The Faculty Lounge

“Is there anything more to learn from The Federalist Papers?”

The following is a guest post by Christian Fritz, Professor Emeritus at the University of New Mexico School of Law:

As every student of American constitutional history and political theory knows, the literature on The Federalist Papers is enormous. Given the dozens of editions with scholarly introductions, countless collections of essays on the meaning of Publius, and the ubiquitous citations to Federalist essays by the courts and researchers, it would seem likely that the answer to the question posed in the title would be no.

Despite their exhaustive treatment, something crucial has been overlooked in the famous essays: an articulation of a constitutional tool that would emerge in practice in the hands of state legislatures after the ratification of the Constitution and one that has played an important part in thinking about the proper balance of authority between the federal government and those of the states.

In Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023), I trace the genesis of that constitutional tool to several essays by both James Madison and Alexander Hamilton in which they described—without using the term interposition—a mechanism that state legislatures might employ in their role as monitors of the federalism created by the Constitution to ensure that the new national government would not overreach its constitutional authority and intrude upon the powers retained by the states. What began as a debate-like response to opponents of ratification, eventually took on a life of its own, producing a tradition of monitoring federalism that had a vibrant life in American constitutional history until and during the Civil War and even for a time thereafter, before suffering a demise.

The Constitution’s shared sovereignty between nation and states created a dynamic federalism that stimulated continuous debates over the balance of power, including debates over slavery and taxation. Thus, state interposition was fundamental in shaping the American political conversation about our constitutional rights and illustrated a strength and not a weakness of the framers’ constitutional design, inviting each generation to consider what the appropriate constitutional balance should be. 

Monitoring American Federalism demonstrates how states played a crucial role from the beginning of the republic in assessing the equilibrium of federalism within the American constitutional order. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures. State legislatures would sound the alarm about a perceived constitutional overreach, pass interposition resolutions, and share the resolutions with other states to exert maximum political pressure on whatever branch of the federal government was responsible for the overreach.

In its use before the Civil War, interposition by states involved the conviction that elected officials, especially state legislators, but also individual citizens, juries, and the press, could properly scrutinize any expansive assertions by the federal government, not simply the Supreme Court. Indeed, state interposition would be used to oppose many perceived threats, including the Alien and Sedition Acts, the War of 1812, federal tariffs, internal improvements, and pro-slavery laws.

Interposition emerged as a response to critics worried that the Constitution’s grant of national powers would obliterate state authority. This early interposition formed an institutional and intentional way to acknowledge divided sovereignty under the Constitution and to preserve the equilibrium of federalism. Properly understood at the time, interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority. Moreover, interposition was not a claim for the constitutional independence of state legislatures.

Interposition as a constitutional tool became distorted with the rise of South Carolinian John C. Calhoun’s claims during the Nullification crisis of the 1830s. Historians today describe interposition as inherent in the states’ rights political tradition of defending slavery, which inexorably led to Southern secession and Civil War. This narrative ignores the practice of interposition before its appropriation by nullifiers and those invested in slavery who claimed the right of individual states to defy national laws and decisions of the Supreme Court. Nonetheless, there was a great divide between those who advocated for the rights of state legislatures to question the federal government on any constitutional issue through interposition—and those who supported nullification. The gulf between the two invocations of state interposition was underscored in the 1830s, when many of those who embraced interposition rejected nullification.

Donald Trump and the Ghost of Woodrow Wilson

The extraordinary announcement on Thursday that President Donald Trump will meet with North Korean Dictator Kim Jong-Un caught the world by surprise. The two leaders have spent the better part of a year calling each other names, such as “Rocket Man,”  “dotard,” and “lunatic,” and threatening to unleash nuclear destruction  and “fire and fury.”  Now they will attempt to negotiate a lasting peace on the Korean Peninsula. The details regarding when and where the summit will occur remain unknown, but one thing we can say with confidence is that the stakes of the summit meeting—if it actually takes place—will be immense.

Trump’s decision to meet with Kim Jong-Un without consulting Congress in advance is consistent with long-standing American foreign policy. Article II of the Constitution not only makes the president “commander in chief” but also vests in the office of president the full “executive power” of the federal government.  The president must secure the concurrence of two-thirds of the Senate to make treaties, but otherwise the president enjoys sweeping latitude in the conduct of foreign affairs. Indeed, in the 1936 case of United States v. Curtiss-Wright Export Corporation, the U.S. Supreme Court described the president as “the sole organ of the federal government in the field of international relations.” 

