The Faculty Lounge

Symposium Announcement—“Deeply Rooted”: Discussing the Aftermath of Dobbs 3/9

“Deeply Rooted”: Discussing the Aftermath of Dobbs

March 9, 2023

University of Tennessee College of Law

The majority in Dobbs v. Jackson Women's Health overturned Roe v. Wade and Planned Parenthood v. Casey, holding that the right to abortion was not "deeply rooted in our nation's history or traditions." The dissent disagreed, stating that the right to abortion is essential to the guarantees of liberty and equality.  For the past 50 years, the right to abortion has deeply shaped the lives and choices of individuals and families.  This symposium will explore the aftermath of Dobbs, a decision that has uprooted the nation’s understanding of privacy and autonomy.  The symposium is sponsored by the Tennessee Journal of Race, Gender, and Social Justice at the University of Tennessee College of Law.  

Each panel will discuss a specific impact of the Dobbs opinion and the people affected.  We will examine the legal analysis in Dobbs and its impact on constitutional law, including rights previously recognized by the Supreme Court under the Due Process and Equal Protection Clauses.  We will discuss the impact of Dobbs on access to health care and on the medical profession, as well as the impact on marginalized communities.  Finally, we will analyze the consequences for citizens of Tennessee in the  post-Dobbs world, where abortion is now illegal.

Speakers include legal scholars, legal and medical professionals, and advocates in Tennessee.  Professor Mary Ziegler, a leading expert in the legal history of abortion, will give the keynote address, “Canary in a Coal Mine: What Does it Mean to Lose a Constitutional Right?”

We hope that this symposium will spur a critical conversation about the role of this landmark case in shifting the legal landscape surrounding civil rights. We invite you to attend either in person or virtually via Zoom.  To register, visit: https://forms.gle/C8JSjMUjTMqeZeFo6

Schedule after the fold.

Alabama Law: Symposium on Constitutional Ethnography

Alabama Law is pleased to invite you to the Symposium on Constitutional Ethnography, a hybrid event to be held in Tuscaloosa and online, Friday, October 14, 9:30 am -5:30 pm Central Daylight Time. The Symposium will bring together prominent anthropologists of law and law & society scholars to discuss the potential benefits, challenges, and approaches to ethnographically studying constitutional law. A keynote address will be given by Kim Lane Scheppele, Princeton University. Attendance is free, but registration is required to receive the Zoom link. Register today.

CFP for Hybrid St. Thomas Symposium on Constitutionalism--Proposals due 9/15

JLPP Fall Symposium

Constitutionalism

November 18, 2022 (hybrid event, speakers are welcome to participate in-person or by Zoom)

University of St. Thomas School of Law

                        Constitutionalism is the idea that government should be limited and that a sphere of autonomy should be open to individuals to pursue their own interests. There is a paradox embedded in the idea – and that is that government voluntarily keeps its powers within carefully circumscribed limited even if it possesses a monopoly of coercive force.

                        Paradoxical as it seems, however, the idea of constitutionalism is a sturdy one. Some have traced its roots to the conciliarist movement of the fourteenth and fifteenth centuries, while others to John Locke and other British thinkers.

                        Whatever its precise origins, constitutionalism as an organizing principle has withstood numerous challengers. In its early days, its chief competitors were theories of absolute monarchy; then totalitarianism; more recently still authoritarianism.

                        Constitutionalism, however, is not an idea without its own flaws. One can rightly ask, how can a system of constitutional government call itself restrained when it permitted slavery to flourish.

                        Constitutionalism, however, remains a fundamental characteristic of the American project. It is a cornerstone of American claims to be a democracy and a source of American legitimacy. The same holds true for many of the other nations of the world. Like the United States, most nations have adopted constitutions and strive to pattern their conduct according to the rules set forth in these founding charters.

