Eric Cantor Complains About Republicans Taking His Hostage-Taking Strategy Seriously

JB

In his analysis of Speaker John Boehner's resignation, former House Majority Leader Eric Cantor explains our current political dysfunction in explicitly constitutional terms. But he has no one to blame but himself and the Republican leadership of which he was a part:

But somewhere along the road, a number of voices on the right began demanding that the Republican Congress not only block Mr. Obama’s agenda but enact a reversal of his policies. They took to the airwaves and the Internet and pronounced that congressional Republicans could undo the president’s agenda — with him still in office, mind you — and enact into law a conservative vision for government, without compromise.

Strangely, according to these voices, the only reason that was not occurring had nothing to do with the fact that the president was unlikely to repeal his own laws, or that under the Constitution, absent the assent of the president or two-thirds of both houses of Congress, you cannot make law. The problem was a lack of will on the part of congressional Republican leaders.

Now we see that these same voices have turned to the threat of a government shutdown or a default on the debt as the means by which we can force President Obama to agree to their demands. I wonder what they would have said, if during the last two years of President Bush’s term, the Democratic congressional majority had tried something similar.

In my 2014 essay, The Last Days of Disco: Why the America Political System is Dysfunctional, I argued that, in order to finally realize a conservative political revolution, Congressional Republicans had repeatedly tried to run domestic policy out of Congress even when they did not control the White House. This constitutional innovation was unlikely to succeed because of the way that American government, and especially the Presidency, have developed during the twentieth century.

Yet it is worth asking why Congressional Republicans believed in this strategy, and why they keep returning to it.

The answer is that it worked-- not just in the distant past, but only five years ago. And Eric Cantor and John Boehner were key figures in that success.
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Posted 11:05 AM by JB [link]

Doug Kendall, Patriot and Visionary

JB

Doug Kendall, the Founder and President of the Constitutional Accountability Center, died today at the age of 51 from colon cancer. The CAC website has a tribute to Doug's life and work.

Doug organized the Constitutional Accountability Center to promote his deeply held belief that the Constitution is at its core a document of progress.  He maintained that our Constitution's text, history and structure pointed toward ever greater protection for freedom and equality.  In an era when conservative originalists claimed a monopoly on constitutional fidelity, Doug Kendall spoke confidently and eloquently for a progressive constitutional faith. He defended the great achievements of American constitutionalism and argued that they were fully consistent with the Constitution's text and history.  He yielded to no one in his devotion and commitment to fidelity to the United States Constitution.

Doug gave these ideas life through his tireless efforts in scholarship, litigation, and institution-building. And he succeeded beyond what anyone could have imagined when he began. He was a great man doing great things. We are all in his debt.



Posted 10:15 PM by JB [link]

Looking for Race in a New Place

Mark Graber

Posted 2:28 PM by Mark Graber [link]

My brief in Evenwel v. Abbott -- the Supreme Court's newest one person, one vote case

Nate Persily

I have filed this amicus brief for political scientists in Evenwel v. Abbott, the one-person, one-vote case the Court will hear this term, which poses the question whether districts must be drawn around eligible voters rather than on the basis of total population.  I have discussed the case extensively on Scotusblog and earlier at Politico.  The basic argument in all of these pieces is that no dataset exists that would allow for accurate, timely redistricting on the basis of eligible voters.  This argument is one I made long ago in this Cardozo Law Review piece on "The Law of the Census." At the time, though, I never thought the Court would consider changing the one-person, one-vote rule in such a radical way.
Posted 10:36 AM by Nate Persily [link]

Making Votes to Grant Review Public

Mark Tushnet

Posted 9:43 AM by Mark Tushnet [link]

On Amendment Difficulty and Informal Constitutional Change

Stephen Griffin

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Posted 2:28 PM by Stephen Griffin [link]

Does Respect Require Antiperfectionism? Gaus on Liberal Neutrality

Andrew Koppelman

Gerald Gaus has developed the most sophisticated presentation of the antiperfectionist idea that official neutrality between contested conceptions of the good is demanded by mutual respect among citizens. However, other aspects of his own political theory -- in particular, his demonstration of the legitimacy of social coordination toward common ends -- inadvertently strengthen the case for perfectionism.

