Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.

Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

To answer such questions, I examined the 504 cases indicted for capital murder in Harris County from 1992 to 1999. The findings suggest that defendants who must accept court appointed counsel are disadvantaged. The DA sought death against 101 of the 369 defendants with appointed counsel, compared to just 1 of the 31 defendants with hired counsel. Of the 101 defendants with appointed counsel who advanced to a death penalty trial, 83 were sentenced to death. The lone defendant with hired counsel who advanced to a death penalty trial was acquitted. Between such extremes are cases with mixed counsel - meaning the defendant had hired and appointed counsel during different stages of the case. Here, the DA sought death against 27 of the 104 defendants with mixed counsel, and 15 of them were sentenced to death. Combining the two stages of the process reveals the following: 0 percent of defendants with hired counsel were sentenced to death (0 of 31); 14 percent of defendants with mixed counsel were sentenced to death (15 of 104); and 23 percent of defendants with appointed counsel were sentenced to death (83 of 369). Such patterns are stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring counsel for a mere portion of the case substantially reduces the chances of a death sentence.

Hiring counsel also dramatically increases the chance of being acquitted. The acquittal rate for defendants who hired counsel for the entire case and were disposed at trial was 30 percent (3 of 10), compared to 1.5 percent (5 of 337) for all other defendants disposed at trial. Remarkably, if the rate for the former group held across the board then the number of acquittals would have catapulted from 8 to 104 (30 percent of 347 = 104). The relationship between hired counsel and acquittals is troubling - it does not seem plausible to conclude that defendants who hired counsel were 20 times more likely to be innocent.

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean the rich are getting away with murder? No. Examining average income in each defendant's residential neighborhood revealed that virtually all capital murder defendants are poor. The fact that some of the defendants from such poor neighborhoods can hire counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of need.

What should be done? In September 2009, the Harris County Commissioner's Court voted to create a public defender office. The implementation of the public defender's office is currently under further consideration as the budget process unfolds. The move to establish a public defender in Houston represents genuine progress and is a commendable step in the right direction. But the plan under consideration is a hybrid model: indigent defense would be provided by a mix of public defenders and appointed attorneys.

Rather than taking tentative steps, I argue that Harris County should replace the appointment method with a public defender office that handles all indigent cases. Doing so would eliminate the structural deficiencies inherent in the appointment method and reduce disparities in case outcomes (prior research demonstrates that prosecutors secure death sentences in 0 to 50 percent of cases in jurisdiction with a public defender, compared to 50 to 100 percent of cases in jurisdictions with the appointment method). Houston's distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender with resources proportionate to the DA can meet such a standard.

McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

Another definition of activism is tied to Chief Justice Roberts's silly balls-and-strikes metaphor. That metaphor makes the modest sense it does if conservatives mean that judges should be activist and strike statutes down when they really do violate the Constitution, and should be restrained and uphold statutes when they don't. But the very fact that there's a fair amount of disagreement among conservatives about whether the Chicago ordinance is unconstitutional because it violates the Privileges or Immunities Clause or because it violates the Second Amendment as incorporated through the Due Process Clause shows that the Court's not going to be simply calling balls and strikes. Think of how the problem might be posed for two umpires. Both say that the pitch was a strike, but one says that it was a strike because the ball was in the strike zone when it crossed the front edge of the plate and the other says that it was a strike because the ball was in the strike zone when it passed the back edge of the plate into the catcher's mitt. The balls-and-strikes metaphor is supposed to show that judges actually don't exercise judgment when they interpret the Constitution. But the positions urged on the Court by conservatives in McDonald show that judgment can't be avoided.