Accordingly, many presidents have used international summits to engage in free-wheeling diplomacy, such as FDR’s World War II conferences with Winston Churchill and Joseph Stalin. During the Cold War, summit meetings became a routine feature of Russian-American relations, beginning with Dwight Eisenhower and Nikita Khrushchev in the 1950s and culminating with Ronald Reagan and Mikhail Gorbachev in the 1980s. But without question the most celebrated summit meeting in history was Richard Nixon’s surprise visit to the People’s Republic of China in 1972. Nixon’s highly successful meetings with Mao Zedong and Zhou Enlai opened the door to a dramatic improvement in the relationship between Washington and Beijing. As Trump prepares for his face-to-face meeting with Kim Jong-Un, Nixon’s historic trip to China offers an auspicious model for the Trump White House to emulate.

But the Donald Trump—Kim Jong-Un meeting is no ordinary summit and the circumstances that surround it are far more ominous than those accompanying the Nixon-Mao summit in 1972. If Trump fails to achieve a breakthrough with the North Koreans, there is a very real risk of general war on the Korean Peninsula. Accordingly, there is a century-old precedent to Trump's audacious and risky decision to meet one-on-one with the North Korean dictator that should send a chill down Trump’s spine. The ultimate cautionary tale for any summit-bound president is Woodrow Wilson’s personal participation in the diplomatic negotiations to end World War I. Although Wilson's peace mission raised the hopes of the world, his failure to deliver a lasting peace set the stage for an era so destabilizing it led to the nightmarish conflagration of World War II. The tragedy of Wilson's trip to Paris illustrates the enormous risks associated with a president who takes personal responsibility for negotiating peace terms.

Trump’s Attack on Sanctuary Jurisdictions: Learning from the History of Fugitive Slave Rendition

I would like to thank Al for giving me the opportunity to share some of my recent work, views on current events, and thoughts on teaching. Given recent events, I thought I would start with the Trump Administration’s attack on California’s sanctuary laws. Back in 2013, I wrote a brief essay titled: “Immigration Enforcement Reform: Learning from the History of Fugitive Slave Rendition.”  I thought I would take this opportunity to update the piece by applying it to recent developments.

Without getting into the weeds, sanctuary jurisdictions withdraw state or local participation in the process of federal immigration enforcement. The Trump Administration first attacked sanctuary cities by announcing that it withhold certain federal funds from any jurisdiction that failed to participate in federal immigration enforcement. The lower federal courts, however, blocked the administration’s funding policies with nationwide injunctions here, here, and here. Unable to succeed through the spending power, the Justice Department filed a lawsuit on Tuesday asking a federal court to declare that California’s sanctuary laws violate the Supremacy Clause and enjoin their enforcement. The complaint can be found here, and California's legal position justifying the laws when enacted is here.

The Trump Administration is therefore trying to force states and localities to participate in the enforcement of federal policies that the states and localities reject. Yesterday, Sessions said California must fall in line because "There is no nullification; there is no secession. Federal law is the supreme law of the land." Predictably, these actions have triggered a backlash in California and elsewhere. In his own news conference yesterday, Governor Brown called the lawsuit a “political stunt” and called on Sessions to apologize to the people of California. 

As I explain below the fold, the parallels between the current controversy and the antebellum fugitive slave controversy are striking. In sum, because federal policy on fugitive slaves cut states out of the policymaking process, it triggered a divisive backlash that proved counterproductive to the rendition process.  Rather than repeat this history by forcing the states to comply with unpopular programs run exclusively by ICE, the federal government should learn from this history and give the states a greater voice in policy discussions over immigration enforcement. By failing to do so, the Trump Administration is fueling the very policies of noncooperation that it condemns, just as proslavery federal policy led many northern states to refuse to participate in fugitive slave rendition.  Asking the federal courts to resolve the issue, moreover, backfired with fugitive slave rendition and may do the same in immigration.

An Unlikely Union Victory in West Virginia

In the past couple of weeks, 35,000 school employees in West Virginia engaged in a 9-day strike.  Though they are not represented by a single union, all school employees in every county participated in the strike.  The teachers retained their solidarity, and won a 5 percent pay raise for all state public workers.  The teachers’ success was unexpected given the hostile legal environment for labor in West Virginia.

West Virginia prohibits government workers, including teachers, from engaging in collective bargaining.  It is also illegal for public employees to strike in West Virginia.  The teachers’ only means of bargaining is political pressure on the state legislature, which sets the terms of their employment.  Thus, the West Virginia teachers’ victory represents a rare and surprising success for the labor movement at a time when labor is under siege.