I elaborate in a paper forthcoming in the Harvard Review of Philosophy, just posted on SSRN here.  This is a paper in philosophy, not law, but it obviously has legal implications.
Posted 7:37 AM by Andrew Koppelman [link]

The Future of the Party and Campaign Finance — A Response to Bob Bauer

Joseph Fishkin

Heather Gerken

Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.

An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.

The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the Super PACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.

We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.

It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.

Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.

cross-posted on the election law blog
Posted 5:08 PM by Joseph Fishkin [link]

A "stamp of animus"? Plaintiffs in Miller v. Davis ask court to order Deputy Clerks to issue unadulterated marriage licenses

Marty Lederman

The plaintiffs in the Kim Davis case have now made a motion to Judge Bunning to require the Deputy Clerks in Rowan County to go back to issuing marriage licenses in the form that Deputy Clerk Mason was issuing while Clerk Kim Davis was in federal custody--rather than the radically adulterated form that Davis directed Mason to issue once she returned to work.  (For much more on the machinations that led to this motion, and the differences between the two marriage license forms, see my post from Saturday.)

The plaintiffs are also asking the judge to require the Deputy Clerks to reissue, in proper (i.e., pre-Sept. 14) form, any licenses that they issued over the past week, and to specifically order Kim Davis not to interfere with the Deputies' issuance of licenses.  For the time being they are not asking the judge to hold Davis in contempt of his orders; but they are asking the judge to put Davis on notice that any violation of the new order--that is, any interference on her part--"will result in civil sanctions, including but not limited to (a) the placement of the Rowan County Clerk’s Office into a receivership for the limited purposes of issuing marriage licenses, and (b) the imposition of civil monetary fines as appropriate and necessary to coerce Davis’ compliance with this Court’s Order."

What is the ground for plaintiffs' complaint about the Davis-prescribed, adulterated form of marriage licenses?  They do not invoke the Fourteenth Amendment in so many words but, as I read it, they are alleging that the use of the altered forms violates their rights under the Fourteenth Amendment in two respects:

(i) First, although the plaintiffs do not argue that a marriage performed pursuant to such a license would be invalid under Kentucky law (to the contrary--see the quotation from Pinkhasov v. Petocz in footnote 2 of the plaintiffs' filing), they assert that couples acting in reliance upon such licenses will live under the shadow of possible future challenges to the validity of their marriages:

Because a valid license is a prerequisite to solemnization, see KRS § 402.080, and because Kentucky courts have yet to address whether defects in a license of this magnitude can void the marriage, any marriage performed pursuant to the licenses issued last week by Davis’ office is potentially open to a future challenge to its validity. . . .

[E]ven if the altered licenses were ultimately determined to be valid at some future point,  . . . Davis’ interference has caused substantial injury to Plaintiffs and members of the putative class by intentionally creating uncertainty surrounding their exercise of the fundamental right of marriage."

Presumably it is plaintiffs' view that the creation of this "uncertainty" violates their Fourteenth Amendment rights:  Davis's "intentional creation of such uncertainty surrounding the exercise of a fundamental right like marriage," they write, "--an uncertainty not faced by couples in other counties – is a significant burden and injury that Plaintiffs and members of the putative class ought not bear."

(ii) Second, and more interestingly, plaintiffs allege that their (presumably federal) rights have been violated because they have been subject to "humiliation and stigma associated with the receipt of marriage licenses that are effectively imprinted with Davis’ opprobrium."  They write:

The marriage licenses currently issued by the Rowan County Clerk’s Office are so materially altered that they create a two-tier system of marriage licenses throughout state.  The adulterated marriage licenses received by Rowan County couples will effectively feature a stamp of animus against the LGBT community, signaling that, in Rowan County, the government’s position is that LGBT couples are second-class citizens unworthy of official recognition and authorization of their marriage licenses but for this Court’s intervention and Order.

For more on the possibility that such a "stamp of animus" might violate the Fourteenth Amendment, even if the same license form is used for same-sex and opposite-sex couples alike in Rowan County, see Mike Dorf's post from earlier today.  (I contributed a comment to that post with respect to this Fourteenth Amendment question.)

Posted 10:20 PM by Marty Lederman [link]

Don't be surprised if Kim Davis is remanded to the custody of the federal marshal . . . again

Marty Lederman

Just over a week ago, on September 11, Judge Bunning issued the following order when he released Kim Davis from federal custody:

"Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.  If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."  

