Category Archives: Constitutional Law
May 26, 2023 Leonid SirotaConstitutional Law
Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.
As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1. Continue reading "Bringing Real Harm Back to Canadian Free Speech Law"
Apr 27, 2023 Jonathan FeingoldConstitutional Law
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution. Continue reading "The Problem is the Court, Not the Constitution"
Mar 30, 2023 Mark KendeConstitutional Law
Alan Z. Rozenshtein & Jed Handelsman Shugerman,
January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37
Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at
SSRN.
There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.
One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution. Continue reading "Former President Trump: Inflammatory Speaker or Criminal"
Feb 27, 2023 Rebecca ZietlowConstitutional Law
Bradley Rebeiro,
Douglass’s Constitutional Citizenship, __
Geo. J. L. & Pub. Pol’y __, (forthcoming 2023), available at
SSRN.
Frederick Douglass was a monumental presence in the antebellum era, a leader in the antislavery movement, and an essential figure in the Reconstruction Era. Until now, however, legal scholars have largely neglected to plumb the depth and breadth of his philosophical works. In Douglass’s Constitutional Citizenship, Bradley Rebeiro presents Douglass as not only a skilled political strategist, but also a sophisticated philosopher who articulated a detailed theory about the link between citizenship and fundamental rights.
According to Rebeiro, Douglass adopted a broad vision of citizenship rights to support his argument that Black people were part of “the People” protected by the United States Constitution. Rebeiro explains, “The Constitution’s Preamble set out a citizenship worthy of one’s allegiance and devotion, if only the Union were to embrace fully the promise of its own aspirations as articulated in the Declaration of Independence and reimagined in the Gettysburg address.” In Dred Scott v. Sandford, the United States Supreme Court reached the opposite conclusion. By contrast, Douglass’ writings provided a blueprint for the full emancipation of enslaved people. It was this emancipatory project—one that entailed not only the end of enslavement, but inclusion as equal citizens in the national polity—that eventually animated the Reconstruction Congress. Continue reading "Belonging, Community and Allegiance: Frederick Douglass’s Theory of Citizenship"
Jan 30, 2023 Cary C. FranklinConstitutional Law
Richard Schragger & Micah Schwartzman,
Religious Freedom and Abortion,
__ Iowa L. Rev. __ (forthcoming 2023), availible at
SSRN.
Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.
Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down. Continue reading "Religious Liberty for Some"
Dec 2, 2022 Leah LitmanConstitutional Law
A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”
Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would. Continue reading "Movement on Judges"
Nov 4, 2022 Paul HorwitzConstitutional Law
The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?
Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake. Continue reading "We Care"
Oct 3, 2022 Helen NortonConstitutional Law
At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”
21st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests. Continue reading "The Press’s Responsibilities as a First Amendment Institution"
Aug 18, 2022 Ilya SominConstitutional Law
During the Trump Administration, progressives often found themselves resisting administration initiatives by appealing to constitutional principles traditionally associated with conservatives and libertarians: federalism limits on “commandeering” of state and local governments, separation-of-powers constraints on federal spending and regulation, and traditional civil libertarian approaches to freedom of speech that have come under increasing disfavor on the left.
In his compelling recent book Principles Matter, legal scholar Carlos Ball argues that progressives should stick to these ideas in the future as a matter of principle, not just as temporary litigation strategies deployed against Trump. He makes a strong case that, in some ways, could be even stronger and more far-reaching. Continue reading "Lessons from Progressives’ Use of “Conservative” Constitutional Principles to Battle Trump"
Jul 20, 2022 Katie EyerConstitutional Law
Adam Davidson,
Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity, 99
Wash. U. L. Rev. _ (forthcoming 2022), available at
SSRN.
Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.
There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?
This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity. Continue reading "Should We Abolish Qualified Immunity?"
