The Mirror of Racial Tyranny in The Civil Rights Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme CourtLeave a comment» on The Mirror of Racial Tyranny in The Civil Rights Cases
Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him.  Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”

Emoluments, Textualism and Original Intent

Posted on Categories Constitutional Interpretation, Constitutional Law, Legal History, Public1 Comment on Emoluments, Textualism and Original Intent

A wooden judge's gavel lies atop of a copy of the United States Constitution.The ongoing refusal of President Donald Trump to both reveal the specifics of his personal finances and to decline any income from sources outside of his official salary as President has brought renewed attention to the Emoluments Clauses of the United States Constitution.  There are two such clauses, which state as follows:

The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” absent “the Consent of the Congress.” U.S. Const. art. I, §9, cl. 8.  The Domestic Emoluments Clause entitles the President to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, §1, cl. 7.
The meaning of these two provisions has become the subject of public debate and also litigation.  In one leading case, the State of Maryland and the District of Colombia have sued Donald Trump for violating these constitutional provisions.  They are suing for declaratory and injunctive relief which would compel President Trump to comply with the terms of the Constitution. Continue reading “Emoluments, Textualism and Original Intent”

Constitution Day 2017: Both Sides Now – Judges Reflect on the Constitution

Posted on Categories Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Marquette Law School, PublicLeave a comment» on Constitution Day 2017: Both Sides Now – Judges Reflect on the Constitution

A wooden judge's gavel lies atop of a copy of the United States Constitution.On September 17, 1787, the founders signed our United States Constitution, an event we commemorate every September 17 with Constitution Day.

Marquette University will celebrate Constitution Day on Monday, September 18. On that day, we will welcome to the Law School Wisconsin Supreme Court Justice Daniel Kelly, Wisconsin Court of Appeals Judge Brian K. Hagedorn, Milwaukee Circuit Court Judge Gwen Connolly, and Federal District Judge Lynn Adelman (Eastern District of Wisconsin). Each of the panelists will select a constitutional provision and explain why that section is meaningful to him or her. We will also highlight the National Constitution Center’s new Interactive Constitution, a website that contains the entire Constitution and all of its amendments, along with commentary on each section that shows that section’s history and its common understandings, along with commentary that illustrates divergent views.

The complimentary program will run from noon until 1 p.m., and there will be a light lunch and cake. This event is open to Marquette students; however, registration is required.

Constitution Day 2017 is presented by Marquette Law School and the Political Science Department. The event is co-sponsored by the student chapter of the American Constitution Society and the student chapter of the Federalist Society.

New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

Posted on Categories Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Federalism, Public, U.S. Supreme CourtLeave a comment» on New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.   Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”

Should the Senate Give Advice and Consent on Special Envoys?

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, International Law & Diplomacy, President & Executive Branch, PublicLeave a comment» on Should the Senate Give Advice and Consent on Special Envoys?

Potograph of an antique globe of the world showing the continents and nations circa the 1800s.Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers. Continue reading “Should the Senate Give Advice and Consent on Special Envoys?”

Both Sides Now: The Interactive Constitution

Posted on Categories Constitutional Interpretation, Constitutional Law, Federalism, First Amendment, Legal History, PublicLeave a comment» on Both Sides Now: The Interactive Constitution

Constitution & GavelI recently learned about an amazing feature on the National Constitution Center website: an interactive Constitution. The site contains the entire United States Constitution and all of its amendments.

Click on any part—the Preamble, any of the seven articles, or any of the 27 amendments—and view the text of that part, along with the dates of its signing or passage and its ratification. You’ll also learn if any part of the Constitution was changed by an amendment.  Article I contains several sections that were changed by later amendments. For example, click on the highlighted text in Article I, section 3 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”) to learn that this section was changed by the 17th Amendment, which allows for the direct popular election of senators.

