FedSoc Blog

Joel Alicea, currently a student at Harvard Law School and president of its Federalist Society chapter, recently published an article in Policy Review titled "Forty Years of Originalism: The Development and Future of a Judicial Philosophy."  His article examines, among other things, the influence of Robert Bork’s seminal 1971 article in the Indiana Law Journal, “Neutral Principles and Some First Amendment Problems” [PDF here]. Here is an excerpt:

In the immediate aftermath of his 2010 election as the newest senator from Utah, Mike Lee spoke before a crowd of enthusiastic practitioners, scholars, and students at the Federalist Society National Lawyers Convention [full video here]. Senator Lee focused on the role of Congress in constitutional interpretation, and he ended his remarks with the following pledge: “I will not vote for a single piece of legislation that I can’t reconcile with the text and the original understanding of the U.S. Constitution.” The senator’s statement rejected the idea that the Supreme Court is the only relevant constitutional interpreter in the federal system and struck at the heart of the “living Constitution,” the notion that the original meaning of the Constitution is not binding on today’s government officials. By requiring adherence to the original meaning of the constitutional text, Senator Lee sided with originalism. The late scholar Gary Leedes once complained that while originalists ask the federal judiciary to be originalist, they “permit the electorally accountable officials substantial leeway. The Congress can interpret the tenth amendment and the necessary and proper clause virtually as it pleases.” Senator Lee’s speech represents a forceful reply to Leedes’s challenge: Congress must be originalist, too.

The senator’s pledge highlights a remarkable fact about American constitutionalism today: Only a generation removed from the constitutional revisions of the Warren and Burger Courts, originalism has not only established itself as a respectable interpretive theory in the federal judiciary, but it has also been taken up by some members of Congress. Even a major-party presidential candidate, Newt Gingrich, has pledged that as president he would interpret the Constitution using originalism. Such a state of affairs was unthinkable decades ago when, as Judge Robert Bork characterized the conventional wisdom of the era, lawyers came to “expect that the nature of the Constitution [would] change, often quite dramatically, as the personnel of the Supreme Court change[d].”

But it was precisely because of an article by then-Professor Bork that so much has changed and that Senator Lee’s pledge was possible. Bork’s 1971 article in the Indiana Law Journal, “Neutral Principles and Some First Amendment Problems,” is widely recognized as having launched modern originalist theory. While Professor Noah Feldman has underlined the role Justice Hugo Black played in the development of modern originalism, it was not until Bork’s article in 1971 that the modern originalist movement took flight. Thus, having just passed the 40th anniversary of that landmark essay, it is appropriate that we survey how modern originalism began, how it has changed, and what challenges lie ahead.

[...]

.[T]he key insight of Bork’s article was not that constitutional interpretation must be guided by neutral principles. The conceptual breakthrough of his essay was his tripartite notion of neutral derivation, definition, and application. According to Bork, the problem with past attempts to fashion neutral principles was that the focus had been entirely on neutrally applying the principles — essentially prizing consistency across cases. Bork argued that these efforts did not go far enough. Using Griswold v. Connecticut, the 1965 Warren Court decision often thought to have found a general constitutional right to privacy, Bork attempted to show that it is equally important to define principles with sufficient precision that they become capable of neutral application. But if the Court defines the principle however it pleases, this is just as illegitimate as applying a principle in inconsistent ways, since the definition will necessarily embody the justices’ value choices rather than the people’s. How a principle is defined, then, must also be accomplished in a neutral fashion.

At the Originalism Blog, University of San Diego law professor Michael Ramsey calls attention to a new paper by Princeton professor Keith Whittington titled "Is Originalism Too Conservative?"  According to the article's summary:

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will. Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism.

Ramsey comments:

...in my view there's no greater obstacle to the broader acceptance of originalism than the perception that it's legal cover for conservative political results.  As Professor Whittington says, there's surely correlation between originalism and conservative political views, but the correlation is (or at least ought to be, if the originalism is done right) far from perfect.  The worst thing conservatives can do is to distort originalism to align it with conservative views when it really doesn't.  The best thing they can do is to celebrate the divergence of conservatism and originalism when it happens (that is, if they really believe in originalism as an end in itself and not as a tool).  So I invite my conservative friends, in the spirit of this essay, to find as many liberal originalist results as you can.  If you believe in originalism, that's what you should be doing.

In February 2010, at FedSoc's annual Student Symposium, Professor Whittington participated in a panel discussion on "Originalism: A Rationalization for Conservatism or a Principled Theory of Interpretation?"  Here's the full lineup of panelists:

• Prof. Mary Anne Case, University of Chicago Law School 
• Prof. Richard Fallon, Harvard Law School 
• Prof. Saikrishna Prakash, University of Virginia School of Law
• Prof. Keith Whittington, Princeton University
• Moderator: Hon. Greg Garre, 44th Solicitor General of the United States

You can find the audio and video of the event here.

