FedSoc Lunch Event: Adult Sentencing for Adult Crimes

On February 11, 2014, The Harvard Federalist Society hosting an event titled “Adult Sentencing for Adult Crimes” featuring Charles D. Stimson. Mr. Stimson is a Senior Legal Fellow at the Heritage Foundation where his work focuses on a number of substantive legal areas including Juvenile Sentencing. In 2009, Mr. Stimson and his co-author Andrew Grossman published a short book, Adult Time for Adult Crime, with the Heritage Foundation arguing that sentencing juveniles to life without parole (“JLWOP”) for homicides and other violent crimes was Constitutional and occasionally warranted.

Mr. Stimson began his presentation by lamenting that he had no counterpoint against whom to engage in a collegial discussion. He nevertheless promised to attempt to present both sides—though definitively stating his confidence in his own conclusion. Instinctively moving forward to compensate for law students’ general reluctance to sit in the front row, Mr. Stimson read excerpts from his book, specifically, describing the heinous crimes committed by Ashley Jones, one of the several case studies contained in his report. Comparing this detailed description with a sanitized version of the facts in a report from the Equal Justice Initiative, Mr. Stimson explained that this imbalance led him to study JLWOP. The Equal Justice Initiative, Mr. Stimson hypothesized, was intent on completely doing away with JLWOP, and colored its information toward that end. Namely, its report featured pictures of children (7-8 year-olds) as opposed to the juveniles (teenagers) that JLWOP laws were actually affecting. Its studies on JLWOP used strong assumptions, creating hypothesized numbers, which were later cited authoritatively in court documents. It made arguments about international law that were either false or misleading. And it did not distinguish between juvenile murderers and petty criminals. Applauding the opposition’s efforts and acknowledging their rights to argue, Mr. Stimson emphasized that he wanted to balance out the informational playing field in the name of federalism.

The issue for Mr. Stimson was broader than Ashley Jones. He did not condemn her, but used her merely as an example. Citing an abnormally high violent crime rate, especially among juveniles, Mr. Stimson said that in 2009, 43 States and 90% of the American population had JLWOP statutes. To correct this issue, Mr. Stimson argued, the States have the prerogative to adopt sentencing schemes that incapacitate malicious teens and ensure that they will commit no more heinous crimes. He declined to go into further detail about the number of JLWOP sentences handed down, however because of bad record keeping in the States. Nevertheless, he emphasized that there are very few juveniles who are even eligible for the sentence, who receive it.

Simply put, Mr. Stimson argued that life without parole for juveniles may sometimes be warranted, and is certainly constitutional, so long as a State’s legislature adopts a statute authorizing the sentence. He noted that these statutes only authorize JLWOP for major crimes, like the ones committed by Ashley Jones. After Graham v. Florida, there could be no JLWOP for merely violent crimes, but murder remained a sufficient underlying crime. And following Miller v. Alabama, there could be no more mandatory JLWOP. But Mr. Stimson further suggested that the Court indicated sotto voce in Miller that it is now finished with JLWOP cases, unless a Teague issue arises—as it might since there are currently 1300 inmates on “LWOP row.” Thus, the law will remain as it stands: JLWOP is a Constitutional punishment for homicides as long as the sentence is not imposed mandatorily.

Despite the lack of formal opposition, the audience raised several incisive questions. First, it was asked whether Mr. Stimson believed that juveniles were incapable of rehabilitation, to which Mr. Stimson responded that he did not know—but the broader point remained that such a question was best posed to and answered by legislators. Next, Mr. Stimson was asked about founding-era sentencing structures. He replied that they were draconian, and usually required death, but noted that no one argues for the death penalty for juveniles. Originalism in Eighth Amendment jurisprudence, he noted, is very rare. Finally, Mr. Stimson was asked whether, if Ashley was abused, as the Equal Justice Initiative claims, and if she is capable of rehabilitation why she should still spend her life behind bars. Mr. Stimson answered that this was not the point. As an adoptive child, he acknowledged the tragedy and fact of child abuse, and he affirmed that such abuse could corrupt a child. Indeed, he even stated that during his time as a federal prosecutor, he never sought JLWOP. Still, he went on to point out that the court rejected Ashley’s abuse argument, and underlined that his point is not about social science or JLWOP policy. As befits a Federalist Society lunch event, Mr. Stimson underlined the federalism issue: It is for the States to decide how to punish juvenile murderers.

