuing on my theme of talking about scholarship that I've been reading .... Thanks to a pointer from Dan Ernst at Legal History Blog, I've been enjoying Mary Ziegler's "Grassroots Originalism: Rethinking the Politics of Judicial Philosophy."  The abstract is as follows:

How has originalism become so politically successful? Whether its appeal is intrinsic or depends on the political outcomes it promises, leading studies a gree that the popularization of originalism came from the top down: elite actors persuaded grassroots activists to endorse originalism. By focusing on arguments about the backlash against Roe v. Wade, this Article argues that current studies of originalism as a political practice are fundamentally incomplete. First-generation originalists like Antonin Scalia, Robert Bork, and Lino Graglia defend originalism in part by pointing to the negative political and social consequences of any alternative approach. Roe has been the most powerful example used in consequentialist arguments for originalism. By failing to adhere exclusively to constitutional text or history, as Scalia has argued, the Roe Court forced lay people to question the Court’s legitimacy and, in so doing, helped to create the antiabortion movement. 

However, these consequentialist contentions of originalism and against Roe emerged not in the academy or in the courts but within the grassroots Right. In 1980-81, antiabortion activists began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise. These activists were not simply attracted to originalism because of its inherent worth or because of the results it produced. Instead, members of the grassroots Right pioneered justifications that later featured in the work of first-generation originalist scholars. As the Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.

There is a good deal at stake in understanding the role of the grassroots Right in creating consequence-based justifications for originalism. First, by assuming that academics, politicians, and judges have dominated the politics of originalism, we have misunderstood important popular arguments for originalism or judicial restraint. Grassroots claims about originalism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. A second implication concerns the legal academy. The materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely to continue to be the case in the future.

Among the things that interest me about this is Ziegler's attempt to go back and trace out the evolution of the popularity of originalism.  I'm deeply interested in the process by which constitutional arguments evolve, especially how the public interprets the Constitution, how they understand Supreme Court decisions, how they react to them, and how the Supreme Court in turn reacts (and in many cases adopts) arguments made by people outside the Court.  For instance, the pre-Civil War era saw an enormous amount of public discussion of constitutional ideas and I believe interaction between the Court and the public.  Outside of the domain of constitutional thought, there was also substantial interaction of elite Southern opinion and judicial decisions.

The End of the Calhoun Constitution, Active Version

It just dawned on my that I might use a picture of Appomattox Courthouse as a sign for "the end of the line" for the "Calhoun Constitution."  That might have been an even better illustration for my post than the field where Pickett's charge took place.  (But, of course, I wanted to use the Pickett's charge photo because Wednesday was the 149th anniversary of the charge.)  That's the Courthouse off in the distance.

Then as I was looking through the other pictures I took the day I was at Appomattox Courthouse I came across a monument the United Daughters of the Confederacy put up back in June 1926 to commemorate the Lee's surrender.  The language is pretty illuminating -- and I think also suggestive of the UDC's efforts at reconciliation:

Appomattox.  Here, on Sunday April 9, 1865, After Four Years of Heroic Struggle in Defense of Principles Believed Fundamental to the Existence of Our Government Lee Surrendered 9000 Men, the Remnant of an Army Still Unconquered in Spirit.

Couple of things stand out about this.  First, the "principles believed fundamental ot the existence of our government" -- seems to be saying that, well, maybe we're now understanding that those principles actually weren't fundamental.  This is part of the reconciliation that took place in the early twentieth century -- a sense both North and South that the South was fighting for a cause believed just at the time, even if subsequent events showed it wasn't.  That allowed everyone (well, really the south) to sort of save face.  And it seems as though the UDC monument makes that concession.  Or maybe I'm reading too much into this.

The second piece -- not as relevant to my legal point -- is that the "still unconquered in spirit" point elides that they may have had been willing in spirit, but in terms of ability to press on, this was it.  End of the line.  Third, and somewhat relevant to how we think about monuments, this has the UDC's characteristic focus on heorism and honor.  (For another example of this, see the text of the Confederate monument at the South Carolina statehouse.)

Because AGR and anon and I have been talking about this issue on Tuesday's post on "The Calhoun Constitution," I thought that it would be useful to cite the UDC's monument.  They realized that the strong version of the Calhoun Constitution, with its compact theory of federalism, had been rejected.  And maybe even acknowledged that major parts of it were not just rejected militarily and politically but as a principle of political theory, too.

