Tuesday, July 22, 2014

Fourth Circuit Rules in FAVOR of Government in Obamacare Subsidies Case

Abbe Gluck

Making sure our readers keep up with this roller-coaster day in health reform land: The Fourth Circuit released its own opinion (3-0, with a strong concurrence from J. Davis) rejecting the subsidies challenge pending in that court right after the DC Circuit released its own opinion sustaining the same challenge there . The Fourth Circuit went with a straight Chevron argument, but indicated it thought the government had the better reading of the statutory text in any event. Judge Davis concurred specially to make the point that Chevron wasn't even necessary: that the statute clearly requires the subsidies on the federal exchanges. Of interest to statutory interpretation types (and along the lines of what I've been arguing in previous posts), Judge Davis also argued that this isn't a case of "textualism v. purposivism" or statutory text versus some amorphous concept of congressional intent.  Davis argued that the text of the statute as a whole answers the question definitely in favor of the Government.

The Loss in Halbig

Abbe Gluck

As Marty notes, the opinion is out. Initial quick reaction, more to come:  The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here);  it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges.  The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying the exclusio unius presumption  (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism  rather than the sophisticated statutory analysis that textualists have been claiming they are all about.

Halbig decided [UPDATED -- King too!: quickest circuit split ever?]

Marty Lederman

2-1, Edwards dissenting, as oral argument suggested.  I'm sure we'll have more on the opinion shortly here on the blog.

On the other hand . . . the Court of Appeals for the Fourth Circuit in King just decided the issue the other way!

Monday, July 21, 2014

The Anti-Partisan Principle

Gerard N. Magliocca

I've posted the draft of my new paper here.  Comments and criticism are always welcome.

Sunday, July 20, 2014

Rest in Peace, Dan Markel (1972-2014)


Our deepest condolences to the family, friends and colleagues of Professor Dan Markel of Florida State (and Prawfsblawg), who was shot at his home in Tallahassee on Friday. The latest details are here. Paul Caron has a collection of links and other remembrances are here and here.

Saturday, July 19, 2014

Hobby Lobby: Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise?

Marty Lederman

As part of a terrific symposium on Hobby Lobby over at the Conglomerate, I published a post with that title today, focusing principally on some of the corporate-law questions that the Court unfortunately elides or confuses in Hobby Lobby.

Will the ACA litigation be decided based on a mistake?

Guest Blogger

Timothy Jost

In a recent blog post, Cato scholar Michael Cannon admitted that he and his colleague, Case Western University professor Jonathan Adler, had made a mistake in an amicus brief they submitted to the courts in the Halbig and King cases.  We all make mistakes—indeed Michael has claimed that I have made many mistakes in my analysis of these cases, some of which were indeed mistakes.  This mistake is important, however, because it goes to the central argument that he and Jonathan have relied on in their brief.  There is a real danger that the Halbig case could be decided by the D.C. Circuit Court of Appeals, perhaps as early as next week, based on a mistaken understanding of the law, its purpose and history, propagated by Cannon and Adler and apparently adopted by one of the judges in the case.  Studies released in the past week demonstrate that this mistake could have devastating consequences for the country.
Read more »

Compendium of posts on Hobby Lobby and related cases

Marty Lederman

For our readers' convenience, I'm collecting here in one place links to all Balkinization posts about Hobby Lobby, Conestoga Wood, Notre Dame, and Little Sisters, et al., along with links to the briefs and oral argument in Hobby Lobby/Conestoga Wood and to a few other important posts about these cases.  We'll try to keep the list relatively current as the litigation proceeds.

Marty Lederman's Posts on Hobby Lobby

Hobby Lobby Part I -- Framing the issues (Dec. 11, 2013)

Hobby Lobby Part II -- What's it all about? (contraception?  abortifacients?  other religious objections to elements of health insurance?) (Dec. 13, 2013)

Hobby Lobby Part III -- There is no "employer mandate" (Dec. 16, 2013)

Hobby Lobby Part III-A -- Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “employer mandate”? (Dec. 28, 2013)

Hobby Lobby Part III-B -- Is it necessary that the government-imposed pressure to violate a religious obligation be substantial? (Jan. 8, 2014)

Hobby Lobby Part IV -- The myth of underinclusiveness (Jan. 21, 2014)

Hobby Lobby Part V -- Whose Religious Exercise?  Of corporations, for-profit employers, and individual plaintiffs acting in their various corporate capacities (Jan. 28, 2014)

Hobby Lobby Part VI --  The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers (Feb. 16, 2014)

Hobby Lobby Part VII -- Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb" (Feb. 17, 2014)

Hobby Lobby Part VIII -- Hobby Lobby's identification of the "precise religious exercise at issue here," and some thoughts on whether federal law substantially burdens it (Feb. 19, 2014)

Hobby Lobby Part IX -- There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan (Feb. 21, 2014)

How to Understand Hobby Lobby [on SCOTUSblog] (Feb. 23, 2014)

Hobby Lobby Part X -- A quick word on the Conestoga Wood reply brief (Mar. 12, 2014)  

Hobby Lobby Part XI -- Governor Brewer’s Veto in Arizona . . . and Hobby Lobby (Mar. 12, 2014)