Last week, the United States Supreme Court considered the case of Janus v. AFSCME, which will determine whether government unions can continue to collect agency fees from all of the workers that they represent.  Like Janus, the West Virginia teachers’ strike also brings to light the role of public sector unions in our country.  To help me understand the West Virginia teachers’ strike, I talked with my colleague, Joe Slater.  The author of Public Workers: Government Employee Unions, the Law and the State, Joe is one of the foremost experts on public sector unions in the country.  The following is a transcript of our conversation:

Zietlow: Apparently the West Virginia teachers were not allowed to bargain collectively.  Why would they want to join a union?

Slater:  Public sector unions are not governed by the federal National Labor Relations Act, but by state laws which regulate public sector workers.  Around 10 states, including West Virginia, do not allow government workers to engage in collective bargaining. In those states, unions represent employees in other contexts.  They help their workers to assert their rights under other employment laws such as Title VII, the Fair Labor Standards Act and civil service laws.  Some unions also provide benefits, such as health insurance and pensions. In states which do not allow collective bargaining, unions tend to be smaller and weaker than in other states.  Nonetheless, some workers still join those unions.

Zietlow: How could the West Virginia teachers strike when West Virginia law prohibits public workers from striking?

Slater:  I do not know why the state of West Virginia did not sue to stop the teachers’ strike.  Most likely, state officials thought it would be politically costly to do so.  Also, there were no replacement employees who could have filled in for the striking teachers.

Zietlow:  In the Janus case, most observers think that the Supreme Court is going to strike down agency fees and weaken public-sector unions.  Public sector unions in West Virginia are already prohibited from charging agency fees.  Should we expect more massive strikes after Janus?

Slater:  Some people have argued that workers are likely to be more militant after Janus, and that the West Virginia teachers strike reflects this militancy.  However, I am skeptical.  Janus would effectively impose a “right to work” regime on public workers.   We’ve had a lot of historical experience with “right to work” laws, and by and large they have not radicalized labor.  Instead, right to work laws have weakened labor, and I expect Janus to do the same.

Also, teachers tend to be a reliably popular set of public workers.  Similar strikes in other states, involving other, less popular, public employees are unlikely to succeed.  Still, I never would have predicted that the West Virginia teachers would succeed, yet they did so against all odds.  Who knows what the future will bring? 

FDR, Trump, and the 22nd Amendment

Last week the Central Committee of the Communist Party began the process of amending the Chinese Constitution to enable President Xi Jinping to stay in office after his second term ends in 2023.  The change reflects international trends. In 2017 Turkish voters amended Turkey's constitution, enabling President Recep Tayyip Erdogan to serve until 2029. Russia has adopted similar legislation, extending presidential terms to 6 years each. Consequently, if Vladimir Putin wins a fourth term this month as is widely expected, he will become Russia’s longest serving leader since Joseph Stalin.  

The trend toward long tenures in executive office has received the admiring approval of President Donald Trump. During a speech in Florida today, Trump told Republican campaign donors that he welcomed President Xi Jinping's new powers. "He's now president for life," Trump exclaimed. "I think it's great. Maybe we'll give that a shot some day."

Notwithstanding President Trump's enthusiasm for lifetime tenure, the United States has gone in the opposite direction. Although the U.S. Constitution originally placed no term limits on the presidency, the ratification of the 22nd Amendment in 1951 established a two-term limit that remains in force today.

Constitutionally-imposed term limits have shaped the American presidency much more profoundly than is commonly understood. Indeed, it is quite possible that Donald Trump owes his presidency to the 22nd Amendment.

Fugitive Slaves as Constitutional Actors

When constitutional law professors talk about constitutional law, they most often refer to court cases, especially the United States Supreme Court’s interpretation of the Constitution.  However, I am more interested in popular constitutionalism, constitutional interpretation outside of the courts.  Political advocates engage in popular constitutionalism when they invoke the constitution to support their claims.   Sometimes political activists expressly invoke constitutional language and make arguments that sound in law.  Other times, they invoke more general constitutional values in their political rhetoric.  Perhaps the most eloquent form of popular constitutionalism occurs when people with little or no legal knowledge demand rights that sound in constitutional law.  Fugitive slaves were one such group of constitutional actors. 

