Deja Vu

Jul. 8th, 2016 09:21 am
stoutfellow: My summer look (Summer)
At this point, I do not know who the assassins who struck at a peaceful BLM protest in Dallas were, nor do I know their motives; but a wiser man than I, speaking in a similar situation, had this to say.
Whenever any American’s life is taken by another American unnecessarily – whether it is done in the name of the law or in the defiance of law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence – whenever we tear at the fabric of life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded…
When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies – to be met not with cooperation but with conquest, to be subjugated and mastered.
We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community, men bound to us in common dwelling, but not in common effort. We learn to share only a common fear – only a common desire to retreat from each other – only a common impulse to meet disagreement with force…
Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanish it with a program, nor with a resolution. But we can perhaps remember – even if only for a time – that those who live with us are our brothers, that they share with us the same short movement of life, that they seek – as we do – nothing but the chance to live out their lives in purpose and happiness, winning what satisfaction and fulfillment they can.
Surely this bond of common faith, this bond of common goal, can begin to teach us something. Surely we can learn, at least, to look at those around us as fellow men and surely we can begin to work a little harder to bind up the wounds among us and to become in our hearts brothers and countrymen once again.
- Robert Francis Kennedy, April 5, 1968
stoutfellow: Joker (Joker)
Booman Tribune posts an interesting riposte to Gov. Greg Abbott (R-TX)'s reaction to a recent SCOTUS decision. I'm not sure JRRT would have approved, though....
stoutfellow: (Winter)
A state judge has ruled that Illinois's recent pension reform is unconstitutional (state, not federal) - that the state's promise concerning pension benefits is constitutionally protected. Attorney General Madigan has announced that she will appeal to the Illinois Supreme Court.

(The matter seems pretty much cut and dried to me; Article XIII, Section 5 reads as follows: "Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.")

Naturally, this has been followed by proposals to amend the state constitution.

Nine more years....
stoutfellow: Joker (Joker)
I mentioned before the state's attempts to modify the pension agreement with its employees. (Note, BTW, that Illinois state employees are not in the Social Security system, so we don't have that backup; Medicare, yes, but not the broader program.)

No less than five lawsuits have been filed asserting that the new law is contrary to multiple provisions of the state constitution. Today, a state judge imposed a restraining order, blocking implementation of the law until the lawsuits have been heard. He also ordered the lawsuits consolidated into one. A status hearing is scheduled for the 24th.

We shall see.
stoutfellow: Joker (Joker)
Still trying to organize my posting habits....

My most recent bus book was The Color-Blind Constitution, by Andrew Kull (published 1992), a historical review of the concept of color-blindness as applied to the laws and Constitution of the United States. It begins with the efforts of women's anti-slavery groups in 1837-40, petitioning for the repeal of Northern-state laws which treated people differently on the basis of race. There were many such laws; Ohio is singled out as having an exceptional number of them, but even Massachusetts outlawed interracial marriage. (The efforts were coordinated between the states, and a more-or-less standard petition was drawn up. In Massachusetts, where the marriage ban was the only law obviously covered by the petitions, this opened the door to some rather crude mockery of the petitioners.) The petitions were unsuccessful, but did establish the color-blind principle as one possible abolitionist stance. (It was not universal among abolitionists, to be sure.)

The story proceeds to the heroic efforts of Charles Sumner and others to establish that school segregation was contrary to the Massachusetts constitution; Sumner's argument in Roberts v. City of Boston, though it failed of its purpose, became a central one: the principle of equality before the law puts racial discrimination beyond the reach of government power. Chief Justice Shaw, ruling for the state supreme court, noted that the law dealt differently with adults as opposed to children and with men as opposed to women; since these were not exceptionable, neither was discrimination on racial grounds. Equal protection was not a strong enough argument; an outright constitutional ban on discrimination would be necessary.

During the Reconstruction period, there was an effort to write color-blindness into the Constitution; abolitionist leader Wendell Phillips pushed for the following amendment, which would have been the Fourteenth:
No State shall make any distinction in civil rights and privileges among the naturalized citizens of the United States dwelling within its limits, or among persons born on its soil of parents permanently resident there, on account of race, color, or descent.
Phillips gained the initial support of the formidable Thaddeus Stevens - unlike Phillips, a member of Congress - but, in committee discussions, Stevens eventually decided that three-fourths approval even of the Northern states (the Southern states being, at this point, disenfranchised) would be impossible, and instead agreed to a proposal by John Bingham, which eventually became the Fourteenth Amendment that we know today - establishing, as Massachusetts had, equal protection rather than nondiscrimination as a Constitutional principle.