The widespread judgment - which I share - that the Court will invalidate Chicago's gun control ordinance is interesting because it shows that everyone seems to agree that for conservatives federalism plays second fiddle to substantive concerns. Most conservatives will approve that invalidation if it occurs and will condemn the Court's failure to invalidate it if, surprisingly, the Court does not do so. That, I suggest, sheds some light on what contemporary constitutional conservatism is - a "theory," or more accurately a set of attitudes, about what good public policy is, masquerading as something else. So, when Republicans in Congress say that federalism somehow stands in the way of adopting health care reform (because it lies outside the powers granted to Congress and therefore reserved to the states), we ought to be pretty suspicious.

Throughout constitutional history federalism has been a mask for substantive policy concerns, and it still is. Conservatives like federalism when they can say it prevents the national government from reforming health care. They don't like it when it prevents the government from telling states to keep their hands off regulating businesses whose products harm consumers. They like federalism when it lets each state choose how many guns a person can buy each month. They don't like it when it lets cities choose to restrict gun ownership. The conservative choice of guns over federalism isn't surprising, but it does tell us something about conservatives who invoke federalism to oppose other national initiatives: They don't like the initiatives on policy grounds, and they're hoking up the federalism argument because they think it will play better with the public. 

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.

As an attorney who represents people charged with terrorism offenses on a regular basis, I too am worried about us lawyers, and was glad to see that I'm not alone. Yet the Court's sympathy for that particular class of victims struck me as rather odd. I could not help but wonder if the justices, and Kagan for that matter, would have been so sanguine about allowing the government to ban pure humanitarian assistance if they had been as close to relief workers as they were to lawyers. Would they have accepted a proscription on vital assistance to tsunami victims if they had seen the devastation I saw the day after that giant tidal wave killed 30,000 Sri Lankans in a matter of minutes? Surely if they had looked into the eyes of the children who had lost their parents in the blink of an eye, or seen the desperation on the faces of refugees who needed drinking water at the camps I visited, they would not have allowed Congress to prohibit relief groups from giving aid to the people who could most efficiently deliver it to the victims, even if they happened to be humanitarian workers who were members of the LTTE.

While the LTTE no longer controls territory in Sri Lanka, the material support laws at issue in Humanitarian Law Project continue to vex humanitarian groups around the world. The American Civil Liberties Union (for whom I work as an attorney) filed an amicus brief on behalf of nine humanitarian organizations, including the Carter Center, the Christian Peacemakers, and Human Rights Watch. The groups teach conflict resolution, provide humanitarian aid, and engage in various other activities that require them to work with designated terrorist organizations. These groups told the Court that they may be forced to severely curtail many of their activities because of the material support laws, and asked the Court to recognize that the First Amendment protects their right to provide humanitarian assistance that is intended to promote non-violent, humanitarian purposes, even if it also constitutes "material support" to the designated terrorist groups under the broad language of the Patriot Act.

As I remembered the people I had seen suffer in Sri Lanka, it filled me with great sadness to watch President Barack Obama's hand-picked representative to the Supreme Court defend a position so blind to the needs of innocent civilians. Twenty years ago, President Reagan famously authorized food aid to the Communist dictatorship in Ethiopia at the height of the Cold War, proclaiming that "a hungry child knows no politics." He could just as easily have been referring to the children of Pakistan, Colombia, Iraq, or any number of other countries today, where humanitarian groups have sought to ameliorate the misery suffered by civilian victims of war and natural disaster. The Red Cross has enshrined that same principle in its own Code of Conduct, which states that "the humanitarian imperative comes first. The right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries." We can only hope that Justice Kennedy and his colleagues will remember those widely-revered words, and those of the president who appointed him, as they consider how to resolve this important case.

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.

Chicago and its amici argue that gun control is a classic example of the argument for federalism. Although the benefits of widespread firearm-ownership in terms of sport, self-defense, and other legitimate pursuits are experienced widely, its costs are concentrated in big cities, which face enormous risks of firearms violence. Urban street gangs, for example, frequently establish territorial drug distribution monopolies enforced by the violence. Firearms are essential to gangs in this endeavor - they enable gangs to police their turf and defend themselves against rivals. Indeed, the crime wave that hit major cities in the late 1980s and early 1990s was largely a function of firearms violence produced as gangs competed to control emerging crack cocaine markets. Since then, a series of studies has demonstrated that police crackdowns targeting those who carry firearms at "hot spots" of urban crime are effective at combating violent crime; New York City has been a particularly conspicuous success. Handgun bans in particular inhibit urban gun markets with surprising success. Recognizing a right to keep and bear arms in the central cities, however, could grant gangs effective immunity from these tactics, imperiling efforts to fight urban crime.