Prior to the Civil War, some antislavery argued that slavery was unconstitutional.  For example, they claimed that slavery violated the right to liberty under the Fifth Amendment Due Process Clause and natural rights which, they claimed, were protected by the Preamble to the Constitution.  Some antislavery constitutionalists made arguments before courts, which were ultimately unsuccessful.  However, most antislavery constitutionalists made their arguments in the political context.  They formed antislavery parties, including the Liberty and Free Soil, Free Labor parties.  Many of these popular constitutionalists were founders of the Republican Party. 

A second group of antislavery activists participated in the underground railroad, which helped fugitive slaves to escape.  For example, in 1858 leaders of the town of Oberlin, Ohio, acted together to rescue an alleged fugitive slave who had been kidnapped.  Several of them were tried in federal court for violating the 1850 Fugitive Slave Act, and two were ultimately convicted.  These activists knew that federal law prohibited them from assisting fugitive slaves, but they claimed that they followed a higher law under which slavery was illegal. They did not expressly invoke the constitution, but they asserted their right to resist federal law.

The fugitive slaves themselves were a third group, at the heart of this resistance.  Fugitive slaves asserted their own rights claims by attempting to escape slavery.  Fugitive slaves defied all odds, and certain punishment, if not death, if they were captured.  Their goal was to escape to northern states and into Canada, where they could live a free life.  Some fugitives sued in courts for their freedom, and surprisingly, some won.  But most fugitive slaves had to hide from slave catchers, under constant threat of capture (as were free blacks).  With their actions, fugitive slaves served as a catalyst for constitutional change.

Fugitive slaves brought about a constitutional crisis.  Tensions mounted between people in northern states such as Ohio, who wanted to protect fugitive slaves, and southern slave owners, who believed that they had a right to have their slaves returned to them.  Southern slave owners had the law on their side.  Federal Fugitive Slave Acts enforced their right to retrieve their slaves.  In the Dred Scott decision, the United States Supreme Court agreed that slaveholders had a constitutional right to own slaves, rejecting Scott’s claim that he could free himself by fleeing to a free state or territory. 

Nonetheless, fugitive slaves and northern antislavery activists persisted, and continued to argue against the legality of slavery.  Ultimately, these tensions led to the Civil War which created the conditions that enabled the end of slavery.  During the war, slaves fled across northern battle lines, demanding freedom, and some Union soldiers blocked the slavecatchers who pursued them.  Congress authorized military officials to “confiscate” the fugitives and set them free, a significant step in the campaign to end slavery.  After the war, Republican members of the Reconstruction Congress abolished slavery and enshrined the activists’ rights claims into law with the 13^th, 14^th and 15^th Amendments and legislation enforcing those amendments.

We are approaching the end of Black History month, in which we celebrate the contributions that African Americans have made throughout our history.  We should not forget fugitive slaves, who helped to bring about the end of slavery and the expansion of individual rights in this country.

Indicting the President

Last week Israeli police officials recommended that state prosecutors indict Prime Minister Benjamin Netanyahu on a variety of corruption charges.  The police allege that Netanyahu received about $300,000 in bribes over the last decade, most of which allegedly occurred after he took office as prime minister in 2009.  Crucially, however, the police only have the authority to recommend charges against the prime minister. Under Israeli law, the final decision whether to bring charges rests with the attorney general, Avichai Mandelblit. 

For Americans, the Netanyahu case inevitably invites comparisons to Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election.  But there is a key difference. Although Israeli law empowers the attorney general to indict Israel’s prime minister, American law does not expressly make clear whether anyone other than the United States House of Representatives has the authority to indict the president. The uncertainty over the extent of Mueller’s jurisdiction could set the stage for a constitutional crisis if he ultimately decides to file charges directly against President Trump.

Liberty of Contract in the "Gig" Economy

In the nineteenth century, the Thirteenth Amendment transformed the law of work in the United States, replacing unfree labor with liberty of contract.  But what did liberty of contract mean?  Did it mean a formal right to contract without any government assistance to exercise that right?  If so, did it prohibit government intervention affecting that right?  In our new gig economy, a fifth of workers are independent contractors and lack legal protections designed for employees.  Arguably, these workers enjoy maximum liberty of contract.  However, this liberty of contract comes at a cost to workers.  In this Op ed, Mark Schmitt details the perils of what he calls the “scam” economy, “where risk is shifted onto individuals and families.”  At this time of maximum liberty of contract, average Americans are increasingly vulnerable.