The AP reports:

federal appeals court Thursday declared that the Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples, a ruling all but certain to wind up before the U.S. Supreme Court.

In its unanimous ruling, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman discriminates against gay couples because it doesn't give them the same rights and privileges as heterosexual couples.

The court didn't rule on the law's other politically combustible provision, which said states without same-sex marriage cannot be forced to recognize gay unions performed in states where it's legal. It also wasn't asked to address whether gay couples have a constitutional right to marry.

The law was passed at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The 1st Circuit said its ruling wouldn't be enforced until the U.S. Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by DOMA until the high court rules.

In January 2011, FedSoc's Indianapolis Lawyers Chapter held a talk by the Hon. Gregory G. Katsas--partner at Jones Day and former Assistant Attorney General, Civil Division, U.S. Department of Justice--on the subject "Defending the Defense of Marriage Act."  You can listen to the audio of the event here.

At the Daily Caller, Peter Wallison responds to those are trying to connect JPMorgan Chase's $2 billion loss to the need for further banking regulations, including the Volcker rule:

The JP Morgan Chase (JPMC) story — in which the bank lost $2 billion on a failed effort to hedge a $400 billion portfolio of assets — has morphed into a Jamie Dimon story, complete with gossip about his private comments at a dinner party. The story is following the usual pattern: regulatory agencies piling on; inaccurate reporting about what the law requires; reporters consulting “experts” with political motivations who don’t know what they’re talking about; politicization of the story so that it becomes relevant to a public issue — in this case the Volcker rule; and then the focus on whether a well-known and respected person will be brought down by the controversy. It’s depressing to watch, but it is missing the point that the Volcker rule would not have prevented the loss and is probably unworkable. . . .

JPMC’s loss and Jamie Dimon’s fall from grace in the media is now part of the debate in Washington over the Volcker rule, but this is an artifact of the misinformation that has surrounded this issue. The Volcker rule would not have prevented the loss because it doesn’t prevent hedging. Senators Carl Levin (D-MI) and Jeff Merkley (D-OR) have claimed that the Volcker rule limits hedging to specific risks and prohibits attempting to cover the risk of a whole portfolio. But this is incorrect. The statutory language is clear that hedging is permitted on both single risks and on portfolios of risks — which the act calls “aggregated positions.” Senators Levin and Merkley had proposed an amendment to ban portfolio hedging, but it failed. They are now trying to get the same result by pressuring the regulators who are drafting the rule.

The problem with the Volcker rule is that proprietary trading and hedging look very much alike. Both involve buying and selling fixed income securities or derivatives. At the very least, it is necessary to review all the facts and circumstances about a transaction in order to be sure that it is a hedge rather than a proprietary trade. Attempting to write a rule that distinguishes between these two — prohibiting one, but permitting the other — is a daunting and probably impossible task.

On February 16, 2012, FedSoc's Financial Services & E-Commerce Practice Group and the American Bankers Associaton hosted a panel discussion on "The Volcker Rule: Curbing Risk or Curbing the Economy?" The panelists were Randall Guynn, Sarah "Sally" Miller, Coryann Stefansson, Mark Van Der Weide, and Hester Pierce.  You can the video of the entire event here.

In the wake of President Obama's announcement that he now supports the right to same-sex marriage, National Review Online today hosted an extensive symposium on the issue.  Here is an excerpt from Ed Whelan's symposium piece:

Obama’s newfound position is ominous for the American future. The American experiment in self-government depends on a vibrant marriage culture that transforms the little barbarians who emerge from the womb into responsible and virtuous citizens. The traditional male-female nature of marriage reflects the elementary biological reality that only heterosexual intercourse naturally generates children. The institution of marriage exists to maximize the prospect that children will be born and raised in stable and enduring families by the fathers and mothers responsible for their existence.

Redefining marriage to include same-sex couples would permanently reorient the institution of marriage away from this central mission. Indeed, proponents of same-sex marriage routinely dismiss as irrational the inherent link between marriage and responsible procreation and child-rearing.

Our marriage culture is on the verge of collapse — a collapse for which heterosexuals are largely responsible — with all the social pathologies associated with rising out-of-wedlock births and single-parent families. On marriage as on so many other matters, President Obama has failed to recognize what is needed to sustain the American experiment.

In December 2010, Jonathan H. Adler, Mark P. Strasser, Ed Whelan, and Jacob H. Huebert took part in a Federalist Society panel on "Does the U.S. Constitution Require Same-Sex Marriage?"  You can watch the full video here.