                        This Call for Papers welcomes contributions on any aspect of constitutionalism. Topics include:

1. The history of constitutional thought.
2. Philosophical foundations of constitutionalism
3. Congress and constitutional self-restraint
4. The Supreme Court and constitutional self-restraint
5. Constitutions and their place in the international order
6. Comparative constitutionalism

Please submit proposals of 250 to 500 words to Professor Charles J. Reid, Jr., (cjreid@stthomas.edu ) by September 15, 2022.

Successful submissions will be published in our Journal of Law and Public Policy. Successful submissions can expect a modest honorarium.

Miranda Warnings Date Back to 1748

I filed this brief of Historians of Criminal Procedure in Vega v. Tekoh this week that shows Miranda warnings date back to 1748.  (Thanks to Steve Lubet for asking me to post this.  Steve is no stranger to discovering fascinating history of the warnings -- Gov. Wise gave them to John Brown in 1860, Lubet, 52 Ala. L. Rev. 425 (2001).)  A true pleasure to work with Mark Godsey (Cincinnati), Tim Hitchcock (U of Sussex and a co-curator of the Old Bailey Session Papers), Tracey Maclin (BU), Robert Shoemaker (U of Sheffield and co-curator of the Old Bailey Session Papers), Simon Stern (Toronto), and George Thomas (Rutgers).   There were five examples we found that pre-dated the Bill of Rights -- research in the Old Bailey Papers is not easy.   So I want to particularly recognize Tim Hitchcock who located the 1748 case and my research assistant, Nicole Singleton (2L Duquesne), who found two of the pre-Framing cases.  

https://www.supremecourt.gov/DocketPDF/21/21-499/220472/20220406170837528_Tekoh%20final%20brief%2042283%20pdf%20Oliver%20--%20filed.pdf

Thompson v. Clark & the "indications of innocence" standard under Section 1983

I wanted to share this excellent op ed piece by BU Professor Jasmine Gonzales Rose about the unfair "indications of innocence" standard used by some Circuits in Sec. 1983 actions and the pending Supreme Court case, Thompson v. Clark, which could change it. https://lnkd.in/dCRg9S-D #policeaccountability #criminaljusticereform #section1983

Southern Illinois seeking 2-year Visitor

SIU Law is looking for a visitor (either a VAP, Visiting Associate or Full Professor) in Torts, Con. Law, Family Law, Corporations, and/or Legal Writing.  Application deadline is 6/11. The link to apply is here. And more information can be found here: Download Visiting Faculty FA21 Hire Job Posting

Chester Arthur's Ghost

I have posted to SSRN my new article, which is titled "Chester Arthur's Ghost: A Cautionary Tale of Campaign Finance Reform." The Mercer University Law Review published it this spring as part of their annual symposium issue. Here is the abstract:

Chester Arthur may not be the first name that comes to mind when one thinks of major figures in the rise of campaign finance law. But despite his obscurity, he deserves to be ranked among the leading reformers in American history. As president, he signed into law a reform that cleared the way for the modern system of campaign finance to take root.

This article puts the current debate over money in politics in historical context by examining the first major campaign finance reform in American history. The 1883 Pendleton Act is remembered today for establishing a professional, non-partisan civil service. But equally important, it banned the use of political assessments (i.e. mandatory dues imposed on federal and state officeholders by the political parties) to fund federal election campaigns.

President Arthur played an important role in the Pendleton Act’s success. After signing the bill into law, he supported efforts to enforce the new rules and reform the major parties’ campaign finance practices. In the long run, Arthur and the reformers achieved their goal of ending the parties’ use of political assessments to fund campaigns. At the same time, however, the Pendleton Act shifted election financing from the political parties to corporate America and wealthy donors. Thus, instead of reducing the influence of money in politics, the Pendleton Act ushered in a new and even more controversial era in campaign finance law, one that continues to haunt our politics today.