From that point, the road to Jim Crow was clear. Though some judges interpreted the Fourteenth Amendment as banning discrimination, more did not - including, eventually, the majority of the Supreme Court in Plessy v. Ferguson. Justice Harlan's dissent still pushed for nondiscrimination, but he was alone on the court: "separate but equal" became the legal mantra.

Interestingly, that phrase left the door open for continued attacks on segregation; over the next fifty years, there were numerous court cases ruling that this or that bit of segregation did not, in fact, provide equal facilities and therefore was unconstitutional. It was a piecemeal attack, but it accumulated force until, finally, Brown v. Board of Education decreed that separate facilities were inherently unequal. Plessy was never fully repudiated; it was simply ruled that the standard it set for permissible segregation was unachievable. Harlan's dissent did not become the law of the land; instead, the argument of his opponents was pushed in an unexpected direction.

At that point, it seemed as though color-blindness was victorious (although the opinion in Brown did not say so). Yet, only a decade later, those who fought for civil rights shifted their ground, calling for racial preferences in the other direction. Kull carefully explains how and why this happened, in a nuanced discussion which I won't attempt to reproduce. After the riots of 1964-65, the Kerner Commission offered a prescription for alleviating the problems of the black underclass, including among other things massive government employment programs, analogous to the New Deal's CCC. (Surely the plight of the underclass in the 1960s was as bad as that of the unemployed of the Great Depression!) But in the political and economic context of the '60s, the Kerner Commission's proposal was dead on arrival. All that was actually achievable lay in such methods as what we now know as affirmative action, forced busing, set-asides, and the protective clauses of the Voting Rights Act; Kull describes their emergence, and the reasons for their emergence, at considerable length.

Finishing the book, one feels dissatisfied. There were so many points where a "road not taken" might have led to better consequences; yet political and economic realities stood in the way. Wendell Phillips' amendment might have made a vast difference, but even the Radical Republicans were unwilling to go that far. The progressive judges of the last decades of the nineteenth century might have prevailed in the Supreme Court, stifling Jim Crow in the egg; but they were outnumbered by the conservatives who drafted the opinion in Plessy. The Kerner Commission's proposals might have been acted on; but instead we chose to push for equality on the cheap, with results that are far from satisfactory.

This is, after all, a book on the history of constitutional law, and thus it is predictably dry in spots. Still, I learned a good deal from it, and would recommend it to anyone interested in the questions it discusses.


Jun. 28th, 2012 02:30 pm
stoutfellow: Joker (Joker)
1. The cold seems to have abated, but I'm still staying home today as a precaution. I'll have to go onto campus tomorrow, though; there's a campus-wide power shutdown scheduled for Sunday, and I need to turn off my office computer. (I have an option if the cold does flare up tomorrow, but I'd rather not use it.)

2. Buster has regained his vim; he's been romping with Gracie a lot the last couple of days. (In fact, he's been trying to do things he's not supposed to be able to do any more....)

3. I finished reading Jim Butcher's Side Jobs the other day; it's a collection of short stories in the Dresdenverse. One of them is "The Warrior", which I'd already read, but the rest were new to me. It's uneven in quality, but a couple of the stories involved POV characters other than Harry Dresden; one was narrated by his half-brother Thomas, and the other (set after the events of Changes) by Karrin Murphy. Not a bad collection. I went on to Dragon Keeper, by Robin Hobb, which looks pretty good so far. Interspersed in the main story is a series of pigeon-carried letters between two, mm, call them news agents. Not bad.

4. It is hot. We've got a heat advisory in place until Saturday evening. On the return leg of the dogs' walk this morning - around 10 AM - Buster flopped down in the shade of a tree and was very reluctant to get up again. We were less than half a block from home, though, and I finally chivvied him into continuing. I may have to get them out for their walks considerably earlier in the day.

5. I find it very odd to be pleased with John Roberts and utterly infuriated with Anthony Kennedy. I think I'll revise my forecast on the Prop H8 case; I'd rather see SCOTUS deny cert (thus affecting only the Ninth Circuit) than risk another surprise from AK.
stoutfellow: (Winter)
Scenario: the Supreme Court declares a certain law unconstitutional. A close analogue of that law is part of the UCMJ. Does the ruling also negate it?
stoutfellow: (Winter)
It Is So Ordered, by Warren E. Burger, is... well, the cover blurb is a reasonable description:
The former Chief Justice of the United States recounts fourteen of the cases and historical events that shaped the Constitution.
It is, Burger says, "a story and not a formal history"; in other words, it is a popular account of some of the major cases. Further comments are under the cut.