When Davis returned to work as Rowan County Clerk three days later, on Monday, September 14, she ordered Deputy Clerk Brian Mason to change the form of marriage licenses that he issues in Rowan County.  The first such license Mason issued on Monday, for example, reads:  "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials "BM"], Notary Public." 

This is very different from the licenses Mason had issued while Davis was in custody, in at least three respects.  On the new licenses, pursuant to Davis's order, there is no indication of (i) the Office from which the license was issued, (ii) the County, or (iii) Mason's title or authority as Deputy Clerk.  (Nor is there any mention of Davis herself, of course--but that was also true of the licenses that Mason issued while Davis was in custody.).  From all that appears on the face of the license, Mason has issued it in his capacity as Notary Public, not Deputy Clerk--even though Kentucky law authorizes only Clerks and Deputy Clerks to issue such a license.  

Once Mason began to issue such licenses, Davis's attorney issued the following statement:

"The license that went out today does not violate Kim Davis's conscience.  If it's satisfactory to the ... court, then I think we will have found that win-win solution that we have been asking for all along."

Also on Monday, Kentucky Governor Beshear was quoted as saying that the licenses Mason was issuing "are going to be recognized as valid in the Commonwealth."  And a spokeswoman for Kentucky Attorney General Jack Conway likewise said that although the Attorney General had not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid.

As I wrote on Monday, I think that's probably correct as a matter of Kentucky law.  KRS § 402.100 requires that the license include, inter alia, "the date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license."  If "Morehead" suffices for "place," then these requirements would appear to be literally satisfied by Mason's new licenses, although nothing on the face of such a license indicates that it was issued by a Clerk or Deputy Clerk (it describes Mason as a "Notary Public").

Moreover, even if the new form does not conform completely to Kentucky statutory requirements, it's not obvious that the remedy for such an inadequacy would be to find that marriages were void because the officiant was not authorized to perform the ceremony.  (The license is an authorization for an individual to join two others into marriage as a matter of Kentucky law.)  Especially in light of the Governor and Attorney General's public assurances, it is highly unlikely that any future court or Kentucky official would conclude that such a marriage is invalid, even if it does turn out to be the case that the new form does not technically comply with Kentucky law.

That does mean, however, that all is well in Rowan County.  For one thing, as I noted on Monday, Davis appears to be acting in violation of the judge's September 11 order that she must not "interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples."  Indeed, counsel for Deputy Clerk Mason suggested as much yesterday in a report filed with the court.  That report explains what happened on Monday, and raises the question whether Davis (and therefore Mason) is violating the court's injunctions:

Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian Mason, and CJA having been appointed to represent him in the above styled matter, pursuant to the order of September 8, 2015, makes the following report.

Mr. Mason informs me and the record confirms such, that he has issued the appropriate marriage licenses for same-sex marriage pursuant to the court's orders, and has continued to do so in light of changes that had been made by the Clerk, Ms. Davis. 

He is the only deputy clerk that is doing so by mutual agreement between the others wherein Mr. Mason agreed he would take care of those matters himself if it would ease the stress of the situation, although they all stand ready to do so in his absence as they had promised the court. 

On September 14, 2015 Ms. Davis came into their office and he [Mason] tells me the following:  

Kim Davis came to the office and confiscated all the original forms, and provided a changed form which deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court's styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign.  There is now a notarization beside his initials in place of where otherwise signatures would be.

I discussed with Mr. Mason in my opinion he had done nothing wrong and is continuing to follow his sworn testimony to the court, however it also appears to this counsel those changes were made in some attempt to circumvent the court's orders and may have raised to the level of interference against the court's orders.  Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order, but is issuing licenses which had some remote questionable validity, but now with these changes may in fact have some substantial questions about validity.

It is part of this report to notify the court of the changes and it is expected there will be other parties to the action that will bring a request to this court for a review on whether or not her [Davis's] actions are against the orders of the court and the likelihood that the validity of these marriages licenses would have to be entertained if not in federal district court, state courts. A gain Mr. Mason's concern is he does not want to be the party that is issuing invalid marriage licenses and he is trying to follow the court's mandate as well as his superior ordering him to issue only these changed forms and only with initials and only as notarized, which in the last example I have seen are not even notarized.  To date, upon the filing of this report the circumstances remain the same, and counsel addresses this court with the newest information he has available.

