Check out the revamped online version of Harvard Law & Policy Review (HLPR), the official journal of ACS. The new Web site includes journal articles and frequently updated content, including commentary on legal and policy issues, book reviews and a forum for student writing. The recent issue of HLPR explores solutions to the nation's soaring incarceration rates and includes articles by Sharon Dolovich, Judge Nancy Gertner, and Nkechi Taifa and Catherine Beane.

Archived journal articles, many influential, are also available online, including a 2008 article by the late Sen. Edward Kennedy called "Restoring the Civil rights Division." That article was cited in a recent speech before ACS by Assistant Attorney General for the Civil Rights Division Thomas E. Perez. Another journal article, by Cornell University scholars Kevin Clermont and Stewart Schwab, featuring information showing that employment discrimination lawsuits face uphill struggles in the federal courts, was highlighted by Senate Judiciary Chairman Patrick Leahy in a committee hearing. A recently featured article on the HLPR Web site, by Columbia Law School professor Jamal Greene studies "originalism" in context of the Supreme Court's ruling in District of Columbia v. Heller, in which the 5-4 majority led by Justice Antonin Scalia found that the Constitution does protect an individual right to posses firearms. 

ACSblog will publish a graphic exploration of our country's debate over healthcare reform. Each day next week, writer Jonathan Hennessey and graphic artist Aaron McConnell, authors of The United States Constitution: A Graphic Adaptation, will debut a new part of their latest work written exclusively for ACSblog.

The series by Hennessey and McConnell, the latest installment in ACSblog's ongoing Book Talk feature, will offer a unique perspective on the issue dominating headlines for the past month. The team looks not just at the stage set by hot rhetoric on both sides, but will answer the question, "Where among the Constitution's seven articles and 27 amendments could supporters of health care reform look to justify it?"

ACSblog is honored to dedicate the week of Constitution Day, September 17, 2009, to the five-part "We the Patients: Health Care Reform and the Constitution" -- an original, timely, substantive and entertaining work.

Recently I blogged on the interrelationship between international law and the U.S. civil rights movement. While certainly not a contentious topic for most readers of ACSblog, the use of international law in domestic courts to further a domestic civil rights agenda-or any other matter-is anything but resolved. In some instances, international law is necessary to decide a matter, such as in cases brought under the Alien Tort Claims Act. In other instances, international and foreign law sources are referenced by litigants or judges as examples of non-binding authority in support of a particular position. It is primarily this second use of international law which Professor Chimène Keitner focuses on in her article "International and Foreign Law Sources: Siren Song for U.S. Judges?" published in the most recent issue of Advance: The Journal of the ACS Issue Groups.

Professor Keitner provides a clear overview of the judicial debate surrounding the use of international and foreign law sources as non-binding authority in domestic courts and the reaction of legislators to this reality. She then examines three sets of arguments advanced by opponents to the use of these sources, which she terms as Institutionalist Objections, Instrumentalist Objections and Inherentist Objections. It is these arguments and the third set in particular, which I would like to explore here.

Institutionalist Objections essentially assert that U.S. judges are ill-suited to draw on foreign sources or international law because they are not well-versed in either. These objections are perhaps the weakest of the three sets of arguments because judges are not presumed to be experts in every area of the law that may come before them. Instead, judges are required to perform their duties competently and diligently-no matter what the subject matter is or where their expertise lies.

The second set of objections, Instrumentalist Objections, discourages the use of international and foreign law sources for fear that judges will cherry pick those sources that best suit their view. But as Professor Keitner rightly points out, judges typically only choose to cite non-binding authority which supports their position. Again, as with the Institutionalist Objections, these objections exist regardless of the type of non-binding authority that is being considered.

At the heart of the third set of arguments-Inherentist Objections-is the theory of American exceptionalism. These objections assert that because our Constitution is a unique document, so are our values. Thus, non-domestic sources are irrelevant unless explicitly endorsed by Congress. These arguments are the most difficult to combat as they rest on ideology.

Inherentist Objections tend to invoke the language of national sovereignty and a rigid perspective on the nation's position within the international world order. But those who support these objections, also support the role of the United States in affecting change in other countries-many times through accessing international organizations such as the United Nations or the North Atlantic Treaty Organization. These opponents therefore generally only seek out the international community when they like. This inconsistency exposes the United States to criticism from the international community it often endeavors to lead.

Our society's process of betterment should not be confined to our borders. With the world as interconnected as it is, doing so would lend support to the view that the United States is isolationist. Rather, our nation's international standing is strengthened when we demonstrate that we are a full participant in the world order we seek to improve (and in many instances guide) by engaging other nations' views-including through their jurisprudence. To act otherwise would be a form of hubris. As Professor Keitner states in the closing of her article, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."

In "What's a Liberal Justice Now?" for The New York Times Magazine, Prof. Jeffrey Rosen casts President Obama's understanding of the judiciary as a minimalist, principled institution. 

