Geoffrey Stone

  • September 17, 2013
    Guest Post

    by William P. Marshall. Marshall is the William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law. Marshall is also an ACS Board member. This post is part of our 2013 Constitution Day symposium.

    For years, conservative thought has consistently claimed that its approach to constitutional interpretation meant following the Law, whatever the result. Conservatives, according to this mantra, were well, conservative, in the non-political sense of the term. Liberal constitutionalism, in contrast, was nothing more than “activist” decision making in which liberal judges simply “legislated from the bench” in order to reach favorable results. 

    Conservative thought in this respect was something of a moving target in that its description of improper judicial activism kept changing. At first, the term meant judicially overturning the actions of elected officials. Later, however, when that account of activism proved inconsistent with the conservative political agenda (think affirmative action or limits on the commerce power), the definition changed. Now, of course, after a brief but unsuccessful foray into attempting to define activism as decision making that veers from the Framers’ “original intent,” conservative thought asserts that activism means deviating from the Constitution’s “original understanding.”  As before, conservatives assert that they do not deviate from their principles no matter what results may follow. As before, conservatives consistently follow their principles, results notwithstanding -- except, or of course, when they don’t.  See e.g. Shelby County v. Holder; Citizens United v. FEC; Bush v. Gore; Adarand Construction Inc. v. Pena.

    Remarkably, however, despite both its erraticism and its disingenuousness, the conservative myth persists. In fact the notions that modern constitutionalism has taken us away from the true meaning of the Constitution and that the country requires a return to originalist principles has provided the narrative for not just legal thought but also for a major political movement – the tea party. And even though it can be readily shown that the method of constitutional interpretation that the tea party decries dates back to Chief Justice John Marshall and the early years of the Republic, their answer, apparently is that John Marshall is simply a part of the problem.

  • January 16, 2013

    by Jeremy Leaming

    Under increasingly outrageous attacks from the National Rifle Association, President Obama announced what The Huffington Post describes as “the most sweeping effort at gun control policy reform in a generation.”

    The president called for expanded background checks to include those obtaining guns from private sellers and gun shows, a ban on military-style assault weapons and armor-piercing bullets and a limit on high-capacity ammunition magazines. He also vowed to use executive orders to help stem gun violence.

    “In the days ahead, I intend to use whatever weight this office holds to make them a reality,” Obama said. “If there’s even one life that can be saved, then we’ve got an obligation to try.” (The White House’s website includes more information about the proposals; click on picture for video of president’s remarks.)

    The administration’s proposals follow New York’s enactment of some of the nation’s toughest measures to curb gun violence. Among other actions, the NY SAFE Act, signed into law by Gov. Andrew Cuomo, bans assault weapons and magazines that can hold more than seven rounds and requires instant background checks on all ammunition purchases.

    As noted here, and by The New York Times columnist Charles M. Blow, it is not only the NRA that is ratcheting up its attacks on efforts to curb gun violence. Extremists have jumped into the fray threatening violence over efforts to enact new gun control laws. As Blow wrote, they are employing incendiary language to stir up fear that the government is on the verge of trashing the Second Amendment and confiscating guns. He cites several examples, such as Fox News analyst Andrew P. Napolitano, who claimed that the Second Amendment was created to “protect your right to shoot tyrants if they take over the government.”

    Regardless of what extremists think of the Second Amendment, the Supreme Court has recognized an indiviudal right to own guns, but not it is not an unlimited right. Constitutional law expert Geoffrey Stone pointed out recently in a piece for The Huffington Post, that the Supreme Court majority in D.C. v. Heller, stated “the right secured by the Second Amendment is not unlimited,” and went on to note a string of common sense gun regulations that does not run afoul of the Second Amendment.

  • December 3, 2010
    While high-profile members of the Obama administration, including the president, have repeatedly knocked "Don't Ask, Don't Tell" as ineffective and discriminatory, the Justice Department has defended it in federal court causing plenty of consternation from opponents of the law. The administration has responded to the howls of indignation that it is following a longstanding policy of many administrations to defend congressional acts in the courts.

    Adam Winkler, a UCLA School of Law professor, in a piece for The Huffington Post asks whether it's possible "that the president is employing a wily, covert strategy that all but guarantees the courts will find the law unconstitutional?"

    Winkler notes the Pentagon report issued last week that includes a survey showing strong support among service members for repealing the law, which bars lesbians and gay men from serving openly. The Pentagon study also concluded that allowing gays to serve openly presents little risk to the military, and was accompanied by Secretary of Defense Robert Gates' call for Congress to act quickly to repeal the law. Obama also issued a press statement saying the policy "diminishes our military readiness," and "violates fundamental American principles of fairness and equality." As Winkler notes, Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have also issued similar statements.

    Winkler suggests that the administration's rhetoric calling for an end to "Don't Ask, Don't Tell," even as it defends the law in federal court might well be a strategy aimed at ensuring the law's demise. (Earlier this year, U.S. District Court Judge Virginia Phillips ruled that the law violates the Constitution's First and Fifth Amendments and issued an injunction against the policy. The Department of Justice appealed the ruling and won a stay of the injunction as the U.S. Court of Appeals for the Ninth Circuit considers the case.)

    Winkler writes:

    That's where these strong statements about how the law is unnecessary for military readiness and combat effectiveness come in. These could be seen as simply rhetorical flourishes designed to appease his base of support. President Obama may yet have another reason for the public comments. His statements and those of the top military officials could be designed to insure that courts strike down ‘Don't Ask, Don't Tell.'

    ...

    Obama's statements fundamentally undermine the argument that ‘Don't Ask, Don't Tell,' is required for military effectiveness. He's said, in fact, that the policy actually undermines that goal. So even though the Justice Department is arguing in court that the policy is needed, top military commanders, including the Commander-in-Chief, have admitted that the policy harms the military.

    University of Chicago School Law School Professor Geoffrey R. Stone, also an ACS Board member, noted in a piece for The Huffington Post that recent polling shows most Americans, including Republicans, strongly favor repealing "Don't Ask, Don't Tell." But he notes that stubborn opposition from Republican senators is making it likely that the courts may have the final say on the law.

    Stone writes:

    Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities.

    ...

    We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.

    In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority."

    Read Winkler's full commentary here. For a discussion of the history of "Don't Ask, Don't Tell," and the efforts to repeal it, see video of an ACS panel discussion here.

  • May 15, 2009

    Prof. Geoffrey Stone, member of the ACS Board of Directors, is expressing disappointment with President Obama's decision not to release further photos of detainee abuse that occurred under President Bush.

    Mr. Obama might argue that all that is at issue here are mere pictures. The American people already know (sort of) about the abuses themselves. The value of these images to robust public debate, he might argue, is therefore relatively slight. Of course, the same can be said about the harm from release of the photos.

    But the more important point is that visual images matter a lot in public discourse. Think, for example, about the response of the American people to such events as the Holocaust, the Mai Lai massacre, the use of fire hoses and riot police against peaceful civil rights demonstrators in the American South, and the photographs of Abu Ghraib. Without the reinforcing impact of those images, those events would never have had the effect they did on the American public. Here is another misleading adage: "What you don't know can't hurt you."

    President Obama is wrong on this issue, and he is wrong in a big way.