Read more... )
stoutfellow: My summer look (Summer)
Judge Vaughn Walker's ruling that California's Proposition 8 is unconstitutional will, of course, be appealed. Here's a little amateur tea-leaf reading on the fate of that appeal.

The first appeal goes to the 9th Circuit Court, which is responsible for most of the western US. (To be specific, it covers HI, AK, CA, OR, WA, NV, AZ, ID, MT, and the Pacific island territories.) The 9th Circuit is generally regarded as the most liberal of the Circuit Courts (and is the one most often overturned), so I'd expect them to uphold Walker's decision. An appeal to the Supreme Court is then inevitable.

So, what about the Supremes? The most closely related recent case is Lawrence v. Texas (2003), which declared state anti-sodomy laws unconstitutional. That decision was 6-3. Of those who voted with the majority, Justices O'Connor, Souter, and Stevens have retired. O'Connor was replaced by Samuel Alito, whom I presume would vote against approving Walker's decision. Souter's replacement is Sonia Sotomayor, and Stevens' will be Elena Kagan. (Kagan hasn't been confirmed yet, but the vote is today and enough Republicans have come out in her favor that the result is a foregone conclusion.) That makes things look like 5-4 to uphold Walker's decision, with Anthony Kennedy, as usual, as the swing vote. Kennedy wrote the majority decision in Lawrence (and in the even more closely related Romer v. Evans in 1996), and Judge Walker sprinkled his decision with many references to those two cases.

It'll take a while for the case to work its way up, but I predict another 5-4 decision, upholding Walker's ruling. Kennedy will, once again, probably write the majority opinion.
stoutfellow: (Winter)
In America's Constitution: A Biography, Akhil Reed Amar attempts to weave together several different strands of study. The Constitution is usually studied from one of three viewpoints: that of law, that of political science, and that of history. Amar's stated goal is to work from all three vantages at once, showing how they illuminate one another. How well he achieves this, I am not qualified to judge, but I will say that I found the book enlightening.

Bit By Bit )


Jun. 12th, 2008 10:06 am
stoutfellow: (Ben)
The Supreme Court has ruled (pdf) 5-4 that the habeas-stripping provisions of the Detainee Treatment Act and the Military Commissions Act are unconstitutional. Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Souter, Stevens, and Breyer; Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissented.

Good for them.

(Hat tip to publius, at Obsidian Wings.)

Addendum: hilzoy summarizes the issues, and the Court's resolution, in non-technical terms here.
stoutfellow: My summer look (Summer)
Today is the 220th anniversary of the signing of the Constitution of the United States of America.

Lest we forget:
The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Some people have forgotten, or never knew.
stoutfellow: My summer look (Summer)
The Tenth Circuit Court has handed down an important decision on copyright law, striking down part of the Uruguay Round Agreements Act shifting certain works from public domain back into copyright. Jack Balkin has details.
stoutfellow: Joker (Default)
The Supreme Court has ruled against the government in Hamdan v. Rumsfeld. In particular, they have declared that Common Article 3 of the Geneva Convention applies in the war on al-Qaeda. Bully for them.
stoutfellow: Joker (Default)
The Supreme Court just handed down an interesting ruling on Fourth Amendment rights. The case involved a police search of a couple's house on the invitation of the wife, although the husband was present and refused permission. The majority - the court liberals and moderates - ruled that the search was illegitimate, that refusal by one of the couple trumped permission from the other. The court conservatives (except Alito, who was not on the court when the case was argued) dissented. Chief Justice Roberts' opinion raised the possibility of problems in cases of domestic abuse.

John Cole and Orin Kerr have more.


Dec. 11th, 2005 09:44 am
stoutfellow: Joker (Default)
I don't know about you, but I find the idea of secret laws - laws whose content, whose very existence, cannot be discussed in public - extremely disturbing.

Addendum: Brian Tamanaha, at Balkinization, is very concerned. Orin Kerr, at the Volokh Conspiracy, thinks it isn't that big a deal. I respect both of them; both are lawyers (although Kerr admits that this isn't his area of expertise). I'll reserve judgment, pending further information.
stoutfellow: Joker (Default)
I was going to talk a little about this, which is very cool.

But then I read the following, excerpted from the New York Times:
Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday.

Set aside, for the moment, how horrifying this assertion is - more, in some ways, than the claims in the torture memos. The practical effect of this, if the court accepts it, is that people from other countries will stop coming to, or passing through, this country. Not all of them, of course, but many. That will hurt us badly.

As if that matters, compared to the damage we've taken by having a government with the gall to make such claims. I am sick at heart.


stoutfellow: Joker (Default)

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