The Mandate Challenge: Testing the Counter-Narratives

In the wake of the Affordable Care Act decision, competing narratives have emerged on the significance of the Court's holding that the Commerce Clause does not permit regulation of inactivity. According to Randy Barnett, David Rivkin and other observers, the Court may have upheld the individual mandate to purchase health care coverage under the taxing power, but Congress lost an important legislative option when the Court concluded that purchase mandates cannot be justified under the Commerce Clause.

In the alternative view that also has been taken by Einer Elhauge, John Yoo and others, Congress lost nothing in the decision. Not only was the Affordable Care Act's mandate upheld, but a majority of the  Court reaffirmed its past 75 years of Commerce Clause doctrine, including Wickard v. Filburn. Congress still can enact mandates, through either its Commerce Clause power or its taxing power. The barriers to purchase mandates are political, not constitutional.

Which narrative is correct? We can test them by positing hypothetical purchase mandates and seeing whether they would survive the majority's analysis in NFIB v. Sibelius. I'll start the challenge with some examples from the pre-decision debate:

1. Justice Antonin Scalia wondered whether Congress could enhance the health of Americans by requiring them to purchase broccoli. Yes--Under the commerce power, Congress can require groceries and restaurants to include broccoli with every sale of food.

2. Justice Samuel Alito wondered whether Congress could require people to carry burial insurance. Yes--In fact, there already is a small, lump sum death benefit as part of Social Security.

3. Judge Roger Vinson wondered whether Congress could require people to buy GM cars to protect the government's ownership stake in the company. Yes--Congress can tell service stations that they may sell gasoline only to owners of GM cars.

What can't Congress make us buy by regulating us once we're engaged in some kind of economic activity, or by exercising the taxing power?

Law Professors Comment On The Supreme Court's Health Law Decision

Not surprisingly, this has been a field day for law professors who have an opinion on the Justice Robert's opinion in the ACA case.  For convenience, we've brought links to commentary together in one convenient place.  They're in no particular order and readers are encouraged to add additional links within the comments.

Mike Dorf here

Jonathan Adler here

Tim Jost here

Randy Barnett here

Larry Solum here, here, here, and here

Richard Epstein here

David Bernstein here

Laurence Tribe here

Adam Winkler here

Nicole Huberfeld here

Rick Hills here

Howard Wasserman here

Alan Morrison here

Tom Smith here

Rick Hasen here

NFIB v. Sebelius

I will leave it to the constitutional scholars among us to comment on the decision itself. I only have one question to ask: Who out there predicted that the opinion upholding the mandate would have Chief Justice Roberts as the swing vote?

Miller v. Alabama: How Big A Deal Are Limits On Juvenile LWOP?

Yesterday, in Miller v. Alabama, the Supreme Court did offer up a life changing decision for potentially thousands of children.  Those juveniles are the ones currently serving, or currently facing, life without parole sentences. These children now have the possibility of a virtual 180 degree turnaround.  Since these children were sentenced under a mandatory minimum that no longer exists, judges may - in many cases - re-sentence to any term whatsover.  Some might be free fairly soon and many will probably be released at some point in their lives.  (As a side note, I think there is a real risk that there will be gross disparities in resentencing based on attorney quality because - much like death-phase trials - effective mitigation requires a talented lawyer with resources.)

Judges won't always have carte blance discretion in these existing cases.   They might be constrained by other mandatory sentences embedded in the convictions.  Thus , for example, a juvenile offender convicted of both murder and use of a gun in a  felony, might still face a mandatory minimum for the lesser crime.

But on balance, those children who have already committed a murder are much better off.  They will all get another bite at the sentencing apple.  

What of the future?  At their core,  mandatory minimums are an effort by the legislature to strip judges of discretion.  When legislators impose mandatory life without parole, they are saying either that no mitigation could ever lessen the appropriate sentence...or, perhaps, that judges cannot be trusted to use discretion properly.   Legislators will be no more sympathetic to juveniles convicted of murder, or to the capacities of judges,  than they were before. So I think it's quite likely we'll see new mandatory minimums adopted for children convicted of murder.  No one should be surprised when we see bills imposing 50 year minimums for murder by juveniles, for example.  This would be an improvement, perhaps.   But not nearly as big as the one that existing offenders will experience.  And unless the Court moves further than any of us can reasonably expect, such mandatories will likely survive review.

Update: case name corrected.