The living constitution

[The Voting Rights Act's] "Section 4's formula is unconstitutional in light of current conditions." Roberts for the majority (including Scalia) in Shelby County. Scalia in oral arguments on the DOMA case: "I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?... Well, how am I supposed to how to decide a case, then, if you can't give me a date when the Constitution changes?" I'm curious, Justice Scalia: when did the evolving standards of the living constitutional text of Amendment 15 section 2 change to make the VRA Section 4 unconstituional? Can you give me a date on that?

Lithwick on Liberal Law

Dahlia Lithwick is sometimes one of the best legal writers around... and sometimes just really weird. Today's Slate piece has the thesis "unlike Richard Epstein, poor Harold Koh is viewed as too extreme for the Supreme Court and that makes liberal law students sad."

my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. "

Olson is 70 and was passed over as too controversial already. Richard Epstein, I feel confident in saying, will never make it to a shortlist. Kenneth Starr, even though he's already been a judge, will never make it to a shortlist, and there are plenty of Democrats who would filibuster him even if it meant staying awake all night reading aloud from the phone book on the Senate floor. And from the linked Federalist Society speaker's list things look no better. Many are on the list for balance (Jed Rubenfeld: not a rising star of the right!), and many aren't lawyers. But of the rest: yes, I believe Epstein or Randy Barnett or Miguel Estrada would be filibustered. Estrada was filibustered for elevation to the circuit court; that's why he's not there now.

In the world we actually inhabit: Robert Bork was defeated; Clarence Thomas scraped by after hearings that were ugly and brutal even before the Anita Hill story broke, and had enough Democratic opposition to sustain a filibuster; Alito was opposed by enough Democrats to sustain the filibuster that was attempted, though enough his Democratic opponents voted for cloture that the vote was held; and Rehnquist's elevation to Chief Justice was opposed by a majority of Senate Democrats (though not quite 40).

By contrast, Ruth Bader Ginsburg, who should probably count as precedent for the "liberal hero" model, was confirmed 96-3. I believe that Sotomayor was the first modern Democratic nominee to be opposed by a majority among Senate Republicans.

Republican Presidents have responded to this reality in just the way Lithwick says only Democrats have had to: by trimming their sails and appointing or trying to appoint people with thin paper records (David Souter, John Roberts, Harriet Meyers). The popular impression is that this is part of why Michael McConnell stepped down from the federal bench; though he's a very highly-regarded jurist, he was probably never going to be elevated to the Supreme Court by risk-averse Republican presidents. Likewise, no one ever mentioned Richard Posner on Supreme Court shortlists during the Bush administration, even though he has a claim to being the most influential living American judge; everyone knew that Bush would never appoint someone with that thick and controversial a record, no matter how "bright a light" everyone agrees that he is. See also: Alex Kozinski.

I don't get what Lithwick was thinking. "Richard Epstein would plausibly be appointed, would sail through confirmation hearings, and would not be filibustered" as a baseline for comparison about the fate of liberal law professors doesn't pass the laugh test, and she knows enough to know that.

The myth of the golden age

One recurring topic around here is the problematic libertarian historical memory of an America in which once, before the Fall, there was Freedom-- whether the Fall was the New Deal or the 1937 switch in time or the 16th Amendment or the Federal Reserve Act or whatever. And I have a special interest in that subset of soi-disant libertarians who I term confederatistas for whom the Fall was apparently 1865. It's a topic of interest for me outside the blog, too: "Federalism and the Old and New Liberalisms" is substantially about the same thing.

Indeed, the second-most trafficked post in this blog's history was about related problems, though I won't link back to it because it names the odd law professor blogger whose wrath it incurred and who seems eager to resume internet fights whenever possible.

Anyways: I wish to recommend a new piece on the problem by David Boaz, VP of Cato: Up from slavery.

Reposting: ASPLP: "Getting to the rule of law"

Annual Meeting of the American Society for Political and Legal Philosophy
New Orleans, January 6, 2010
Hilton New Orleans Riverside, 2 Poydras Street, Belle Chasse room, Third Floor.