Davis has modified the marriage licenses currently provided by her office to state that they are issued only “Pursuant to Federal Court Order #15-CY-44 DLB.” . . .  Additional material alterations made by Davis to the licenses issued by her office include requiring her clerk to issue licenses in his capacity as a “notary public” rather than a deputy clerk of the Rowan County Clerk’s Office. . . .   These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two-tier system of marriage licenses issued in Kentucky, and do not comply with this Court’s September 3 Order prohibiting Davis from interfering with the issuance of marriage licenses.  Plaintiffs are exploring legal options to address these material alterations.

Posted 9:39 AM by Marty Lederman [link]

Donald Trump and Constitutional Change

Joseph Fishkin

For those who persevered through the full 3-hour slog Wednesday night, perhaps the saddest moment in the Republican presidential debate came at the end, when moderator Jake Tapper asked what he characterized as a “lighthearted” question: which woman should the Treasury department put on the $10 bill?  This question is a softball; there are lots of reasonable answers.  Several participants offered some—Rosa Parks [Marco Rubio and Ted Cruz], Susan B. Anthony [Rand Paul], Clara Barton, founder of the Red Cross [Scott Walker], even Abigail Adams [Chris Christie].  Oddly, Jeb Bush and John Kasich either could not come up with a deserving American woman, or are extremely cosmopolitan in their outlook on U.S. currency: they named, respectively, Margaret Thatcher and Mother Theresa.  The two candidates currently at the top of the opinion polls, Ben Carson and Donald Trump, along with Mike Huckabee, suggested members of their families: Huckabee’s wife, Carson’s mother, and Trump’s daughter.  On the $10 bill.  Really?  (Perhaps I am overthinking this, but I wondered whether perhaps some of these debaters had prepared an answer to a question calling for a woman, perhaps to talk about a woman who inspires you, something of that sort.  Caught in the headlights and unable to summon up a plausible American woman worthy of being placed on the $10 bill—which by the way seems quite revealing and not in a good way—they instead offered up the women they’d talked about in debate prep.)  At any rate, no harm done.  It’s a very, very safe bet that Ivanka Trump’s visage is not going to be featured on the $10 bill.

You might think it would be equally safe to assume that Donald Trump’s comments in the debate are not going to be a source of constitutional meaning.  But there, you would be wrong!

I am thinking specifically of Trump’s interpretation of Section One of the Fourteenth Amendment, with respect to birthright citizenship. The Amendment’s text reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

This powerful piece of constitutional text has ensured for 150 years that whatever else happens to people at the bottom rungs of American society, whose own legal status in our polity may be doubtful, their children, at least, are full legal citizens of the United States.  Birthright citizenship is a deeply American idea.  We do not have populations here like the Rohyinga of Myanmar, the Turks of Germany for much of the twentieth century, and so on—populations excluded from full citizenship despite living in a place for generations, by virtue of legal rules that visit the legal status of the parents onto their children.  In the U.S., birthright citizenship predated the Fourteenth Amendment, but the Amendment is what made it a national, uniform, settled constitutional rule.  Of course, in a democracy no constitutional question is ever completely settled.  Today, as in other periods of nativist agitation such as the 1890s and 1920s, there is a non-trivial movement on the extreme anti-immigration right to question birthright citizenship.  Some hope to find a way to read it out of the Fourteenth Amendment.

Enter Donald Trump.  He is definitely not the first American to question birthright citizenship, but he does so loudly, a lot, and on a big stage.  At Wednesday’s debate he argued: “I believe that a reading of the 14th Amendment allows you to have an interpretation where [birthright citizenship] is not legal.”  In fact, pushing several extra steps (as always), he claimed the Fourteenth Amendment says “very, very clearly to a lot of great legal scholars — not television scholars, but legal scholars—that [the usual interpretation] is wrong.”  Birthright citizenship “can be corrected with an Act of Congress,” he said, and “probably doesn’t even need that.”  He allowed, “It’s probably going to have to . . . go through a process of court, probably ends up at the Supreme Court,” noting again, “some of the greatest scholars agree with me.”  (Rand Paul then jumped aboard the train and filled out some specifics.  He said that the application of the Fourteenth Amendment to the children of illegal immigrants “hasn’t really been completely adjudicated,” and offered a slender reed of an originalist argument that “the original author of the Fourteenth Amendment said on the Senate floor that this was applying to slaves, and did not apply to others.”)