The story of the Pendleton Act is thus of much more than just historical interest. It demonstrates how deeply rooted the problem of money in politics is in American history. Long before the Supreme Court heard cases like Buckley v. Valeo and Citizens United v. Federal Election Commission, money played a highly controversial role in American elections. As the story of the Pendleton Act demonstrates, campaign finance reforms have had unintended—and sometimes quite unwelcome—consequences from the very beginning.

James Madison and Citizens United

I have posted to SSRN my new article, which is titled "James Madison, Citizens United, and the Constitutional Problem of Corruption." The American University Law Review is publishing it this spring as part of their annual symposium issue. Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation. The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates. Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.

The full article is available here.

The Right to Unmarry: A Special Podcast Episode

Brian Frye and I just recorded a fun Ipse Dixit podcast episode about our paper, "The Right to Unmarry: A Proposal," with special guest host LawProfBlawg. LPB is a natural interviewer. He asked us some really great questions and posed tough hypotheticals regarding the implementation of our theory on unmarriage. Nevermind that he has the voice of a demon. Brian and I are both very grateful to LPB: check out the episode here!

CFP: Thirteenth Amendment and Racial Justice Conference

Chicago-Kent College of Law at Illinois Institute of Technology is hosting the Thirteenth Amendment and Racial Justice Conference on November 9–10, 2019. The conference focuses on the ways that the Thirteenth Amendment can be used in legislation and litigation, or in the context of social movements, to promote racial justice in the United States. 

The conference organizing committee invites Thirteenth Amendment scholars from all disciplines—including law, politics, and history, as well as practitioners and activists in the field of racial justice—to submit papers that interrogate the relationship of race and other markers of identity such as class, gender, sexual orientation, disability, religion, and immigration status; to forms of subordination both past and present; and strategies for challenging them. The committee is interested in international perspectives and invite scholars from beyond the United States to participate.

This conference will be the third event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste, and poverty at law schools and universities throughout the United States and the wider world. For more information about the Thirteenth Amendment Project, please visit its website at scholars.law.unlv.edu/amend13/.

The committee is seeking publication opportunities in a variety of outlets for papers presented at the conference. It extends a special invitation to scholars new to the field (including junior faculty and senior scholars) to submit proposals for works in progress. Senior scholars who have written extensively in this field will provide feedback and detailed commentary for planned publication.

To submit a paper for consideration, please email an abstract of no more than 300 words by May 15, 2019, to 13thamendproj@gmail.com. The conference organizing committee will notify applicants of its decisions by June 30, 2019. A preliminary program will be posted by September 15, 2019. 

Editorial note: This conference is time to fit with the annual Constitutional Law Colloquium at Loyola Chicago Law School. The colloquium at Loyola Chicago ends on Saturday at lunchtime; this conference begins at Chicago-Kent on Saturday afternoon.

SCOTUS Takes on State Income Taxation of Trusts

Tomorrow the Supreme Court hears oral arguments in the case of North Carolina Dep't of Revenue v. Kaestner Family Trust (No. 18-457).  The question presented is whether the Due Process Clause prohibits states from taxing trusts based on trust beneficiaries' in-state residency. Michelle Simon (Pace) and I think the answer is yes, the Due Process Clause does prohibit taxation, where the state's only connection to the trust is the residence of a discretionary trust beneficiary (i.e., someone who is eligible but not entitled to receive distributions of trust income and/or principal), and where the discretionary trust beneficiary has not in fact received any distributions from the trust.

We have a short essay in the UCLA Law Review Discourse that explains the background to the Kaestner Family Trust case and argues why taxation is unconstitutional in this case.  Here is the abstract to our essay, The Supreme Court, Due Process and the State Income Taxation of Trusts:

What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article explains the background of Kaestner Trust and frames the constitutional questions that will be before the Court at oral arguments on April 16, 2019. Part II examines how and why due process applies in the state income taxation context, with a particular emphasis on how familiar concepts of general and specific jurisdiction apply uneasily to donative trusts. Part III articulates the reasons that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process.

The full essay is here.

