Fidelity to the Constitution

  • September 29, 2011
    Taking Liberties
    The War on Terror and the Erosion of American Democracy
    Susan N. Herman

    By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

    The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

    The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

    For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

    Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

    Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.

  • September 29, 2011
    Guest Post

    By Arthur Bryant, Executive Director, Public Justice. This post is cross-posted at Public Justice’s “Access To Justice Update.”

    The U.S. Supreme Court starts its new term the first Monday of every October – this year, October 3.  That’s when the Court opens for business. Sadly, a growing number of people believe that is who the Court is now open for.

    On December 27, 2010, The New York Times published an editorial “Temple of Justice,” that said the Supreme Court’s rulings “tend to deny rather than promote access to justice.” At almost the same time, the Constitutional Accountability Center released a study, Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court. It found a dramatic increase in the Chamber’s win percentage and the Court’s ideological divide under Justice Roberts. Shortly after that, the Alliance for Justice published Unprecedented Injustice: The Political Agenda of the Roberts Court, starting with a section on “Shielding Corporations from Liability.”  The Alliance now refers to the Supreme Court as “The Corporate Court.”

    The Court’s rulings last term heavily reinforced this perception.  To pick just (the worst?) three:

    • In AT&T Mobility v. Concepcion, the Court struck down 5-to-4 a California rule of law that stopped corporations from banning class actions against them for cheating large numbers of people out of individually small amounts of money. Isn’t that when class actions are most needed?

    • In Wal-Mart v. Dukes, the Court held 5-to-4 that a national class action could not be brought against the nation’s largest retailer for sex discrimination against its current and former women employees. If the company is discriminating – and evidence shows women workers there did far worse in pay and promotions than men – how is it to be held accountable?

    • In Pliva, Inc., v. Mensing, the same five members of the Court ruled that generic drug manufacturers cannot be sued for failing to warn of their drugs’ dangers, although name-brand manufacturers can be – even name-brand manufacturers of the same drug with the identical warning label. What sense does that make? Congress did not say it; the statue says nothing about this. Who does it help, except for the generic drug manufacturers?

  • 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.