So, the question is: is this crazy talk?  Is this “off the wall,” in Jack’s extremely useful phrase?

Or, on the other hand, is there an argument here that constitutional lawyers and judges will soon take seriously, one that might in the not-too-distant future find its way to the Supreme Court, where some Justices will nod sagely and even decide they agree with it, conceivably even making it the law of the land?

Yes—and yes.

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Posted 12:12 AM by Joseph Fishkin [link]

The Problematic Living Constitution: The Dead Hand and the RoR Fallacy

Stephen Griffin

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Posted 4:57 PM by Stephen Griffin [link]

Slavery and the Constitution

Mark Graber

The main lesson these debates teach is twofold.  First, structures are more important to constitutional framers then rights.  When thinking about what a constitution protects, we should first look to whose rights and interests constitutional structures privilege and not to the parchment barriers enumerated in Bills of Right.  Both the persons responsible for the Constitution of 1787 and the persons responsible for the Constitution of 1868 were more concerned with the sort of government structures that might protect certain rights and interests than with enumerating rights provisions explicitly protecting those rights and interests.  The framers in 1787 sought to construct a government that would be sympathetic to southern interests.  The framers in 1868 sought to construct a government that would implement the constitutional ban on slavery in good faith.  Second, constitutional development is often driven by the failure of constitutional structures to function as expected.  Framers consistently fail to anticipate the future.  Slavery became a polarizing issue because population went northwestward instead of in a southerly direction.  Emancipation occurred in 1865 because contrary to the framers' expectations, the north had more troops than the south, unbeknownst to the framers, the north had more railroads than the south, and, frankly, because a Confederate general misplaced his orders at Antietam.  The Republican Party after 1868 soon lost its strong commitment to protecting persons of color.  Our constitutional politics today is contentious, not because we fail to appreciate the Constitution in its pristine form, but because we are trying to perform the impossible task of operating the Constitution in its pristine form.

Posted 2:08 PM by Mark Graber [link]

Citizens United and the Future of the American Political Party

Joseph Fishkin

Heather Gerken

The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.

First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.

In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”

The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.

While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.

Cross-posted on the Election Law Blog
Posted 4:58 PM by Joseph Fishkin [link]

Stanley Fish’s Defense of Kim Davis

Nelson Tebbe

Richard Schragger, Micah Schwartzman, and Nelson Tebbe
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Posted 12:29 PM by Nelson Tebbe [link]

Revenge Pornography and First Amendment Exceptions

Andrew Koppelman

The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “revenge pornography,” which some states have attempted to prohibit.

These prohibitions restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden.

Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse.

I elaborate in a paper forthcoming in the Emory Law Review, available on SSRN here.
Posted 7:52 AM by Andrew Koppelman [link]

Kim Davis developments [UPDATED as of Monday evening]

Marty Lederman

Kim Davis has recently filed a couple of briefs in the Sixth Circuit, and she attached the transcript of the September 3 contempt hearing to one of them.  Moreover, she made a statement this morning announcing what she's going to do now that she's back at work.  Therefore it's now finally possible to figure out where things are heading, at least to a certain extent.

1.  Judge Bunning construes his Preliminary Injunction to cover the Deputy Clerks

The judge is of the view that the P.I. enjoins the Rowan County Deputy Clerks, as well as Davis, under FRCP 65(d)(2)(B), because (i) they are Davis's "employees"; (ii) they are on notice of the injunction against her in her official capacity; and (iii) as I described in my first post, they are themselves authorized by Kentucky law to issue marriage licenses.  Judge Bunning therefore threatened to hold the Deputies in contempt, too, if they continued to refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the licenses (although he also asserted that he was willing to do so earlier, and would have issued them prior to the P.I. but for Davis's direction to him not to do so).