The most interesting part, however, is that you’ll also get views from constitutional scholars “across the legal and philosophical spectrum.” Continue reading “Both Sides Now: The Interactive Constitution”

More Doubts About the Court’s Resolution of the John Doe Investigation

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme CourtLeave a comment» on More Doubts About the Court’s Resolution of the John Doe Investigation

Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Continue reading “More Doubts About the Court’s Resolution of the John Doe Investigation”

Court Wrestles With Vagueness and Retroactivity in Sentencing Context

Posted on Categories Constitutional Interpretation, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme CourtLeave a comment» on Court Wrestles With Vagueness and Retroactivity in Sentencing Context

honore%20daumier%20-%20le%20proveYesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.

With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.

Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.

Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness? Continue reading “Court Wrestles With Vagueness and Retroactivity in Sentencing Context”

ACS Panel Explains Voting Rights Litigation in Wisconsin

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Election Law, Judges & Judicial Process, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal SystemLeave a comment» on ACS Panel Explains Voting Rights Litigation in Wisconsin

img_5794-meOn October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin.  The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.

The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono.  Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership.  He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system.  Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.

Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace.  Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.”  Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee.  Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process. Continue reading “ACS Panel Explains Voting Rights Litigation in Wisconsin”

Time is Running Out to Confirm Judge Garland

Posted on Categories Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court2 Comments on Time is Running Out to Confirm Judge Garland

Merrick_Garland_speaks_at_his_Supreme_Court_nomination_with_President_ObamaThe unprecedented, and unconstitutional, obstruction of Supreme Court nominee Judge Merrick Garland is just one of many recent missteps by Republican leaders.  For example, mainstream Republican presidential candidates strategically withheld their attacks on Donald Trump during the primary season, in the hopes that he would be an easy target to topple once the field sorted out.  This was a major blunder.  More broadly, the decision of Republican leaders in Congress to make the repeal of the Affordable Care Act the centerpiece of their legislative agenda, at a time when Republicans lacked a veto-proof majority, was an empty gesture which merely fueled anger among their Party’s base and ultimately made Trump possible. Both of these decisions were political calculations that seemed clever at the time, but which turned out to have disastrous consequences for the Republican Party.   However, the unjustified refusal to hold hearings on a highly-regarded and moderate Supreme Court nominee has the potential to dwarf every other political miscalculation that Republican leaders have made over the last eight years.

First of all, it is important to recognize that Judge Merrick Garland is a laudable nominee for the U.S. Supreme Court.  He is a former federal prosecutor, a highly respected Judge on the U.S. Court of Appeals for the District of Columbia, and someone identified by Senator Orrin Hatch and other prominent Republicans (prior to his nomination) as the type of judge who would receive bi-partisan support in Congress.  Post-nomination arguments raised about Judge Garland’s supposed lack of respect for the Second Amendment are not justified by his actual opinions and, in reality, are merely a fig leaf contrived to rationalize opposition to the nomination by Republican lawmakers.

In addition, the refusal of the Senate to take up the nomination is a clear violation of the Constitution. Continue reading “Time is Running Out to Confirm Judge Garland”

How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

Posted on Categories Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Milwaukee, Public, Wisconsin Supreme Court3 Comments on How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

homeruleToday the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)).  The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion.  The relevant text of Art. XI states:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps. Continue reading “How to Interpret Away the Home Rule Provision (in 4 Easy Steps)”

The Senate Must Consider Supreme Court Nominations in Due Course

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court5 Comments on The Senate Must Consider Supreme Court Nominations in Due Course

Ford-Potential-Nominees-to-CourtToday, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court.  Senator McConnell said, “My decision is that I don’t think that we should have a hearing.  We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution.  Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court.  The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial.  The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials.  This abuse was due to the monarch’s absolute power to appoint anyone they chose.  In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate.  The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate.  Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee.  The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members).  The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process.  The Senate’s only role under the Constitution arises after the President makes a nomination.  In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause. Continue reading “The Senate Must Consider Supreme Court Nominations in Due Course”