Hobby Lobby Part XII -- On Abortions and "Abortifacients" (Mar. 22, 2014)

Hobby Lobby Part XIII -- Shareholder claims, Professor Bainbridge, and the red herring of "insider reverse veil piercing" (Mar. 24, 2014)

Asking the Wrong Questions in Hobby Lobby [on the Conglomerate Blog] (Mar. 24, 2014) 

The myth of "exemptions" that are said to undermine the government's compelling interests [on the Conglomerate Blog] (Mar. 25, 2014)

Hobby Lobby Part XIV -- How this week’s Sixth Circuit decision in a nonprofit case can inform the Supreme Court's "substantial burden" analysis in Hobby Lobby (June 14, 2014)

Hobby Lobby Part XV -- “There’s No Employer Mandate” Update: The Justices’ engagement at oral argument, and an important new Standard & Poor’s report (June 15, 2014)

Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision (June 30, 2014)

Hobby Lobby Part XVII -- Upshot of the decision: A possible win-win solution (and now all eyes turn to Notre Dame) (July 1, 2014)

Hobby Lobby Part XVIII -- The one (potentially) momentous aspect of Hobby Lobby: Untethering RFRA from free exercise doctrine (July 6, 2014)

Who, exactly, is exercising religion? And why does the contraceptive coverage rule burden that religious exercise? [on the Conglomerate] (July 19, 2014)

* * * *

Marty Lederman's posts on the nonprofit and and other contraceptive-coverage cases
Not Quite Hobby Lobby: The Nonprofit Cases (including Little Sisters and Notre Dame), and Opting Out as Complicity [with UPDATE on Little Sisters "church plan" situation] (Jan. 1, 2014)

Government brief in Little Sisters
(Jan. 3, 2014)

Little Sisters State of Play (Jan. 5, 2014)

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters) (Jan. 24, 2014)

How This Week’s Sixth Circuit Decision in a Nonprofit Case Can Inform the Supreme Court's "Substantial Burden" Analysis in Hobby Lobby (June 14, 2014)
Is the Court’s attempt at a compromise order in Wheaton College based upon a misunderstanding of the law? [on SCOTUSblog] (July 4, 2014)

What next in Wheaton College?  Is it also a "win/win" compromise? (July 4, 2014)

Unpacking the forthcoming RFRA challenges to the government's accommodation (with emphasis on self-insured plans) (July 18, 2014)

* * * *

The Briefs in Hobby Lobby and Conestoga Wood

can all be found here.

The Oral Argument transcript and audio

are here, and here, respectively

* * * * 

Other Balkinization posts on Hobby Lobby, Wheaton College, et al.

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, The Establishment Clause and the Contraception Mandate (Nov. 27, 2013)

Joey Fishkin, Hobby Lobby: Federal Agent (Nov. 30, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees? (Dec. 4, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter (Dec. 9, 2013)

Nelson Tebbe, Richard Schragger, and Micah Schwartzman, Hobby Lobby and the Establishment Clause: Gedicks and the Government (Jan. 21, 2014)

David Gans, Can Corporations Exercise Religion?: A Response to Douglas Laycock (Feb. 20, 2014)

Priscilla Smith, Whose Faith Does RFRA Protect? Everyone’s, No One’s, Or Not Mine? (Mar. 24, 2014)

Andrew Koppelman, Invisible Women (Mar. 25, 2014)

Nelson Tebbe, Today's Oral Argument in Hobby Lobby (Mar. 25, 2014)

Gerard N. Magliocca, What the Affordable Care Act Subsidy Case Tells Us (Mar. 26, 2014)

Mark Tushnet, Shelby County and Hobby Lobby (Apr. 20, 2014)

Andrew Koppelman, Hobby Lobby, a small victory for women's rights (June 30, 2014)

Sandy Levinson, Justice Ginsburg's inexplicable first two pages (June 30, 2014)

Joey Fishkin, Hobby Lobby and the Politics of Recognition (June 30, 2014)

Jason Mazzone, Hobby Lobby as Separation of Powers (June 30, 2014)

Jason Mazzone, Hobby Lobby: Breyer and Kagan (July 1, 2014)

Jason Mazzone, Horwitz on Hobby Lobby (and notes on Putnam and Campbell) (July 2, 2014)

Richard Schragger, Micah Schwartzman, and Nelson Tebbe, Not Bill Clinton’s RFRA (July 3, 2014)

Andrew Koppelman, Wheaton v. Hobby Lobby (July 4, 2014)

Sandy Levinson, The elephant in the room (July 4, 2014)

Mark Tushnet, Congress Enacted Single-Payer Health Care! (July 11, 2014)

* * * *

Other important online writing about Hobby Lobby

Eugene Volokh, My Hobby Lobby Posts, in a Single Word Document

Mark Tushnet, Do For-profit Corporations Have Rights of Religious Conscience?

Ira Lupu & Robert Tuttle, Religious freedom and savings constructions

Doug Laycock, Congress answered this question:  Corporations are covered

Michael Dorf, Why is RFRA still valid against the federal government?

Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:

Tracy Fessenden, Contraception v. Religious Freedom:  Hobby Lobby Heads to the Supreme Court

Pema Levy, When Is a Mandate Not a Mandate? Ask the Supreme Court

Walter Dellinger, Contraception as a test of equality

There are also a bunch of valuable posts over at Dorf on Law and on the Conglomerate.


Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:

Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:
Contraception v. Religious Freedom: Hobby Lobby Heads to the Supreme Court - See more at:


Friday, July 18, 2014

Unpacking the forthcoming RFRA challenges to the government's accommodation (with emphasis on self-insured plans)

Marty Lederman

With its order in the Wheaton College case, the Supreme Court invited the federal government to develop a regulatory fix that might both satisfy the nonprofit challengers to the contraceptive coverage rule and at the same time guarantee that the women who work for those employers will continue to receive cost-free contraceptive coverage. 

In an earlier post, I suggested that the Court’s proposal (or hope) for such a cost-free regulatory solution is far easier said than done, at least in cases involving “self-insured” employers.  For example, the government may well conclude—as the Court appeared to anticipate it would—that an employer can simply notify the government of its religious objection, and the government will then have the legal authority to turn around and instruct the insurance plan’s third-party administrator to offer contraceptive coverage, subject to reimbursement from the government in the form of an adjustment to ACA exchange user fees.  If the government promulgates such a modification to its regulation, it might mollify some of the nonprofit plaintiff organizations; but I think it is likely that most of those organizations will not be satisfied:  They will argue that such a “fix,” too, violates their rights under RFRA, because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage.

If I’m right about that, and if the government cannot come up with an alternative regulatory solution that is satisfactory to all parties, then the courts will have little choice but to continue adjudicating the applicability of RFRA to the government’s “accommodation.”  The first set of such cases—many already pending—will involve nonprofit organizations currently eligible for the accommodation.  But the government is also likely to extend the accommodation to at least some for-profit employers with religious objections, as the Court suggested it could and should do in the Hobby Lobby decision.  Many of those for-profit employers may accept the accommodation.  Almost certainly, however, some will not—which will mean that the nonprofit cases challenging the accommodation will soon be joined by similar challenges from for-profit companies.

In this post, I’ll try to canvass the primary RFRA issues in these cases challenging the accommodation, and how should the courts should—or are likely to--address them.
Read more »

Misrepresenting Transfers

Mark Graber

One of my research assistants transferred to another law school last week.  This was hardly a surprise.  His rejection letter from the other school might as well have said, “Do not worry.  We plan to admit you as soon as we do not have to report your relatively low GPA and LSAT to US World News and Reports or other institutions that rank law schools.  We look forward to having you pay two years of full tuition.”  Similar winks and nods occur throughout contemporary legal pedagogy.

Whether law schools should encourage transfers is a fair question on which I have no intelligent opinion.  On the one hand, if faculty are free to move to higher ranking institutions, so should students.  On the other hand, for purposes of institutional stability, there is an obvious difference between faculty members who over a thirty year career spend ten years at three different institutions and law students changing schools after a year.  I’m a bit of a stick in the mud, so I do not like lots of transferring, but that is hardly a good reason to impose my preference on others.

The problem with continuing the above line of analysis is that contemporary law school transfer practices are strategies for increasing tuition dollars without risking the paper credentials of the class that have nothing to do with such concerns as institutional stability and free choice.  Administrators are well aware that in normal times they cannot gain more tuition dollars by increasing the size of their first year class without lowering their institution's average GPA and LSAT numbers ( in recent years, you cannot even maintain the size of your class without lowering average GPA and LSAT).  If, however, the same students are told go elsewhere for a year and then transfer, the law school gets two-thirds the tuition revenue with no cost to paper credentials. 

The result is that law school student credential reports are presently often as misleading as law school student employment reports.  The unreported credentials of the second and third year students in schools that accept substantial transfers are likely to be much weaker than the reported credentials of their first year class. No good reason exists, however, for thinking first year credentials far more important than second or third year credentials.  To the extent students have an interest in peers with strong paper credentials, that interest remains constant over time.  Employers making decisions whether to hire a law school graduate should be more concerned with the unreported credentials of that student’s third year class than with the reported credentials of the first year class. 

Of course, a fair case can be made that these credentials are meaningless.  But to the extent they are meaningful they ought to be accurate.  And the present practice of not counting transfers in student body credentials promotes or is misrepresentation.  

Once upon a time, we thought that universities ought to have high ethical standards in large part because, as the place where professional socialization took place, modeling the very best professional ethics was extraordinarily important (we also thought universities were places of higher learning rather than revenue generating bodies, but that is another post).  Increasingly, however, as universities are told they ought to behave more like businesses, those who insist on higher standards are mere eggheads, who no doubt are unfamiliar with practice.  I think a bar ethics commission would look askance at a lawyer who cooked numbers in the same way as we encourage law schools to cook the credentials of their students.  Perhaps law schools with “University” as part of the name ought to set a better example.

