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Methods of interpretation

January 3, 2012
Santorum, Same-Sex Marriage Nullification, and the Constitution
Guest Post

By Steve Sanders, who teaches Sexuality and the Law, Family Law, and Constitutional Litigation at the University of Michigan Law School.

Rick Santorum, the former Pennsylvania senator who currently sits near the top of the Republican presidential field, raised eyebrows over the weekend for comments to NBC’s Chuck Todd on same-sex marriage. It’s old news, of course, that Santorum opposes such marriages (he has compared them to child abuse and bestiality). What was noteworthy about these latest comments was Santorum’s casual observation that, under the sort of federal ban he supports, not only could new marriages not be performed, but all existing same-sex marriages would be nullified.

This comment largely disappeared into the rivers of hype and frivolousness coming out of this year’s Iowa caucuses. Nonetheless, it gives us the opportunity to think seriously about the difference between marriage creation and marriage nullification, and whether they differ as matters of civil rights and liberties. I address this topic in a forthcoming article in the Michigan Law Review titled, “The Constitutional Right to (Keep Your) Same-Sex Marriage.”

If a federal constitutional ban on same-sex marriage were approved, Santorum was asked, “What would you do with same-sex couples who got married? Would you make them get divorced?” He replied, “Well, their marriage would be invalid. I think if the Constitution says ‘marriages are this,’ then people whose marriage is not consistent with the constitution….” At that point, he literally shrugged. (See the video here.)

Granted, Rick Santorum is no one’s constitutional scholar. Still, it is stunning when someone who is being taken seriously as a presidential candidate (at least for this week) literally shrugs at the idea that the federal government might unilaterally void more than 130,000 perfectly legal marriages. After all, as a federal court observed in 1949, the “policy of the civilized world, is to sustain marriages, not to upset them.” Imagine the indignities and the hellish disruptions to lives, children, and property rights that Santorum’s policy would create.

Then, ponder the fact that right now we have laws in a majority of states that do pretty much the same thing.

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Civil rights, Fidelity to the Constitution, Methods of interpretation, Supreme Court, Individual liberties, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Separation of Powers and Federalism, Defense of Marriage Act, Guest Post, Rick Santorum, Same-sex marriage
December 15, 2011
Former Bush AGs Slam Gingrich’s Attacks on Courts
by Nicole Flatow

Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.

Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges."

In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.

On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."

Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation.

“If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Times editorial board asserts.

In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.” She continues:

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Civil rights, Executive power, Judicial independence, Methods of interpretation, Supreme Court, Other courts, Racial justice, Constitutional Interpretation and Change, Judicial Nominations, Separation of Powers and Federalism, Alberto Gonzales, Cooper v. Aaron, Michael Mukasey, Newt Gingrich
November 29, 2011
The Roberts Court’s Free Speech Double Standard
Guest Post

By Monica Youn, the Brennan Center Constitutional Fellow at NYU School of Law, and the editor of Money, Politics and the Constitution: Beyond Citizens United.

That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.” Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom.

Ben Sachs’ forthcoming Columbia Law Review article, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

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Campaign finance, Fidelity to the Constitution, Methods of interpretation, Speech and expression, Supreme Court, Constitutional Interpretation and Change, Democracy and Voting, First Amendment, Ben Sachs, Citizens United, Guest Post, Monica Youn, Roberts Court
November 22, 2011
Justice Ginsburg’s Take on Originalism
by Nicole Flatow

”I’m here as the official representative of the dark side,” Rutgers University law professor Earl Maltz said during a recent event commemorating the landmark gender equality Supreme Court decision Reed v. Reed.

Maltz does not think Reed was righty decided, because, per his “originalist” approach, the drafters of the Fourteenth Amendment did not contemplate that the equal protection provision would prohibit sex discrimination.

But U.S. Supreme Court Justice Ruth Bader Ginsburg, the featured speaker at the event, had an answer for Maltz’s brand of originalism, highlighted by ABC News.

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Methods of interpretation, Originalism, Constitutional Interpretation and Change, Fourteenth Amendment, Justice Ruth Bader Ginsburg, Reed v. Reed
November 14, 2011
Why Justice Kennedy Will Vote to Uphold the Health Care Reform Law
Guest Post

By Fazal Khan, a law professor at the University of Georgia specializing in health law. Prof. Khan has both law and medical degrees.

Today the U.S. Supreme Court confirmed what most of us expected, announcing that it will review the constitutionality of the Affordable Care Act. As the justices begin to deliberate, they would be wise to look to a masterful amicus brief by prominent constitutional law scholar Kathleen Sullivan as a meaningful template for Supreme Court action.

Sullivan’s brief, in which she asks the Court to grant cert in the 11th Circuit case that the justices today accepted, addresses those arguments most likely to concern Justice Anthony Kennedy, the swing vote on the Court, and provides ample support from Justice Kennedy’s record to suggest he will and should vote to uphold the law. Before detailing the arguments in Sullivan’s brief, filed on behalf of the California Endowment ("a private foundation committed to the expansion of affordable, quality health care for all Californians"), I summarize below how we reached this point.

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Tags:
Fidelity to the Constitution, Methods of interpretation, Federalism, Commerce clause, Supreme Court, Other courts, Separation of powers, Constitutional Interpretation and Change, Separation of Powers and Federalism, Affordable Care Act, Guest Post, health care, Health Care Reform

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