I. Getting to the Concept of the Rule of Law: 10:30 a.m.-12:15 p.m.

Principal paper (philosophy): Jeremy Waldron, New York University
Commentator (law): Robin West, Georgetown University
Commentator (political science): Corey Brettschneider, Brown University

II. Maintaining or Restoring the Rule of Law after September 11, 2001: 1:30 p.m.-3:15 p.m.
Principal paper (political science): Benjamin Kleinerman, Michigan State University
Commentator (law): Curtis Bradley, Duke University
Commentator (philosophy): Lionel McPherson, Tufts University

III. Building the Rule of Law after Military Interventions: 3:30 p.m. - 5:15 p.m.
Principal paper (law): Jane Stromseth, Georgetown University
Commentator (political science): Tom Ginsburg, University of Chicago
Commentator (philosophy): Larry May, Vanderbilt University

Reception: 6:30 p.m.-8:30 p.m.

--------

In order to join the ASPLP and receive the eventual volume of Nomos on "Getting to the Rule of Law," please e-mail me.

Matthew L. M. Fletcher, "The Tenth Justice Lost in Indian Country"

Turtletalk's Matthew Fletcher has written a paper with a very smart insight.

This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.

The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.

I've commented before on strong the OSG's brief was in Plains Commerce, and how surprising it is that the court ruled the other way without even seeming to take the OSG's office seriously. The finding here-- which amounts to the finding that "impairs tribal sovereignty" is a better predictor of which way the court rules than "outcome argued for by the Solicitor General," and that the SG office's general success record before the court doesn't carry over to the pro-tribal side of Indian law cases-- is the general form of that surprise. Recommended.

Huh?

"Sotomayor’s Rulings Are Exhaustive but Often Narrow ">, NYT, Adam Liptak:

Judge Sotomayor’s six years on the trial court and more than a decade on the Second Circuit probably confirmed those intuitions, in part because of the idiosyncratic dockets of the federal courts in New York. They hear many important cases involving business, securities, employment, white-collar crime and immigration. But they do not regularly confront the great issues of the day.

Because everyone knows that securities law is boring local concern of Manhattanites and, on a national level, pretty trivial; that's been one of the great lessons of the last year, right? And the prosecution of (real or alleged) white-collar crime on Wall Street has sure never been newsworthy. And there's nothing morally weighty in immigration law, or anything. Not like the exciting Supreme Court where one gets to decide whether a requirement that strippers wear pasties infringes on the right of free speech.

What on earth can this mean-- that only constitutional law offers Great Issues? That only abortion and gay marriage count? Note: speculation on my part; he doesn't name those issues. I just don't know how one can write that list of things the Second Circuit's docket centers on and then dismiss it in the next sentence.

The reading list: "Justice Ginsburg's Common Law Federalism"

David L. Franklin, "Justice Ginsburg's Common Law Federalism

Abstract:
This essay examines an often-overlooked facet of the federalism debate in which Justice Ruth Bader Ginsburg has pursued a distinctive approach: the role of the state-court common law judge in our federal system. In a series of majority and dissenting opinions, Justice Ginsburg has made clear that she places an exceptionally high value on the capacity of common law judges to render justice and to provide effective remedies to injured parties on a case-by-case basis. Although she acknowledges that Congress has virtually unlimited power to supplant or override this traditional judicial function, she insists upon a clear and unambiguous statement of congressional intent before countenancing such a result. Justice Ginsburg's vision of the common law judge as a guarantor of individualized justice informs and reflects her view of the law more generally. She draws a relatively sharp divide between the realms of common law and positive law and, more than any other justice on the current Court, conceptualizes common law regimes such as contract and tort as serving primarily remedial rather than regulatory purposes.

States of the same nature

Now posted at SSRN:

"States of the Same Nature": Bounded Variation in Subfederal Constitutionalism

"That the federal constitution should be composed of states of the same nature, above all of republican States," Montesquieu, The Spirit of the Laws.

Abstract:
This paper offers a defense of the bounded variation in state- or provincial-level constitutionalism within a federation. The extreme positions are the traditionally easy normative ones: there's no reason for state-to-state variation in fundamental questions of constitutional value (because once we know what justice demands, it demands it the same everywhere), or the several states' sovereign peoples may enact any old rules they want, because democratic positivism trumps liberal justice. On the second model, states may be constitutionally constrained from the outside, by the federal courts enforcing the federal constitutions, but as a domestic matter their substantive variation could be unbounded. I don't deny that one or the other of these might accurately describe the legal situation in one or another federation. But I will argue that bounded variation is normatively preferable, not just as a middle way but as the right way to attain the benefits of a federal system. And there are at least some good reasons for internalizing the at least some of the boundaries within the constitutionalism and jurisprudence of each state. Constitutions are not social contracts, either of the positivist or the realist sort; and the hybrid constitutionalism of a federal order can't be understood just with reference to founding or with reference to moral truth. It seems to me that this leaves us in the domain of non-dispositive reason-giving and argument about the scope for constitutional variation. It typically does not count as much intellectual progress to say that answers will lie at some indeterminate point in the middle. But the claims of federal supremacy and of state sovereignty have been such that the middle has sometimes seemed squeezed out; there has been a perceived need to resolve the logic of state constitutionalism to a greater degree than the nature of the problem permits.