Tuesday, July 15, 2014

Still No Opinion in Halbig (Obamacare subsidies case)- consolidated posts here

Abbe Gluck

The nail-biter continues, as the D.C. Circuit is apparently still working on Halbig v. Burwell, the challenge to the ACA subsidies on the federal exchanges (the Fourth Circuit case also remains pending).  As the blogosphere is alive with anticipation, I've provided links to my previous posts and to my New England Journal of Medicine primer on the case below.  Stay tuned...

1. The CBO Scored the ACA Assuming the Subsidies were Available

2. A Primer on the ACA's Legislative History--and How It Unequivocally Supports the Government in Halbig.

3.Getting the Facts (and the Law) Right About Halbig

4.  What the Court's EPA Ruling *Really* Has to Say About Halbig

5. Primer on the Case and Its Importance (in NEJM)

Friday, July 11, 2014

Reclaiming the Constitution


The Washington Post has just published a longer version of my previous post on how liberals can reclaim the Constitution. It's available here.

The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.

Accepting that opposition as  the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in.  Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.

Franklin Roosevelt, Hugo Black, and the Warren Court had no problems with proudly invoking the founders and showing why liberal projects were faithful to the constitutional project the framers began. We shouldn't have any problems with that approach today.

Congress Enacted Single-Payer Health Care!

Mark Tushnet

Who knew? The following is emphatically not a serious argument, although it's something of an exercise to figure out exactly where it goes wrong.

1. Statutes that appear to conflict should be interpreted harmoniously so that each one's goals can be achieved to the greatest extent consistent with the terms of both statutes.

2. Everyone agrees that direct provision of contraceptive services by the government -- single-payer for contraceptives -- is a way of providing those services that is less burdensome on the religious conscience of objectors than anything else.

3. Taking Hobby Lobby together with the stays in Little Sisters of the Poor and Wheaton College (and subject to the qualification that the stay opinions in both of the latter cases were careful to say that they were not prejudging the merits of the RFRA claims asserted), we "know" that an entity that regards filing the required form as complicity with evil has a less restrictive means of complying with the ACA -- informing the government of its conscientious objection and of the name of its insurance carrier by means either of a court filing or a letter to HHS.

4. Some entities will regard informing the government in any way as itself complicity with evil, because the result of providing that information is that -- because of an action taken by the entity -- employees will have subsidized access to contraceptive services.

5. Again, direct provision of such services is less burdensome on religious conscience (because the objector takes no action whatsoever -- other than existing in the United States -- that makes it complicit in evil, when the government provides the contraceptive services directly).

6. Because of the lack of information (pursuant to #4), the government cannot identify which employers have religious objections to the provision of contraceptive services through their insurance carriers. So the only way to avoid burdening the religious consciences of the objectors identified in #4 is for the government to provide contraceptive services directly to everyone.

7. Because this is a big country, for every imaginable medical service there is someone who will regard providing it through that person's insurance plan as complicity with evil (imagine a particular sort of Christian Scientist [not all adherents, but a particular version]). Because of #6, the only way to avoid burdening those people's religious consciences is direct provision by the government -- single-payer for all medical services.

8. Although the ACA doesn't look like a single-payer statute, it should be interpreted to harmonize it with RFRA, and the best way to do so is #7.

(9. Alternatively, the ACA could be interpreted to make employer participation entirely voluntary [with no penalties for nonparticipation]. Everyone would get medical insurance on the exchanges.)

I have no clue about how the ACA could be interpreted to provide financing for a universal single-payer system or universal participation in the exchanges. But, unless there's some way to do so, in enacting the ACA -- in light of RFRA as interpreted in the foregoing way -- Congress would have simply been putting empty words on paper.

Thursday, July 10, 2014


Mark Graber

The status of state constitutions in American constitutional theory is constantly changing.  During the era of grand constitutional theory, the point of the constitutional theory enterprise was to spin an account of the good national constitution that would enable the really good justices on the Supreme Court to strike down bad state constitutional practices.  As the Supreme Court became staffed by less than really good justices, William Brennan (the next to last of the really good justices) pointed out that every move liberal constitutional theorists had proposed with respect to the national constitution might be made with respect to state constitutions.  If William Rehnquist and friends churlishly refused to acknowledge that the Eighth Amendment interpreted consistently with principles of human dignity prohibited capital punishment, the really good justices on the Supreme Judicial Court of Massachusetts might be persuaded to recognize that the similar language in the Massachusetts Constitution interpreted consistently with principles of human dignity prohibited capital punishment.  The present, far more interesting trend, is to explore the ways in which state constitutional practice is different from, or similar to, federal (and foreign) constitutional practice.  State constitutions, such scholars as Amy Bridges and Alan Tarr have taught us, are important documents in their own right, rather than inferior versions of or substitutes for the national constitution.

Looking for Rights in All the Wrong Places:Why State Constitutions Contain America’s Positive Rights is an excellent example of the wonderful scholarship that can be produced when exceptional scholars analyze state constitutions through the prism of state constitutional actors rather than through the prism of Warren Court liberalism.  Emily Zackin, a young assistant professor in the political science department of Johns Hopkins University, demonstrates that the common claim that American constitutionalism is committed only to negative rights is true only with respect to the Constitution of the United States.  State constitutions, the book details, are loaded with positive rights, constitutional provisions that require government officials to take certain actions to supply persons with certain goods.  Through a detailed analysis of state constitutional provisions on education, worker’s rights and environmental laws, Zackin highlights a dimension of American constitutionalism that has too often gone under the radar.