"If this new understanding of legal liberalism can be traced back to a single moment, it was in April 2005, when the American Constitution Society and other progressive groups sponsored a conference at Yale Law School called 'The Constitution in 2020,'" writes Rosen. "The conference brought to New Haven many of the leading liberal scholars in the country, including several who in recent weeks have been mentioned in connection with Obama: Pam Karlan, a law professor at Stanford; Harold Koh, of Yale Law School; and Sunstein, then a professor at the University of Chicago Law School."

The Constitution in 2020 is now the title of a book co-edited by ACS contributors Jack Balkin and Reva Siegel who will both take part in a panel by the same name at the 2009 ACS National Convention. See the full convention schedule, and register to attend, here.

On the morning that President Obama nominated Judge Sonia Sotomayor to the Supreme Court, in an article entitled "Liberals Sketch Out Dreams and Limits for Supreme Court," The Wall Street Journal took note of the ideas shaping a new era for the judiciary. Those ideas are outlined in a pair of books authored and edited by a number of ACS Board Members and contributors. The WSJ's Jess Bravin writes: 

Until now, no manifesto has set forth what [a liberal] vision [for
law in the 21st century] might be. But in two new books, scholars with
ties to the Obama administration suggest how they would move from
defending liberal precedents of the mid-20th century to advancing new
constitutional approaches.

"For far too long, liberals have been kind of apologetic and on the defensive, and we oughtn't to be," says Pamela Karlan, a Stanford law professor who worked on both books and is sometimes mentioned as a potential Supreme Court nominee.

...

One of the books, "The Constitution in 2020,"
harkens back to a document from the Reagan-era Justice Department
called "The Constitution in the Year 2000," which codified the
conservative critique of liberal rulings going back to the New Deal.
The other new book is "Keeping Faith With the Constitution."

...

Published by the American Constitution Society, "Keeping Faith" aims to "set out a liberal and progressive way of understanding how the Constitution has been interpreted and how it ought to be interpreted," [co-author Pamela] Karlan says.

As "Keeping Faith" tells it, the Supreme Court's most significant decisions were made by focusing less on the way constitutional provisions originally were enforced but on their impact on contemporary generations. Referring to the court's 1942 decision striking down an Oklahoma law authorizing forced sterilization of "habitual" criminals, "not a single justice...asked whether forced sterilization would have been permitted in 1868 when the 14th Amendment was adopted," the authors write.

Keeping Faith with the Constitution was released this month by ACS at a National Press Club panel discussion moderated by Slate's Dahlia Lithwick and including expert analysis from two of the volume's co-authors Profs. Karlan and Goodwin Liu  as well as Charles J. Cooper, a former assistant attorney general in the Reagan administration and Pamela Harris, co-editor of a companion volume called It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document. Highlights from that discussion are in the video to the left.

The White House has officially announced its intent to nominate Prof. Christopher Schroeder (right) of Duke University School of Law to the head the Justice Department's Office of Legal Policy.

"In his new role, Schroeder would be a leading voice on legislation related to law enforcement and the federal court system, and on nominations for the federal judiciary," according to The Blog of the Legal Times. "If confirmed by the Senate, he would be the chief policy advisor to Attorney General Eric Holder Jr. and Deputy Attorney General David Ogden."

Along with Profs. Goodwin Liu and Pamela Karlan, Schroeder co-authored Keeping Faith with the Constitution, released this month by ACS. In Keeping Faith, the co-authors write, "[O]ur central theme is that the practice of constitutional interpretation must be faithful to what the Constitution is: not a legal code, not a lawyer's contract, but a basic charter of government whose practical meaning arises from the continual adaptation of its enduring text and principles to the conditions and challenges facing each generation." Liu and Karlan will join Judges Rosemary Barkett and Judge Jeffrey Sutton along with Supreme Court litigators Tom Goldstein and Pamela Harris to explore the ideas set forth in Keeping Faith with the Constitution at the 2009 ACS National Convention.

Writing in The Huffington Post, Prof. Geoffrey Stone described Keeping Faith as a work that "critiques the ‘conservative' approaches to constitutional interpretation - originalism and so-called strict construction, and then traces out a more progressive approach to constitutional interpretation, which the authors describe as ‘constitutional fidelity,' which is designed both to preserve the Constitution's meaning over time while at the same time recognizing that the Framers intended the Constitution to be a ‘visionary document.'"

By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

The opening sentence of the Fourteenth Amendment is both sweeping and clear: "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." As discussed in my recent ACS Issue Brief, the words and history of this constitutional text establish that it provides automatic citizenship-"birthright citizenship"-to anyone born in this country regardless of race, color or status of one's parents or ancestors.

Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally; in California, signatures are being gathered for a ballot proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents; and, in the 2008 presidential campaign, several Republican candidates expressed skepticism that the Constitution even guarantees birthright citizenship.

The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, the text, history and principles behind the Citizenship Clause demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.

The text of the ratified Citizenship Clause embodies the jus soli rule of citizenship, under which citizenship is acquired by right of the soil (contrasted with jus sanguinis, according to which citizenship is granted according to bloodline.) This form of citizenship embodies the American rejection of aristocracy and privileged ancestry; under the Citizenship Clause, one's citizenship turns on an objective circumstance-place of birth-not familial status.

The Reconstruction Framers' intent to make citizenship dependent not on the favor of the majority or the favored status of a person's ancestors, but rather on neutral, fixed conditions is evident from congressional debates. In proposing the language that would ultimately be ratified as the Citizenship Clause, Senator Jacob Howard of Michigan explained that his proposed addition would declare "that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."

Recognizing the sweep of this proposed language, both supporters and opponents of the Fourteenth Amendment understood the Citizenship Clause to grant birthright citizenship to children of aliens. In fact, this was a significant source of opposition: Senator Cowan lamented that the proposal would expand the number of Chinese in California and "Gypsies" in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit "trespass" within the country. No supporter of the Amendment rose to dispute Senator Cowan's view of the effect the proposed Amendment would have. To the contrary, Senator John Conness of California defended the proposed Citizenship Clause as sound policy, stating:

[With] respect to the children begotten of Chinese parents in California, ... it is proposed to declare that they shall be citizens .... I am in favor of doing so .... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."

In sum, the Citizenship Clause was proposed, enacted and ratified with the understanding that it granted automatic birthright citizenship to children born in the United States to alien parents.

As a final note, it is worth mentioning that the expansive Citizenship Clause was not forged in some more enlightened era. As the remarks quoted above demonstrate, along with the grand statements supporting liberty and equality, ethnic stereotypes and racial hostility were also on full display in the debates over the Fourteenth Amendment. But our Reconstruction Framers wisely placed the conditions for automatic citizenship beyond the prejudices and politics of the day, intending to establish "a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation." Today's anti-citizenship advocates are therefore not just flouting the Citizenship Clause's text and history when they seek to deny birthright citizenship to children born on U.S. soil to undocumented immigrant parents, they are also disregarding the Fourteenth Amendment's guiding principles and purposes.

Attorney Keenan Kmiec, a former clerk to Chief Justice John Roberts, recently wrote a column decrying the "[c]omplaints about judicial activism [that] have plagued Supreme Court confirmation hearings for decades." As were co-authors Goodwin Liu and Pamela Karlan at this month's release of Keeping Faith with the Constitution, Kmiec is most concerned with understanding judicial philosophy of President Obama's judicial nominees. However, according to Kmiec, "Empty or ambiguous charges of 'judicial activism' only make things harder."

Understanding a nominee's judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of 'judicial activism' score cheap political points, but they have no place in a serious confirmation debate. Let's banish the term or at least use it carefully.

The nation's capital is still recovering from this year's White House Correspondents' Dinner, which was no less raucous than in previous years, leaving White House Press Secretary Robert Gibbs to explain the White House's position on the finer points of comedy. 

The administration is also taking to the airwaves on healthcare, today, with a major policy announcement by the President. Backed by a coalition of vested interests who previously opposed reform, President Obama indicated that the health care industry and Congress have compatible incentives to cut costs, preserve consumer choice and extend coverage to the uninsured.

Also, the White House is reportedly on the verge of declassifying 2004 CIA memos that demonstrate torture to be ineffective. Anonymous congressional staffers have called these documents the "holy grail" in the persistent debate about what to do with those who tortured in America's name.

IN the HOUSE

Ahead of any new memos being released, the torture debate continues swirling in the House this week, as her opponents ask what House Speaker Nancy Pelosi (D-Calif.) knew about CIA interrogation techniques and when. Pelosi's maintenance that she knew nothing about specific techniques received fresh support today with news that Sen. Bob Graham (R-Fla.), who was briefed by CIA officials around the same time, also failed to recall being told about waterboarding or other techniques.

In legislative affairs, the House continues hashing out the particulars of the budget in committee meeting after committee meeting. And Attorney General Eric Holder is scheduled to address the House Judiciary Committee on Thursday to discuss recent escalations in violence near the Mexican border.

IN the SENATE

Senators have started positioning themselves for a nomination struggle around the replacement for Justice Souter. In other nomination news, Prof. Cass Sunstein has his first hearing before the Committee on Homeland Security concerning his nomination to be Administrator for the Office of Information and Regulatory Affairs. (Sunstein spelled out his regulatory philosophy in a debate published by the Harvard Law and Policy Review -- the official journal of ACS -- here.)

Meanwhile, top representatives from each party on the Banking Committee have reached a compromise on legislation that would lower interest rates for those paying down their credit card debt in a timely fashion.

The Google Books settlement, analyzed by Prof. James Grimmelmann in this ACS Issue Brief, continues to produce headlines.

By way of background, "In 2004, Google announced that it would create the largest library in the history of the world. The search company had signed up with major universities around the globe to scan and make searchable every word in every volume they contained," according to Slate. "When it was done, we'd be able to search through printed texts in the same way we search the Web. It was a lofty ambition, and it was quickly stopped short by a cold reality -- copyright law."

CNET News reports on recent developments: 

The Justice Department is examining antitrust issues regarding a proposed settlement of Google Book Search lawsuits with the search giant ....

It's unclear what might come of the reported talks, but the Justice Department is not to be treated lightly. The department leads enforcement of antitrust law, and Google backed down from its threatened antitrust lawsuit against it in 2008 regarding a search-ad partnership with Yahoo.