by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School
My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.
We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions and challenged Americans to rethink and reexamine their positions on issues they once thought settled. It is a story that has never before been told in its full sweep. And, best of all, it is about sex.
Stephen Susman, executive director of the Civil Jury Project at NYU School of Law, member of the ACS Board of Advisors, and former member of the ACS Board of Directors, was honored by Texas Lawyer with a Lifetime Achievement Award for his contribution to the Texas legal community.
In The Huffington Post, Geoffrey Stone, former ACS Board chair, current co-chair of the Chicago Lawyer Chapter Advisory Board, and a co-faculty advisor for the University of Chicago Law School Student Chapter, discusses the importance of academic freedom.
Sarah N. Lynch at Reuters reports that the U.S. Court of Appeals for the D.C. Circuit dismissed a Republican challenge to the Securities and Exchange Commission’s “pay-to-play” rule, arguing that they missed a key 60-day deadline to challenge the law when it first went into effect in 2010.
In The Washington Post, Terrence McCoy explains how unregulated structured settlement agreements allow companies to profit off of the poor and disabled. The practice is commonly aimed at poor, black Baltimoreans who have suffered from lead poisoning and are cognitively disabled, he reports.
by William P. Marshall. Marshall is the William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law. Marshall is also an ACS Board member. This post is part of our 2013 Constitution Day symposium.
For years, conservative thought has consistently claimed that its approach to constitutional interpretation meant following the Law, whatever the result. Conservatives, according to this mantra, were well, conservative, in the non-political sense of the term. Liberal constitutionalism, in contrast, was nothing more than “activist” decision making in which liberal judges simply “legislated from the bench” in order to reach favorable results.
Conservative thought in this respect was something of a moving target in that its description of improper judicial activism kept changing. At first, the term meant judicially overturning the actions of elected officials. Later, however, when that account of activism proved inconsistent with the conservative political agenda (think affirmative action or limits on the commerce power), the definition changed. Now, of course, after a brief but unsuccessful foray into attempting to define activism as decision making that veers from the Framers’ “original intent,” conservative thought asserts that activism means deviating from the Constitution’s “original understanding.” As before, conservatives assert that they do not deviate from their principles no matter what results may follow. As before, conservatives consistently follow their principles, results notwithstanding -- except, or of course, when they don’t. See e.g. Shelby County v. Holder; Citizens United v. FEC;Bush v. Gore; Adarand Construction Inc. v. Pena.
Remarkably, however, despite both its erraticism and its disingenuousness, the conservative myth persists. In fact the notions that modern constitutionalism has taken us away from the true meaning of the Constitution and that the country requires a return to originalist principles has provided the narrative for not just legal thought but also for a major political movement – the tea party. And even though it can be readily shown that the method of constitutional interpretation that the tea party decries dates back to Chief Justice John Marshall and the early years of the Republic, their answer, apparently is that John Marshall is simply a part of the problem.
The president called for expanded background checks to include those obtaining guns from private sellers and gun shows, a ban on military-style assault weapons and armor-piercing bullets and a limit on high-capacity ammunition magazines. He also vowed to use executive orders to help stem gun violence.
“In the days ahead, I intend to use whatever weight this office holds to make them a reality,” Obama said. “If there’s even one life that can be saved, then we’ve got an obligation to try.” (The White House’s website includes more information about the proposals; click on picture for video of president’s remarks.)
The administration’s proposals follow New York’s enactment of some of the nation’s toughest measures to curb gun violence. Among other actions, the NY SAFE Act, signed into law by Gov. Andrew Cuomo, bans assault weapons and magazines that can hold more than seven rounds and requires instant background checks on all ammunition purchases.
As noted here, and by The New York Times columnist Charles M. Blow, it is not only the NRA that is ratcheting up its attacks on efforts to curb gun violence. Extremists have jumped into the fray threatening violence over efforts to enact new gun control laws. As Blow wrote, they are employing incendiary language to stir up fear that the government is on the verge of trashing the Second Amendment and confiscating guns. He cites several examples, such as Fox News analyst Andrew P. Napolitano, who claimed that the Second Amendment was created to “protect your right to shoot tyrants if they take over the government.”
Regardless of what extremists think of the Second Amendment, the Supreme Court has recognized an indiviudal right to own guns, but not it is not an unlimited right. Constitutional law expert Geoffrey Stone pointed out recently in a piece for The Huffington Post, that the Supreme Court majority in D.C. v. Heller, stated “the right secured by the Second Amendment is not unlimited,” and went on to note a string of common sense gun regulations that does not run afoul of the Second Amendment.
While high-profile members of the Obama administration, including the president, have repeatedly knocked "Don't Ask, Don't Tell" as ineffective and discriminatory, the Justice Department has defended it in federal court causing plenty of consternation from opponents of the law. The administration has responded to the howls of indignation that it is following a longstanding policy of many administrations to defend congressional acts in the courts.
Winkler notes the Pentagon report issued last week that includes a survey showing strong support among service members for repealing the law, which bars lesbians and gay men from serving openly. The Pentagon study also concluded that allowing gays to serve openly presents little risk to the military, and was accompanied by Secretary of Defense Robert Gates' call for Congress to act quickly to repeal the law. Obama also issued a press statement saying the policy "diminishes our military readiness," and "violates fundamental American principles of fairness and equality." As Winkler notes, Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have also issued similar statements.
Winkler suggests that the administration's rhetoric calling for an end to "Don't Ask, Don't Tell," even as it defends the law in federal court might well be a strategy aimed at ensuring the law's demise. (Earlier this year, U.S. District Court Judge Virginia Phillips ruled that the law violates the Constitution's First and Fifth Amendments and issued an injunction against the policy. The Department of Justice appealed the ruling and won a stay of the injunction as the U.S. Court of Appeals for the Ninth Circuit considers the case.)
That's where these strong statements about how the law is unnecessary for military readiness and combat effectiveness come in. These could be seen as simply rhetorical flourishes designed to appease his base of support. President Obama may yet have another reason for the public comments. His statements and those of the top military officials could be designed to insure that courts strike down ‘Don't Ask, Don't Tell.'
Obama's statements fundamentally undermine the argument that ‘Don't Ask, Don't Tell,' is required for military effectiveness. He's said, in fact, that the policy actually undermines that goal. So even though the Justice Department is arguing in court that the policy is needed, top military commanders, including the Commander-in-Chief, have admitted that the policy harms the military.
University of Chicago School Law School Professor Geoffrey R. Stone, also an ACS Board member, noted in a piece for The Huffington Post that recent polling shows most Americans, including Republicans, strongly favor repealing "Don't Ask, Don't Tell." But he notes that stubborn opposition from Republican senators is making it likely that the courts may have the final say on the law.
Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities.
We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.
In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority."
Read Winkler's full commentary here. For a discussion of the history of "Don't Ask, Don't Tell," and the efforts to repeal it, see video of an ACS panel discussion here.