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By Caroline Fredrickson, Executive Director, American Constitution Society for Law and Policy (ACS).

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In what may be an example of calculated distraction from things that matter, a gaggle of rightwing bloggers, precipitated by an article by Princeton University professor Robert P. George in the conservative magazine First Things, has decided to vent their fury at a small (4 inch) pocket Constitution published six years ago by the American Constitution Society because of what George claims are missing two words from Lincoln's Gettysburg address.

The publication, offered free to attendees at most ACS events, includes the U.S. Constitution and two other documents that provide important context for understanding our founding document: the Declaration of Independence and the Gettysburg Address. But rather than acknowledge the goal of the booklet -- to help ensure that Americans have ready access to these primary documents - George and his posse of rightwing bloggers baselessly finds a conspiracy afoot, suggesting, erroneously, that "The American Constitution Society had omitted Lincoln's reference to the United States as a nation under God from the address he gave at the dedication of the burial ground at Gettysburg."

Apparently, in his eagerness to find a conspiracy, George has chosen to either ignore or willfully distort the history of this important document. The truth is, five drafts of Lincoln's Gettysburg Address exist, and historians are uncertain about which one Lincoln actually read on the battlefield. Three included references to God and two did not. Which one was the most accurate is not and cannot be known for certain. George cites the recollections of several reporters of the time who stated that the president included the words "under God" in his remarks. Did President Lincoln improvise and add those words as he spoke? Perhaps! I wasn't at Gettysburg, so I can't be sure that George wasn't. As for the journalists' accounts, it would be interesting to read a history of the Civil War based solely on contemporaneous reports of journalists of the time, which would include countless conflicts, distortions, and inaccuracies. At the very least, honest scholars must acknowledge that wise people have differing views based on the available facts.

Even more disturbing (and clearly erroneous) is the claim that ACS deliberately manipulated the texts out of an alleged anti-God agenda of our organization. One need only open the first page of ACS's pocket publication and look at the first lines of the first document - the Declaration of Independence, to see very clear references to God and "the Creator." George simply ignored this fact, since it did not fit within his conclusion.

At a time when many conservative pundits and policymakers can only try to distract from the administration's efforts to address real problems, it is perhaps not surprising that some would try to refocus attention on such peripheral issues. Indeed, the hysteria over our pocket Constitution is reminiscent of debate over conservative "originalism," in which highly complicated matters from the past which are open to a variety of interpretations with considerable evidence for each get boiled down into tendentious little just-so stories about how everyone who has a different view of the evidence hates God and America.

The draft of the Gettysburg address included in our pocket Constitution is just that, one of Lincoln's drafts, word for word. Nothing crossed out, nothing redacted, and nothing hidden. George and his handful of fellow travelers know this, but they don't want to discuss or debate matters of dire seriousness to the nation.

[image via Wikimedia Commons]

 

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Joanne Irene Gabrynowicz is the author of a recent article in the Harvard Law & Policy Review.

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In the early 1980s, like most Americans, I knew people had been to the Moon but knew nothing else of the many kinds of space activities and technologies that enhance life on Earth. However, I had been fascinated with history since childhood. My undergraduate degree and the better part of an unfinished Master's degree are in American and British history. I studied U.S. Constitutional history in 1976 when the U.S. was burning with bicentennial fever. I subscribe to Sir Walter Scott's view: "A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect."

When, for the first time, I saw the famous 1972 Apollo 17 photograph of the Earth taken at a distance of about 45,000 kilometers (28,000 mi), history and the future came together for me. It was--as the hackneyed, but nonetheless powerful and true observation confirms--a single planet without political boundaries. It was physical proof of the fundamental premise of every major human tradition, philosophy, and religion since recorded history: we are one.

I began to see an analogy between the aspirations of the U.S. framers and founders and the opportunities presented by the image: the continent was to the frontier as the planet is to space. The "Englishmen-becoming-Americans" who convened a Continental Congress were driven by the unity that a shared geography required. Additionally, a vast, unknown frontier was beckoning which, if it was to be well explored, demanded that the individual states accept an organized national identity before venturing into it. The Apollo 17 image invited the extension of this kind of thinking: humankind is united by a common global geography and space is an infinite frontier into which humankind, not nations, will expand. Thus, the Federalist Papers became part of my space law curriculum.

It is important to state that while the analogy invites the extension of the philosophy of the American Experiment it is also an opportunity to avoid the Experiment's less noble aspects including imperialistic land grabs and disregard for indigenous peoples. Make no mistake: this analogy is not a call for United States dominance or Manifest Destiny in space. It is, in fact, a reflection upon applying the logic of geography and a united purpose that succeeded at the level of a continent to the level of a planet.

In "One Half Century and Counting: The Evolution of U.S. National Space Law and Three Long-Term Emerging Issues", I continue to look to the past and anticipate the future. This article outlines 50 years of national space law in one of the world's most successful space faring nations. It is intended to serve, as Sir Scott would have understood, as the architectural plan of a national space law. Space law has developed at the international level for decades. It is now beginning to develop at the national level in many countries. For them, this article presents the opportunity to examine the way one nation has approached the subject. For the United States, it serves as a reminder that the Framers had it right. In designing the Constitutional system to "form a more perfect Union" and to "promote the general Welfare" for themselves and for us, their "Posterity," they provided a legal system robust and flexible enough to accommodate what was inconceivable to the eighteenth century mind: human beings living and working in outer space. Space law has demonstrated how the Constitution requires each generation to articulate anew what it means to "secure the Blessings of Liberty."