Yesterday the Federalist Society and AEI co-hosted a panel discussion on Liberty’s Refuge, The Forgotten Freedom of Assembly by Washington University School of Law’s John Inazu.  As AEI summarized the event:

Inazu began the conversation with an overview of his objectives in writing "Liberty’s Refuge"-- he aimed to offer diagnostic, historical and normative arguments by which to explore freedom of assembly and its relevance in American courts. Through this framework, Inazu examined the distinction between government toleration and government support of a practice as well as the role of assembly in emerging social movements (like the Tea Party Movement). Douglas Laycock of the University of Virginia School of Law praised Inazu's historic overview but criticized the book's normative arguments -- shifting between freedom of association and assembly, Laycock argued, would have little substantive impact on major court decisions.

David Bernstein of the George Mason University School of Law touted Inazu's work for highlighting the historical origins and relevance of freedom of assembly. Like Laycock, Bernstein used the decision in Roberts vs. United States Jaycees -- which dealt with organizational antidiscrimination law in Minnesota -- to make his case, ultimately concluding that moving towards assembly would not change case outcomes. Inazu concluded the discussion by alleging that a shift in frameworks is indeed consequential, contrary to what Laycock and Bernstein suggested.

You can watch a video of the full event here.

Listen to the audio here.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. On April 24, 20120, our experts discussed this legal rationale, and the future of targeting U.S. citizens.  Participating in the teleforum were:

• Prof. Michael W. Lewis, Ohio Northern University Pettit College of Law
• Prof. Stephen I. Vladeck, American University Washington College of Law
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the International & National Security Law Practice Group podcast here.

The Washington Post reports:

The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said.

The policy shift marks a significant expansion of the clandestine drone war against an al-Qaeda affiliate that has seized large ­pieces of territory in Yemen and is linked to a series of terrorist plots against the United States.

U.S. officials said that Obama approved the use of “signature” strikes this month and that the killing of an al-Qaeda operative near the border of Yemen’s Marib province this week was among the first attacks carried out under the new authority.

The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year.

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

On April 5, 2012, at FedSoc's National Security Symposium, former Secretary of Homeland Security Michael Chertoff discussed the nature of intelligence gained from behavior patterns.  You can watch the video of his talk here.

On April 19, 2012, The Federalist Society and AEI hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

You can watch a video of the entire event here.

The Wall Street Journal reports on the much-watched immigration case Arizona vs. United States:

Arizona's campaign to push out illegal immigrants heads to the Supreme Court this week, in the second major challenge to federal power the justices have taken up in less than a month.

The Obama administration argues a 2010 Arizona measure aimed at fighting illegal immigration conflicts with federal law. The state law requires police to check the immigration status of people they stop if suspicious of their right be in the U.S.

It also makes it a crime for immigrants without work permits to seek employment.

Both of these provisions, among others, have been blocked by federal courts for interfering with federal immigration laws. Even so, the Arizona statute has sparked copycat measures in Alabama and other states.

All parties agree immigration is an area of federal supremacy. Last year, the Supreme Court upheld a separate Arizona law putting out of business companies that repeatedly hire illegal immigrants. Over objections from the Obama administration, the U.S. Chamber of Commerce and labor groups, the court held 5-3 that Congress had given states authority to strip corporate charters and other essential permits to punish employers for immigration violations.

Architects of the Arizona law now under challenge say they sought to reduce the state's illegal population, or achieve "attrition by enforcement." They call the law a success because many immigrants without papers have voluntarily left.

In January, the Federalist Society's Sixth Annual Western Conference held a panel on "Federalism and State Immigration Policy."  The speakers were Gabriel J. (Jack) Chin, John C. Eastman, Joe Sciarrotta, Margaret D. Stock, Edwin Meese III, and Eugene B. Meyer. You can listen to the full audio here.

The Daily Caller has the breaking news:

An appeals court upheld a requirement in a 2004 Arizona law that voters show identification before they can cast ballots.

The court says there wasn’t evidence that the mandate disparately affected Latinos as the challengers of rules had alleged.

A 12-member panel of the 9th Circuit Court of Appeals says in a ruling Tuesday that there was evidence Arizona has racially polarized voting and a history of discrimination against Latinos.

But the court concluded that no proof was offered to show that the ID requirement gave Latinos fewer opportunities to vote.

The court, however, found that the federal National Voter Registration Act trumps another section of the Arizona law that requires people to prove their citizenship in order to vote.

At FedSoc's 2011 National Lawyers Convention, the Free Speech & Election Law Practice Group hosted a panel on "Voter Fraud and Voter ID — The Constitution and the Right to Vote."  The line-up comprised:

• Mr. John Fund, Former Columnist, The Wall Street Journal and Opinionjournal.com
• Prof. Spencer A. Overton, Professor of Law, The George Washington University Law School
• Prof. Daniel P. Tokaji, Professor of Law, The Ohio State University, Moritz College of Law and and Senior Fellow of Election Law @ Moritz
• Mr. Hans von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation
• Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

You can watch the full video here.

