• March 22, 2012
    The Revolutionary Constitution
    David J. Bodenhamer

    By David J. Bodenhamer, executive director of The Polis Center and a professor of history at Indiana University-Purdue University Indianapolis.

    When addressing the Harvard Law School Association in 1913, Oliver Wendell Holmes, Jr. worried that “that fear was translated into doctrines that had no proper place in the Constitution or the common law.”  His corrective was simple: “It seems to be at this time that we need education in the obvious more than the investigation of the obscure.” Although Holmes was speaking about socialism and judges he deemed “naïf and simple-minded,” his admonition seems equally appropriate for our own constitutionally contentious era. Of course, bitter disputes over the meaning of the Constitution are nothing new; they have been a hallmark of public discourse since the 39 signing delegates left Philadelphia. So other than a reminder that controversy and division are common to our history, what “education in the obvious” do we require today?

    We too often forget that the Constitution is a revolutionary document. It embodied a fundamental re-scripting of assumptions about government. Chief among them was the invention of popular sovereignty, a conception of the people as both rulers and ruled, or as John Jay noted, “sovereigns without subjects” who “had none to govern but themselves.” This concept was necessary to accommodate another innovation, federalism, which James Madison acknowledged was “unprecedented … It stands by itself.” But it was the only way to resolve the inconsistency of imperium in imperio, a sovereignty within a sovereignty. Over two centuries, these solutions, radical for their time (and for ours), have been instrumental in the development of a more democratic and egalitarian nation because once marginalized and excluded groups demanded to be counted among the people who ruled themselves. And they usually succeeded first in the states, Brandeis’s famed “laboratories of democracy,” before the nation-at-large accepted their claims. But as often happens with revolutionary legacies, there is a counter-narrative to this progressive story. The inventions of popular sovereignty and federalism also have produced great mischief: they have offered a veneer of legitimacy to a variety of “isms”— racism, nativism, separatism, and the like — that acted to deny liberty rather than advance it.

  • March 2, 2012

    by Nicole Flatow

    Lower-court challenges to state anti-immigrant laws are continuing to make their way through the courts, even as the U.S. Supreme Court prepares to hear a challenge to Arizona’s law, SB 1070.

    On Wednesday, U.S. District Judge Susan Bolton blocked another portion of the Arizona law that prohibits those seeking or offering day labor services from blocking traffic.

    In granting a preliminary injunction, Bolton said the plaintiffs were likely to prevail in their claim that the provision violates the First Amendment, because the law appears to limit particular speech, rather than regulating traffic generally.

    "The adoption of a content-based ban on speech indicates that the Legislature did not draft these provisions after careful evaluation of the burden on free speech," Bolton wrote.

    On Thursday, the U.S. Court of Appeals for the Eleventh Circuit heard oral arguments in challenges to two other anti-immigration laws in Alabama and Georgia, and announced that it would not decide the case until after the Supreme Court issues its decision.

    Discussing the Alabama law, which The New York Times called “the country’s cruelest, most unforgiving immigration law,” Judge Beverly Martin questioned whether the requirement that school officials determine the immigration status of students interferes with students’ constitutional right to a public education.

    The duty of public schools to educate children regardless of legal status was established by the Supreme Court 30 years ago in Plyler v. Doe.

    Considering the Georgia law, Judge Charles Wilson expressed concern over the burden imposed on the federal government by a provision that would authorize local officials to investigate the immigration status of “suspects” and to detain them, The Atlanta Journal-Constitution reports.

    “I wonder what the increased burden would be on the Department of Homeland Security to respond to all these data-gathering requests.” he said. “You would have to create an entirely new bureaucracy, wouldn’t you, just to respond to these requests?”

    During a recent American Constitution Society immigration symposium in Atlanta, Judge U.W. Clemon (pictured), the former chief judge of the U.S. District Court for the Northern District of Alabama, called the movement to pass these new state laws “just another manifestation of the hatred and disdain on the part of white republican state legislators for people who don’t look or sound like them.” He continued: 

  • December 16, 2011

    by Jeremy Leaming

    Just because the Supreme Court upheld Arizona’s law penalizing businesses for hiring undocumented workers, does not mean the state’s controversial, and exceedingly harsh, anti-immigrant law, SB 1070, is destined for approval by the justices.

    In an ACS Issue Brief, Pratheepan Gulasekaram, a Santa Clara University law school professor, explains why the Supreme Court’s narrow opinion in Chamber of Commerce v. Whiting issued in May, will likely have no bearing on the justices’ consideration of SB 1070.

    The law at the center of the Whiting opinion, the Legal Arizona Workers Act (LAWA), requires Arizona businesses to use the federal E-Verify system to ensure their employees are legally in the country, and penalizes those companies that hire undocumented workers. The 5-3 majority in Whiting concluded that Arizona’s E-Verify law was not preempted by the federal Immigration Reform and Control Act, which states that it trumps “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” undocumented workers. The majority concluded the licensing law, did not run afoul of the IRCA.

    Professor Gulasekaram calls it is a mistake to conclude that Whiting means Arizona’s SB 1070, much of which was invalidated by the U.S. Court of Appeals for the Ninth Circuit, is likely to be found constitutional by the high court.

    Instead Supreme Court precedent stands “for the proposition that state regulation of employment relationships between state employers and unlawfully present persons is permissible, if the federal government has not otherwise prohibited it,” Gulasekaram writes. That precedent, he continues, actually suggests it is most likely that he the high court will “strike down state immigration schemes like SB 1070.”

    Although both Arizona laws are aimed at making life difficult for undocumented persons in the state, only the law dealing with the employer-employee relationship, LAWA, is not preempted by federal immigration law. Indeed, the professor writes, “federal law contemplates the existence of state business-licensing laws through a textual exception in federal immigration law itself. And, even with this express exception, Whiting is neither a unanimous nor far-reaching opinion. At most Whiting stands for the proposition that state business-licensing laws that regulate employers will not reflexively be struck down.”

    But SB 1070, which requires state law enforcement officials to take on duties of federal immigration enforcement officials, is another story.

  • November 14, 2011
    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.

  • August 22, 2011

    by Nicole Flatow

    Although the recent appeals court decision striking down the individual coverage provision of the Affordable Care Act was a blow to health insurance reform, it’s important to recognize the victory in this case: that some 950 pages of the law were upheld, Washington & Lee law professor Timothy Jost said during an American Constitution Society phone briefing about Affordable Care Act litigation.

    “I think that the bottom line news from this case is that the federal government and the states should proceed with implementing the Affordable Care Act,” Jost said, noting that this case was an appeal from a lower court decision striking down the entire law, and that the plaintiffs had specifically challenged a Medicaid expansion provision that the U.S. Court of Appeals for the Eleventh Circuit upheld.

    “It’s clear after this decision that there’s no decision out there holding the entire law to be unconstitutional and I’m not even sure that the Supreme Court is going to take a close look at that,” he said. “I rather doubt that they will.”

    The appeals court decision does all but assure that the Supreme Court will consider the constitutionality of the law’s so-called individual coverage provision, which requires that most individuals buy health insurance or pay a penalty. (The court came to the opposite conclusion of the U.S. Court of Appeals for the Sixth Circuit, creating a split between two federal appeals courts.)

    Both Jost and University of Chicago law professor Geoffrey R. Stone, who also spoke during the briefing, predicted that the Supreme Court would uphold the decision, possibly with a majority of as many as eight justices. Based on precedent on the Constitution’s commerce clause, Stone reasoned, deciding this case is easy.