In a recent piece for Slate, Simon Lazarus of the National Senior Citizens Law Center and George Washington University Law Professor Alan Morrison provide a sharp critique of the anti-health care reform lawsuits filed by several attorneys general. According to Morrison and Lazarus, the author of an ACS Issue Brief on the constitutionality of health insurance mandates, "The state attorneys general efforts to block health care reform aren't just wrong. They're frivolous."

Lazarus and Morrison write:

The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn't sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state's law is any indication. In lawyers' language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet "ripe."

There's another barrier to the AG's lawsuits: the Tax Injunction Act. This federal statute, on the books for more than 50 years, forbids courts from "restraining the assessment or collection of any [federal] tax" whether the suit is by the taxpayer, a state attorney general, or anybody else. The tax code gives taxpayers who believe they ought not to have to pay a tax two options: decline to pay and make their objection as a defense when the IRS comes after them, or pay the tax and sue for a refund. Congress enacted these requirements to facilitate efficient tax collection, and there is no basis for the courts to carve out an exception for these suits. It's worth noting, also, that the health care law bars criminal prosecutions for failure to pay the tax at issue here.

The attorneys general are surely aware of these fatal weaknesses in their legal theory. They often fight private suits against their states by invoking doctrines of standing and ripeness, and they take advantage of another federal law that prevents similar intrusions on the collections of state taxes. But those procedural barriers appear to be of no importance to them now. Several of the AGs, including lead plaintiff Bill McCollum, are featuring the suits in their campaigns for higher office. And, of course, the suits make for great talking points in a general campaign to discredit health care reform.

[Image via celestehodges.]

The Harvard Law & Policy Review (HLPR), the official journal of ACS, recently released Volume 4.1 and is continuously publishing progressive legal scholarship on its Web site.
Follows are some of HLPR's most recent articles, from print and online.

Print edition:

Does federal sentencing reflect community sentiment on just punishment? U.S. District Judge James Gwin describes his empirical study.

How social insurance can address and remedy the private tragedies of family law.

What happens when same-sex parent families move?

Read all of Volume 4.1 here.

Online edition:

Using statistical evidence to prove discrimination after the New Haven firefighters case.

What does Richard Posner have to say about the financial collapse and possible reforms? HLPR reviews his recent book.

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By Deborah J. Vagins & Erika Wood. Vagins is Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union; Wood is Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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In our recent Issue Brief for the American Constitution Society, The Democracy Restoration Act: Addressing a Centuries-Old Injustice, we examine an ongoing and deeply problematic barrier to the fundamental right to vote for millions of Americans. Currently, 5.3 million American citizens are denied this right because of a criminal conviction in their past. Nearly 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a political voice.

With their roots in the Jim Crow era, many of these laws were originally enacted as a way to prevent African Americans from exercising their newly-won rights under the Fourteenth and Fifteenth Amendments. Their intended effects continue today. While 2.5% of the total U.S. voting age population is currently disfranchised, over 13% of African-American men are denied the right to vote on account of past criminal convictions -- this rate is seven times the national average.

Although in the past decade there have been significant reforms of these laws in the states, there is a compelling need for a federal standard. Some states disfranchise persons on parole or probation while others permanently disfranchise some or all who have completed their sentences. Several states even deny voting rights to persons who have incurred legal financial obligations or have only been convicted of misdemeanors.

This patchwork of laws governing voter qualifications often leads to confusion among both election and criminal justice officials about who is eligible to vote. As a result, countless individuals with convictions who are eligible to vote have been misinformed that they cannot vote, making the number of Americans impacted by criminal disfranchisement even greater. As we discuss in our Issue Brief, a federal standard is the only way to prevent future instances of this de facto disfranchisement and to ensure that all qualified Americans are able exercise their right to vote.

On March 16, 2010, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties heard testimony from a broad group of experts, election officials, and advocates in support of such federal standard -- the Democracy Restoration Act (DRA). This legislation would restore voting rights in federal elections to the nearly 4 million Americans who have been released from prison; ensure that people on probation never lose their right to vote in federal elections; and notify people coming out of prison about their right to vote in federal elections. By establishing a federal standard for voter qualifications, the DRA would ensure that all citizens have a say in their communities, while at the same time, providing a bright line for government officials who provide voter registration information.

There has been incredible momentum behind reforming criminal disfranchisement laws in recent years. Law enforcement officials, members of the faith community, civil rights and legal organizations, and governors of both political parties have all advocated for the restoration of voting rights. Recently, The New York Times editorialized in favor of the DRA, writing that "it goes against one of democracy's most fundamental principles: that governments should rule with the consent of the governed."

However, without a national standard, the United States remains one of the only industrialized democracies where significant portions of its voting-age population are denied the ability to participate in civic life. International covenants and declarations recognize the right to vote as a fundamental human right and many countries' have determined that denying citizens with criminal convictions their fundamental rights is incompatible with the principle of equality in the protection of civil and political rights.

As we conclude in our Issue Brief, if passed, the Democracy Restoration Act would not just restore voting rights to millions of Americans; it would finally correct a centuries-old injustice.

[Image via Samuel Huron.]

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By Cody Hoesly, chapter leader, ACS Oregon Lawyer Chapter

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On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

 

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.

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By Maha Jweied, Senior Attorney-Advisor, Office of the General Counsel, U.S. Commission on Civil Rights; former law clerk, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia; 2009-2011, Young Lawyers Division Liaison, ABA Section of International Law; 2009 ACS Public Interest Fellow. The views expressed below are those of the author alone.

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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.