Full Disclosure: I worked for Mr. Stimson during the summer of 2012 in his capacity as a Senior Legal Fellow at the Heritage Foundation and as a trial judge for the Navy JAG. Together we wrote a research paper for the Heritage Foundation, which can be found here

Student Note Preview: Political Question Doctrine in Zivotofsky v. Clinton

Carol Szurkowski provides a preview of her student note in the current issue (Volume 37, Issue 1) of the Harvard Journal of Law and Public Policy:


In 2012, the Supreme Court decided Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, in which it held that the political question doctrine could not be invoked to dismiss a suit involving the question whether an American citizen born in Jerusalem can enforce his statutory right to have “Israel” listed as his birthplace on his passport.  Chief Justice Roberts’ opinion for the Court was remarkable for its omission of any mention of the six-factor test introduced in Baker v. Carr, 369 U.S. 186 (1962), which has served as the touchstone for lower federal courts’ political question jurisprudence for the last half-century.  Especially in light of the fact that Justice Sotomayor’s concurrence, Justice Breyer’s dissent, and the D.C. Circuit opinion below all made much of the Baker six-factor test, this omission must have deliberate.

Why is this so significant?  Primarily because, since Baker was decided, lower courts have been using its test to avoid deciding some of the most sensitive foreign affairs questions of our day.  In particular, they have been relying on the final three factors of the test, which embody prudential considerations that are not drawn from the text and structure of the Constitution, to grant these dismissals.  In this note, I argue that Zivotofsky should largely put a stop to these prudential political question dismissals, forcing the courts to decide the questions that the Constitution has committed to their determination and returning the political question doctrine to its classical, text- and structure-bound roots.  With his statement that resolving sticky and sensitive questions such as that presented in Zivotofsky is “what courts do,” Chief Justice Roberts effects a Marbury-esque reclamation of the judiciary’s prerogative and duty to decide even difficult questions that have been committed to its resolution.


Read the entire article at: http://harvardjlpp.wpengine.com/wp-content/uploads/2014/01/37_1_347_Szurkowski-1.pdf 

David Rivkin & Lee Casey on the Recess Appointments Case

In this morning’s Wall Street Journal, David B. Rivkin, Jr., and Lee A. Casey preview Noel Canning v. NLRB, a case to be heard in the Supreme Court this month concerning three appointments made by President Obama two years ago while the Senate was in pro forma sessions:

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

While this challenge to presidential power touched off considerable controversy, some political observers say that the recess-appointments issue will fade because Senate Democrats recently did away with the traditional filibuster rule, requiring a “super-majority” of at least 60 senators to allow a contentious nomination to proceed to a vote. This rules change, however, does not moot Noel Canning v. NLRB or the issues it raises. Indeed, limiting filibusters will only grease the wheels of a nomination when a Senate majority approves of a particular nominee.

Even when a president’s own party controls the Senate, there are individuals who for one reason or another cannot get the nod. For example, a nominee unacceptable to his or her home-state senator can be subject to a “hold”—a still-respected senatorial courtesy. Recess appointments are not a proper means of avoiding such roadblocks.

The Constitution’s Framers considered and rejected the notion that the president should be able to staff federal offices without congressional oversight. That’s why the president must have Senate “advice and consent” for the most important appointments. As Alexander Hamilton wrote in Federalist 76, the Senate’s participation “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

The Framers believed that vesting the entire appointment authority in the president would have made him too powerful, contrary to their key goal of safeguarding individual liberty by dividing power among the three branches of government.

The need for a presidential power to make recess appointments arose from the assumption that Congress would meet infrequently and that there would be long periods—running to many months—when critical federal offices might remain vacant because the Senate was unavailable to discharge its advice and consent function. Recess appointments are a necessary exception to the normal appointments procedures, but they are an exception.

In more recent years, however, as attitudes in Washington have hardened and become more ideological, presidents of both parties have used recess appointments to put individuals in office who the Senate either had already refused to confirm or would likely turn down if given the chance. Such individuals may serve for up to two years. Although presidential frustration may be understandable, since many nominees never even get a Senate vote, overcoming this roadblock is not the constitutional purpose of recess appointments.