The petitioners in McDonald, supported by the National Rifle Association and other amici, spend little time considering the implications of a right to keep and bear arms for the nation's cities. Instead, they focus on evidence that the authors of the Fourteenth Amendment intended to protect the Bill of Rights against the states under the Fourteenth Amendment's Privileges or Immunities Clause, which protects the "privileges or immunities" of citizens. They attack the Supreme Court's 1872 Slaughter-House decision as incorrectly limiting the scope of the Fourteenth Amendment. Many conservatives cheer this proposed reinvigoration of the Privileges or Immunities Clause, hoping that it will produce constitutional protection for nineteenth-century conceptions of freedom of contract and limited government. Many liberals cheer this same proposal, hoping that it will supply textual grounding for unenumerated constitutional rights they favor, such as the right to abortion.

The history of the Fourteenth Amendment is notoriously untidy. Although there is good evidence that a few of its authors intended its Privileges or Immunities Clause to protect the Bill of Rights, most legislators ignored the issue. There is little evidence that the ratifying states understood the Fourteenth Amendment to incorporate the Bill of Rights; the ratification debates focused on discrimination against the newly freed slaves. Leading legal scholars of the era did not understand the Fourteenth Amendment to incorporate the Bill of Rights; nor did the Supreme Court in its Reconstruction-era decisions.

In embracing originalist constitutional interpretation in Heller, the Court explained that what is critical is not the intent of the drafters, but rather "the public understanding of a legal text." Whether the public developed an incorporationist understanding of the meaning of Privileges or Immunities Clause is, however, open to great doubt. Just as the Court in Brown v. Board of Education termed the evidence of the original meaning of the Fourteenth Amendment "inconclusive" when it came segregation, the conflicting historical evidence on incorporation, coupled with nearly a century's worth of precedent taking a nonoriginalist approach to incorporation, may well lead the Court to reject the historical evidence as a basis for decision.

If the Court deems history inconclusive, it will have to decide whether to deem the Second Amendment an aspect of "ordered liberty." Most observers seem to think that the same five justices who embraced a strong conception of firearms rights in Heller will apply those same rights to the states in McDonald. Still, in McDonald, unlike Heller, federalism will come into play. If the Court is convinced that gun control is one of those issues best resolved at the local level, McDonald could produce an outcome strikingly different from Heller.

[Image via Al_HikesAZ.]

Across the country, public defender offices are underfunded and understaffed, drowning in overwhelming caseloads. Public defenders are dedicated lawyers trying their best to represent their clients in often-impossible circumstances. Even worse, in many areas around the country, there are no public defender systems at all, resulting in a haphazard system of appointing lawyers who may be unprepared, without sufficient resources, and have no relevant experience.

It has been nearly 50 years since the U.S. Supreme Court's decision in Gideon v. Wainwright decreeing that there is a constitutional right to a lawyer in criminal cases and that the government must provide one if the defendant cannot afford one. The Court recognized that well-trained and adequately resourced defense lawyers are the best way to determine whether the right person has been arrested for a crime. Yet states and localities are not providing the funds to pay for these lawyers, meaning that poor people are languishing in jail at the taxpayers' expense with no real opportunity to mount a defense.

While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously.

The U.S. Department of Justice has just hosted a National Symposium on Indigent Defense, the first of its kind in 10 years. One of the goals of the Symposium was to look at America's indigent defense systems in each state from top to bottom, and to examine both successful and failed attempts at indigent defense reform. Attendees committed to working together to craft new ideas for successful reforms, while forging alliances and building partnerships to achieve them. We applaud the Department of Justice's leadership in hosting this Symposium. It is a much-needed effort to spotlight the failings of the nation's criminal justice system and the crises persisting in state public defense programs.

