ACSBlog

  • September 17, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.

    Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

    In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

    Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

    For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

    Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth. 

  • September 17, 2014

    by Paul Guequierre

    It has been apparent for quite some time that the U.S. Supreme Court will decide on marriage equality in the not-so-distant future. Since last year’s historic decisions striking down Section 3 of the Defense of Marriage Act (DOMA) and putting an end to California’s Prop. 8, court after court has struck down state marriage bans across the country.

    Last month Justice Ruth Bader Ginsburg said the court will not "[duck] the issue" if a marriage equality case comes properly before the court and predicted that would happen by June 2016 at the latest. Last night, Justice Ginsburg was talking marriage equality again. Speaking to an audience in Minnesota, the Associated Press reports Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court's timing. She said "there will be some urgency" if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

    Now the question is which case or cases will make it to the high court. The Associated Press reports Ginsburg didn't get into the merits of any particular case or any state's gay marriage ban, but she marveled at the "remarkable" shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.

  • September 17, 2014
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2014 Constitution Day symposium.

    Constitution Day, Wednesday, September 17, is a national day to celebrate the Constitution, but it also should be an occasion for critically appraising it and the government that it created. On September 17, 1787, the drafters of the Constitution signed the document and it was then submitted to the states for ratification. There is much to celebrate about the Constitution.  

    For 227 years, there has been democratic rule. The Constitution is a document that had enough certainty to create a working government and enough flexibility that although written for an agrarian slave society, it still can be used for the technological world of the early 21st century. It is a document that both creates power and provides checks on that authority. It protects basic values like separation of powers and freedom and liberty and due process of law.

    Yet any celebration of the Constitution needs to be tempered by recognition of its failures too. For the first 78 years of its existence, the Constitution explicitly protected the rights of slave owners. For 58 years, it was interpreted to approve Jim Crow laws that segregated every aspect of Southern life. The results are the enormous racial inequalities that exist today. According to the 2010 census, 27.22 percent of African-Americans live below the poverty level, compared with only 9.7 percent of whites. Thirty-five percent of all African-American children are in families below the poverty line.

    In a book to be published by Viking this month, The Case Against the Supreme Court, I argue that the Supreme Court deserves a good deal of the blame for the failure to deal with racial inequality throughout American history and today. In fact, my thesis is that the Supreme Court has largely failed throughout American history, especially at its most important tasks and at the most important times.

    The Supreme Court exists, above all, to enforce the Constitution against the will of the majority. The Court plays an especially important role in safeguarding the rights minorities of all types who should not have to rely on democratic majorities for protection. The Court also should be crucial in times of crisis in ensuring that the passions of the moment do not cause basic values to be compromised or lost.

    But the Court has had a dismal record of protecting minorities and has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that it had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their life long homes and placed in what President Franklin Roosevelt referred to as concentration camps. During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels and Lenin. In all of these instances, the Court erred badly and failed to enforce the Constitution.

  • September 17, 2014

    by Caroline Cox

    Congratulations to Mary L. Bonauto, member of the ACS Boston Lawyer Chapter Board of Advisors, and Jonathan Rapping, member of the ACS Georgia Lawyer Chapter Board of Advisors, on their selection as a 2014 MacArthur Fellow (commonly known as the MacArthur Genius award).

    Happy Constitution Day! Dahlia Lithwick of Slate examines the holiday and whether the celebration is itself unconstitutional.

    In The New York Times, Adam Liptak previews an upcoming Supreme Court case that examines the privacy of statements made during jury deliberations.

    Brian Bakst of The Associated Press reports on Justice Ruth Bader Ginsburg’s recent comments that a ruling on same-sex marriage from the U.S. Court for the Sixth Circuit could influence when the Supreme Court weighs in.

    In The New Yorker, Jeffrey Toobin explores how the standard of “undue burden” is disappearing from abortion rights debates and cases.

  • September 16, 2014
    BookTalk
    The Birth of American Law
    An Italian Philosopher and the American Revolution
    By: 
    John Bessler

    by John D. Bessler, Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center

    Two hundred and fifty years ago, a 26-year-old Italian thinker, Cesare Beccaria, published Dei delitti e delle pene, a book written in his native language. Translated into English three years later as On Crimes and Punishments, Beccaria’s slender, 1764 treatise called for proportion between crimes and punishments, quickly becoming an eighteenth-century bestseller. Also translated into French by André Morellet, the same man who later translated Thomas Jefferson’s Notes on the State of Virginia, Beccaria’s treatise—advocating clear and precise laws and opposing torture—became the first Enlightenment text to advocate the death penalty’s abolition.

    Beccaria’s influence on American law has long been neglected—as has the contribution of the Italian Enlightenment, or Illuminismo, to early American thought. In fact, many of America’s founders studied Italian, were greatly inspired by Beccaria’s book, and read other Italian writers such as Gaetano Filangieri and Giacinto Dragonetti. They invoked Beccaria’s ideas in their speeches and writings and they relied on them in debates and in crafting early American constitutions and laws.  For example, Pennsylvania’s 1776 constitution declared that penal laws “shall be reformed by the legislature of this state, as soon as may be, and punishments made in some cases less sanguinary, and in general more proportionate to the crimes.”

    Beccaria’s book shaped American history. George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.” At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words. And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”