To avoid being in recess, Senate Democrats began to hold pro forma sessions in the last years of the George W. Bush administration. These involved tasking, by unanimous consent, one senator from each party to “convene” the Senate for brief periods in order to “receive” presidential nominations. These pro forma sessions are not fundamentally different from the way the Senate routinely conducts its core legislative business, which also can involve passing bills by unanimous consent with few senators in attendance.

Mr. Obama made the appointments that are being challenged in Noel Canning during one of these pro forma Senate sessions. The president determined that for the purpose of considering his nominees, the Senate was not properly in session because, according to White House Counsel Kathryn Ruemmler, the Senate was “unavailable to fulfill its function.” This, of course, raised another critical constitutional question, since the Constitution vests each congressional house with the power to determine how to operate.

Permitting any president to resolve when the Senate is or is not in session upsets the constitutional balance of power among the executive and legislative branches even further. Most dangerously, a president could potentially claim that the Senate was not “in session” when certain legislation was enacted, and then refuse to enforce it on the grounds that it was invalid.

The specific issue of pro forma Senate sessions was not addressed by the lower court. But given the key constitutional prerogatives involved, the Supreme Court asked lawyers representing Senate Republicans to participate in the oral argument. This signals that the court may determine the extent of the president’s recess appointment power and decide whether the Senate’s power to determine its own rules precludes the president from questioning the constitutionality of the pro forma sessions.


The Supreme Court should affirm the court of appeals, limiting recess appointments to filling vacancies actually arising during a true Senate recess, and decisively rejecting the Obama administration’s position that the president can determine when the Senate is or is not in session regardless of the Senate’s own view. This will restore the proper separation of powers between the two political branches that the Framers clearly intended.

Seven Score and 10 Years Ago…

Here at the Roundtable, we attempt to hew closely to our mission of presenting conservative and libertarian musings on the intersection of law and policy, but there are certain days of reflection that call for a slight aberration.

There have been times in our history when an event is so significant that observers seek to commemorate the occasion almost instantaneously. This was the case on November 19, 1863. Not five months after the terrible and awesome Battle of Gettysburg, we gathered at a graveyard steps from the battlefield in Gettysburg Pennsylvania. Following a headline speech by Edward Everett (former President of Harvard, and alumnus), we heard a surprise two minute address–not speech— from a President whose mere election proximately caused the South’s secession. Greater historians and thinkers than I have provided a wealth of commentary and I encourage you to seek them out. Below are some other appraisals of today’s auspiciousness. But before reading the commentary, I think the most important thing to do on November 19, 2013 is to read the words spoken on November 19, 1863:

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met here on a great battlefield of that war. We have come to dedicate a portion of it, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense, we can not dedicate — we can not consecrate — we can not hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but can never forget what they did here.

It is for us, the living, rather to be dedicated here to the unfinished work which they have, thus far, so nobly carried on. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain; that this nation shall have a new birth of freedom; and that this government of the people, by the people, for the people, shall not perish from the earth.


After you’ve read and considered the words, I encourage you to look at some others’ commentary on it:

Bret Stephens (The Wall Street Journal): From ‘Four Score’ to ‘Yes, We Can!’

David Azerrad (The Heritage Foundation): Is Our Government Still “Of the People”?

Ken Burns: Learn the Address

USA TODAY (Video): Gettysburg Marks 150th Anniversary

Associated Press: Pa. Paper: Sorry for Panning Gettysburg Address

Penn Law Prof. Waxes Nostalgic about Bygone Moral Regulation

Christopher Dillon Liedl, Guest Writer

University of Pennsylvania Law School Professor, Amy Wax, delivered a talk entitled “Education, Marriage, and Class in America” to the Harvard Federalist Society this past Tuesday, October 29. A graduate of both Columbia Law School and Harvard Medical School, Professor Wax has been a professor at Penn since 2001 teaching courses on social welfare law and civil procedure.

Opening her talk with a discussion of contemporary family trends, Professor Wax observed how the conception of marriage has shifted over the last half-century from a cornerstone model upon which a successful life together would be built, to a capstone model, added to an already successful life. This higher bar to marriage, coupled with a better educated female population, has led to a shortage of “marriageable” men. As a result, men are increasingly “playing the field” rather than settling down, particularly in the black community where 74% of births occur out of wedlock. Paradoxically, while the cornerstone model of marriage has raised expectations for marriage, she notes that expectations for childbirth seem to have decreased.