State intervention and regulation is necessary to protect consumers and address the power imbalance in employment relationships.  During the early twentieth Century, advocates for labor argued that their right to contract included the right to organize into unions, and the right to government intervention such as minimum wage and maximum hours laws.  During the New Deal, Congress adopted labor’s vision of a collective right to contract with federal measures protecting the right to organize, establishing a federal minimum wage, and regulating the hours and conditions of work.  In the 1960s and 1970s, Congress enacted measures prohibiting employment discrimination on the basis of race, gender, age or disability.  All of these measures enforce a different form of liberty of contract; a substantive right to a free contract, protecting workers exercising their right to contract and sell their labor.

In recent years, however, the structure of work has been changing from the traditional employment relationship to the gig economy of short-term contracts for work.  From Uber drivers to web designers, workers are no longer considered to be employees in long term relationships with their employers.  The recent tax bill provides incentives for more workers to act as independent contractors, because “pass through” business income is taxed at a lower rate than wages.  Gig workers have the flexibility to choose their work, when they can find it.

However, the gig economy workers must shoulder all the risk that is inherent in their “liberty” of contract.  Gig economy workers lack job security and must constantly search for new work.  Most gig economy workers do not receive health insurance, pensions, or other benefits from their employers.  New Deal protections for workers and most anti-discrimination laws do not cover independent contractors.

Meanwhile, de-regulation and lack of oversight undermine protections for all US workers.  Ironically, employers increasingly subject low-wage workers to practices reminiscent of indentured servitude, including on-demand schedules and covenants not to compete.  In today’s economy, liberty of contract largely benefits only employers and purchasers of work for hire.  Workers gain little from liberty of contract in the twenty-first century.

Conference: The Thirteenth Amendment and Economic Justice

 

I am delighted to announce that the program has been posted for a conference on The Thirteenth Amendment and Economic Justice, which will take place on Saturday March 3 at the UNLV William S. Boyd School of Law.    The conference will be the inaugural event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste and poverty at law schools and universities in the United States and the wider world.  

Panelists at the conference include Mary Ann Case, William Forbath, Aviam Soifer, Fred Smith, James Gray Pope, Noah Katz, Lea Vandervelde, William Carter, Ahmed White, Courtney Lollar, Mehmet Konar-Steenberg, Andrea Freeman, David Orentlicher, Kathleen Kim, Camille Walsh, Richard Blum, Ruben Garcia, Maria Ontiveros, Charlotte Garden and myself.   They will discuss topics including economic theory, the carceral state, health, education, environment & welfare, and using the Thirteenth Amendment in court.

This is sure to be great event.  For more information, and to register for the conference, see here  or email [email protected].

 

 

 

 

Nixon's Legal Battle with the NY Times and Washington Post

On Saturday afternoon I saw the outstanding new Steven Spielberg movie, "The Post." I highly recommend it, even though there is one important historical omission in the film.

The movie tells the story of the Washington Post's famous 1971 decision to publish the Pentagon Papers, a top secret study of the Vietnam War that exposed the government's long history of lying to the country about the stalemated nature of the conflict. Daniel Ellsberg, a former Marine officer and Rand Corporation analyst, leaked the classified study to the New York Times and later to the Post. The Times was the first to publish, setting in motion a dramatic showdown with President Richard Nixon.

The acting is terrific, particularly Meryl Streep as the Post's publisher Katherine Graham, the hero of the story. Against the advice of her lawyers, but with the enthusiastic support of her editors and reporters, Graham decided to publish excerpts of the classified study. The decision was legally and financially risky because, just two days earlier, the Nixon Administration had succeeded in securing a court order to enjoin the Times from continuing to publish its bombshell stories on the Pentagon Papers. Moreover, less than 24 hours after the Washington Post began to run its own Pentagon Papers stories, the Nixon Administration secured a temporary restraining order against the Post. 

The Thirteenth Amendment and Freedom of Contract

 

When the Thirteenth Amendment abolished slavery and involuntary servitude, it altered the fundamental principles underlying our country’s labor and employment law.  Prior to the Thirteenth Amendment, the paradigm of labor and employment law was unfree labor.  The Thirteenth Amendment replaced that paradigm of unfree labor with one of freedom of contract. 

The most obvious example of unfree labor in the antebellum United States was the institution slavery.  Slaves were under the complete control of the “masters” who exploited their labor.  Under the laws of slave states, slaves were treated as property and denied the most basic of human rights.  But slaves were not the only unfree workers in antebellum America.  Thousands of immigrants came to the United States as indentured servants, bound to their employers for terms of years and subject to criminal sanctions if they left those employers.  Other workers served as apprentices who were also bound to their masters for a term of years.  Early industrial workers were often required to sign year-long contracts, bound to their employers regardless of the wages and conditions of work.  These workers were unable to leave exploitative employers and thus lacked any means to improve their wages and conditions of work.