Image : Arthur Rothstein, The Supreme Court Building, Washington, D.C., 1936, Farm Security Administration and Picture Collection, NYPL Digital Collections (here)

The Supreme Court’s Chance to Eliminate Anti-Gay Juror Bias

The United States Supreme Court is expected to conference on Charles Rhines’s petition for certiorari on April 12, 2019. Rhines is a gay man on death row in South Dakota. New evidence shows that jurors who sentenced him to death knew that Rhines was a homosexual and reasoned that he should not be permitted to spend his life with men while in prison.

Rhines’s petition argues that he should be allowed to present this new evidence to show that the jurors’ anti-gay bias deprived him of his rights to a fair trial and due process under the Sixth and Fourteenth Amendments. As my colleague, Jordan Blair Woods, has observed, sufficient research exists to demonstrate “how challenges linked to sexuality and gender identity in criminal courts can compromise legitimacy and fairness in the criminal justice system.” The Rhines petition presents the Supreme Court with an important opportunity to address that concern head-on.

Is the Parsonage Exemption a Form of Gender Discrimination?

Under Internal Revenue Code Section 107, "ministers of the gospel" may exclude the value of certain housing benefits from the gross income. Recently the US Court of Appeals for the Seventh Circuit ruled (here) that this benefit is constitutional. Despite a fantastic (and highly persuasive, I thought -- I signed on) amicus brief written by Adam Chodorow (Arizona State), the 7th Circuit found no violation of the Establishment Clause.

Over at Forbes.com, contributor Peter Reilly argues (here) that because some religious organizations reserve leadership positions for men, the parsonage exception smuggles a form of gender discrimination into the tax code. For example, at Western Lutheran College, male faculty qualify for a tax-free housing allowance, on the grounds that they are "ministers of the gospel" for purposes of IRC Section 107, but women performing the same job and receiving the same benefit must including in their income the value of the housing allowance (offset by a stipend provided by the Western Lutheran College, but of course that stipend is taxable, too).

Food for thought.

Did Prohibition Give Rise to the New Deal?

Conventional wisdom holds that the Great Depression sank Herbert Hoover’s presidency. After all, how could it not have? When American voters went to the polls in November 1932, the unemployment rate exceeded 25% and the global economy languished amid the most severe downturn in modern history.

In light of the Great Depression, it seems obvious that when voters elected Franklin Roosevelt—a charismatic candidate who had promised a “New Deal” for the American people—they must have done so for economic reasons. Indeed, a central political tenet (then and now) is that voters always vote their pocketbooks. As the Democratic strategist James Carville famously put it in 1992, “it’s the economy, stupid.”

Surely the same was true in 1932? 

Hiring Announcement: Stanford Constitutional Law Center

From an email message that I received earlier this week:

Executive Director, Constitutional Law, Stanford Law School

About the Center: 

The Stanford Constitutional Law Center grows out of a long tradition of constitutional law scholarship at Stanford Law School, and supports programs and research about the Constitution. The Center has no politics and takes no sides on controversial cases—but it is committed to the rule of law and the idea that the Constitution can be studied and interpreted objectively in light of its text, history, and purposes. It advances this mission through events and activities that foster scholarship, generate public discussion, and provide opportunities for students and scholars to engage in analysis of the Constitution across the ideological spectrum. 

Job Description: 

The Executive Director for the Stanford Constitutional Law Center, a full-time position, will serve as the chief staff person for the center, collaborating with and reporting to the Faculty Director (Professor Michael McConnell) in conceptualizing and implementing the goals of the Center. The Executive Director will be responsible for planning, administering and executing the Center's activities, and to produce legal scholarship. 