While the rate for out-of-wedlock births among whites remains far lower than among blacks, white America is far from homogenous across income and education levels. Rather, in stark contrast to the traditional model, working class whites are much more likely than affluent whites not to marry and experience much higher divorce rates. Yet at the same time, low-wage immigrants still marry at high rates. Professor Wax poses the question, “why is white America coming apart?”

Professor Wax’s ultimate answer to this question is not economic, but moral: moral deregulation has allowed what was once a society tightly clustered around shared values and norms to diverge into a society with stark differences in outcomes between the top and bottom. Even if all members of society didn’t subscribe to the social mores (such as those prohibiting extra-marital childbirth or multi-partner fertility), they generally adhered to them. In Professor Wax’s opinion, this was the “great equalizer.” With the advent of the sexual revolution, this uniform regulation was thrown into chaos with those individuals less able to regulate themselves and their sexual behavior falling behind.

Parallel divergence can be observed with regards to norms about weight gain and overeating. Professor Wax describes the norms some 50 years ago as revolving around cooked sit-down meals, prohibiting snacking between meals, and discouraging seconds. These norms now exist only within sub-cultures; there is no longer the dominant pan-culture enforcing these norms. The result is wild divergence in eating habits and the accompanying physical consequences, with those individuals less able to control themselves more likely to become obese.

Professor Wax points to individual differences in local vs. global (short-term vs. long-term) decision-making as a key driver for this divergence. Take the example of infidelity in a relationship and assume that infidelity has a higher local value while fidelity has a higher global value. However, given that there is no single rational actor but rather a series of individual actors with individualized local-global preferences, an individual actor may constantly prefer local over global. This raises the question of whether cheating is truly a lapse in judgment or a way of life.

Professor Wax indicated that there is a strong correlation between socioeconomic status and local-global decision-making. This is likely because advanced education and the demanding jobs that require such education promote and rely on global thinking. An illustrative example was soldiers discharged from the military and offered either an annuity or a lump sum at a high discount rate. Those discharged soldiers from lower socioeconomic backgrounds were overwhelmingly more likely to accept the lump sum.

In Professor Wax’s view, the responsibility for rebuilding these elements of civil society that have been deconstructed lies beyond the purview of government. State services like welfare will ensure that people won’t starve, but it won’t help them advance or improve. Ultimately, government involvement can only tear down, not build up this moral structure. Instead, the ruling elites who set the tone of national policy need to find the courage to say that some things are better than others, that fathers have certain responsibilities, and that we need to make decisions more globally than locally. However, this is unlikely to happen because elites are doing just fine as inequality grows and the rich get richer. Elite cultural institutions are alive and vibrant; it’s the poor churches that are dying as working class whites practically stop attending. This if further unlikely to happen because of a growing reluctance to stigmatize ex post certain states (e.g., single motherhood), leading to an inability to make ex ante distinctions. Citing Ross Douthat’s Bad Religion, Professor Wax criticized modern religions that offer only therapeutic validation without any call to higher, better behavior. If social institutions are to repair the damage done to American moral capital and keep the bottom from spiraling further away from the rest of society, then Professor Wax would say they need to embrace the role of insisting on behaviors that run counter to the current individualist norm.

The Harvard Federalist Society Presents: “Private Management of Public Lands”

On Tuesday, November 5, 2013, The Harvard Federalist Society hosted John A. Baden, Ph.D., to speak on the topic “Private Management of Public Lands.” Baden is the founder and chairman of the Foundation for Research on Economics and the Environment (FREE) based in Bozeman, Montana. FREE promotes free market environmentalism as a way to protect national parks, forests, and wild lands. Matthew Stephenson, Harvard Law School professor, offered a response. Stephenson’s areas of interest include Administrative and Constitutional Law, as well as Environmental Law.

Baden’s discussion paralleled his recent paper, “Preserving America’s Wild-lands when Governments are Broke & Broken: A proposal for institutional and ecological entrepreneurship,” which specifically addresses the topic of free market environmentalism in light of the recent government shutdown. According to Baden, the traditional approach to the management of parks and wild lands—management by federal institutions—is failing, has been failing for some time, and is unsustainable in the future.

The reason for this failure is in an inherent problem of the approach: the politicization that necessarily accompanies federal management. According to Baden, the government shutdown at the beginning of October, during which national parks and monuments were closed to the public and veterans were turned away from the WWII memorial, is indicative of this problem and foreshadowing of future issues. We can expect that as pressures upon the federal government continue to increase, funds will be shifted to other resources and maintenance of federal lands will inevitably fall by the wayside.

