• May 10, 2012
    Building the Judiciary
    Law, Courts, and the Politics of Institutional Development
    Justin Crowe

    By Justin Crowe, an assistant professor of political science at Williams College

    Gee, for a one-time constitutional law professor, Barack Obama sure does seem to harbor a lot of hostility for judges. (And, judging [a legal pun — ha!] by Samuel Alito and Jerry Smith, they for him.) Doesn’t he? First there was the broadside at his 2011 State of the Union criticizing the Court's decision in Citizens United, prompting Alito's now-infamous “not true” moment. Next there was his claim that the Court wouldn't dare strike down the Affordable Care Act as unconstitutional, prompting Smith’s surely soon-to-be-infamous order to a DOJ lawyer for a memo outlining the Justice Department’s views on judicial review. For all his claims about “due deference to the separation of powers” and supposed belief in the importance of an independent judiciary to protect the rights of citizens and the rule of law, it appears Obama only likes the Court — only likes the judiciary more broadly — when it agrees with him. And surely that sort of “anti-judgeite” perspective is a terrible one for American constitutionalism and American democracy. Right?

    Well, yes — sort of ... and no, not at all. In a sense, Obama only really values judicial power to the extent that its exercise comports with his policy preferences. But, at base, who doesn’t? Presidents always want — have always wanted — courts to bend to their will. And politicians generally always try — have always tried — to shape courts to serve their interests. So what? Does this really “politicize” the judiciary in some needless, inappropriate, and harmful way? Does it really demonstrate that judicial power — that judicial independence, that law itself — is somehow perpetually under political siege? Not even remotely.

    As I attempt to show in my recent book, Building the Judiciary: Law, Courts, and the Politics of Institutional Development, any claims that judicial power — that judicial autonomy or judicial independence — has ever been, in any meaningful sense, beyond the sphere of politics are fundamentally incorrect.

  • April 26, 2012
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston

    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.

  • April 12, 2012
    Immigration Nation
    Raids, Detentions, and Deportations in Post-9/11 America
    Tanya Maria Golash-Boza

    By Tanya Golash-Boza, an associate professor of sociology and American studies at the University of Kansas

    A critical debate among immigrant rights advocates is whether the battle for immigrants’ rights should invoke human rights or civil rights. The advantage to the civil rights option is that these rights are legally viable in U.S. courts. However, there are severe limits to this approach.

    The United States has a strong tradition of civil and political rights, yet, unlike most other nations, it does not give much weight to the social, economic, or cultural rights that are central to the human rights tradition. This means that much of the human rights tradition has no legal foundation in the United States.

    The importance of civil rights in legal debates over immigration policy is evident in the current conversation about Arizona’s Senate Bill (S.B.) 1070, and the related Supreme Court case: Arizona v. United States. Oral arguments in this case will be heard on April 25, 2012, and a decision is expected sometime after that.

    In the controversy over the Arizona laws, critics have claimed that S.B. 1070 would violate the civil rights of Latinos in the state, as they would be subject to racial profiling. These claims were upheld in court when Judge Susan Bolton of the Federal District Court ruled on July 28, 2010 that Arizona police officers would not be able to check the immigration status of people during the course of stops, detentions, and arrests, as S.B. 1070 had mandated. Her ruling also blocked provisions that allowed police officers to hold anyone arrested for any crime until their immigration status was determined. This ruling is based on the prohibition against arbitrary detention in the U.S. Constitution – a political right. Other provisions blocked by Judge Bolton’s injunction include: 1) the warrantless arrest of anyone suspected of having committed a removable offense, 2) those that made it a crime to fail to apply for or carry alien registration papers, and 3) those that made it a crime for undocumented migrants to solicit, apply for, or perform work.

    These rulings marked a gain for the civil and political rights of Latinos and other immigrants in Arizona. If the Supreme Court decides to uphold the injunction, this will be a clear win for the civil and political rights of immigrants in the United States. However, this win would only be a small step towards the realization of the human rights of immigrants.

