Fidelity to the Constitution

  • September 28, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

    On October 3rd at 10 am, the Supreme Court will hear, at its very first oral argument of the new term, a case of vital importance to low-income individuals who rely on safety-net programs, such as health insurance through the federal Medicaid program. The case, Douglas v. Independent Living Center, addresses whether people with limited income and resources can sue states that enact laws which conflict with federal Medicaid requirements, the same way that businesses sue states to challenge state consumer protection laws. The Supreme Court has declined to hear the merits of the Douglas case, not taking the question of whether the slashing of Medicaid reimbursement rates by California violated federal law. The only issue before the Supreme Court is whether the Supremacy Clause of the Constitution – commonly invoked by businesses challenging state environmental or consumer protection laws – applies to the claims of poor people, including low income older adults, who were unable to obtain medication from pharmacies due to the reimbursement rates being below cost.

    As in many cases that have denied disadvantaged individuals court access, the case involves a technical legal principle that doesn’t make for a great sound bite on the evening news. Specifically, the lawyers on Monday will debate whether beneficiaries of federal safety net programs, like Medicaid, are protected by the Supremacy Clause of the Constitution. That fundamental provision says that the “Constitution and the laws of the United States shall be the supreme law of the land, anything in the constitutions or laws of any State to the contrary notwithstanding.” The federal courts, including the Supreme Court, routinely permit businesses to get into court to argue that state consumer and worker protections conflict with federal laws, and, hence, must be “preempted,” i.e., invalidated. And all the federal circuit courts of appeal have held that that there is no basis in the text of the Constitution or in prior case law for denying low income individuals the same access to courts as businesses.

  • September 21, 2011
    Guest Post

    By Jamil Dakwar, director of the ACLU's Human Rights Program. This is a cross-post from the ACLU's Blog of Rights.

    Many people in the United States and around the world remember the horrific events of September 11, 2001 as some of the worst crimes against humanity of the last decade. These attacks savagely flouted the fundamental values of international human rights.

    While the international community was united behind the U.S. call to bring those responsible to justice, the struggle against terrorism — hardly a new enterprise — took a wrong turn towards undermining the international legal frameworks and accountability mechanisms that were developed after World War II.

  • September 19, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Jamie Raskin, is a law professor at American University’s Washington College of Law, and a Lecturer at Yale Law School and a Maryland State Senator.  He co-founded the Marshall-Brennan Constitutional Literacy Project in 1999 with Professor Steve Wermiel. A Senior Fellow at People for the American Way, Professor Raskin is the author of We the Students: Supreme Court Cases for and About America’s Students.  He can be reached at

    If we don’t expect all romantic love to take place on Valentine’s Day or all gratitude to be expressed on Thanksgiving, why do we expect all public constitutional learning to take place on Constitution Day?   Surely no single day can bear the weight of this important endeavor.

    Tea Party activists have shown that constitutional advocacy throughout the year will be heard. The problem with their work is that the public cannot disentangle their constitutional claims from their political agenda. The Tea Partiers’ doctrinaire teachings about the Constitution only work for people who already agree with their politics.

    America needs a continuing program of non-partisan education about the nature of the Constitution and Bill of Rights. The American Constitution Society keeps lawyers and law students engaged through a program called Constitution in the Classroom. Since 2006, ACS has activated its extensive national network of lawyers and law students to visit high school, middle school and elementary school students and teach them non-dogmatic and non-ideological lessons about the Constitution.

    But one of ACS’ key partners in this effort -- the Marshall-Brennan Constitutional Literacy Project -- takes the Constitution directly into America’s high schools on a daily basis throughout the school year, teaching a full-blown course in “constitutional literacy” to young people.

    Across the country, from Boston to Baton Rouge to the Bay area, hundreds of law students from 16 different law schools are sharing their passion for the Constitution with students the age of their young brothers and sisters. They wake up early and, with no pay and precious little recognition, spread out to teach thousands of high school students--not once a year, but two or three times every week--before going to classes of their own.

    These unsung constitutional champions--law students at eighteen different schools, from American University to Yale--are the Marshall-Brennan Fellows. Launched at AU’s Washington College of Law (WCL) in 1999 with the widows and families of the late Supreme Court Justices Thurgood Marshall and William Brennan, the Project is designed not to bewail our nation’s overly-documented civic illiteracy, but to engage young people about what it actually means to be a democratic citizen.  Rather than lamenting that more teens know the names of the Three Stooges or the Backstreet Boys than can name the rights contained in the First Amendment--a favorite Constitution Day pastime of pollsters and drive-by pundits, the Marshall-Brennan Fellows are doing something impressive about it.

  • September 16, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow

    The role of U.S. courts as a “corrective for the dangers of majoritarian abuse” has been stymied by conservatives and originalists, University of Chicago Board Chair Geoffrey R. Stone explains in a video interview with ACSblog.

    “I think one of the real problems that we have had in the last 40 years in the United States is that conservatives have effectively taken control of the public discourse and the academic discourse about the proper role of courts and of constitutional interpretation,” says Stone, chair of the American Constitution Society Board of Directors.

    This is dangerous not just because originalism and judicial restraint are “wrongheaded” on their own terms, but also because conservatives are misleading people about what the courts are actually doing, he explains.

    “The public actually tends to believe that conservative judges and justices behave in a way that can be explained and justified in terms of judicial restraint and originalism when in fact, the actual jurisprudence of the existing majority on the Supreme Court and many Republican-appointed judges on the lower courts does in fact not fit,” he continues.

    This problem is the subject of a new ACS Issue Brief by Stone and University of North Carolina law professor Bill Marshall, The Framers' Constitution: Toward a Theory of Principled Constitutionalism, which discusses how progressives can reframe the discussion about the Constitution and the courts.

    The Framers’ Constitution … is designed to illustrate why [originalism and judicial restraint] are deeply flawed, and why they don’t in fact put forth a coherent or persuasive theory of constitutional interpretation,” Stone explains.

    Watch the interview below.

  • September 16, 2011

    by Nicole Flatow

    Supporting the U.S. Constitution “requires more than chanting slogans at a political rally,” Rep. Bruce I. Braley said in a statement recognizing Constitution Day.

    Emphasizing the document’s critical significance to American democracy, Braley urged those who wish to understand the Constitution to review “the whole document and what it means to our country,” rather than “just the portions that fit neatly with your personal political philosophy.”

    In a second statement on the House floor, Rep. Steve Cohen linked the Constitution’s rights and principles to critical moments in our history.

    “When I think of the Constitution, I think of Dr. Martin Luther King and the right to peacefully assemble, which is enshrined in the First Amendment,” he said. “That meant he could go to Selma, he could come to Washington and fight for civil rights and secure those rights for the people of this nation. I also think of women’s rights embodied in the Nineteenth Amendment when women were given the right to vote.”

    Tomorrow is the 224th anniversary of the U.S. Constitution, but many are observing the Constitution Day holiday today.

    During Constitution Week, ACS has continued its tradition of teaching a new generation of students about our founding document through the Constitution in the Classroom program.

    But this year, ACS has also launched a series of webinars geared toward adults, “What the Constitution Means and How to Interpret It.” The second webinar in the series will feature University of North Carolina law professor Bill Marshall, discussing the ACS Issue Brief released this week, The Framers' Constitution: Toward a Theory of Principled Constitutionalism.

    For more Constitution Week reading, see ACSblog’s Constitution Week Symposium, and two columns by ACS Executive Director Caroline Fredrickson, one in The Tennessean and another in The Huffington Post.