Baden’s proposed solution to this predicament is the transfer of management of parks and wild lands to fiduciary trusts. He cited three major advantages of these trusts over management by politically dependent agencies: greater sustainability, more transparency, and a higher burden of proof. They offer greater sustainability than sustained yield laws because they are obligated to preserve the corpus of the trust. They are more transparent than freedom of information laws because they are legally obligated to open their books to the beneficiaries. Furthermore, in a challenge to management efforts by governmental agencies, the burden of proof is on the challenger; trustees, on the other hand, bear the burden of proof themselves.

In response, Stephenson questioned the true problems that Baden was attempting to solve by this proposed transfer of federal land management to fiduciary trusts. While politicization and poor management were the two primary concerns addressed by Baden, Stephenson argued that these were neither particularly strong issues nor the true catalysts behind Baden’s proposal. Although Baden asserted as incontestable the poor management record of federal agencies, Stephenson pushed back a bit on this, suggesting that it is not quite so clear that trusts would in fact do a better job than federal agencies in the management of these lands. Similarly, Stephenson posited that the politicization of land management might not be a significant issue either, particularly when compared to the politicization that exists in other agencies.

On the other hand, Stephenson saw Baden’s proposal as a way to address the issues of chronic long-term fiscal sustainability and acute overreaction to perceived fiscal problems. Although Stephenson questioned the degree to which these actually are issues, he acknowledged that to the extent that they do exist, the use of trusts might be a clever way to shield parks and wild lands from them.

In conclusion, however, Stephenson emphasized the need to evaluate the credibility of the commitment of these trusts to the management of parks and wild lands. How will trusts be designed? How will their success be measured? What kind of control will the government have over them? What if we do not like what they are doing? What if the government tries to take the land back? These questions should be taken into account if fiduciary trusts are to be given management responsibilities of parks and wild lands.

Baden’s article is available at http://www.free-eco.org/insights/article/preserving-americas-wild-lands-when-governments-are-broke-broken-proposal

My White Whale

Studying the law is demanding.  meaningfulhumblingrewardingwearying.  complex.  Learning from some of the most famous, respected, and brilliant professors and practitioners on the planet can be surreal.  For many of these folks, any and all lulls in activity can be filled with the law.  Seriously.  One professors told my class that he cracked the Sixth Amendment while sitting in traffic.  Certain professors have a gift for making otherwise opaque concepts or complex theories into simple and unavoidable conclusions.  Yet when these legal theories encounter legal doctrines, the results can be frustrating. For me, the Third Circuit’s opinion in United States v. Katzin yesterday nicely highlights this dissonance.

In Katzin, the Third Circuit considered a question left open by the 2012 United States Supreme Court opinion in United States v. Jones:[1] whether the police may attach a GPS device to an automobile and use the device to track the car’s location with probable cause but lacking an official warrant.  After the FBI and local police in Pennsylvania, Maryland, Delaware, and New Jersey (collectively, “the police”) observed Harry Katzin and his brothers in the vicinity of recently robbed pharmacies, the police placed a GPS tracker on his van.  The police observed the van’s movements and eventually apprehended the defendants with stolen merchandise which the government sought to admit into evidence at the ensuing trial.

The Third Circuit affirmed the District Court’s decision to exclude the evidence because it resulted from an unconstitutional search.  Supreme Court precedent requires a warrant for this search.  But taking the Fourth Amendment seriously–as I was taught–the Third Circuit not only got the holding wrong, but asked the wrong question to get there.

Rewind: In the second semester of 1L, I found myself studying criminal procedure with the quippy and brilliant Akhil Reed Amar.  If you haven’t read him yet, I highly recommend it.  Even if you’re uninterested in Constitutional analysis or textualism, his style is something to be admired.  (Particularly this article on Double Jeopardy).  Substantively, his interpretation of the Fourth Amendment is truly convincing, especially to my impressionable 1L self.  So when we moved from his interpretation (namely that the two sentences of the Fourth Amendment are wholly distinct pieces, and warrantless search is not per se unreasonable) to the case law, I was mystified that more jurists did not agree with my Professor.  ‘Amar’s interpretation is so clear,’ I thought, ‘why can’t the case law simply shift to this more elegant solution?’

Fast forward two years to when I am reading Katzin, asking the same question.

