June 2011

  • June 16, 2011
    Guest Post

    By Seth Davis, Climenko Fellow (2011-2013), Harvard Law School


    For three decades the Rehnquist and Roberts Courts have worn away the foundations of Indian tribes’ sovereignty. Sometimes the signs of erosion are easy to spot. The Court recently held, for example, that tribes cannot prevent non-tribal banks from discriminating against tribal members.

    But sometimes the signs of potential collapse are hidden. The Court’s most recent federal Indian law decision, United States v. Jicarilla Apache Nation, is no page-turner. Andrew Cohen, one of the few commentators to note its potential significance, concludes the case seems “hardly sweeping.” That’s correct, insofar as the question presented was whether Indian tribes can invoke a fiduciary exception when seeking federal documents that are otherwise attorney-client privileged. The Federal Circuit held that, by virtue of the fiduciary exception, tribes have the right to see what the government’s attorneys are telling it about management of Indian trust funds. In a 7-1 decision, the Supreme Court reversed, holding that the United States can withhold documents containing legal advice regarding trust management from the tribal beneficiaries of trust funds. 

    Given that the case came up through the United States’ mandamus petition, it’s questionable whether the Court should have heard it. At the least, the Court could have resolved the narrow question before it with a narrow ruling, as Justice Ginsburg suggested in a concurrence

    Instead, however, the Court turned a case about the common law of evidence into one about whether the United States owes tribes any common law duties. 

  • June 15, 2011

    More than at any time in recent memory a public debate on the meaning of the Constitution and how to interpret it has been engaged by many, attracting some significant attention from news media that are more readily drawn to far less weighty matters.

    Tea Party activists have played a fairly large, if not misguided, role in heightening this discussion, but progressives have heartily joined the debate with a largely unified voice. There is, however, a vigorous discussion among progressives on how best to explain their understanding of the Constitution and constitutional interpretation.

    These competing visions over messaging of progressives’ vision of the Constitution and constitutional interpretation can be found in Democracy: A Journal of Ideas. The Democracy editors describe the parameters of the discussion here.

    Distinguished law school professors Geoffrey Stone, chair of the ACS Board, and William Marshall, a former ACS Board member, write in their article “The Framers’ Constitution,” that it is a time for an era of “principled constitutionalism,” in which constitutional interpretation is not seen as a “mechanical enterprise,” instead calling for judges to “exercise judgment.” To enter this era, the professors note that the right-wing method of interpreting the constitution, known as “originalism,” must be exposed as a flawed method, one that advances right-wing political concerns and has effectively convinced lots of people that interpreting the Constitution is as simple as staring for long periods of time at the text of the document.

    Doug Kendall, of the Constitutional Accountability Center, and University of Virginia law professor Jim Ryan, offer “new textualism,” as the progressives’ answer.   

    Stone (pictured), a law professor at the University of Chicago, and Marshall, a law professor at the University of North Carolina, write that the Framers of the Constitution created a founding charter “to endure,” by establishing “foundational principles that would sustain and guide the new nation into an uncertain future.”

    Stone and Marshall write:

    The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce…among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”

    Stone and Marshall continue that the Framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

    The professors then elaborate on how a right-wing legal movement has tirelessly worked to  undermine the Framers’ vision of enduring foundational values by successfully pushing the theory of “originalism,” which “presumes that courts should exercise judicial restraint unless the ‘original meaning’ of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women the same right, because that not he ‘original meaning’ of the clause.”

    And Stone and Marshall detail how originalism is “fundamentally flawed.”   

    Kendall and Ryan argue in their article, “The Case for New Textualism,” that a theory akin to originalism should be promoted as the progressives’ answer. They also assert that right-wing activists have dominated the discourse on the Constitution and constitutional interpretation for far too long, causing progressives to run from the Constitution.

    But Stone and Marshall say it is not a matter of being pinned in, maneuvered or chased away from the debate over the Constitution.

    Instead, they say, progressives must bring reason to the debate, including providing a sharp rebuke of the right wing’s flawed understandings of the Constitution and how its foundational values should be applied. Interpreting the Constitution and applying its enduring values in today’s society is not as mechanical as the Right has declared. Judging, the professors write, is in no way similar to the work of baseball umpires.

    Stone and Marshall in this response write, “Kendall and Ryan argue that the best way for liberals to win the public debate about the judiciary is to claim that liberals adhere to a ‘textualist’ understanding of constitutional interpretation that is akin to the conservatives’ ‘originalist’ theory. Such an approach, they suggest, will appeal to the public because of its seeming clarity and neutrality. They add that the ‘new textualism,’ properly applied, will lead to liberal results.”