2.  Davis is moving to overturn Judge Bunning's expansion of his injunction to cover nonparty couples

As I wrote last week, Judge Bunning expanded the terms of his preliminary injunction so that it now prohibits Davis (and the Deputies--see above) “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky.”  I surmised that he did this in order to protect members of the class that the individual plaintiffs are seeking to certify, in the event the judge later certifies such a class.  But it turns out I was wrong:  Judge Bunning's rationale for expanding the injunction is that he had before him two companion cases, Nos. 15-46 and 15-62, each involving one other plaintiff couple (David Ermold/David Moore, and James Yates/Will Smith, respectively), "that involve, in essence, the very same allegations with the same lawyers."  "[I]t just makes judicial sense," he said at last week's hearing, "to have the Circuit review the decision for all three of [the cases].  I'm not granting a class certification motion.  But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling."

Davis argues that Bunning should not have expanded the P.I. beyond the four named plaintiff couples, and is asking the court of appeals to reverse that expansion.  I'm not up to speed on the various procedural nuances of this motion, but Davis actually might have a point on the merits.  If Judge Bunning simply wanted to make sure his preliminary injunction covered the other two couples who are suing in the companion cases, it's not clear why he didn't simply extend the injunction to cover those couples or, at most, to cover all couples who have filed or do file such cases.  The judge has not (at least so far) offered a justification for having expanded the P.I. to cover couples who appear at the Rowan County Clerk's Office but who do not file a suit.  (Perhaps he assumes that any couple turned away by Davis would promptly file a suit; but that might not be a valid assumption.)

Accordingly, I think there's at least some chance that the court of appeals will limit the P.I. to the named parties.

Five of the six plaintiff couples (including both of those in the companion cases) have already obtained licenses on which Davis's name does not appear.  Only Shantel Burke and Stephen Napier have not yet done so.  Therefore, if the court of appeals were to amend the injunction to be limited to the parties, that order would then cover only one remaining couple (Burke/Napier), at least until such time as Judge Bunning certifies a class in one or more cases before him.

3.  Davis is instructing the Deputy Clerks to further alter the licenses they issue . . . and Deputy Clerk Mason is doing so

As I noted earlier, Davis had argued that deleting her name from the licenses issued by Deputy Clerks in Rowan County would be an adequate accommodation of her religious obligations.  Among the alternatives that Davis argued would "accomplish" the state interest "without substantially burdening Davis’ religious freedom and conscience" was this:  "Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form."  Similarly, at the contempt hearing she testified that she would not have any objection "if there were a way to issue a marriage license from Rowan County that did not depend on [her] authorization and bear [her] name."  And her lawyer also stated that if the form had "no personal authority, no Kim Davis name on it, available in a Rowan County Clerk's office, . . . this case would be over."

Davis should therefore be satisfied with the status quo, then, right?  After all, Deputy Clerk Mason is issuing licenses that do not bear Davis's name.

Now that her name has been removed, however, it turns out that the solution Davis earlier proposed does not suffice from her perspective.  In her statement this morning, Davis said that she has ordered that the licenses issued by the Deputies in Rowan County may not include her name or title or "authority" [it's not clear what that means, since the form doesn't mention her "authority" in the first place], and that such licenses will bear the notation "Issued pursuant to a federal court order."

[UDPATE:  The first couple to receive a license today from Deputy Clerk Mason was Carmen and Shannon and Wampler-Collins (who as far as I know are not plaintiffs in a case).  Their license reads:
"Issued this 9/14/2015 [crossed out:  "in the office of ________, _______" (blanks are designated for "name" and "county")], Pursuant to Federal Court Order No. 15-CY-44, DLB, [crossed out:  "County Clerk"] Morehead, Kentucky by Brian Mason [signature initials] [words "Deputy Clerk” not added]"

That is to say, it reads:  "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials]."  No indication of the Office, the County, or Mason's title or role (and no mention of Davis, of course).

A spokeswoman for Kentucky Attorney General Jack Conway said today that although the Attorney General has not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid.  That's probably correct as a matter of Kentucky law.  KRS § 402.100 requires that the license include, inter alia, "the date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license."  If "Morehead" suffices for "place," then these requirements would be literally satisfied by hte Wampler-Collins, although nothing on the face of the license indicates that it was issued by a Clerk or Deputy Clerk.  If Judge Bunning has any serious doubt about whether such a license would be valid, he might enjoin Davis and Mason from enforcing such revisions.  Even if the new form does not conform completely to Kentucky statutory requirements, however, it's not obvious that the remedy for that inadequacy would be to find that the subsequent marriages were void because the officiant was not authorized to perform the ceremony.  Perhaps Kentucky might take action to insist upon a particular form going forward.  It is highly unlikely, however, that any future court or Kentucky official would conclude that a marriage is invalid just because Mason issued a form that turns out to have been in technical noncompliance with Kentucky law, especially now that the Attorney General has publicly opined that they are valid.]

