Last month, a three-member panel of the U.S. Court of Appeals for the Seventh Circuit handed down an important decision in Tagami v. City of Chicago, the “GoTopless” case, a constitutional challenge to a Chicago public nudity ordinance that prohibits women, but not men, from appearing topless in public. The court upheld the ordinance by a vote of 2 to 1. The debate between Judge Diane Sykes, who wrote the majority opinion, and Judge Ilana Rovner, who wrote the dissent, offers fascinating insight into the role of tradition in constitutional law.
When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage. But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens. Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.
Another example is “diversity” jurisprudence.
After months of secessionist agitation in Catalonia, Spain’s government has called for fresh regional elections to be held on December 21. With Catalonia deeply divided, and with most of the ruling coalition’s political leadership in jail or in exile, this promises to be the most politically charged vote in Spain’s recent constitutional memory.
Like Mark Pulliam, I think a lot about Robert Bork: anyone who teaches either antitrust law or constitutional law should, and I teach both. He was great scholar. In particular, he powerfully challenged the conventional views of living constitutionalism that dominated his time and begin to make the intellectual case for originalism. But it was only the beginning of the case and does not mark the best understanding of originalism today.
The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.
President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.