Looking for Rights in All the Wrong Places makes several points explicitly and successfully.  A good deal of the book unsurprisingly demonstrates the existence of a positive rights tradition in American state constitutionalism.  That tradition is lovingly detailed in all the major chapters.  As Zackin demonstrates, constitutional provisions obligating states to pass laws establishing public schools, protecting workers, and safeguarding the environment are staples of state constitutions, and not unique to one or two states in one or two periods of time.  Indeed, such provisions can be found in the most liberal and most conservative of state constitutions.  Second, there is nothing constitutionally peculiar about rather detailed state constitutional provisions, such as the provision in the New York Constitution dealing with certain features of ski trails in the Adirondack Mountains.  Zackin details how many state constitutional amendments are designed to constrain state legislatures and that more specific language constrains in practice far better than general principles.  Finally, Zackin suggests an important modification to Ran Hirschl’s influential hegemonic preservation thesis.  Hirschl noted that constitutional reform in many countries seems better described as efforts to entrench longstanding elites than as measures designed to empower and protect historically vulnerable peoples.  Looking for Rights in All the Wrong Places documents how many constitutional amendments are passed by movements as part of their efforts to enter corridors of power.  Constitutions, Zackin’s readers may conclude, are designed to lock in certain powerholders and policies, but sometimes their beneficiaries are emerging powers rather than ancient hegemons.

One signal virtue of any good book is the capacity to generate ideas that you really cannot figure out whether they are yours and or the author's.  Consider the following observations, all of which are clearly rooted in Looking for Rights.  Once we recognize the positive rights tradition in American constitutionalism, we might consider the history of positive rights in Anglo-American constitutionalism.  For much of English political history, the Charter of the Forest (1217), which guaranteed people access to the woodlands, was considered as central to English liberties as the Magna Carta.  Kings reconfirmed both repeatedly.  Here several developmental stories might be told.  Did Anglo-American constitutionalism take a sharp negative rights turn during the eighteenth century or perhaps during the seventeenth century, when radical members of Parliament reinvigorated the Magna Carta, but not the Charter of the Forests.  Perhaps when English liberties travelled across the ocean, a division occurred between local governments, whose notions of liberty were derived from the Charter of the Forest, and central governments, whose notions of liberty were derived from Magna Carta (which also contains more than a fair share of positive rights).   Looking for Rights has as much to offer constitutional pedagogy as constitutional development.  Readers may conclude that  the categories we use discuss rights are derived from national litigation.  Cases on the constitutional status of the environment and education are scattered across the constitutional law casebook.  By comparison, a constitutional law class organized along state dimensions might consider education as much as self-contained category as free speech.  This is particularly important given the emphasis on a practice-ready curriculum.  A fair case can be made that most of our students are far more likely to litigate a state constitutional provision on education or the environment than a First Amendment case.  If so, our constitutional law class might reflect that reality.

Perhaps the most interesting feature of Zackin’s work is how she offers fresh insights into how constitutional provisions work.  Conventional constitutional theory insists that rights provisions work by constraining government.  Zackin highlights how positive rights provisions function by empowering government, and not simply in the obvious sense that such provisions require government to do something.  Looking for Rights explains that many movements for state constitutional revision wish to empower supporters in the state legislature to begin a general program of reform and, by demonstrating political strength, convince other legislators that their political future will best be secured by supporting the movement’s goals.  Perhaps future work will examine what we might call Zackin’s laws: “The more general the rights provision, the more likely that provision functions by empowering the sympathetic decision maker.  The more specific the rights provision, the more likely that provision functions by constraining the unsympathetic decision maker.”

These are, of course, projects for other times and perhaps other scholars.  The bottom line point is that Looking for Rights is an important work by a talented young scholar that will both change how we talk about American constitutionalism and offer numerous fruitful paths for more creative thinking about the entire American constitutional experience.

The elephant in the room

Sandy Levinson

As everyone knows, the Supreme Court issued an order allowing Wheaton College to refuse to submit written documentation to insurance carriers regarding its unwillingness to fund contraception.  According to the Times' account, "The court’s majority said Wheaton College need not fill out the forms. Instead, the order said, the college could just notify the government in writing. The government, it said, remains free “to facilitate the provision of full contraceptive coverage.”  This provoked a dissent from what the article describes as the "three female Justices."  Similarly, in an editorial condemning the order, we read the following two sentences:

"But for the court’s male justices,[Hobby Lobby ittself] didn’t seem to go far enough....  This prompted an angry response from the three female justices — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan." 

Two comments:  First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies.  After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language.  But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues.

The second comment refers to the quite obvious demographic elephant in the room that the Times simply fails to consider.  They prefer to portray the cleavage in the Court as the guys against the gals.  Presumably we can all accept the proposition that "male justices" are simply ignorant of the importance of contraception to planning one's own life, whereas, of course, "female justices" are vividly aware of such realities.  No doubt there's something to this.  But, quite obviously, the male Justice Breyer, is able to figure out its importance, so presumably something more is going on, for empirically-oriented Court watches, than mere gender.  What might that be?