The Third Circuit had a two pronged discussion of  whether a warrant was required to attach a GPS monitor to Katzin’s van.  First, the court held that although the police had probable cause, “a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”  And second, GPS tracking does not fall into the automobile exception to the warrant requirement.  Thus, the warrant requirement reigns supreme.

The warrant requirement.  I was taught to cringe at this phrase as much as I cringe at the phrase “Separate but Equal.”[2]

As Professor Amar points out, “[T]he Fourth Amendment text most emphatically [does] not require warrants. . . .  The Warrant Clause says only when warrants may not issue, not when they may, or must. . . . In every state constitution prior to the federal Bill [of Rights], ‘the warrant is treated as an enemy, not a friend.’ No state convention proposes a warrant requirement for the federal Bill of Rights. And in early drafts of the federal Fourth, it is the loose warrant, not the warrantless intrusion, that is explicitly labeled ‘unreasonable.'” (footnotes omitted).  There is a probable cause requirement for the issuance of warrants, but the Fourth Amendment does not mandate that a magistrate sanction every search and seizure ex ante via a warrant.  Yet despite the elegance of Amar’s argument, and the trend of cutting back on the warrant requirement,[3] the warrant requirement is the law, and Professor Amar’s view is not.

After holding that the lack of warrant made the GPS tracking unreasonable, the Third Circuit went on (with Judge Van Antwerpen dissenting on this point) to exclude the apparently ill-gotten evidence under the Fourth Amendment’s exclusionary rule.  This rule was manufactured by the Supreme Court and applied against the States to deter Fourth Amendment violations.  The dissolution of this unnecessary and inefficient exclusionary rule is another of Professor Amar’s crusades.  “The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated,” he writes.  This goal, however, requires more systematic change,[4] so I have more sympathy for the reluctance of courts to do away with it entirely.

Most Roundtable Guests likely have many personal stories of frustration (please share them in the comments below!).  Practitioners among you may have had to eschew personal views before a judge or other adjudicative body.  As a law student, it can be frustrating when older theories outweigh more elegant approaches simply due to the precedential ossification of time.  On the other hand, having an idea of where I think the law ought to go creates a sense of purpose and duty.  So studying the law is…complex.

[1] In the simplest terms, the Court held in Jones that monitoring a car’s location through an external GPS device constituted a “search” under the Fourth Amendment due to the physical intrusion of the device.

[2] At least as applied from Plessy through Brown v. Board of Education.

[3] See, e.g., Terry v. Ohio.

[4] Professor Amar would rely on civil remedies to enforce the Fourth Amendment.  But, as he acknowledges, this would require changes to the current adjudication of § 1983 and Bivens suits:

“[Courts] need only interpret section 1983 to mean what it says—strict government-entity liability—and exercise their traditional remedial powers against federal officialdom. . . .  The deeply rooted power of judges to infer damage remedies for violations of constitutional norms was of course a strong theme of Justice Harlan’s careful and traditional concurring opinion in Bivens. . . .  Such actions enforce, rather than offend, the sovereignty of the People over officialdom.”

The Religion of Procedure

Though it may seem at odds with my intense patriotism, I spent the Columbus Day weekend in Paris, but—rest assured—my mind never strays too far from our topic on the Roundtable. On the flight back, I watched a few episodes of the riveting, thrilling, and smart HBO mini-series “Rome.” The show chronicles the transition from Ancient Rome’s republic to Julius Caesar’s dictatorship to his adoptive son’s reign as Augustus Caesar. I have seen the series many times before, but this weekend, one particular scene caught my attention in a new way.

To simplify the several complex plot lines, in the scene, the full Roman Senate sits with Consul Pompey Magnus presiding. The Senate is debating what to do about the renegade Julius Caesar and, in hard-line conservative Cato’s appellation, Caesar’s “illegal war.” Famed orator Cicero has calculated that if he leads his moderates to side with Cato’s anti-Caesarian resolution, Tribune Mark Antony will use his veto to prevent his patron and mentor Caesar from being named a public enemy. When Cicero votes, however, violence breaks out on the Senate floor, but the newly-elected Mark Antony, seemingly unaware of his veto power sits back smirking. Cicero, a procedural savant, calls to Mark Antony over the melee, who belatedly calls in his veto. When the fracas subsides, the presiding magistrate tells Cicero and Pompey that the veto was not counted because Mark Antony did not formally have the floor. Pompey scoffs at this, refusing to let Caesar’s status as a criminal be determined by a mere rule of procedure, to which the magistrate, with renewed energy responds that procedural rules are the most sacred in the republic.

