Friday, January 29, 2010

McDonald v. Chicago - Essay in Cardozo Law Review de novo Online Journal

The Cardozo Law Review de novo online journal just published my essay entitled "The Potentially Expansive Reach of McDonald v. Chicago: Enabling the Privileges or Immunities Clause," in a feature it entitles "Firearms, Inc." The essay may be seen here.

The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.

Saturday, January 23, 2010

Health Care; Corporate Speech Case

I'm on deadline trying to finish a book, but just a few thoughts about the Massachusetts election and the Supreme Court corporate speech case:

-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.

On this topic see also Paul Krugman in the Times in "Do the Right Thing":

"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."

-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.

Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.

It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.

Monday, January 18, 2010

Same-Sex Marriage Case in California

In "An Odd Couple Defends Couples That Some (Oddly) Find Odd" in yesterday's New York Times, Maureen Dowd describes the intriguing lawyer-team of Ted Olsen and David Boies (former adversaries in the 2000 Bush v. Gore case), who are now arguing together against the constitutionality of California's Proposition 8 in the U.S. District Court in California.

“'Ted Olson and David Boies, so what are they up to?'” Dowd reports Olson mock querying, "summarizing the confusion and conspiracy theories that their union inspired.

"As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: 'We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.'

"Boies, wearing a flag pin on his lapel, said that the state of California is engaged in 'gay bashing.' He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: 'These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.'

"Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: 'Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.' ...

"'I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,' he said. 'We’re not treating them like Americans. We’re not treating them like citizens.'

"Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ....

"'I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,' Boies said. 'It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.'"

Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today's discrimination against same-sex marriage with similar disbelief.

Dowd continues: "The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience 'weakens our moral fiber in this country.'

"While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

"I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“'Damned right,' Boies snapped. 'I hope my Democratic president will catch up to my conservative Republican co-counsel.'

"Olson added: 'I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’

"Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about."

Saturday, January 2, 2010

Terrific WaPo Farewell Column by Ellen Goodman

After 46 years as a journalist (34 years of them writing OpEds for the Washington Post Writers Group), columnist Ellen Goodman is retiring; and she writes a terrific farewell column in yesterday's Washington Post.

Pondering what will be her response to the inevitable "what will you do now?" queries, she considers "coopt[ing] Susan Stamberg's one-word answer when she left her anchor post at NPR: 'Less.'" She is "more tempted to say, simply, 'We'll see.' After 46 years of deadlines," she concludes, "it is time to take in some oxygen, to breathe and consider."

Ms. Goodman recalls a column from three decades earlier, when she had written of another's retirement:

"'There's a trick to the Graceful Exit. It begins with the vision to recognize when a job, a life stage, a relationship is over -- and to let go. It means leaving what's over without denying its validity or its past importance in our lives.'

"'It involves a sense of future, a belief that every exit line is an entry, that we are moving on rather than out.'

"It was an odd experience to hear, let alone heed, my younger self.

"'The trick of retiring well may be the trick of living well,' I wrote back then. 'It's hard to recognize that life isn't a holding action, but a process. It's hard to learn that we don't leave the best parts of ourselves behind, back in the dugout or the office. We own what we learned back there. The experiences and the growth are grafted onto our lives. And when we exit, we can take ourselves along -- quite gracefully.'"

So what are Ms. Goodman's final concluding words in this final concluding column?

"[My younger self] knew then what I know much more intimately now," she observes. "So, with her blessing, I will let myself go. And go for it."

Well-done, Ellen Goodman, and godspeed.