However, the Symposium is, in our view, only the beginning of the work that must be done to fulfill the promise of Gideon.

As Thomas Perez, the Assistant Attorney General for the Civil Rights Division, said in a speech to the Symposium, the indigent defense crisis is the civil rights issue of our time. While many private organizations and individuals are working hard to address the crisis, they simply do not have the resources and cannot do it alone. With limited state and county resources and capacity, the federal government must step in and become a full partner in these efforts, providing critically needed resources and leadership.

We have long known how to fix these problems. The report of the Constitution Project's National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country's indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association's Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that. We urge the Department of Justice to support this effort with adequate resources for three-year public defense fellowships for committed lawyers who can work to change the culture of indigent defense systems nationwide.

We applaud the Department of Justice for hosting this National Symposium on Indigent Defense, for recognizing the crisis in indigent defense, and for taking an important first step in the right direction. We call on the Department to take the next steps of educating all Americans about the crisis and the need to address it, and -- most important of all -- to provide the resources that are so urgently needed to ensure that Gideon's promise is finally fulfilled.

[Image via Wade Wofford.]

Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. Largely because of the filibuster, their hopes for change have been frustrated. Instead of progress, the public sees nothing but gridlock.

In the 71 years since Hollywood filmed "Mr. Smith Goes to Washington," the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, "Senator Smith," was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.

The filibuster, which was once a dramatic challenge to majority rule only used in extraordinary circumstances, is now used or threatened on virtually every measure and every nominee. For example, last December Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying Senate business for a month, the bill passed 98-0. In other words, Republicans filibustered a bill they fully intended to support simply to stall business in the Senate.

Similarly, Senate Republicans filibustered a bill that funded key agriculture, conservation and nutrition programs. That bill passed 80-17. They filibustered the Credit Card Holders Bill of Rights, which passed 90-5. And they even filibustered the Fraud Enforcement and Recovery Act, which passed 92-4.

Americans are so frustrated by the parliamentary delays that in a recent poll, some 53 percent of Iowans and 50 percent of Americans said they think the filibuster should be abolished.

A supermajority of 60 votes should not be needed to enact virtually any piece of legislation. In fact, the Framers of the Constitution were very clear about circumstances where a supermajority is required. There are only five: Ratification of a treaty, override of a veto, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member.

James Madison specifically rejected the idea that more than a majority would be needed for decisions. Responding to anti-Federalist arguments that the Constitution should have required more than a majority, Madison argued that such rules would lead to minority rule, something inconsistent with fundamental republican principles. As he wrote in Federalist No. 58:

That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would no longer the majority that would rule; the power would be transferred to the minority.

Madison would be appalled by the current abuse of the filibuster to impose minority rule.

Proponents of the filibuster regularly quote the story of George Washington's description of the Senate to Thomas Jefferson. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate. Washington asked "Why did you just now pour that coffee into your saucer before drinking it?" "To cool it," said Jefferson; "my throat is not made of brass." "Even so," said Washington, "we pour our legislation into the Senatorial saucer to cool it."

As one author recently noted, however, the increasing use of the filibuster has converted the Senate from the "saucer" George Washington intended, into a "deep freeze."

Last Thursday, I introduced legislation to amend the Standing Rules of the Senate to permit a decreasing majority of Senators to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and - at that point - just 51 votes would be needed to move to the merits of the bill.

Let me be clear, this proposal has absolutely nothing to do with limiting minority rights, but ensuring proper deliberation without grinding the Senate to a halt, as too regularly happens today.

It's time to restore the best traditions of the United States Senate, a legislative body committed to debate and deliberation, but also one guided by our Founders' bedrock democratic principles of majority rule.

[image via The National Academy of Sciences]