For the first time ever, the Defense of Marriage Act has been challenged in a federal appeals court (recording of the oral argument available here).  The Boston Globe reports:

Lawyers for the state of Massachusetts and a group representing 17 plaintiffs urged a federal appeals court panel this morning to strike down a federal law that defines marriage as a union only of a man and a woman.

The state and Gay and Lesbian Defenders and Advocates, which is representing the plaintiffs, told the First US Circuit Court of Appeals that the federal law interferes with state rights to define marriage, and it deprives same-sex couples of the federal benefits that other couples can receive.

“It requires us to live with two distinct and two unequal versions of marriage,” Assistant Attorney General Maura Healey told the three-judge panel. “This is a burden extended on the states. … This is a burden that Congress has put on Massachusetts simply because it does not like the fact that [same-sex] couples are getting married.” . . .

At issue is the 1996 Defense of Marriage Act, which defines marriage as a union of a man and a woman and consequently restricts federal benefits such as Social Security benefits and the ability to file joint taxes to different-sex couples.

Paul Clement, an attorney representing the US House of Representatives’ Bipartisan Legal Advisory Group, told the panel that Congress enacted the law to maintain what he called the traditional definition of marriage.

Clement -- who was recently in the news when he argued against federal health care reform law in the Supreme Court -- said lawmakers were concerned at the time of the act’s passage that a Hawaii state court decision would enable same-sex couples to marry, throwing into question the legal definition of marriage. Congress set forth what it thought the definition should be, and any changes to laws should be done through the electoral process, he said.

In January 2011, FedSoc's Indianapolis Lawyers Chapter held a talk by the Hon. Gregory G. Katsas--partner at Jones Day and former Assistant Attorney General, Civil Division, U.S. Department of Justice--on the subject "Defending the Defense of Marriage Act."  You can listen to the audio of the event here.

Listen to the audio here.

Having attended the third and final day of oral arguments in the Obamacare case, Professor Randy Barnett discussed them in this special Federalism & Separation of Powers Practice Group Teleforum call.  Professor Barnett said that possibly the most important thing in the hearings today was that nothing happened that undermined the positive takeaway the challengers came away with after day two.  He explained further that it appeared, as it did yesterday, that the case is likely to be decided 5-4 in favor of the challengers or no worse than 6-3 for the government.  He found that none of the justices expressed interest in the claim that the individual mandate could be severed from the remainder of the Affordable Care Act.  Even Justice Breyer referred to the mandate as the "heart of the act," which was the language used by Paul Clement, who represented the challengers.  According to Barnett, the four conservative justices who asked questions seemed to accept the argument that the mandate could not be severed without the Court engaging in the kind of legislative inquiry it is not equipped for.  Justice Scalia led the charge on that issue.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

Listen to the audio here.

Having attended the second day of oral arguments in the Obamacare case, Professor Randy Barnett reported on them in this special Federalism & Separation of Powers Practice Group Teleforum call.  According to Professor Barnett, four of the justices were uniformly critical of the government's argument, and he was happy to see that they "used all of the arguments we've been making in our briefs since the very beginning."  By contrast, four other justices seemed skeptical of the case against the Affordable Care Act.  This divided court, he explained, was good news since it shows that this is not an easy or frivolous case, as some defenders of the Act have been claiming.  Professor Barnett also noted that Justice Kennedy made two significant points early to the government: 1) since the mandate is a major expansion of the government's powers, doesn't the government bear a substantial burden in justifying that expansion, and 2) if the power to mandate the individual purchase of insurance is upheld, it would change the fundamental relationship between citizens and their government.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

On March 21, 2012, the Federalist Society's Faculty Division and the American Enterprise Institute held a panel discussion on Jack Goldsmith's new book Power and Constraint: The Accountable Presidency After 9/11. As AEI summarized the event:

Jack Goldsmith argued that American presidents are more accountable for their national security decisions than ever before. After introducing his book, Goldsmith  set up the discussion by highlighting the significant disparities between President George W. Bush’s early  and later policies —  disparities that were not acknowledged by then-Senator Barack Obama on his campaign trail. Jeremy Rabkin, professor at George Mason University School of Law, responded to Goldsmith by pointing out the difference in rhetoric used throughout Obama’s campaign — whereas the Left was vigilant about opposing the wars, the Right was less vocal. From there, Neal Katyal, professor at the Georgetown University Law Center, spoke to the issue of leaks in government, when people feel as though they are not being heard, and the normal, accepted processes within government are not being employed. Bush’s later policies would not have been such a big issue, says Katal, if normal process had been used. Finally, Washington Post investigative reporter Dana Priest argued that the leaks in government were not a risk to national security, and were overblown. Priest concluded that these leaks are actually positive in the long run because they provide accountability for the presidency.

Click here for the video of the entire event.