• June 14, 2016
    Corporate Citizen?
    An Argument for the Separation of Corporation and State
    Ciara Torres-Spelliscy

    by Ciara Torres-Spelliscy, Associate Professor of Law at Stetson University College of Law; Brennan Center Fellow.

    Corporations are strange bedfellows to have in a democracy. My new book, Corporate Citizen?, explores how, over the course of American history, corporations have aggressively sought to expand their constitutional rights.  And, American courts, especially the U.S. Supreme Court, have often obliged - enabling the slow, yet steady, expansion of corporate rights since near the founding of the nation. But the current Roberts Supreme Court has taken this enabler role to new heights and earned the nickname the “Corporate Court” because of its solicitude towards corporate litigants. 

    My basic thesis in Corporate Citizen? is that corporations have gained more rights that previously, and appropriately, only applied to human beings, like religious and political speech rights. This could have been palatable if human style responsibilities were also being given to corporations. Instead corporations get to have their cake and eat it too. They are spared concomitant responsibilities, as they are given a First Amendment veto to shoot down reasonable regulations of their economic activity.

    By contrast, when we conceptualize real (human) citizenship, typically there are a cluster of rights and responsibilities that are mixed together. We pay taxes, and we get a Congress to represent us. We serve on juries, and we get a fair trial. We sign up for the selective service (if we are men), and we get the protection of the military. If we are victims of a crime, we can seek justice. If we are guilty of committing a crime, we can expect to be held accountable under the rule of law.

    But with corporations, which are at their essence just a pile of papers, U.S. courts have granted them more and more rights, and then simultaneously, absolved many firms from responsibilities. The book examines the lack of accountability in areas including environmental stewardship, paying taxes and respecting human rights.

  • May 23, 2016
    Hurrah for Liberals
    How progressives defeated conservatives to create democracy, human rights, and safe modern life
    James A. Haught

    by James A. Haught, editor emeritus, The Charleston Gazette-Mail. This essay is drawn from his latest book, Hurrah for Liberals.

    In the chaotic presidential campaign, the remarkable popularity of Democratic Socialist Bernie Sanders spotlights a large, not-always-recognized vein of liberal political sympathy in America. Suddenly, the L-word is popular again ― not an embarrassment to be avoided. That’s great, I think, because progressives have been the driving force behind most social improvements in western civilization.

    Look at the historical record: In the three centuries since the Enlightenment, democracy, human rights, personal liberties and family wellbeing have blossomed. Life gradually became more decent and humane. Virtually all the advances were won by reform-minded liberals who defeated conservatives defending former hierarchies, privileges and inequalities.

    Conservatives tried to retain slavery, but they lost.

    They tried to block voting by women, but lost.

    They tried to prevent couples from using birth control, but lost.

    They tried to obstruct Social Security pensions for oldsters and the disabled, but lost.

    They tried to outlaw labor unions, but lost.

    They supported government-led prayer in school, but lost.

    They tried to continue throwing gays in prison, but lost.

    They tried to defeat Medicare and Medicaid, but lost.

    They fought against racial equality and tried to outlaw interracial marriage, but lost.

    They tried to censor sexy magazines, books and movies, but lost.

    They tried to halt same-sex marriage, but lost.

  • April 13, 2016
    The White House Vice Presidency
    The Path to Significance, Mondale to Biden
    Joel K. Goldstein

    by Joel K. Goldstein, Vincent C. Immel Professor of Law, Saint Louis University School of Law

    Discussions of constitutional theory tend to focus on the Constitution’s justiciable clauses. Yet much constitutional interpretation and change occurs in clauses the courts never consider. No American constitutional institution has experienced the positive trajectory of the vice presidency during the last 40 years. Building on developments especially during the prior quarter century, the vice presidency has gone from a disparaged legislative position and then a peripheral executive office to an integral part of the president’s inner circle. The White House Vice Presidency: The Path to Significance, Mondale to Biden describes this remarkable development, seeks to account for it, and explores what can be learned from it about the vice presidency, constitutional change and political leadership.

    The vice presidency had grown during the quarter century beginning with the vice presidency of Richard M. Nixon (1953-1961). Propelled by changes in American government that the New Deal, World War II and the Cold War initiated, the office moved into the executive branch during the six vice presidencies of Nixon through Nelson A. Rockefeller (1974-1977) and assumed a standard set of roles. The vice presidency became a coveted presidential springboard and a better source of presidential successors. Despite this progress, the office remained limited. Much of what vice presidents did was, in historian Arthur M. Schlesinger Jr.’s phrase, “make-work;” vice presidents were not part of the president’s inner circle and the office was pretty limited and vice presidents were pretty frustrated.

    The presidency of Jimmy Carter brought the creation of the White House Vice Presidency. By clinching the nomination early, Carter had time to systematically consider his vice-presidential options. Carter was predisposed to elevate the second office but was not immediately sure how to do so. Carter’s running mate, Walter F. Mondale, was extremely able and politically and personally compatible with Carter. In addition to contributing to Carter’s narrow election win, Mondale ultimately provided a new vision of the vice president as a general, senior presidential adviser and troubleshooter. Carter gave Mondale the resources he needed to succeed in that position and worked with Mondale to implement the new office.

  • March 25, 2016
    Engines of Liberty
    The Power of Citizen Activists to Make Constitutional Law
    David Cole

    by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law

    President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

    More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

    Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

    Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

  • March 1, 2016
    An Argument Open to All
    Reading "The Federalist" in the 21st Century
    Sanford Levinson

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

    Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

    So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

    My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.