February 2010

  • February 26, 2010
    Following an ACS event exploring the legal and political fallout of the Supreme Court's recent corporate campaign finance decision, constitutional law expert William P. Marshall talked with ACSblog about the ruling and the Roberts Court. Marshall, a law professor at the University of North Carolina School of Law and member of the ACS Board of Directors, said the decision in Citizens Untied v. FEC shows that "although the Roberts Court is conservative politically, it indicates that it is not a conservative court, judicially."

    "This is one of the more activist decisions we've seen in sometime," Marshall said. He noted that the decision, which said corporations, may spend freely on elections, "put in doubt over a hundred years of legislation dealing with the regulation of corporate activity in campaigns."

    Marshall moderated a panel discussion, including Jan W. Baran, Laurence E. Gold, James S. Portnoy, Joseph E. Sandler and Monica Youn, at the National Press Club on Citizens United. Video of the discussion is here. Watch Marshall's interview with ACSblog below or download of podcast of it here.

  • February 26, 2010
    The preeminent constitutional scholar and ACS Board of Advisors member Laurence H. Tribe will join the Department of Justice to lead "an effort focused on increasing legal access for the poor," The Washington Post and National Public Radio (NPR) report.

    Tribe, the Carl M. Loeb University Professor at Harvard Law School, will serve as "a senior counselor for access to justice," The Post reported. NPR noted in its coverage that "one of the top constitutional lawyers in the country is taking a leave of absence from Harvard to spearhead" the "Access to Justice" initiative. The announcement of the position follows a recent Justice Department "National Symposium on Indigent Defense," which explored ways to improve the nation's faltering indigent defense system.

    Tribe (pictured) will start work at DOJ next week and "will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer - a circumstance known in legal terms as indigent defense." Listen to NPR's full story here.

    In 1963, the U.S. Supreme Court ruled in its landmark Gideon v. Wainwright decision that the Sixth Amendment provides a fundamental right to counsel for defendants, including those unable to afford legal representation. Writing for the majority in Gideon, Justice Hugo Black maintained, the Sixth Amendment means that "in federal courts, counsel must be provided for defendants unable to employ counsel unless that right is completely and intelligently waived."

  • February 25, 2010
    Rising Road
    A True Tale of Love, Race and Religion in America
    Sharon Davies

    By Sharon Davies, John C. Elam/Vorys Sater Designated Professor of Law, Moritz College of Law, The Ohio State University

    Rising Road is one of those books that happened by accident; a chance occurrence on the way to somewhere else.

    After the outcome of the election in 2004, when the country was abuzz with reports of how the question of gay marriage drove President George W. Bush's supporters from their homes to the voting booths, I began to think about law and marriage, and the way of constitutional change.

    It was a topic of great personal importance to me, law and marriage. Had my parents been swayed by the marriage laws that were still in place in various states at the time of my birth, I would never have been born. Neither would any of my five brothers or sisters. It was the era of the anti-miscegenation laws. The simple act of having us was a crime, a number of states declared, and they backed the ban up with the criminal sanction. Defiant mixed race couples could be jailed.

    I was nearly seven-years-old by the time the U.S. Supreme Court finally got around to striking those laws down. Seems my siblings and I weren't crimes after all. It was the law that was wrong, the Court announced in Loving v. Virginia in 1967. The decision was unanimous. Even Justice Hugo Black agreed, though a son of the South, the region of the country most steadfastly devoted to the anti-miscegenation regime.

    After the election in 2004, I wondered how constitutional change like that came about-how acts of intimacy, and marriage, and the wee beings that can result from them, could one day be outlawed, and another day not. I will write an article about that, I thought to myself, and set to work.

    When doing the researching for that intended article, however, the unexpected happened. I tripped over a reference to a 1921 trial in Birmingham, Alabama. A murder trial, where the marriage of the daughter of a Methodist minister to a Catholic migrant from Puerto Rico, led the minister to kill the Catholic priest who took their vows. How horrible, I thought. I'll use it as an example in my article.

  • February 25, 2010
    Guest Post

    By Ahilan T. Arulanantham, the Director of Immigrants' Rights and National Security at the ACLU of Southern California

    The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

    This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

    As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

    That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.

  • February 25, 2010

    The nation watches today as President Barack Obama takes on critics of reform at the bipartisan health care summit. The summit is ecclipsing other headlines, shutting down the scheduled Senate Judiciary Committee hearing and currently claiming two of the top 10 most-used terms on Twitter worldwide.

    While the president stressed the points on which broad agrement is shared, the conversation quickly shifted from what policies should be adopted to how reform should be passed. The opening speaker for Republicans, Sen. Lamar Alexander, shaped his remarks as an objection to reconciliation -- the parliamentary process by which the Senate may avert filibusters for issues of budgetary import.

    "Renounce this idea of going back to the Congress and jamming [it] through on a partisan vote through a little-used process we call reconciliation," Lamar told Democrats. "It's not appropriate to use [reconciliation] for 17 percent of the economy."

    Sen. Harry Reid quickly retorted that other avenues have been offered for passing reform. "Of course, it is not the only way out. But remember, since 1981, reconciliation has been used 21 times, mostly by Republicans .... Reconciliation isn't something that has never been done before," Reid said.