  • March 29, 2012
    America's 51 Constitutions and the Crisis of Governance
    Sanford Levinson

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

    I am immensely grateful to be invited to discuss my new book, Framed: America’s 51 Constitutions and the Crisis of Governance, to the readers of ACSblog. I have crafted these comments in a way that highlights what may be an important difference between my take on the Constitution and that of many of my friends in the ACS. Although many, perhaps most of us, share the perception that the contemporary United States is increasingly caught in a “crisis of governance,” attention tends to be addressed at the defects of particular leaders, including, of course, the present majority of the United States Supreme Court. There is much with which I agree in the vision of The Constitution in 2020  set out in the book co-edited by my friends and casebook co-editors Jack Balkin and Reva Siegel.

    However, I believe that we cannot begin to diagnose the causes of our crisis by focusing only on what I call the Constitution of Conversation. It can also be described as the litigated Constitution, and it is litigated precisely because clever lawyers are highly skilled in demonstrating that the indeterminate language of, say, the Commerce or Equal Protection clauses of the Fourteenth Amendment, can be used to support a constitutional vision congruent with the collective goals of the lawyers’ clients or perhaps the lawyers themselves (if they are “cause lawyers”).  In any event, these conversations are known to all of us, and we see them being spelled out particularly passionately with regard to the Affordable Care Act.

    But the most important political realities of the Affordable Care Act are first that it took literally more than a half century to pass after initial proposals by Harry Truman and, secondly, that it is a defective bill in many respects with regard genuinely to getting a handle on the costs of a modern medical system. To explain these realities requires no conversation about the “meaning” of the Constitution. Rather, it requires addressing too-often-ignored “civics class” features of the United States Constitution. How does a bill become a law (or, more practically, why do most legislative proposals have only a snowballs chance in hell of being passed)? The answer lies in the almost insurmountable hurdles set up by the particular American system of bicameralism and the opportunity of presidents to veto any legislation they do not like on policy grounds, with the near impossibility of overrides. I will rejoice when the Supreme Court upholds the Affordable Care Act, as I still think is likely. But it should also be recognized that what the Court will be doing, at best, is saying that a mediocre, albeit necessary, piece of legislation is constitutional if it can run the minefield against progressive legislation established in 1787 and left remarkably unchanged since then. That is the importance of looking at the basic “framing” of the Constitution and the assumptions underlying it. It was designed by people who were basically mistrustful of popular democracy and, more particularly, redistributive legislation. They succeeded quite well in creating a political system that stifles both.

  • March 22, 2012
    The Revolutionary Constitution
    David J. Bodenhamer

    By David J. Bodenhamer, executive director of The Polis Center and a professor of history at Indiana University-Purdue University Indianapolis.

    When addressing the Harvard Law School Association in 1913, Oliver Wendell Holmes, Jr. worried that “that fear was translated into doctrines that had no proper place in the Constitution or the common law.”  His corrective was simple: “It seems to be at this time that we need education in the obvious more than the investigation of the obscure.” Although Holmes was speaking about socialism and judges he deemed “naïf and simple-minded,” his admonition seems equally appropriate for our own constitutionally contentious era. Of course, bitter disputes over the meaning of the Constitution are nothing new; they have been a hallmark of public discourse since the 39 signing delegates left Philadelphia. So other than a reminder that controversy and division are common to our history, what “education in the obvious” do we require today?

    We too often forget that the Constitution is a revolutionary document. It embodied a fundamental re-scripting of assumptions about government. Chief among them was the invention of popular sovereignty, a conception of the people as both rulers and ruled, or as John Jay noted, “sovereigns without subjects” who “had none to govern but themselves.” This concept was necessary to accommodate another innovation, federalism, which James Madison acknowledged was “unprecedented … It stands by itself.” But it was the only way to resolve the inconsistency of imperium in imperio, a sovereignty within a sovereignty. Over two centuries, these solutions, radical for their time (and for ours), have been instrumental in the development of a more democratic and egalitarian nation because once marginalized and excluded groups demanded to be counted among the people who ruled themselves. And they usually succeeded first in the states, Brandeis’s famed “laboratories of democracy,” before the nation-at-large accepted their claims. But as often happens with revolutionary legacies, there is a counter-narrative to this progressive story. The inventions of popular sovereignty and federalism also have produced great mischief: they have offered a veneer of legitimacy to a variety of “isms”— racism, nativism, separatism, and the like — that acted to deny liberty rather than advance it.