James Madison

  • March 20, 2013
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law, Saint Paul, Minnesota. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    As most readers realize, the Supreme Court asked all parties in both of the upcoming marriage cases to brief and argue issues of standing. The possibility that either or both of the cases could be dismissed on the basis of a lack of Article III standing should therefore be taken seriously. 

    In particular, regarding the Prop 8 case, Hollingsworth v. Perry, I have given some thought to a 2011 opinion of the California Supreme Court that specifically addressed the standing of the Prop 8 proponents.   The Prop 8 proponents emphasize this California opinion in defending their standing before the U.S. Supreme Court. However, in this posting I assert that the U.S. Supreme Court should not give any substantial weight to the California Supreme Court’s opinion.

    To start with, I’ll say that dismissal for lack of standing in either or both of the cases could have at least a modestly positive result for same-sex marriage rights. A lack of standing in either case would be attributed to the litigants petitioning the Court in opposition to same-sex marriage.  Failure of standing would thus go against the opponents of same-sex marriage. Contrarily, any such dismissal is most likely to favor, at least to some extent, the litigants who are advancing same sex-marriage. For those of us supporting same-sex marriage rights, that would most likely be a positive development. 

    By the same token, however, any such dismissal would also probably result in a relatively narrow ruling with relatively limited effects. That is, in the Prop 8 case, dismissal for the proponents’ lack of standing could result in the reinstatement of the District Court’s determination that Prop 8 is unconstitutional. But such a result would not necessarily affect the constitutionality of similar propositions adopted in other states. 

  • October 22, 2012

    by Joseph Jerome

    Mitt Romney recently opened up a 7-point lead according to a Gallup tracking poll nationally over President Obama among likely voters, but the Obama campaign was hardly concerned, and not just because the Gallup poll is an outlier among a slew of national tracking polls. “We don’t care about national polls,” White House senior adviser David Plouffe explained. Why? Because while the campaign expresses “deep respect for voters in New York and Alabama” it says most states simply do not matter because “they’re red or blue.” In the pivotal swing states necessary for a victory in the contest that really matters – the race to 270 electoral votes – the Obama campaign may have built a firewall.

    Once more, the peculiarities of the Electoral College have the potential of making a mockery of our democratic process. Jamie Raskin, state senator from decidedly blue-state Maryland, argued on ACSblog that our “weird lottery” incentivizes partisan mischief and electoral corruption in a handful of states to swing elections. Already in Ohio, which pundits suggest is the top prize of the 2012 presidential election, a court battle over the state’s bizarre early voting restrictions reached the Supreme Court, and The New York Times previously accused state election officials of overt discrimination against minorities.

    The importance placed on the Electoral College also limits the scope of presidential campaigns.  In any given presidential election, in fact, two-thirds of the states will not be contested by one campaign or the other. Worse, the number of Americans whose vote actually matters is shrinking.  In 1960, there were 24 battleground states. By 2004, just thirteen. This fall, only nine states are actually being contested by the two presidential campaigns. “Every indication is that this will be the geographically narrowest campaign in modern American history,” FairVote’s Andie Levien writes

  • September 18, 2012

    by John Schachter. This post is part of an ACSblog Constitution Day Symposium.

    Wanna know whom I feel sorry for? William Hill Brown, Sir William Herschel, and Father John Carroll. Each chalked up a noteworthy achievement, yet none receives the appropriate attention or accolades because of unfortunate timing. Students across this country – even students of history – would be hard-pressed to recognize any of these three gentlemen.

    Brown published the first American novel, “Power of Sympathy," in January 1789. In August and September that same year, Herschel discovered Enceladus and Mimas, Saturn's respective moon and satellite. And Carroll, in November 1789, became the first Catholic bishop in the United States thanks to his appointment by Pope Pius VI.

    But do we celebrate these fine achievements? Are we preparing to celebrate the anniversary of the first American novel, first Catholic bishop or discovery of Saturn’s orbits? No. Because 1789, in American books and minds, belongs to the U.S. Constitution. To the exclusion of other worldly events, 1789 is all Constitution, all the time. (Francophiles may note that French Revolution garners some worthy attention.) Thanks to the late Sen. Robert Byrd (D-W.Va.) we actually celebrate 1787 -- when the Constitution was written and adopted by the Constitutional Convention -- more so than 1789 -- when the Constitution took effect. So this year is big, what with it being the founding document’s bicenvicenquinquennial. Or is it the quinta-semicentury? Or maybe the sesquicentennial-semicentury-quarterquell? OK, let’s just stick with the 225th anniversary.

  • April 1, 2010
    Guest Post

    By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief, and Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project

    Last week, a federal district court in Massachusetts ruled that an ACLU challenge to the government's use of taxpayer dollars to impose religious doctrine on victims of human trafficking may go forward. The decision is a victory for women's health and for the basic constitutional principle that federal dollars cannot be used to favor one religious perspective over all others.

    Since April 2006, the Department of Health and Human Services (HHS) has awarded the United States Conference of Catholic Bishops (USCCB) millions of dollars to make grants to organizations that provide direct services to trafficking victims. HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services. We brought a lawsuit on behalf of the members of the ACLU of Massachusetts who object to their tax dollars being used for religious purposes.

    Shortly after we sued, the government asked that the court dismiss the case. The government argued that taxpayers couldn't bring the lawsuit. They argued that only, for example, a trafficking victim could raise an objection.