And one bit from further in the paper:

It is apparent that the position described here allows federal constitutional norms to have some weight in a state's domestic constitutional interpretation. It is perhaps less apparent, but noteworthy, that it allows sister-state constitutional norms and jurisprudence to have such weight. And, perhaps most surprisingly, it allows state-level norms to have weight at the federal level. Perhaps the gravitational weight of federal constitutional interpretation is greater than that of the interpretation of any one of the states, but gravity is mutual, and planets pull on the sun as well as being pulled by it.

Since I finished that draft of the paper, Professor Solum has drawn my attention to this extremely interesting argument which I'll have to incorporate into that section!

Federal Bar Association Indian Law Conference

I'll be revisiting the perversities of Indian Law thesis in light of last year's Plains Commerce Bank v Long, in a talk at the Federal Bar Association's Indian Law Conference, April 3, Pueblo of Pojoaque outside Santa Fe.

Here's an utterly unsurprising spoiler: the outcome in Plains Commerce only aggravated the perversity of the incentives facing tribal governments. In the article I said that the Montana exceptions had been whittled away to near-nothingness; in Plains Commerce the Court just shaved a bit more wood off the paper-thin bit that remained. Step by step, the Court continues to make a bad situation worse.

For newcomers to Plains Commerce, I recommend the superb amicus brief from the Solicitor General.

Yay...

for choice of law and legal pluralism.

Now online: "Not so Novus an Ordo: Constitutions Without Social Contracts"

The preprint version is available at Political Theory (subscription required).

Abstract:

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that binds individual persons together into a polity and sets fundamental rules regarding that polity's structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified. Yet something essential is lost in this slippage between social contract theory and the practice of constitutionalism. Contractarian blinders lead us to look for greater individualism, social unity, and coherence of principles than should be expected. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as social contracts flattens and distorts them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization. Accordingly this article redirects attention to non-contractarian strands within constitutionalism's intellectual inheritance and lived practice.

Free Will and Canadian Politics

I make my bloggingheads debut (and obviously need a better-quality webcam if I'm going to keep doing this) on Will Wilkinson's "Free Will" show, discussing recent Canadian politics.



If you're clicking over here from bloggingheads, browse around the Canada, Quebec, or federalism tags to see more about the stuff Will and I discussed. For my academic writing on federalism, Quebec, and ethnocultural loyalties, see especially this article, "Federalism, Liberalism, and the Separation of Loyalties," APSR.

Updates: I think I did not-bad by the standard of people who've only lived in a country for 30 months, but various commentators at Will's blog and at the BHTV link above note some corrections and supplements to things that I said. One faithful reader e-mailed me with several related objections that I'll put in comments below this post.

Fascinating.

Canada may be on the verge of a constitutional and political showdown, and the secessionist Bloc Quebecois is the kingmaker.

Prime Minister Stephen Harper, leading a conservative minority government, proposed to abolish government funding for political parties-- a move that would hurt his own part much less than the opposition parties, as the government subsidy makes up most of their budgets.

I've joked several times in this space about the apparent inability of Canadian parties to learn the word "coalition," but mortal threats concentrate the mind wonderfully, and the Liberal and NDP parties finally seemed to reach a willingness to join forces.

Problem: even combined, they have fewer MPs than the Tories. The balance of power is held by the Bloc, which has never entered into coalition or federal government since, after all, its raison d'etre is to free Quebec from the Canadian yoke.

Second problem: if the Tories lose a vote of confidence, the normal response is for the PM to ask the Governor General to dissolve Parliament and hold a new election-- but the last election was a matter of weeks ago.

So one question is: what does the GG do, if the PM is asking for a new election while Stephan Dion asks for the right to form a new government in the existing Parliament? And another question is: to grant Dion's request, what kind of participation would the GG demand from the Bloc? Passive support seems insufficient; active participation would be anathema both to the Bloc and to huge swaths of Liberal Anglophone Canada.

And it's worth noting just how topsy-turvy the world is in which the Bloc makes Stephane Dion Prime Minister. Dion has for two decades been one of the champions of Canadian unity and federalism within the Quebec debate, and has been a hate-figure for nationalists; Bernard Landry called him "le politicien le plus détesté de l'histoire du Québec." It would come as a serious surprise to me if either Bloc voters were happy that the Bloc installed Dion, or if Liberal voters were happy about any collaboration with the Bloc.

Harper has now backed down from the political party subsidy proposal. But the thing about political learning is that newly-learned lessons aren't quickly unlearned. The Liberals and NDP have finally learned, under mortal threat, that a coalition is thinkable-- and then they learned that they could terrify Harper, which they've proven unable to do for years. So they could still decide to vote no-confidence next week and bring the government down-- apparently throwing Canada's immediate political future into the hands of the GG, which is constitutionally unsettling in one way (Governors General, like the British monarch for whom they stand in, aren't really supposed to have political choices to make in our modern constitutional monarchies)-- and into the hands of the Bloc, which is constitutionally unsettling in another way.

A big week ahead. Fruits and votes is my recommendation for a blog on which to follow the action.

Tarr, "Subnationalism and Constitutional Space," Friday November 7 at McGill

Friday, November 7, 12-2 pm, G. Alan Tarr will present a paper, "Federalism and Subnational Constitutional Space" in the Gold Room at McGill's Faculty Club. Responses will be provided by Professor Filippo Sabetti and by Erin Crandall, both of McGill Political Science, prior to a general discussion.

Alan Tarr is the foremost scholar of constitutionalism in American states. He is the Director of the Center for State Constitutional Studies, and Chair of the Department of Political Science, Rutgers University, Camden. He is the author of Understanding State Constitutions (Princeton) and the editor of numerous volumes on state constitutions and constitutional politics. This year he is Fulbright Visiting Chair in Public Policy, Governance and Public Administration
at the University of Ottawa, where he is studying subfederal constitutionalism in comparative perspective.

If you are interested in attending, please e-mail me at jtlevy-at-gmail.com for the paper.

Uncooperative federalism

Onto the reading list, via Larry Solum: Uncooperative federalism.

Uncooperative Federalism

Jessica Bulman-Pozen
affiliation not provided to SSRN

Heather Gerken
Yale University - Law School



Yale Law Journal, Vol. 118, 2009

Abstract:
This essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, a role they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that in most areas states serve not as autonomous outsiders, but supportive insiders, servants and allies carrying out federal policy. The puzzle is that we rarely try to connect these competing visions and imagine how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. Legal scholars have thus neglected the possibilities associated with what we call "uncooperative federalism." We see examples of uncooperative federalism scattered throughout "our federalism," instances where states use regulatory power conferred by the federal government to resist federal policy.

Most legal scholars are likely to be aware of this type of resistance, or at least unsurprised by its existence. That makes the scholarly neglect of this topic all the more surprising. While uncooperative federalism occurs often in our federal system, we don't have a vocabulary for describing it, let alone a fully developed account of why it happens, what it means, and what implications it holds for the doctrinal debates in which federalism scholars routinely engage. This essay provides an initial account of this undertheorized aspect of our federalism. It compares the distinct powers that the state wields as sovereign and servant. It sketches a normative argument for why uncooperative federalism might be useful in a well-functioning federal system. And it explores what a strong commitment to uncooperative federalism would mean for the doctrine on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in harder forms of dissent.

Onto the reading list

Malcolm M. Feeley and Edward Rubin, Federalism: Political Identity and Tragic Compromise

Federalism refers to a system in which a centralized national government shares power with member states. Beyond this most basic definition, however, scholars debate the applications and implications of the term. Joining the concept of identity from political science with legal principle, Malcolm M. Feeley and Edward Rubin propose a theory of federalism and test the relevance of federalism for the United States today.

Essentially, federalism represents a compromise among groups who refuse to yield autonomy yet acknowledge the benefits of forming a nation. As in the African and Asian nations forged from former colonies, federalism allows the member states---often dominated by ethnic minorities---to remain largely self-governing. In this way, a young nation can avoid secession and civil war while the people within its borders gradually abandon their local identities and come to view themselves as citizens of the nation.

