Constitutional Interpretation and Change

  • December 8, 2017
    Guest Post

    by Douglas NeJaime, Professor of Law, Yale Law School and Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

    *This piece was originally published on Take Care Blog.

    Masterpiece Cakeshop v. Colorado Civil Rights Commission is framed narrowly—as a case about whether making a wedding cake is expressive conduct or whether religious individuals should be exempted from laws protecting same-sex couples. But this narrow view of the case misses its real stakes. The Alliance Defending Freedom (ADF, formerly Alliance Defense Fund), which represents Masterpiece Cakeshop, is driving the litigation and many similar cases around the country. ADF is not interested in a narrow resolution to a narrow question; rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.

  • December 6, 2017
    Guest Post

    by Steven D. Schwinn, Professor of Law, the John Marshall Law School

    *Read the full Supreme Court Review here.

    We are thrilled to bring you this inaugural edition of the American Constitution Society Supreme Court Term Review. In these pages, you’ll find a series of outstanding critical essays, penned by the nation’s top legal scholars and practitioners, on the most important cases and themes from the Supreme Court’s October 2016 Term. You’ll also find a splendid Foreword, written by Dean Erwin Chemerinsky, that puts these cases and themes in the broader context of key happenings and trends at the Court.

    In the many panels and reviews of the Court’s October 2016 Term, we sometimes heard that the Term was unremarkable, with no Big Blockbuster cases, no significant changes in the law, and no notable impacts on major political issues—at least as compared to so many other recent Terms. Many said that this was the direct result of an eight-member, equally divided Bench for most of the Term. That is: the Court was reluctant to take on major controversial cases without a full staffing.

  • December 4, 2017
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    On Tuesday, the Supreme Court will hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case centers on a cake, but at stake is the future of LBGTQ civil rights. The main issue is whether Colorado’s public accommodations law violates the Free Speech Clause.

    Jack Phillips, owner of Masterpiece Cakeshop, refused to sell his baking services to Charlie Craig and David Mullins, a Denver couple seeking a wedding cake. He was fined for violating Colorado’s public accommodations law, which bans discrimination on the basis of sexual orientation in places open to the public. Phillips is religiously opposed to same-sex marriage, and believes that to avoid condoning same-sex marriage, Jesus himself would refuse to employ his carpentry skills to make a bed for this couple. Phillips argues that forcing him to make a cake for Craig and Mullins would violate the Free Speech Clause by compelling him to use his creative talents to express approval of same-sex marriage. He is wrong.

  • December 4, 2017
    Guest Post

    *by Taru Taylor, 3L at Case Western Reserve University School of Law, President at ACS CWRU Student Chapter

    What texts should the American Constitution Society use to introduce its members to progressive constitutional values? I mean besides our nation’s founding texts, The U.S. Constitution and The Declaration of Independence as well as The Federalist Papers.

    First principles are in order. “Alternative facts” derange political discourse. Soundbite screaming matches mock Socratic dialogue. Yellow journalism dumbs down public opinion. We’re in a cold civil war of red states and blue states.

    We need principled idealists to wake us up from our dogmatic slumbers. Our liberal/conservative debate must again approach civility. For productive conversation and mutual constructive criticism, it’s high time that ACS reframe the national debate. To this end, I move that two books initiate ACS members into the mysteries of constitutional law: Associate Justice William Douglas’ Points of Rebellion and Associate Justice Hugo Black’s A Constitutional Faith.

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.