The Times and almost everyone else in the "mainstream media" (unlike, say, Katha Pollitt in The Nation), find it indelicate to refer to the majority as "five conservative Republican Catholics" and the dissenters in Hobby Lobby as "three Jews and a clearly less conservative Catholic than her male colleagues." Can it really be pure coincidence that the Hobby Lobby five are, without exception, conservative Catholics (and not merely conservative Republicans)?  Or, for that matter, that the dissenters are not?  To be sure, one can't explain most of the Supreme Court decisions by reference to religious background.  The Court's viciously anti-labor decisions,dating back to the arrival of the militantly anti-labor Lewis Powell, have nothing at all to do with the majority's Roman Catholicism.  Indeed, one can only wish that the majority had imbibed more of the Catholic Social Justice tradition when learning the catechism (or, for that matter, that they read some of Pope Francis's comments on the poor and realized that labor unions historically have had something to with bettering the plight of the poor and downtrodden).  And I seriously doubt that religion has anything to do with explaining the Court's death penalty jurisprudence (if one wants to dignify it with that term), since, again, the Catholic Church institutionally is admirably skeptical about state killing as well as other forms of killing (including, as no doubt some of you will wish to inform me, abortion).  But, of course, I doubt that gender explains many of the decisions either.  

The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion.  But, of course, the very premise of Hobby Lobby is that religion is not simply pietism, the kind of thing one does in the privacy of one's home, church, synagogue, or mosque; instead, for millions of people, religion is an overarching way of looking at the world that influences how one acts in the world. I doubt that George W. Bush was being simply opportunistic when he named the Bible (and Jesus) as the most influential book in shaping his life, just as Bill Clinton had earlier proclaimed the centrality of his religious faith to shaping his politics.  So if this is true for employers, legislators, and ven Presidents--or state governors like Ohio's John Kasich, who admirably supported Medicaid expansion in Ohio because he believed that as a (conservative) Christian, he had a duty to help the poor, even if he said the proper conservative things about how bad Obamacare is--then why should we think that judges, including members of the Supreme Court, are uniquely free from the influence of theological views that they might literally have begun learning as youngsters?  

I leave open the possibility that we're better off as a society by adopting the willful blindness illustrated in the Times editorial.  But maybe we're not.  The paradox is that having a conversation bout the wisdom of the Times's practices in identifying judicial demographics would itself require recognizing the existence (and potential importance) of the elephant.  

UPDATE:  Whatever else may be meritorious or wrong about my post, I do think that a discussant below is absolutely correct in suggesting that Justice Kennedy is probably not best described as a "conservative Catholic" inasmuch as he has clearly been the leading advocate on the Court for the rights of gays and lesbians (and, I suspect, when the Court gets an appropriate case, the rights of transgendered persons as well).  I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory, inasmuch as it really does require a disdain for community in favor of liberty (and what conservatives in the old days called "license"). 

Wednesday, July 09, 2014

How We Venerate and Renovate our Constitution

Joey Fishkin

In response to Jack’s and Sandy’s thoughtful posts, I thought I’d briefly say something about the kind of constitutional tradition Willy Forbath and I are writing about in the book we’re now working on and in the article that E. J. Dionne so generously quoted and discussed in his column, provoking Jack’s response.

There are many kinds of constitutional argument.  A non-exhaustive list would include such broad categories as:
(1) Arguments that a particular clause or bit of constitutional text, when correctly interpreted, requires (or permits) result X.
(2) Arguments that more general features of the Constitution, such as its structure—or central commitments that the Constitution, correctly understood, embodies—require (or permit) result X.
(3) Arguments that result X is normatively desirable and we therefore ought to amend the Constitution in order to bring about result X.

Sandy would like to see more of that third type of argument.

Now at first blush, it might seem that arguments of the third type are completely incompatible with arguments of the first two.  After all, how can you argue that the Constitution already requires X, and also at the same time, that we ought to amend the Constitution in order to bring about X?  At a minimum this might seem a bit lawyerly (i.e. “my client didn’t do it, Your Honor—and if he did, it was justified!”).

But Willy and I find that our constitutional tradition is replete with advocates making combinations of all three of these and other types of arguments, not in the alternative but in a chorus.  Very often, advocates in the domain that Jack and Sandy call “high politics” make claims of a hybrid kind, such as the following: In order to live up to our fundamental constitutional commitments, we need to change a particular bit of constitutional doctrine that has sprung up, erroneously, as an interpretation of a particular clause—and we ought to fix it, whether through Article V Amendment or through changing the composition of the Court.  Hybrid arguments like these can be found in many American constitutional traditions of all political stripes.  They can certainly be found in the tradition Willy and I sketch in our article about the Anti-Oligarchy Constitution.

In the article, Willy and I are exploring a tradition in American constitutional thought that views the American Constitution as fundamentally and structurally opposed to oligarchic concentrations of political and economic power.   One of the signal moments for this constitutional tradition was the Progressive era, the fruits of which included several notable Article V Amendments, as Sandy notes.  At least two of those, the income tax (the Sixteenth) and the direct election of Senators (the Seventeenth), are very deeply entwined with the anti-oligarchic tradition we are writing about.  So, does that mean that Progressives favored the third type of argument over the other two?  No, not at all.  Many of the same people who were for these Amendments also argued that dethroning that era’s reigning oligarchs, and restoring rule by the people and economic opportunity for all, was necessary to vindicate an older set of American constitutional principles—principles that can be found either in the Declaration of Independence or in fundamental features of the Constitution itself.


In recent decades, as Jack notes, political conservatives have mounted an incredibly successful campaign to frame debates about the meaning of the Constitution in terms of a fight between “originalism” and “living constitutionalism.”  So, how do the arguments in the tradition Willy and I are sketching map onto this dichotomy?  They don’t.  Because it’s a false dichotomy, then and now.

Read more »

Tuesday, July 08, 2014

My Sexual Harassment Training

Mark Graber

I am not a hugger.  And I do not particularly like to be hugged.  But I have friends and colleagues who are huggers.  And so, I have experienced my fair share of unwanted hugs.  Apparently, I learned after going through mandated sexual harassment training, I have been the victim of sexual harassment, perhaps even sexual violence.  My school is clear that any “unwanted touching” is sexual harassment.  There is no discussion of intention or of the preexisting relationship between the hugger and the huggee, or a great many other factors that might occur to a person with some common sense. 

I just had a haircut.  I would have to look the policy over again, but I think unwanted comments on my haircut are also sexual harassment.  Since I could live without any comments on my haircut, I think our policy is being violated.  Administrative assistants have been prone to point out that my tie is not on straight, which is unwanted comments on my clothing (my mother and spouse will attest that, alas, I really do not care to know how badly I am dressed).  There is no mention in our unwanted comments policy of the power relationships between people or again, of a wide variety of factors that might occur to a person of some common sense (I am unsure whether I have been guilty of harassment when I tease them about harassing me).

As part of my sexual harassment training, I was given the following question.  A and B are going to a professional conference together.  They share a cab.  While in the cab, A makes an effort to hold B’s hand.  B is offended and A immediately desists.  True or false, this is not sexual harassment because the behavior occurred off-campus.  The right answer is obviously false, but I confess that nowhere in our policies did I find any indication that being involved in a profession conference was at all relevant (would this be sexual harassment at the movies if A immediately desisted), or for that matter any evidence that the preexisting relationship between A and B mattered (suppose A and B had typically held hands in the cab while going to a professional conference), or A’s motivation (suppose A perceived, perhaps falsely, that B was very nervous about a presentation and was mistakenly trying to provide reassurance).

Perhaps I should be grateful.  When I was at the University of Texas, some genius developed a sexual harassment policy that forbade all romantic relationships between faculty and graduate students, defined as anyone taking a graduate course.  The policy was emphatic that no exceptions were to be made.  This came as a surprise to some of us, given that among the faculty benefits at Texas at the time was that our spouses could take graduate courses for free.

Contrary to first appearances, this is not a polemic against the concern with sexual harassment at universities all across the country.  For the most part, people have sufficient common sense not to regard all the above parade of horribles as sexual harassment.  And when violations of common sense occur, the best explanation is usually that the people involved lack common sense rather than anything intrinsic to sexual harassment.

This is a polemic against the increased tendency for universities to solve problems by hiring more administrators, who function more to create work for faculty than to actually solve the problems.  Several years ago, someone pointed out to me that university administrators were increasing ten times faster than faculty.  The rate seems to be accelerating.  Too often, these administrators have little interest in the intellectual mission of the university, so rather than think seriously about the circumstances in which people might spontaneously touch each other (high fives for the school softball team), we get a non-serious policy that bans all unwanted touching (which means people trying to figure out whether sexual harassment has occurred will have no guidance from the rules at all).  And rather than thinking seriously about how faculty can contribute to a safer environment on campus, we get twenty minutes of computer training whose impact on the job prospects of an academic bureaucrat is likely to be far greater than the impact on the actual victims of sexual harassment.

Monday, July 07, 2014

A Zombie in the Supreme Court

Andrew Koppelman

One of the least interesting legal phenomena is a denial of certiorari by the Supreme Court. The Court has absolute control of its docket, it can decline to hear a case without explanation, and its denial of review is legally meaningless and has no precedential effect. However, the recent cert. denial in Elane Photography v. Willock, a case that presented a three-way collision between gay rights, religious liberty, and free speech, is a revealing window on the limits of constitutional lawmaking. The real issue in the case, the question of how gay people and religious conservatives can live out their ideals, was obscured by weak free speech claims. The Court was right to turn the case away.

The reconciliation of gay rights and religious liberty is an important and pressing question. But the cert. petition left it out of consideration. Instead, that question was displaced by weak free speech claims. This paradoxically meant that the Court could not hope to do justice to any of the real issues. The case as presented in the petition for cert. was a zombie: still moving, but without its soul.

I elaborate these points in a paper I've just posted on SSRN, here.

Whistling past the graveyard

Sandy Levinson

Needless to say, I found both EJ Dionne's column and Jack's posting about it very interesting.  I think it would be absolutely wonderful if the Forbath-Fishkin book on "the opportunity Constitution" became a best seller and structured a lot of the debate.  Indeed, perhaps President Clinton could adopt it as her manifesto as she sets out the vision for her presidency.

 That being said, it is also no surprise that I think there is an element of whistling past the graveyard as liberals/leftists/progressives/the 99% once again end up putting their faith in clever arguments directed at judge plus--and it's a big plus--an aroused social movement that also pressures legislators to live up to their oath really and truly to enforce the Constitution by passing appropriate legislation.  As I have written far too many times, we have a Constitution that is tilted irrevocably toward maintaining the status quo, which, of course, doesn't mean that every now and then, with war (1866-1868), a fluke election (Wilson in 1912, thanks to Teedy's splitting the GOP), and Depression (1933-37), and a magic electoral moment (1963-67), wonderful things can happen.  But don't bet on it.  Even if we have a President Clinton, unless "we" also have working control of the House, 60 votes in the Senate, and can replace Scalia with a Progressive, hers will simply be one more disappointing Democratic presidency. 

There used to a time when "progressives" talked about constitutional reform, and we got Amendments 16-19 (including 18, which was the product of an alliance of Christian groups and progressives groups who altogether correctly recognized that alcohol was a scourge that was wrecking a lot of working class lives).  There was, among many left progressives, though not technocratic progressives, a belief in rule by the people, thus the move toward "direct democracy" in the Western states.  I fear, though, that that valuable aspect of "our" tradition is gone.  The only people who really seem to have much faith in democratic politics are the Tea Party (though, of course, a lot of their leaders are busy trying to suppress the electorate, so I don't want to go overboard on their esteem for democracy_.

Our attitude toward the Constitution should be like our proper attitude toward the state:  To be loved and, perhaps, even to be died for (and to kill for( when in the right, but to be subjected to loving criticism (and even resistance) when in the wrong.  The Constitution is not the flag, a mere symbol to which we can ascribe our fondest notions of a republic with liberty and justice for all.  Instead, it is framework of government that, more often than not, has prevented the achievement of such liberty and justice save for the rare moments noted above.  It was one thing in the '60s to criticize the left for turning on the American flag and handing it over the right.  There really was no good reason to do that, and it is important for the left to be able to wave the flag when appropriate.  But the Constitution always ought to be subject to rational critique where the central question is "what has it done for us lately." 

E.J. Dionne wants to reclaim the Constitution


E.J. Dionne wants progressives to reclaim the Constitution for themselves. He also appears to endorse a version of popular or democratic constitutionalism. Excellent ideas all around, and it's great that prominent opinion columnists like Dionne are beginning to make use of and popularize what liberal academics have been working at for the last couple of decades.

In his short op-ed Dionne cites to B'zation blogger Joey Fishkin's piece with Willie Forbath, The Anti-Oligarchy Constitution, as well as linking to David Strauss's book, The Living Constitution and  Michael Dorf's review of David's book and my Living Originalism.

In fact, various forms of popular and democratic constitutionalism, each of which seek to reclaim the Constitution in different ways, have been a dominant strain in liberal academic scholarship since the 1990s, beginning with Larry Kramer's The People Themselves and Mark Tushnet's Taking the Constitution Away from the Courts, and continuing with Robert Post and Reva Siegel's scholarship on democratic constitutionalism. Bruce Ackerman's huge multi-volume project, We the People, is a form of originalist popular constitutionalism, as is Akhil Amar's America's Constitution, in a very different way. Sandy Levinson pointed the way even earlier in 1989, with his articulation of "protestant constitutionalism" in Constitutional Faith.  Meanwhile Doug Kendall's valuable work at the Constitutional Accountability Center, although directed primarily at courts, has been devoted to reclaiming constitutional text, history and structure for liberals.

As this abbreviated list suggests, liberal constitutional scholars, at least, have been reclaiming the Constitution for some time.

Yet if liberals want to reclaim the Constitution in politics as well as in law,  as Dionne hopes, they must abandon the shibboleth that all right-thinking liberals must oppose living constitutionalism to originalism. I think this a false choice, and ironically, it frames the debate on terms set by movement conservatives in the 1980s.

It was conservatives, and not liberals, who insisted on drawing a clear distinction between originalism and the work of the Warren and early Burger courts. Liberals had been quite happy to draw on adoption history to explain how and why enduring constitutional commitments should be applied to present-day circumstances. As Frank Cross has pointed out in his article Originalism: The Forgotten Years, the trend of increasing citations to the founders in Supreme Court opinions begins with the Warren Court. And the great avatar of the living Constitution, Franklin Roosevelt, explained and defended his constitutional commitments in terms of fidelity to the constitutional text and to the founders'  vision.

If you start by accepting that the difference between conservative and liberal visions of the Constitution is that one attempts to be faithful to the text and to the founders' vision and the other does not, well, that's just not a very helpful way for liberals to talk, either to themselves, or to the general public.  And of course, that's precisely why modern movement conservatives sought to frame the choice in that way.

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves-- as conservatives already have--not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders--including the Reconstruction framers who gave us the 13th, 14th and 15th amendments--created a framework on which later generations must build to realize the Constitution's great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.