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  • September 22, 2014

    by Caroline Cox

    Walter Shapiro argues for the Brennan Center blog that the U.S. Court for the Seventh Circuit’s decision on the Wisconsin voter ID law is judicially ordered chaos.

    In the Los Angeles Times, David G. Savage discusses Justice Ruth Bader Ginsburg’s difficult retirement choice.

    The Economist’s Democracy in America blog explains the unlikely alliance of pro-choicers and pro-lifers in the Young v. United Parcel Service case.

    Lisa W. Foderaro reports in The New York Times on the People’s Climate March protest in New York City.

    ACS Board Member, Judge Nancy Gertner (Ret.) writes in the National Law Journal on U.S. District Judge John Bates’ letter to the Senate Judiciary and Intelligence Committee.

    Zephyr Teachout argues in Salon that through decisions such as Citizens United, the Supreme Court has legalized corruption. 

  • September 19, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

    On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

    Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

    This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

    To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

    Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.

  • September 19, 2014

    by Rebekah DeHaven

    Over the August recess President Obama announced several new judicial nominations:

    John Robert Blakey, to the Northern District of Illinois;

    Jorge Luis Alonso, to the Northern District of Illinois;

    Jeanne E. Davidson, to the U.S. Court of International Trade; and

    Haywood Stirling Gilliam, to the Northern District of California.

    On Monday, September 8 the Senate returned from recess and the past two weeks saw a flurry of judicial nominations activity. On Monday, September 8, the Senate voted 97-0 to confirm Jill Pryor to the Eleventh Circuit (Ga.). Pryor was a partner at Bondurant, Mixson & Elmore LLP in Atlanta. The seat she filled had been vacant since August of 2010. A New York Times article discussed President Obama’s legacy of having re-shaped the appellate bench.

  • September 19, 2014
    BookTalk
    Buying The Vote
    A History of Campaign Finance Reform
    By: 
    Robert E. Mutch

    by Billy Corriher, Director of Research for Legal Progress, Center for American Progress  

    Early on in Robert Mutch's book, Buying the Vote: A History of Campaign Finance Reform, the identity of the villain is clear. Mutch describes the campaign finance reformers of the early twentieth century as focused on keeping corporations from exerting too much influence on politics and politicians. As large corporations first emerged, the public debated the proper role of these institutions in our democracy. After a series of scandals, early reformers' goals included "keeping corporate money out of elections and preventing the inequality of wealth from undermining political equality among individual citizens."

    Mutch also clearly disagrees with the current U.S. Supreme Court's approach to campaign finance reform. But unlike so much commentary today, Mutch provides rich context for his critique. He begins with early campaign finance scandals and the small triumphs of reformers like Louise Overacker. The early reformers achieved some victories, after the public learned that "the country's major political parties were being financed by" large corporations. New laws led to disclosure of campaign contributors and bans on corporate campaign cash.

    The second wave of reforms came in the wake of Nixon's secret receipt of campaign contributions from corporations. But Mutch notes that, unlike the response to the first wave, opponents rushed to the courts to block the new laws. The definition of democracy as excluding corporations was challenged when "the enforcement provisions of the post-Watergate laws raised the possibility that the....reforms would be more than symbolic."

    In the face of campaign finance reform, environmental regulations, and consumer advocates, big business felt like it was under attack at the time. Justice Lewis Powell, while an attorney for the US Chamber of Commerce, wrote an infamous memo warning that business needed direct political action to counter the "assault on the enterprise system."

  • September 18, 2014

    by Jeremy Leaming

    Intending to provide privacy protections to consumers’ data stored on tech companies’ servers overseas or in cloud computing services, a bipartisan group of senators late today introduced legislation to amend the Electronic Communications Privacy Act (EPCA).

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) announced introduction of the Law Enforcement Access to Data Stored Abroad Act or the LEADS Act. A provision of the bill states that law enforcement offices must “obtain a warrant under the Electronic Communications Privacy Act (EPCA) to obtain the content of subscriber communications from an electronic communications or cloud computing service.”

    The bill comes as Microsoft is fighting in court a warrant from federal prosecutors seeking access to data stored oversees. Microsoft is arguing that the federal government cannot compel disclosure of data it stores in Ireland. Microsoft Bradford L. Smith told The New York Times earlier this year, “What is at stake is the privacy protection of individuals’ email and the ability of American tech companies to sustain trust around the world.” The Times noted that Apple, AT&T and Verizon have all filed briefs supporting Microsoft.