As an administrator, the Executive Director works closely with the faculty director to lead the strategic planning for the center, oversees the Center’s academic programming and fellowship programs, and plays a role in managing the Center’s financial development. The Center hosts approximately a dozen of events each calendar year, some of them including up to forty guests. The Executive Director coordinates with Stanford faculty, Stanford programming staff, and guests to be sure that the content of the programming is of the highest quality, and that the programs run smoothly. The Executive Director also provides administrative guidance, career counseling, and academic assistance for the Stanford Constitutional Law Fellows and Bradley Student Fellows. Finally, the Executive Director promotes and represents the Center’s visibility to the broader university, external community and other stakeholders by managing the Center's external relations and online presence, and assists in managing the Center’s finances.

In addition, the Executive Director produces legal scholarship and participates fully in the academic life of the law school. Normally the Executive Director will pursue a career in the legal academy as a law professor. The length of the Executive Director’s time at Stanford will depend on the time necessary for the Executive Director to prepare for the academic job market. The Executive Director will typically serve for 2-3 academic years, therefore this position is a fixed-term position for an initial 2 years, with the option to extend for a maximum of 3 years (at the discretion of the Law School). 

Job duties will include: 

• Develop, plan, and administer major academic conferences, lectures, and workshops. This may include identifying topics and speakers for public events, engaging in collaborative programming across the law school, and participating in special projects.
• Represent the Center to the broader University, external community, and other stakeholders.  Create and manage content of the Center website and related publications, including reports, proposals, policy briefings, brochures, and newsletters. 
• Work co-operatively with other law school Centers and Programs to advance the educational and research mission of the law school and Stanford University.
• Managing the budget for the Center, including forecasting and reporting on all activities and financial issues from year to year. 

Qualifications: 

• JD required.  Strong potential for success as a legal scholar, including an outstanding academic record, teaching experience, strong recommendations from established legal scholars, one or more post-law school academic publication, practice experience in constitutional law, and a clear and interesting academic agenda
• Strong interpersonal skills, including the ability to communicate effectively and respectfully in writing and orally with faculty, staff, and students
• Strong managerial skills, including the ability to organize events, prioritize tasks, and meet deadlines
• Strong commitment to studying and teaching law, and mentoring students and fellows
• Strong commitment to advancing the center's profile and effectiveness
• Passion for conceiving, analyzing, critiquing, and developing all kinds of ideas
• Experience managing a budget and developing financial plans. 

*Consistent with its obligations under the law, the University will provide reasonable accommodation to any employee with a disability who requires accommodation to perform the essential functions of the job.

How to apply: All interested and qualified applicants must submit their resume and a cover letter via the Stanford Jobs website (http://m.rfer.us/STANFORDDtR4hS). Your cover letter should describe your interest in legal scholarship in general and this position in particular. Applications will be accepted until February 28, and will be considered on a rolling basis.

Additional Information

Stanford University is an Equal Opportunity Employer.

Stanford Law School seeks to hire the best talent and to promote a safe and secure environment for all members of the university community and its property. To that end, new staff hires must successfully pass a background check prior to starting work at Stanford University.

Is West Virginia Unconstitutional?

On this date in 1862 President Abraham Lincoln authorized the creation of West Virginia as the nation’s 35th state. The new state consisted of the pro-Union, anti-Confederate counties of northwest Virginia. West Virginia officially achieved statehood status on June 20, 1863 after it added an anti-slavery provision to its state constitution.  

But West Virginia’s admission into the Union generated constitutional controversy. Even some members of Lincoln’s cabinet objected on the grounds that carving West Virginia out of Virginia violated the United States Constitution. West Virginia’s opponents based their arguments on Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.  (Emphasis added.)

The constitutional objections boiled down to two arguments. First, opponents pointed out that the state legislature in Richmond never consented to the creation of West Virginia. Instead a pro-Union, provisional Virginia legislature hastily assembled in the Appalachian town of Wheeling approved the new state of West Virginia. Even in the North many questioned the legitimacy of the Wheeling government. Nevertheless, after considerable debate and controversy, Congress passed the West Virginia statehood bill and Lincoln signed it into law on December 31, 1862. Long afterward critics argued that only the Richmond legislature—which at the time was in a state of war with the United States government—had the constitutional authority to consent to West Virginia’s creation. 

