Pamela S. Karlan

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”  

     

  • January 10, 2012

    by Jeremy Leaming

    During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.

    “The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”

    Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.

    During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.

    “I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”

  • December 20, 2011

    by Jeremy Leaming

    The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”

    Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.

    Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.

    But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.

    “Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.

    “If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”

    Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”

    Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.

  • June 24, 2011

    In a piece for the Boston Review, Stanford University law school professor Pamela S. Karlan examines the Supreme Court’s changing view on the rights of corporations, concluding that the ruling in Citizens United v. FEC should not end the debate over the “constitutionality” of campaign finance regulation.

    Karlan, also an ACS Board member, notes that the Supreme Court a long, long time ago found that corporations “are entitled to constitutional protection, but not the same as human beings.”

    And in recent times under direction of a conservative Supreme bloc, Karlan notes that “when it comes to a willingness to restrict constitutional rights in the name of confidence in the democratic process, the Court’s decisions show a troubling and puzzling asymmetry in favor of corporations.”

    One of those areas of favoring corporate interests, of course, centers on campaign finance regulation. In Citizens United, the conservative high court bloc overturned precedent that found a compelling government interest in “preventing ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’”

    Karlan points to a “better argument” for limiting outlandish corporate spending on elections.

    She writes:

    Under current law the actual owners of corporations – their shareholders – have little say in how corporations make decisions in the political arena. That corporate managers might spend corporate funds not to maximize the shareholders’ welfare but to maximize their own is a very real danger. Many shares are owned by mutual funds and pension funds that in turn are owned by individual citizens who often have political convictions that go beyond maximizing the profitability of the corporations whose stock forms part of their retirement savings. What is more, those political commitments may be sharply at odds with the economic interests of the corporate managers who are making decisions about corporate political spending. The law should not force citizens to forgo beneficial investments in order to avoid subsidizing their political opponents.

  • January 21, 2011
    Tea Partiers and so-called "constitutionalists" have, to a large extent, successfully convinced swaths of the nation that they are the great defenders of the Constitution, and that all who disagree are crazed, unpatriotic or traitors, likely all three, writes Garrett Epps for The Nation.

    In "Stealing the Constitution," Epps, a correspondent for the Atlantic and a law professor at the University of Baltimore School of Law, notes the "toxic coalition of Fox News talking heads, radio hosts, angry ‘patriot' groups and power-hungry right-wing politicians" helping to fuel "poisonous rubbish" about the Constitution.

    The Tea Party and other fringe rightists are promoting a seriously cramped Constitution, one frozen in time and limiting of government. "It's easy to understand why conservative politicians and judges are trying to align their political program with a strained reading of the Constitution: Social Security, Medicare, environmental protection and aid to education have broad popular support. Even the healthcare program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process," Epps writes. (Indeed, the rightist majority of the House did pass a measure repealing the landmark health care reform law this week, but was quickly called on its blatant political posturing.)