Federalist Society

Crawford v. Marion County & Voter ID Laws

Federalist Society — Wed, 30 Apr 2008 16:27:00 GMT

I have been somewhat chagrined to emerge in recent months as one of the more prominent defenders of Indiana's photo voter ID law, upheld this week by the Supreme Court in Crawford v. Marion County Board of Elections. I say that because, were I an Indiana legislator, I probably would not have voted in favor of the law. And I agree with those who argue that there is not much voter fraud that can prevented, at least directly, by Indiana’s law.

But as a matter of Constitutional law, it strikes me that the Court’s decision upholding the law was rather unremarkable and certainly correct. The plaintiffs’ case was improbable in many ways. First, the plaintiffs insisted on discussing the case in terms of the number of people “affected” by the law, and then tried to conflate “affected” with “disenfranchised.” This made the plaintiffs’ case seem rather ridiculous, frankly – no one really believed that hundreds of thousands of Indiana residents would be deprived of voting rights by the law, but that is what plaintiffs tried to claim. Judges are not idiots – they saw right through that gambit and the trial judge had some sharp language for the plaintiffs.

Of course, many people were “affected,” but not every burden on the right to vote constitutes “disenfranchisement.” After all, having to register to vote is a burden, and there is no doubt that more people don’t vote because of registration requirements than will not vote because of photo ID requirements. Are all voter registration requirements therefore unconstitutional? The plaintiffs never attempted to answer such questions, or provide the Court with any principled stopping point if it were to strike the Indiana law as unconstitutional.

Plaintiffs also made the mistake of insisting that there was “no evidence” of voter fraud that the law could prevent, when there clearly was some such evidence, even if not a lot. By refusing to concede, against reason and evidence, any state interest in managing elections and trying to prevent fraud, plaintiffs weakened their case – or perhaps merely revealed what a weak case they had. While the law undoubtedly made voting a little more difficult for a small number of people, not one of the plaintiffs was actually unable to vote because of the law. Eventually, the plaintiffs and their allies found a woman named Fay Buis-Ewing who claimed to have been prevented from voting by the law, and she gave a number of interviews to the press, until it was discovered that she also claimed a residence in Florida, was registered to vote there, and was therefore quite probably was ineligible to vote in Indiana. This suggested at least one case where the law worked as intended to prevent an ineligible vote (Buis-Ewing had tried to satisfy the photo ID requirement with a Florida driver’s license). Ultimately, the inability of plaintiffs to find individuals unable to vote because of the law (as opposed to finding it slightly more difficult to vote because of the law), after a statewide search of many months, doomed their case.

Voting rights are, of course, among our most cherished liberties. But allowing fraudulent votes deprives us of voting rights, too. If you are prevented from voting, your rights are violated. But if your legitimate vote is cancelled out by a fraudulent vote, you have also been effectively deprived of your right to vote.

Under our Constitution, states are given broad power to regulate elections. One can certainly imagine requirements to vote that would rise to the level of a Constitutional violation. But the judgment of the Indiana legislature that voters should have to verify their identity with a photo ID to vote seems eminently reasonable to most people. The state provides for indigents who cannot afford ID, and it provides for provisional ballots for those who arrive at the polls without ID. In a case where not a single plaintiff actually was unable to vote because of the law, a decision by the Court finding the law unconstitutional would have been unprecedented and thrown into doubt the entire system of local election administration. If you think about it, what is surprising is not the Court’s decision, but the fact that the case got that far at all.

Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio

A Layman's Guide to Heller

Federalist Society — Sun, 30 Mar 2008 10:00:00 GMT

By Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center. Professor Barnett is counsel on an amicus brief in Heller v. District of Columbia filed by the Academics for the Second Amendment. A condensed version of this piece was published in the Wall Street Journal on March 18^th as “Gun Rights Show Down”.

A LAYMAN’S GUIDE TO HELLER

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Rethinking the Electoral College—Or Not

Federalist Society — Wed, 30 Jan 2008 14:09:00 GMT

By Tara Ross

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College.

Many Electoral College opponents believe that they have reason to rejoice this month. The newest effort to change the American presidential election system, the Campaign for the National Popular Vote (NPV), is gaining momentum in a handful of states. Most recently, New Jersey Governor Jon Corzine signed legislation sponsored by NPV. Similar legislation sits on the desk of Illinois Governor Rod R. Blagojevich and awaits his signature. approved the legislation last year.

The NPV legislation requires participating states to enter into an interstate compact with other like-minded states. These states would agree to allocate their entire slate of electors to the winner of the national popular vote. The compact would go into effect when states representing 270 electoral votes (enough to win the presidency) have agreed to its terms. At least in theory, the eleven most populous states could make this change on their own, without consulting the small states, because the largest states currently have 271 electoral votes among them.

