Yale law professor Heather K. Gerken is among the country’s most prolific and creative federalism scholars. In cooperation with two co-authors (Ari Holtzblatt and James T. Dawson—hereinafter, “Gerken & Co”) she has embarked on a project to develop a theory of “The Political Safeguards of Horizontal Federalism.”
This panel is a great summary of the various positions on the sexual assault issue. There were two people on the right – one conservative and one sounding more libertarian – and two on the left – one representing the Administration and one representing a women’s group. Everyone played their parts perfectly.
While I recommend listening to the entire panel, here is a brief summary of the presentations with some of my own commentary.
1. The first panelist was Lara S. Kaufmann, Senior Counsel & Director of Education Policy for At-Risk Students at the National Women’s Law Center. Her presentation was a stereotypical talk on the subject by a member of a feminist interest group. Kaufman focused on how women are at risk, offering statistics and other evidence entirely devoted to showing the risk, and literally said not a word about the due process rights of people accused of sexual assault. It is as if she does not care about them.
My guess is that her presentation was not very persuasive to a Federalist Society audience. It would have been more effective if it had acknowledged and attempted to rebut the due process concerns and the charges that sexual assault statistics are often spurious. But she did neither.
The Federalist Society is the most important civic organization formed in the last forty years. Even academics are coming around to the conclusion. In 2010 Steve Teles wrote a marvelous book, The Rise of the Conservative Legal Movement, which rightly gave the Federalist Society pride of place as an organization that held the legal right together by providing a place to debate fundamental issues. As Teles observed, because the Society did not take positions in litigation or before legislatures, it was able to attract both libertarians and conservatives who were united both by their antipathy to left liberal establishment and their view that the Constitution should be read according to its original meaning rather than as a document that changed with the times.
In a new book, Ideas with Consequences, Amanda Hollis-Brusky attempts to chart the Federalist Society’s actual legal influence, particularly on the Supreme Court. I reviewed the book Friday for the Wall Street Journal. While it is not as good a book as that of Steve Teles, it does show how ideas refined at the Federalist Society conferences have made their way into Supreme Court opinions, in such areas as the Second Amendment, federalism, and campaign finance regulation.
Oddly enough in a book which has Ideas in its title, Hollis-Brusky at times slights the importance of the intellectual environment the Federalist Society has created.
Who would argue with the Declaration of Independence’s claim that “all men are created equal”?
But one immediately runs into trouble. What about the Declaration limiting it to “men”? Are women equal? They did not have the right to vote at the beginning. Yet, Thomas Jefferson and the other Founders certainly believed women were morally equal and were covered under the generic term “men,” for mankind. Was that enough?
In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.
The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review.
Denise A. Spellberg, Associate Professor of history and Middle eastern Studies at the University of Texas at Austin, is the author of the highly regarded work, Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha Bint Abi Bakr. She was involved in controversy in 2008, when she reviewed the galleys of a novel, The Jewel of Medina, for Random House, and criticized the work on many grounds including warning a number of times that the book might instigate violence among some Muslims, specifically against Random House and its employees. Random House then withdrew publication of the book, but the novel was subsequently published in a number of countries, including the United States.
In this work with the eye-startling title, Thomas Jefferson’s Qur’an: Islam and the Founders, Spellberg investigates all manner of references among the founding generation to Islam in order to assert two themes 1) that the founders’ references to “imaginary Muslims” led them to include other minorities, such as Jews, Catholic Christians, and Deists, as full citizens, and 2) that America is now in the grip of “Islamophobia,” and many Americans are attempting to “disenfranchise” Muslims from their rights as full citizens.
In three prior posts here, here, and here, I have been exploring possible reforms that Congress could enact to constrain executive power. The first set of reforms involves shifting power from the agencies to Congress. The second set of reforms involves shifting power from agencies to the judiciary. In this post, I will discuss a third set of reforms – reforms that, instead of shifting power to another entity, place limits on the internal operations of agencies.
These reforms have the advantage of not primarily relying on other actors. Instead, they place obstacles on agencies’ ability to regulate.
One possible reform is to employ more bipartisan commissions. The independent agencies are typically commissions with a significant number of commissioners from the minority party. This helps to deter the agency from taking politically partisan acts, because the minority party commissioners are inside the agency.
While such bipartisan commissions have generally been limited to independent agencies, I believe it might make sense to use them even for executive branch agencies. It is true that the President might direct the commissioners from the opposing party as to how to vote. But having those commissioners in the inside would still check partisan schemes.
By the end of March, 2015, it is conceivable that the members of the United Nations Security Council and Germany, the so-called 5+1 group, will reach an agreement with Iran to halt its suspected nuclear weapons development program and ease the economic sanctions that have isolated Iran from much of the world’s trading system. Even before the ink is dry on the possible agreement, however, it has become the subject of partisan controversy in the United States, Israel, and Iran. Before evaluating the merits of the agreement, it may therefore be worthwhile for readers of a journal devoted to Law…
Public spending seems as if it were attached to a ratchet because it moves in one direction only, which is to say upwards. Even if a downward movement is occasionally discernible, it is generally small, easily reversible, and the result of so ferocious a political struggle that it discourages further attempts of the same kind.
My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review. Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.
The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution.