Wednesday, March 20, 2019

Super-Incorporation

by Michael C. Dorf

In my latest Verdict column, I take note (as have numerous others) of the recent calls by Justice Clarence Thomas for the re-examination of long-settled constitutional doctrines. Thomas objects that the Court's modern case law did not ground these doctrines in the Constitution's original meaning. He then points to substantial evidence that the doctrines--in particular the rules of NY Times v. Sullivan and Gideon v. Wainwright--contradict the original meaning of the First and Sixth Amendments respectively.

My column raises a number of familiar criticisms of originalism, including some that overlap with the argument Prof. Segall recently laid out here on the blog earlier this week. The column then pivots to focus on a temporal problem: The cases at issue arise out of state laws and are thus governed not by the First and Sixth Amendments themselves but by the Fourteenth Amendment, which makes the relevant provisions applicable against the states. Although Justice Thomas claims that unbroken practice prior to the 1960s entails that the Sullivan and Gideon rules are wrong as agains the states no less than as against the federal government, he does not take account of the possibility that in at least some circumstances the meaning of a term used in the Bill of Rights might have evolved between 1791 and 1868. I give a couple of plausible examples.

I then point out an odd implication. Prior to nearly-full incorporation of the Bill of Rights, states sometimes were governed by a looser due process standard than the standard that governed the federal government under a right enumerated in the Bill of Rights; yet, where a term evolved from less restrictive of government action to more restrictive of government action between 1791 and 1868, applying original meaning per the general approach that originalists purport to favor would lead to stricter controls on the states than on the federal government.

Tuesday, March 19, 2019

The Casual White Supremacy of Mainstream America

by Neil H. Buchanan

I grew up thinking that what I saw around me was normal.  There were plenty of reasons to think that this was true.  I am a white, Anglo-Saxon protestant.  I grew up in a suburb of a medium-sized midwestern industrial city.  I am a Baby Boomer.  Long before half-term Governor Sarah Palin joined the disgusting effort to try to turn the words "real America" into a political weapon, it was difficult for people like me to think of America as anything but people like us and places that seemed familiar to us.  The culture reflected us, and no one questioned it very much.

That is not to say that we were unaware of differences, of course.  We knew about cities, but when I was growing up, most American cities were emptying out, with White Flight and the beginnings of industrial decline making racial differences between cities and suburbs even more difficult not to notice.  And it is not as though people like me thought of our lives as better than everyone else's -- or even all that good.  In fact, we thought of our lives as boring, vanilla, and stultifying. Bruce Springsteen was from a somewhat lower economic class, but there is a reason that his songs about getting the hell out of this lousy town resonated with tens of millions of alienated people.

Today, the world reels from the latest act of white supremacist mass murder, this time in New Zealand, but really it could have happened in any of the obvious countries, certainly here in the U.S.  As I have read various commentaries on this tragedy, especially Jamelle Bouie's excellent New York Times op-ed, "The March of White Supremacy, From Oklahoma City to Christchurch," I was reminded of a bit of family lore that I occasionally share as a lighthearted moment but that includes an element of cultural context that is revealing about Americans' assumptions about race.

Monday, March 18, 2019

Justice Thomas, Jud Campbell, and Free Speech Originalism

By Eric Segall

Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following:

The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[P]erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan. Thomas said the following:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own federal rule[s].... We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

There are two reasons Justice Thomas should read Professor Campbell's article. First, Campbell persuasively demonstrates that most of the Court's free speech doctrine cannot be supported by an originalist methodology. In a sense, this thesis supports Justice Thomas' view that Sullivan should be reexamined, but it also calls into question many other Supreme Court decisions that comport with Justice Thomas' priors. No doubt, Thomas will not suggest reconsidering those cases. Second, Campbell's anti-originalist First Amendment observations apply equally to most other important areas of litigated constitutional law, few of which can be traced back to founding era evidence.

Friday, March 15, 2019

It's Always Hippie-Punching Time for the Supposedly Liberal Media

by Neil H. Buchanan

Have the Democrats started to go too far to the left?  Anyone who follows the major newspapers or other mainstream news sources can be forgiven for thinking so, given how often that claim is being repeated these days.  And anyone who has read any of a half dozen or so of my recent columns here or on Verdict knows that I find that assertion utterly absurd.  (See., e.g., yesterday's Dorf on Law column.)  Even now, however, there is still surprisingly more to say about this dangerous meme.

The major problem is that far too many journalists continue to try to prove that they are not "the enemy of the American people."  Because they do not realize (or are afraid to admit) that the Republicans are simply continuing to "work the refs," high-profile journalists overcompensate for their supposed liberal bias by being especially hard on liberals.  This takes familiar forms such as false equivalence, whataboutism, and similar dodges that allow skittish journalists to say, "See, we're critical of Democrats, too!"  (And, on the other side, the press inexplicably refused to treat Paul Ryan as the fraud that he so clearly was -- and is.)

The worst form of this tendency, however, is hippie-punching, which the Urban Dictionary defines aptly: "The practice common among establishment centrists of ritualistically denigrating progressives in order to win over imaginary swing voters and David Brooks. Sometimes misinterpreted as a boneheaded political mistake, it's actually a sign of deep and unselfish commitment to pleasing owners and professionals even at the cost of losing elections."

The classic hippie-puncher was Bill Clinton (remember Sister Souljah?), although former Barack Obama political whisperer David Axelrod was also a practitioner.  The idea is to court respectability with conservatives by saying, "Yeah, those guys are too extreme.  We're not scary like them."  And journalists who insist on (what they wrongly think of as) balance love this strategy.  Punch a hippie to prove one's bona fides!

With everything that has happened in the past few years, one would think that this kind of mindlessness would have been banished from the press room, but here we are in 2019, and we still see it.  A lot.

Thursday, March 14, 2019

Trump's Opponents -- ALL of Trump's Opponents -- Must Take the Solidarity Pledge

by Neil H. Buchanan

Three years ago, when it looked as though Donald Trump's takeover of the Republican Party might yet be stopped by party insiders (who were desperately trying to get people to vote for one of a cast of almost comically overrated contenders -- Ted Cruz, Marco Rubio, Bobby Jindal ... ), people started to wonder whether Trump would retaliate by mounting a third-party campaign.  He was thus asked -- pointedly and prominently, especially during the joint appearances that somehow were called debates -- whether he would pledge "here and now" that he would rally to support the Republican nominee if he lost.

Trump refused, even though the others onstage would always take the pledge.  (Everyone knew the question was not aimed at them, but in the interest of appearing balanced, they went through the motions.)  The matter was never tested, of course, but it seems more than likely that Trump would have been willing to continue his ego-fest as an independent, even if doing so would have resulted in a Hillary Clinton presidency.

Although Trump was (as ever) a special case, the question of how to handle losing is at the core of political life.  "Politics ends at the water's edge" captures the idea that national interests supersede political rivalries, even across parties.  The peaceful transition of power after an election -- another fundamental assumption of the American system that Trump might well flout -- similarly expresses the idea that losers rally around the winner at least enough to say that the government is legitimate and that future elections will always be there to reverse one's fortunes.

On the intra-party level, as in Trump's 2016 flirtation with a third-party run, the question of loyalty and sore losing is especially acute.  There is always the possibility that a person can leave in disgust, so any party has an interest in keeping the loser and his or her supporters in the fold.  When Hillary Clinton won the Democratic nomination, there was a lot of pressure on Bernie Sanders to come out strongly in support of her.  Although there has lately been some reported snark from former Clinton people about Sanders being a demanding surrogate, he certainly did a lot to support Clinton and gave a very gracious speech at the convention, all the while working to keep his committed and disappointed supporters from engaging in all-out revolt.

The question that I am interested in today is whether the Democratic establishment and the NeverTrump non-Democrats are going to view the solidarity pledge as a one-way deal.  That is, they clearly expect "the left" to rally around a centrist or center-right candidate; but it is at best not clear that they will reciprocate if the nominee is not to their liking.

It is time to get them on the record on this question: "Do you pledge that, no matter who is the Democratic nominee, you will support her or him and campaign enthusiastically for the ticket in the general election?"  This should not be a difficult question, but I am worried that it is for some people.

Wednesday, March 13, 2019

Police Shootings, Me Too, Jussie Smollett, and the Power of Narratives

by Michael C. Dorf

On Verdict today, Prof Colb has a column that looks at the reactions to the non-indictment decisions in the police shooting of Stephon Clark. She explains how narratives associated with "Black Lives Matter" and "Blue Lives Matter" shape perceptions. As the title here suggests, she applies the same analysis to Me Too and Jussie Smollett's hoax. Check it out.

Tuesday, March 12, 2019

Is the Republicans' Damage to the American System Already Irreversible?

by Neil H. Buchanan

The looming threat of autocracy that Donald Trump poses deserves more attention than it is getting.  In a Verdict column last week, I described why we should take very seriously the idea that Trump will simply refuse to leave office -- even if he loses next year's election badly -- and why Republicans are showing every sign of going along with what would amount to a coup.  "Oh, he's right that there was massive voter fraud.  That's why I lost my Senate seat, too.  We can't let Democrats steal elections!"

Former Trump lawyer Michael Cohen might be a convicted liar, but when he says, "Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power," I suspect that he is telling the truth.

I do understand why many people do not want to "go there": first, it sounds alarmist to call someone a would-be dictator ("This is America!  We're stronger than any one man."); and second, living in denial is more comfortable than confronting reality.  Even though neither of those reasons justifies ignoring or diminishing the threat, it is at least possible that the worst will not happen.

For today, therefore, I want to put on an optimist's glasses when it comes to next year's elections and say that the Democrats will win the presidency and both houses of Congress (which would likely also mean picking up quite a few state legislative seats and governorships) — and Trump and the Republicans accept the results.  What then?  Will things go back to something that can be called normal?  In a word, no.  It turns out that even the optimistic scenario quickly becomes pretty darned pessimistic.