During the antebellum era, many anti-slavery activists argued that slavery violated fundamental human rights.  Above all, slaves were denied the right to free contracts.  They could not enter into contracts with employers, were prohibited from engaging in most commercial transactions (especially real estate transactions), and were often denied the right to enter into marriage contracts.  Anti-slavery activists generally agreed that freed slaves should enjoy the right to contract.  For many, the right to contract was a central feature of their antislavery ideology.  The Thirteenth Amendment also extended the right to free contracts to northern workers by abolishing “involuntary servitude” as well as slavery. 

But what did the right to contract mean?  Did it mean a formal right to contract without government assistance?  Or did the right to contract include the right to government intervention to equalize bargaining power and protect against exploitation?

Some members of the Reconstruction Congress believed that the formal right to contract was sufficient absent government support.   Many Freedman’s Bureau officials agreed, allowing former slaves to enter into contracts with their former masters without sufficient oversight of exploitative contracts.

However, a majority of the Reconstruction Congress chose the latter approach.  Immediately after the Thirteenth Amendment became law, members of the Reconstruction Congress began to enact legislation enforcing the right to free contracts.  Their primary focus was employment contracts.  The 1866 Civil Rights Act, which prohibited race discrimination in contracts, was targeted at southern Black laws that attempted to impose involuntary servitude on newly freed slaves.  The 1867 Anti-Peonage Act prohibited workers from either voluntarily or involuntarily entering into contracts which amounted to indentured servitude.  The 1868 Eight Hours Act limited the hours of work of federal employees.  All of the laws enhanced the power of workers to enter into fair and free contracts.

The debate over the meaning of freedom of contract continued into the Twentieth Century.  More on that later.

 

Martin Luther King, Jr. and A Positive Right to Free Labor

This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr.  Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor.  As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics.  In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment.  Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.

After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor.  The leading rights movement in the early Twentieth Century was the labor movement.  Labor leaders asserted the right to organize, bargain collectively, and strike.  They also fought for protective legislation such as minimum wage and maximum hours laws.  Millions of workers engaged in strikes and demonstrations to advocate for these rights.  During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers. 

These New Deal measures enforced the two prongs for the positive right to free labor.  Belonging to a union empowered workers to bargain for fair wages and improved conditions of work.  To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices.  Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor. 

The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures.  Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice.  As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers. 

Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs.  But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color.    Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement.   Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech.  Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor. 

Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving.  However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.

King well understood the link between racial discrimination and economic subordination.  In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.”  In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.

CFP: Third Annual Constitutional Law Scholars Forum

From colleagues at Texas A&M, this CFP:

The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Third Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807.  The event will take place on Friday, March 2, 2018.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)

The deadline to submit proposals is December 1, 2017.

Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches. Orlando offers an average temperature of 78°F in March/April.

There are no conference fees and meals are provided, but participants are expected to pay their own travel expenses.

Abstract Submissions:

Email proposals to Professor Eang Ngov, [email protected], with “Constitutional Law Scholars Forum” in the subject line. Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers:

Professor Eang Ngov, [email protected]
Professor Meg Penrose, [email protected]

Joe Arpaio’s Pardon as a Problem in Remedies

My Lounge colleague Steve Lubet recently discussed in this space the op-eds published elsewhere by Martin Redish and Noah Feldman concerning President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio.  Arpaio was found to be violating the Constitution by having his deputies conduct “saturation patrols” in which anyone who looked Hispanic was stopped and detained pending an immigration status check, and those believed to be undocumented were arrested and incarcerated.  Enjoined by a federal court to stop these practices, he refused to comply for at least a year and a half, and publicly boasted about it.

Arpaio was recently found guilty of a criminal contempt of the federal court’s injunction, subjecting him to up to six months’ imprisonment and fines.  That is the crime for which the President has pardoned him, stating publicly that Arpaio “kept Arizona safe” and that he was “convicted for doing his job.”

Prof. Feldman argues that this was a precipitous abuse of the President’s pardon power that could support an article of impeachment.  Prof. Redish goes further, arguing that the pardon of a criminal contempt of a federal-court injunction restraining constitutional violations by a public official should be considered beyond the pardon power the Constitution grants, essentially because it violates the separation of powers by invading the inherent power of the federal courts to enforce their own orders and the Constitution itself. 