There is also some chance that a couple who receives such a bowdlerized license might argue that it violates the federal Constitution for Rowan County to issue such an "under protest" license.  (It appears from Davis's statement that the County will issue such licenses to all couples, both same-sex and opposite-sex; but that remains to be seen.  Obviously, the federal constitutional problems would be more acute if the notation in question appears only on the licenses of same-sex couples.)  I might have more to say about the merits of such an argument if and when we see it.

At a minimum, Davis appears to be in violation of the judge's order of 9/11, which stated that "Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.  If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered."

Davis is interfering with the efforts of the Deputy Clerks to issue licences, by ordering Mason to amend the license form.  I doubt anyone will (or should) care enough to try to have her held in violation of the order, but she is, indeed, violating it.

4.  Davis continues to press her claims against the Kentucky Governor

Meanwhile, Davis continues to urge the federal courts to order the Governor to amend the marriage license form to conform to her preferred amendments--but the courts are unlikely to grant her any such relief.

On Friday, Judge Bunning ruled that Davis's federal claims against the Governor, under the First Amendment, have little to no likelihood of success, and that her claims under Kentucky law, including Kentucky RFRA, are barred by sovereign immunity.  "Davis’ claims brought under state law should therefore be brought in Kentucky state court," he explained.

The Governor himself has made similar arguments, as well as others, in the court of appeals, and that court is likely to agree with Judge Bunning.  (For what it's worth, in the Sixth Circuit Davis argues that her Kentucky RFRA claim is not barred by sovereign immunity because denial of that claim is itself a violation of her federal constitutional rights.  But that argument is groundless.)
Posted 9:31 AM by Marty Lederman [link]

The Problematic Living Constitution

Stephen Griffin

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Posted 4:21 PM by Stephen Griffin [link]

Digitized Primary Sources on Race Discrimination and Foreign Relations

Mary L. Dudziak

Over at The Text Message, a blog by archivists at the U.S. National Archives, archivist David Langbart has a couple of posts that will be of interest to civil rights, constitutional law and foreign relations scholars, as well as historians. The most recent is Foreign Diplomats and Domestic Discrimination, and it includes a digitized letter from Secretary of State Dean Rusk to Attorney General Robert Kennedy, January 31, 1961. The topic is race discrimination in Washington DC against foreign diplomats. Rusk writes in part:


The broader history that this fits into includes discrimination against diplomats from newly independent African countries in Maryland and other states. The problem was so embarrassing to the United States that the State Department created a special office just to handle it, and lobbied the State of Maryland to pass a civil rights law in order to help the country win the Cold War. Title II of the Civil Rights Act of 1964, outlawing discrimination in public accommodations, was the ultimate answer to this kind of discrimination. The history of discrimination in interstate travel by African Americans is well known and was key to the passage of Title II. The foreign affairs problem was also thought to be so important that Dean Rusk was a lead witness for the Kennedy Administration during hearings on the original civil rights bill during the summer of 1963.

Another recent Langbart post is Foreign Policy Aspects of Integration of the U.S. Armed Forces.

The more extensive history of the relationship between domestic discrimination and U.S. foreign relations during the Cold War has, of course, long been accessible in books (e.g. here, here and here) and articles. Langbart’s posts with digitized primary sources will be particularly helpful in bringing this history into the classroom. They also help legal scholars to see examples of the kind of materials historians writing in this area have based their work on.

The posted documents are, of course, just isolated examples of a much wider array of sources to be found in the National Archives, presidential libraries, and other collections. It would be most helpful to have a dedicated webpage somewhere with a variety of digitized sources on this topic. Although the National Archives is working on digitizing their records, when it comes to research there is unlikely to ever be a substitute for going to the archives themselves, and sifting through the sources.
Posted 11:54 AM by Mary L. Dudziak [link]

The Problem of Online Shaming: On the Internet, Everyone Knows You're A Dog

Guest Blogger

Posted 2:25 PM by Guest Blogger [link]