    They conclude that “the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”

  • June 15, 2011

    The gay marriage movement scored two victories yesterday in California, with a federal district court judge rejecting conflict-of-interest allegations in the decision to strike down Proposition 8, and a bankruptcy court holding the Defense of Marriage Act unconstitutional.

    In federal district court, Chief U.S. District Judge James Ware held that his predecessor, Vaughn Walker, was not biased in his review of California’s same-sex marriage ban by the fact that he was in a long-term relationship with a man, the San Francisco Chronicle reports.

    "It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law solely because, as a citizen, the judge could be affected by the proceedings," Ware wrote.

    In U.S. Bankruptcy Court for the Central District of California, a judge issued a “rare and sweeping ruling” holding that two legally married men should be allowed to file for bankruptcy jointly and that the Defense of Marriage Act, which would have precluded joint filing, violates the couple’s equal protection rights under the due process clause of the Fifth Amendment, The Recorder reports.

    “In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple,” Judge Thomas Donovan wrote.

    Eighteen of Donovan’s 24 colleagues signed onto his ruling, which Penn State Law’s Samuel Bufford, a former bankruptcy judge on that court, called “highly unusual.”

    The ruling on Proposition 8 was much less surprising, with legal ethics experts from across the political spectrum dismissing the challenge as “specious as well as desperate,” as Slate’s Dahlia Lithwick put it.

  • June 14, 2011

    In the midst of new objections from some Republican members of Congress to a patent reform bill recently approved by the House Judiciary Committee, ACS has released a new Issue Brief on the measure at issue in the bill, “Short Term Pain for Long Term Gain: Why Congress Should Stop Diverting U.S. Patent and Trademark Office User Fees.”

    In the Issue Brief, American Continental Group, Inc. Partner Marla Page Grossman explains the importance of ending fee diversion, a practice in which funds paid by patent and trademark applicants are diverted to other programs and agencies “entirely unrelated to the [U.S. Patent and Trademark Office],” significantly slowing down the approval process and thwarting innovation.

    A provision to end fee diversion is contained in the America Invents Act, which was passed by the Senate and approved by the House Judiciary Committee with broad bipartisan support. But the provision encountered new opposition just last week, when House Appropriations Chairman Harold Rogers and House Budget Chairman Paul Ryan sent a letter to House Judiciary Chairman Lamar Smith opposing the fee diversion provision because it would hand “the Congressional power of the purse” to the Obama administration.

    In the days that followed, “[i]t was Republican leaders who fired back,” Grossman explains, with Rep. Lamar Smith responding that “contrary to putting the USPTO on auto-pilot, H.R. 1249 would actually promote accountability and transparency, creating more channels for oversight than currently exist,” and Sen. Tom Coburn asserting, “[w]e cannot have true patent reform without ending fee diversion and providing the PTO with a permanent, consistent source of funding” and that the “power of the purse does not provide Congress authority of non-taxpayer funds.”

    The Chamber of Commerce also expressed public support for the fee diversion provision this week, and more than 150 companies, schools and groups, including GE and Apple, submitted a letter reiterating the necessity of this provision.

    In her Issue Brief, Grossman explains the importance of encouraging innovation through the patent system to spur needed economic growth, demonstrates the inefficiency and unfairness that comes from diverting patent fees paid by users, and presents a number of ways in which the USPTO could maintain control of their own fees, the best of which “is incorporated in this Congress‘s patent reform bills.”

    She concludes:

    USPTO fee diversion must stop, and must be stopped now, to ensure that the USPTO can engage in the stable, long-term planning necessary for the issuance of timely, high-quality patents. The best legislative solutions will necessitate congressional appropriators prioritizing U.S. innovation, jobs and the economy over “inside the Beltway” politics. But good policies often come with painful politics. If Congress can handle a little pain in the short term, the nation will likely be rewarded with a more efficient USPTO and national prosperity over the long term.

    Read Grossman’s Issue Brief here and read a previous guest post by Grossman on this issue here.

  • June 14, 2011
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center


    In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:

    This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.

    Is it remarkable that Pawlenty (pictured) supports appointing conservative justices to the Supreme Court?  Of course not.  But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution.  After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.”  That’s pretty hard to do if you don’t know what the Constitution says. 

    The Constitution’s 14th Amendmentprovides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This language plainly lays out a constitutional rule of citizenship at birth.  No question. 

    Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right.  But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens.  Such a claim would be flat wrong as well.

    In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil.  (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue.  Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)