Without discounting the horror that many have experienced at what the President did and why he says he did it, and leaving aside the political fallout that may result, I’d like to examine Prof. Redish’s creative and thoughtful argument as a problem in Remedies, and consider what recourse may now be left.   I’ll do just that after the jump:

Professors' Letter Opposing Jeff Sessions

This just in from a concerned reader:

To interested law faculty:  

The nomination of Senator Jeff Sessions as Attorney General presents a very real threat to civil rights and civil liberties, to underrepresented groups and people of color, and to the core of our founding principles. If you agree, please consider opposing Senator Sessions’ nomination by signing this letter written by a group of fellow law professors: https://goo.gl/sTw78a.

The Talk

Many commentators have lamented the fact that the sole African-American on the Court for a two generations has been a Justice with a perspective on race that is atypical of the average of African-American citizen.  Often that's understood in terms of outcomes: Clarence Thomas is way more conservative on almost every issue than most African-Americans.  But what is less obvious is that we are missing content.  Today, in Utah v. Strieff, Justice Sotomayor's dissent shows us what we've been missing:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification.  As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.  But it is no secret that people of color are disproportionate victims of this type of scrutiny.

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (Some cites omitted.)

This is powerful stuff.  Steven will presumably be underwhelmed by Justice Sotomayor's citation to On the Run, however.

Judges and the Duty to Listen

One of the things progressive legal academics love to angst about is the relationship between minority rights and the courts. Sometimes, it seems like our analysis reflects little more than the changing political alignment of the judiciary. The Warren Court appears to make great strides in protecting marginalized communities from democratic predations, and so we produce deep tracts explaining why courts are important countermajoritarian bulwarks. Then we experience a significant conservative retrenchment during the Burger/Rehnquist/Roberts years, and the tenor of the scholarship changes -- it turns out that courts are poor vehicles for progressive social change. And now, with Democrats potentially gaining control over the judicial branch for the first time in a generation, the pendulum swings again: progressives are urged to abandon our "defensive crouch" and reassert a muscular left constitutionalism.

None of this seems to do much in the ways of explaining why courts are supposed to be systematically more sympathetic to outgroups compared to the political branches. One could argue that we got idiosyncratically lucky with the Warren Court, and have been misled ever since. The Warren Court, after all, did what it did in part because it turned out that the overseer of Japanese internment and a former Alabama klansman were willing to promote historically progressive racial policies. This does not seem like the sort of historical fortune likely to be replicated. There is something odd, it must be said, about starting with the problem of political marginalization and ending with the idea that we should delegate those issues to a institution that is whiter, maler, richer, and older than the American population writ large.

Is Strict Scrutiny All It's Cracked Up To Be?

Suppose you were a feminist legal group, and a Genie offered you the chance to elevate gender to the level of a "suspect classification." Gender would receive strict judicial scrutiny, under the same rules and precedents that currently govern racial classifications now. Would you take the deal?

I'm not sure you should. Strict scrutiny isn't all it's cracked up to be. To be sure, intermediate scrutiny -- even in its muscular United States v. Virginia formulation -- doesn't give feminist advocates anything close to everything they want. But for the past few decades at least strict scrutiny has been downright antagonistic to the concerns of racial justice campaigners. Legislators have long since learned that they don't need to classify on the basis of race in order to bring about racially-inegalitarian results. With the exception of Johnson v. California, the Supreme Court since the 1990s has exclusively used strict scrutiny to evaluate (and, mostly, strike down) race-conscious programs meant to benefit marginalized racial groups. Meanwhile, Obergefell did not even address the suspect classification question and still managed to deliver the most sweeping affirmations of gay rights in American history. It might be time to let suspect classification go.

And in theory, that shouldn't be so hard to do. As I argue in a soon-to-be-published article, most of the factors which doctrinally direct whether a classification is deemed suspect -- things like "political powerlessness" or "existence of prejudice" -- are things that vary over time. We give suspect classification, nominally at least, to groups which are so acutely marginalized that they simply cannot protect themselves through normal political channels. When the situation becomes less dire, it stands to reason that suspect status should recede and we should return to the rough-and-tumble of democratic politics. Justice Kennedy's Schuette opinion, which was a stirring ode to the virtues of democratic deliberation regarding even contentious racial questions, would stand as a model -- if it wasn't so flatly contradicted by the Court's Parents Involved decision.