The United States, Feeley and Rubin remind us, faced a similar situation in the eighteenth century as thirteen regionally distinct, ethnically diverse, and highly independent British colonies came together to found a nation. Despite the Civil War and the upheaval of the Civil Rights Movement, the federalist strategy ultimately succeeded. For the United States in the early twenty-first century, thanks to the rise of a strong national identity and a ubiquitous bureaucracy, federalism has become obsolete. This bold argument is certain to provoke controversy.

I'm worried by the apparent nationalist teleology. A multiethnic state may not be a nation in potentia that just happens not to have yet been realized, and it's dangerous to view it that way. There is no law of nature or moral demand that "the people within its borders gradually abandon their local identities and come to view themselves as citizens of the nation." But still, I think Feeley and Rubin are approaching federalism with the right questions in mind, and I've expressed my own related worries about federalism's obsolescence in the U.S. for related reasons.

I read 40 pages or so of this book in proofs form standing in the book room at Law and Society, and recommend it very highly. It's a major and important work.

Now online

The final, published, version of Three Perversities of Indian Law, 12(2) Texas Review of Law and Politics 329-68 (2008).

Something I had not realized...

that greatly surprised me.

The Solicitor General filed an amicus brief in Plains Commerce Bank v Long in favor of tribal jurisdiction. (The Court ruled the other way, of course.)

That was the correct position for the federal government to take, in its capacity as trustee for Indian tribes and in line with its official policy of encouraging institution-building for self-determination. But just because it's correct doesn't mean I would have expected it.

The brief is quite good. (The SG's office hires pretty good lawyers, after all.) A pleasant surprise-- the first so far, in my reading of the case and its materials.

Plains Commerce comes down

This actually happened yesterday, but I was offline.

The most important Indian Law case of the year came down yesterday, and it was disappointingly but unsurprisingly ugly. In Plains Commerce Bank v Long, a 5-4 majority further restricted tribal court jurisdiction over non-Indians and non-Indian businesses on reservations. The supposed exception to the non-jurisdiction rule that jurisdiction can apply when the non-Indians enter into consensual commercial relations with the tribe or its members appears to be a dead letter.

As I discuss in this paper, the court has been narrowing tribal jurisdiction over non-members on reservation lands for some thirty years, and in counterproductive, destructive ways.

The decision was written by Roberts for the five conservatives. Ginsburg wrote for the dissent. (It's a "concurrence in part," but the part is not the important part.)

Bad news. More commentary to come.

In the meantime, see this post at Turtletalk.

In my view, there are several things to take from this ruling:

1.) We have been reassured that the Montana exceptions, while available in theory, will never be applied, and that tribes can forget about exercising any jurisdiction, no matter how great or small, over non-Indians on fee lands;

2.) We have also been reassured that non-Indian litigants are at a significant advantage against tribes and tribal citizens. Non-Indian parties can choose to litigate in tribal court, at a low-cost, and seek a positive outcome. If they get a desired outcome, it’s game over. If not, they get a second bite at a fresh apple, because they can take their claims to state or federal court and argue that the tribal court has no jurisdiction over them.

There's more. As I put it in the "Perversities" article linked to above:

After twenty years of Montana progeny, the exceptions appear vanishingly small. No unified Supreme Court majority has ever agreed that any regulation fell into either one. Circuit courts have followed the same general rule. The second exception has never been found to be satisfied in a court of appeals. Besides the Tenth Circuit’s finding in favor of the Navajos in Atkinson, later reversed, the consent exception has been triggered twice at the circuit court level, both times on the Ninth Circuit. A non-Indian filing a cross-claim against a fellow defendant in a reservation court does consent to that court’s jurisdiction in that case, and so falls under the first Montana exception —a seemingly minimal proposition that had nonetheless not been accepted by a panel of the court two years before —and a non-Indian contracting to carry out tribally-licensed bingo operations on a reservation is subject to the tribe’s bingo regulations. And the second exception is interpreted without any “aggregation analysis;” that is, the particular non-Indian’s particular activity must imperil the tribe, and it will not suffice to show that many non-Indians engaged in the activity many times over would do so. As one District Court judge asked rhetorically,

What does it mean to have the "ability to enact and be governed by its own laws" if the Navajo Nation cannot extend the scope of its own laws to protect the very lives of its own police officers on its own lands, and in its own courts? When does the exception for "conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe" apply?

Yesterday "vanisingly small" got yet another step closer to "vanished."

Now online

at my SSRN page: "Not so Novus an Ordo: Constitutions without Social Contracts," forthcoming in Political Theory.