ACSBlog

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Pamela S. Karlan, ACS Board Member and Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

    “Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

    Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

    Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Walter Dellinger, ACS Board of Advisors Member, Douglas B. Maggs Professor Emeritus of Law, Duke University School of Law and Dawn Johnsen, ACS Board of Advisors Member and Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

    America’s increasing economic inequality threatens our liberal democracy. Economic inequality translates into political inequality and corrodes our democratic institutions and the viability of our Constitution. Ganesh Sitaraman describes these threats in his excellent new book, The Crisis of the Middle Class Constitution: Why Economic Inequality Threatens Our Republic. We need urgently to find innovative tools to counter the erosion of our foundational, shared belief in opportunity and fairness, the American Dream.

    It is time to begin a serious national debate about the wisdom and constitutionality of a federal tax on wealth – an annual tax of a small percentage of an individual taxpayer’s net worth in excess of some large minimum. Just for example:  a 1 percent annual tax on wealth in excess of 10 million dollars, which would affect less than 1 percent of Americans. We leave the details to those skilled in economic and tax policy. Nor do we have in mind the short-term political viability of such a tax in the current Congress – though we will note that in 1999 Donald Trump suggested a one-time 14.25 percent tax on net worth in excess of 10 million dollars.

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"

    by Kate Andrias, ACS Board of Academic Advisers Member and Assistant Professor of Law, University of Michigan Law School

    Ours is an economy and a political system from which many ordinary Americans feel excluded; they feel forgotten by those in power; and they worry that their opportunities are declining. Their perceptions are based in reality. Today, income inequality in the United States is at its highest level since the period leading up to the New Deal. The top 1 percent of earners in the United States take home nearly a quarter of our national income. Workers’ real wages have barely grown during recent decades, even as productivity and educational attainment have increased. The situation is most dire for people of color, particularly African Americans, but white men have also fallen behind, suffering mounting health problems and diminishing opportunities. Political inequality has soared as well. Numerous studies demonstrate the outsized influence of economic elites, both individuals and corporations, at every level of the legislative and administrative process. 

    Trump came to power in part because of these problems of economic and political inequality. His election, like others around the globe, reflected voters’—and nonvoters’—widespread dissatisfaction with political elites. Unfortunately, every indication is that the problems in the political economy that contributed to Trump’s victory will only grow worse under his watch.

    The inequality that helped produce Trump’s election represents a failure of American politics. It also represents a failure of U.S. constitutional law—or more precisely, judge-made constitutional doctrine. Constitutional doctrine contributes to, even facilitates, political and economic inequality in numerous ways. Campaign finance doctrine is the most notorious example. But paltry constitutional protections for workers’ rights to organize and strike are also to blame. Some scholars estimate that the decline in unionization in the United States is responsible for up to one-third of the climb in income inequality in recent decades. So too, the Supreme Court’s doctrine on poverty and education is at fault, having allowed, despite sound constitutional arguments to the contrary, a system of vast inequity in schooling to persist. Many other examples exist.  Here, too, things are likely to get worse under the Trump administration rather than better.

  • April 10, 2017
    Guest Post

    *This piece originally appeared in the Baltimore Sun.

    by Douglas F. Gansler, Former Attorney General of Maryland

    As the Maryland legislative session comes to a close, it is important to take note of one of the most significant accomplishments that occurred — the expansion of the Maryland attorney general's ability to challenge perceived unconstitutional and un-American maneuvers taken by the Trump administration "Maryland attorney general Frosh awarded expanded power to sue Trump administration," Feb. 15). As state attorneys general continue to emerge as the vanguard in the fight against the Trump administration, the Maryland Defense Act provides the attorney general with the same rights currently enjoyed by 41 other states and should be applauded.

    Previously, the attorney general had to seek the permission of the governor before instituting any lawsuit on behalf of the people of Maryland. For example, when Attorney General Brian Frosh requested Gov. Larry Hogan's permission to support other states' lawsuits against President Donald Trump's unconstitutional Muslim ban, the governor never granted that permission.

    In fact, the governor, in an apparent power grab, called the Maryland Defense Act "outrageous," "potentially unconstitutional," and upsetting to the system of "checks and balances." It is none of those things. Indeed, the authority of the Maryland attorney general should be expanded further so that he or she can join colleagues from the vast number of other states where the state attorney general does not need to seek permission from the governor prior to bringing any suit. For example, should Mr. Frosh wish to sue oil and gas companies exposing their complicity in climate change, pharmaceutical companies for pumping opioids into the market, gun dealers for pumping assault weapons onto our streets or car manufacturers for manipulating emissions readouts, he should be able to do so. 

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"

    by Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School

    An aroused public can shape judicial appointments, and shape law.

    Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.

    Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.

    *   *   *

    Looking back over a half century of abortion conflict, we can see this dynamic in action and imagine new forms it might take.

    For decades, supporters of the abortion right sought protection for women’s health, liberty and equality, while opponents sought protection for unborn life. The Court balanced these claims in Roe’s trimester framework and in Casey’s undue burden standard.