The second objection was more fundamental, focusing on the second clause of Section 3. West Virginia’s opponents argued that the semicolon following “within the jurisdiction of any other state” should be read as a period, not a comma. Thus, as the opponents saw it, Section 3 absolutely barred Congress from creating a breakaway state out of the territory of another state, regardless of whether the original state consented. 

But were the critics right?

The Christmas Amnesty of 1868

Tuesday marked the 150th anniversary of President Andrew Johnson’s Christmas Amnesty of 1868. Acting under Article II of the Constitution (which empowers the president “to grant reprieves and pardons for offenses against the United States”), Johnson granted amnesty and a full pardon to all ex-Confederates. Here is the complete text of his Christmas Amnesty:  

A Proclamation

Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the Government of the United States, which proclamations were severally issued on the 8th day of December, 1863, on the 26th day of March, 1864, on the 29th day of May, 1865, on the 7th day of September, 1867, and on the 4th day of July, in the present year; and

Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:

Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

In testimony whereof I have signed these presents with my hand and have caused the seal of the United States to be hereunto affixed.

Done at the city of Washington, the 25th day of December, A. D. 1868, and of the Independence of the United States of America the ninety-third.

ANDREW JOHNSON

The Christmas Amnesty is a historical precedent worth remembering as we await the completion of Special Counsel Robert Mueller’s Russia investigation. Two aspects of Johnson’s use of his pardon power stand out as particularly relevant.

Iowa fetal heartbeat case update

Here is a quick update on the Iowa fetal heartbeat case. On December 7 an Iowa district court held a hearing on Planned Parenthood’s motion for summary judgment. As the Des Moines Register explained in its coverage of the hearing:

The only issue [District Court Judge Michael] Huppert needs to decide for now is whether there are any facts in dispute in the lawsuit that seeks to toss the [fetal heartbeat] law for good. . . .Planned Parenthood of the Heartland and the Emma Goldman Clinic, which sued over the law, say there is no need for a trial. Defending the law, the state’s lawyers said there are many facts on which the two sides don’t agree. They argued Friday that the law is not a blanket ban, as it has been described, but a tailored regulation. Attorneys representing the abortion providers, who say the law is unconstitutional, accused the state of trying to “muddy the picture” and urged Huppert to strike the law down.

The district court judge indicated he will not issue a ruling until February, but in the meantime the latest developments make me think that my previous analysis of the case was wrong. Planned Parenthood and the other petitioners are in a much better position than I originally thought. Here is why. 

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Did Chief Justice Marshall Suborn Perjury in Marbury v Madison?

On CSPAN’s Q & A program Sunday evening, Brian Lamb interviewed Joel Richard Paul about his new book, Without Precedent: Chief Justice John Marshall and His Times. The whole interview is quite good but one part of it especially caught my attention. While researching his book, Professor Paul found a letter that suggests Chief Justice John Marshall may have suborned perjury in the landmark case of Marbury v. Madison.  

The basic facts of Marbury are well-known. On March 3, 1801—the last day of the Adams Administration—the lame duck Federalist Senate confirmed 42 Federalist nominees for justices of the peace. The confirmations were part of the “Midnight Appointments” whereby the Federalists attempted to stack the federal judiciary before the Jeffersonian Republicans took power following the election of 1800.

During the final hours of the Adams presidency, John Marshall simultaneously served as chief justice and secretary of state. In the latter capacity, he signed with an official seal each of the commissions for the new justices of the peace. But amid the chaotic rush to get the commissions out, some inadvertently remained behind on a desk in the State Department. The new Secretary of State, James Madison, refused to deliver the commissions when he took office the next day. Nine months later, four of the would-be justices of the peace—including a wealthy Federalist named William Marbury—filed a writ of mandamus asking the Supreme Court to order Madison to deliver the commissions.

The case of Marbury v. Madison reached the Supreme Court in February 1803, which is where Professor Paul’s discovery comes in.