What struck me about this scene was the mixing of religion and law. I subscribe to a view of the First and Fourteenth Amendments similar to that of Professors Akhil Amar and Noah Feldman, which does not require a strict separation of religious thought from local governments. Nevertheless, the notion that procedure could be of paramount religious importance had never before occurred to me—but even if it no longer carries the spiritual element, procedure is still supreme in American law. Indeed, where procedure is deemphasized, so too is the Constitution’s guarantee of “due process.” Thus, when thinkers opine on “The Little Rule Change By House Republicans That Guaranteed A Federal Shutdown,” the very essence of American law is attacked.

Procedural complaints arise often, and from the Right as well as the Left. And when advocates cannot win on the merits, seeking refuge in procedure can be a necessary element of zealous representation. Still, procedural rules are not subservient to substantive rights. Rules of procedure are never “little.” They are a double-edged sword that defends individuals from federal, state, and local governments in addition to fellow citizens. They did not descend from on high, but they are nevertheless foundational to a government of laws, and not men.

The First Monday in October

This October has certainly been unique thus far.  Between the Obamacare exchanges opening, the capture of Anas al-Libi in Libya, and the proposed secession of North Colorado, and of course the one-week-and-counting government shutdown, the United States citizens and their government are defying traditions this month.

Except at 1 First St. NE, Washington D.C.

Roundtable readers are likely aware that yesterday, like every “First Monday in October” since 1917, the nine Supreme Court Justices held their first oral arguments of the October 2013 Term.  Yesterday, they heard oral argument in Chadbourne & Park LLP v. Troice and Madigan v. Levin, and today’s docket was for Burt v. Titlow and McCutcheon v. FEC.  From now on, your Constitutional Law class will become increasingly obsolete.

There are many detailed Supreme Court previews, like USA Today’s, The Heritage Foundation’s, and the Federalist Society’s, our sister organization.  More generally, however, it seems that October Term 2013 won’t feature headline-grabbing decisions like NFIB v. Sebelius, or Hollingsworth v. Perry to the same degree as the past two years.  And we may not see an OT13 Running of the Interns.  But this term is not lacking in momentous Constitutional decisions.  In McCutcheon v. FEC, for example, the Court could obliterate an erstwhile tenet of political speech, that Congress can limit overall donations to political campaigns.  In NLRB v. Canning (argument date not set), the Nine will have to interpret the Recess Appointments Clause (Article II.3), which they have never done before according to a quick Westlaw search.

Despite this potential, the Court has been reluctant to hand down expansive, precedent-setting cases. Take NFIB v. Sebelius, for example, to listen to pundits, President Barack Obama’s signature legislation was upheld in its entirety.  But by carefully counting the votes in the Chief’s opinion and Justice Ruth Bader Ginsburg’s dissent concurrence, only Obamacare’s Individual Mandate was clearly upheld.  The rest of the law, and whether the Commerce Clause has grown, shrunk, or stayed the same remains an open question of law.  Or consider Hollingsworth v. Perry, if your understanding of the case derived from Facebook posts, you might have thought that the Supreme Court had declared same sex marriage legal throughout the nation, but the case was clearly much narrower.  Such incremental Constitutional law may be the hallmark of the Roberts Court, and this Term may be no different.  Indeed, SCOTUSblog reporter Lyle Deniston already discounts the possibility of the McCutcheon case producing a large constitutional holding based on today’s oral argument.  Still, this case could reopen the doors on political speech and allow every citizen to make his case as loudly and effectively as Oprah.

That is… as long as the Court stays open. The Court will eventually run out of money to keep its doors open during this shutdown—in fact, it will run out of money on October 15 when its “rainy day” fund is drained.  No matter what you think of the nine Justices, the Supreme Court, if not the federal judiciary is a cornerstone of democracy and the rule of law.  Whatever the outcome between the Democrats and Republicans on the Hill, let us hope that the Courts aren’t shuttered as well.