Of course, the Court has never even explored -- much less seriously considered -- the prospect that a classification properly elevated to the ranks of suspect could or should later be "unsuspected." One might attribute that to a straightforward belief that no classification has reached that point yet -- whatever racial progress we've made, it is insufficient to say that we've transcended our history of prejudice or political marginalization. But it is difficult, given the prevailing sentiments of the majority in cases like Parents Involved or Shelby County, to imagine the current Supreme Court making that argument with a straight face. Rather, I think the answer is more simple: much like colorblindness, strict scrutiny allows conservative jurists to achieve most of their racial policy objectives, most of the time. That the underlying doctrine is dissolving into incoherency isn't particularly relevant.

What's less clear is whether the Court's liberal bloc should call the bluff. Most of the progressive attack on colorblindness has been an attempt to carve out "benign" racial classifications from strict scrutiny's ambit. Whatever the intellectual merits of that position, it is clear that it has failed as a legal argument. But what would happen if the liberals simply sought to remove race from the list of suspect classifications outright? That might be a harder doctrinal move to counter (though admittedly I was more enthusiastic about such a strategy a few months ago compared to today. The prospect of a Donald Trump presidency makes me think we might need hard-and-fast rules against racial classifications for more traditional reasons than has been the case in recent history).

Faculty Hiring: University of Oklahoma

From an email message which I received a few days ago:

Visiting Assistant Professor 2015-2016 Academic Year
Criminal Law and Procedure

The University of Oklahoma College of Law invites applications for a one academic year visiting assistant professor.

The successful candidate will be expected to teach one section of first year Criminal Law, one section of Criminal Procedure I (a required course focusing on the Constitutional protections for the criminally accused), and two upper level elective courses in areas of interest to the candidate and which enhance our current curriculum. Examples of potential courses might include: Sentencing, Death Penalty Practice, White Collar Crime, Internet and Computer Crime, or Healthcare Fraud. The College of Law has core strengths in the areas of Native American Law and Oil & Gas, Natural Resources, and Energy Law and courses relevant to these areas may also be of interest.

Prior teaching experience (law school or broader university teaching) is strongly preferred. Prior criminal law practice experience is also preferred.
For more information please see:  https://jobs.ou.edu/applicants/jsp/shared/position/JobDetails_css.jsp?postingId=349606.

Planned Parenthood Defunding as Unconstitutional Bill of Attainder?

David Cohen (Drexel) had an interesting op-ed in the Philadelphia Inquirer on Sunday arguing that the current legislative efforts (at both the federal and state levels) would, if successful, result in unconstitutional bills of attainder. 

From David's piece, which is available here ...

"A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial.     In other words, a bill of attainder is, as the Supreme Court has termed it, a 'trial by legislature' rather     than by court.

"The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two     important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil     liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder     conflict with basic notions of separation of powers. . . .

"Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood   is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned     Parenthood and punishing the organization for allegedly improper and illegal actions.

"More specifically, a bill of attainder has to meet three legal requirements: The law has to 'determine guilt and inflict punishment,' it must act 'upon an identifiable individual,' and it must do so 'without provision of the protections of a judicial trial.' All these requirements are met here."

While I am not a Constitutional Law expert, David makes a pretty compelling argument.  Thoughts?

Some Heroes of the Sterilization Movement

Elizabeth Troutman and I have a paper up at ssrn on the North Carolina eugenics movement.  This was inspired by the North Carolina legislature's compensation program, but what we're really interested in (more than the contemporary movement for compensation) is to understand the movement in North Carolina.  How did the movement for sterilization arise, how was North Carolina largely a dependent variable in that national movement, and then how did it function in our state.  Getting at the last issue involves difficult questions, like who was selected for sterilization and how did the administrative state process petitions for sterilization.  To me one of the most haunting aspects of all of this is that the state supplied pre-printed forms to be used in preparing petitions for approval by the state Eugenics Board.  That is, the state was ready to assist -- indeed to push -- for sterilization.

But one of the most interesting aspects of this is that almost everyone who was approved for sterilization had either themselves "consented" or had family members who "consented."  And that raises a very important question of what "consent" looked like -- and just how the state coerced individuals and their family members to "consent."  This is hard to reconstruct now, because the individual records are sealed -- and even if they were open, it looks unlikely that they would show the level of coercion in much detail.  Many of the Eugenics Board's biennial reports reflect the concern over getting people to agree to sterilization.  They note in particular that men were particularly resistant -- and in fact over time, the percentage of men sterilized decreased dramatically.  Perhaps that reflects the increasing resistance of men; it may also reflect that over time the percentage of institutionalized people who were sterilized decreased, and men in the community were harder to coerce than women.  At any rate, the state was deeply interested in coercing individuals into accepting sterilization.