United States v. North Carolina

By Jonathan H. Levy

With Americans beginning to feel the effects of the latest government shutdown, it might seem that money drives our government.  But cash is closer to the car’s gasoline than its driver: gasoline powers the engine, but especially today, it is clear that the car, gasoline, and engine are useless without Messrs. Reid and Boehner in the driver’s seat, negotiating with each other.  This Shutdown Tuesday, I’m thinking about those drivers and the lawsuit Attorney General Eric Holder filed Monday in Greensboro, North Carolina, challenging the Tar Heel state’s Voter Information Verification Act, signed into law by Governor Pat McCrory on August 12, 2013.

When researching the suit, captioned United States v. North Carolina, I was initially surprised that not one article I read cited or linked to the actual law.  I once had a wise boss who, the morning of the NFIB v. Sebelius decision, told me to say nothing about the decision until I had read it.  In his immortal words, “Reading helps you know what you’re talking about.”  Obviously, I was not working for CNN or Fox.  I don’t want to rant about the importance of the text in statutory interpretation, nor do I allege that those authors I read did not actually read the law.  But the media ought to disseminate information and then comment upon it—in that order. The internet makes citations so easy that when one editorializes about a thing, he should encourage readers to judge the thing for themselves. I’ve already cited to the Act above but it’s so easy, I’ll do it again: Voter Information Verification Act.

The complaint speaks in racially charged language, noting for example, that no African-Americans voted for the legislation.  But thankfully, the complaint does not equate voter ID laws to poll taxes, as Mr. Holder claimed last year.  Such forbearance, however, does not indicate a strong foundation.

The Department of Justice’s complaint claims the Act has a discriminatory intent and purpose.  The Act’s leading section, codified in Article 14A of Chapter 163 of North Carolina’s General Statutes requires in-person voters to present one of several forms of valid identification.  Ripley Rand, United States Attorney for the Middle District of North Carolina, and Jocelyn Samuels, Acting Assistant Attorney General, Civil Rights Division, who signed the complaint, argue that because in 2010, black North Carolinians had “higher rates of poverty” than whites with less access to a DMV able to issue proper identification, the bill discriminates in effect and by design.  This allegation is half-hearted.  First, Justice offered a report by the State Board of Elections (“SBOE”) showing that about five percent of registered voters had no proper identification from the DMV.  The Complaint, however, omits an important qualification: that the SBOE does not account for people who lack DMV identification, but possess another valid form.  The original report clearly states this qualification, but Justice strategically omits it.  Thus, the Complaint speaks of a worst-case scenario.  But even so, the numbers do not clearly show discrimination.  For example, 14.3% of non-Hispanic black households in North Carolina lacked access to a vehicle, as compared to 4.3% of non-Hispanic white households.  It is therefore factually accurate to say that access to vehicles is disproportionate, but query whether this difference is statistically significant.

Next, the Complaint mentions in passing that the exhaustive list of valid identification is unnecessarily narrow and excludes, for example, utility bills and student identification from a North Carolina college.  Nevertheless, if the Act’s purpose is to match a face with a name, a utility bill is obviously insufficient, and student identification is overinclusive because international students, not eligible to vote, would carry such a card.

The rest of the Complaint deals with the restrictions on early voting, the elimination of preregistration, and the elimination of same-day registration.  Rand and Samuels again point to statistics about how African-Americans disproportionately use these erstwhile provisions.

According to the Justice Department, this disproportionate treatment amounts to discrimination because the North Carolina General Assembly heard and ignored testimony about such a disparate impact.  Set against a background of North Carolina’s racial discrimination and the fact that the legislature explicitly waited for the Shelby County v. Holder decision to pass the Act the uneven effect conclusively proves discrimination in violation of the Fourteenth and Fifteenth Amendments says the Justice Department.  The allegations thus rest on nothing but statistical conjecture.

Finally, it should be noted that the Department of Justice challenges these law under the Voting Rights Act—the very same Act some feared was gutted in the Shelby County decision.  Whether or not the specific allegations in United States v. North Carolina have merit, it is clear that Attorney General Holder has power to enforce the Voting Rights Act and ensure the widest franchise possible.

Preferencing based on race is reprehensible in all its forms.  But the basis of an allegation of racial discrimination cannot be res ipsa loquitor, much less ipse dixit.  Let us challenge our leaders to provide more proof before spending taxpayer dollars on such frivolous lawsuits.  Let us use our hard-won civil rights legislation to help eradicate discrimination to the extent required by humanity.  With such rights firmly secured, let us soon elect some drivers willing to serve us and cooperate with one another.