Yes, that’s right. The Electoral College could essentially be eliminated, replaced with a direct popular vote system, without the bother of a constitutional amendment. Is this end-run around the amendment process constitutional? Probably, although there is an argument that congressional approval would be needed for the interstate compact. The Constitution is broad in its grant of authority to the states, and it is generally agreed that the legislatures may appoint their states’ electors in any manner that they choose. Article Two is straightforward, providing that “[e] shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .” Indeed, today’s “winner-take-all” system was not always the norm in American presidential elections. Instead, the states relied upon a wide variety of methods for the appointment of electors during the first several presidential elections. The question is not whether the states can pass the NPV legislation. They can. The more relevant question is whether they should pass the legislation.

Some voters and state legislators will default upon the assumption that any plan to bypass the Electoral College is a good thing. The system is misunderstood, and conventional wisdom holds that the Electoral College is outdated, unfair, and undemocratic. But it is always dangerous to eliminate or change constitutional provisions without first seeking to understand why those provisions were originally enacted. At a minimum, legislators and voters should strive to educate themselves on the history and justifications for the Electoral College before they casually default upon support for such a radical change to our political system.

Voters have many misperceptions about the Electoral College. Many believe that “only” swing states matter in modern-day American presidential elections. Such a perspective makes the mistake of focusing too exclusively on only one or a handful of election years. Once states’ full histories of voting are studied, it becomes apparent that the identity of “swing” and “safe” states changes all the time. As recently as 1988, voted consistently Republican. was a safe Democrat state until it began voting Republican in 1980. In reality, the Electoral College creates a healthy political dynamic that requires political parties to reach out to voters nationwide.

Similarly, many voters operate under the false assumption that the Electoral College is an inherently unfair and undemocratic process. But the country does hold democratic presidential elections: Fifty-one purely democratic presidential elections are held each year, one in each state and one in the . Democratic principles are an important aspect of the Electoral College, but they are combined with the principles of republicanism and federalism. These latter principles prevent our country from degenerating into a system where 51 percent of voters can tyrannize over 49 percent of voters at the drop of a hat. Yet most voters do not know how or why republican and federalist principles were included in the U.S. Constitution. Why would they? By and large, this aspect of constitutional history is not taught in American schools.

Finally, many voters are likely to note that the President “should be the person whom most Americans support.” But human nature makes such an outcome impossible. Fifty-one percent of Americans will never agree on the identity of the “best” American President. Left to their own devices, voters would instead fracture their votes across half a dozen or more candidates. The NPV legislation exacerbates the problem, because it does not even require a run-off. A candidate winning the nationwide tally with a plurality of 30 percent of the vote could win the White House. Such a candidate does not represent “most” Americans. The Electoral College, at least, makes voters come together and agree on a good compromise candidate who will satisfy most Americans as represented by their states.

Speaking in support of the Electoral College, John F. Kennedy once referred to the checks and balances in the Constitution as a “solar system” of power: “[I]t is not only the unit vote for the Presidency we are talking about,” he noted, “but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others.” ’s constitutional system of checks and balances works as a whole, taken together. Eliminating the Electoral College would get rid of only one of several protective devices. Perhaps the impact would be minimal, as anticipated by many direct election proponents. On the other hand, it could throw the physics of the entire solar system (as JFK would say) out of balance.

In such an event, Electoral College opponents may find that their celebration has turned to mourning.

Citizenship Confusion

Federalist Society — Wed, 02 Jan 2008 14:01:00 GMT

by Margaret Stock

Margaret Stock is an attorney in Anchorage, Alaska; a Lieutenant Colonel in the Military Police Corps, U.S. Army Reserve; and an Associate Professor in the Department of Social Sciences at the U.S. Military Academy, West Point, New York. The opinions expressed in this report are the author's and do not necessarily represent the opinions of the U.S. Military Academy, the Department of the Army, the Department of Defense, or any other government agency.

Concern with immigration issues has focused new attention on the United States Constitution’s Fourteenth Amendment, which provides that anyone born within the borders of the United States, and “subject to the jurisdiction thereof,” is an American citizen at birth. Some believe that the 14^th Amendment should be interpreted to deny birthright citizenship to children whose parents are not US citizens or lawful permanent residents at the time of their birth.

Proponents of such a change argue that Yasser Hamdi, a dual American and Saudi Arabian citizen who was captured on the battlefield, should not have been a birthright citizen, as he left the United States as a toddler after his birth in Louisiana and never returned until he came back as a US prisoner. They also say that the children of illegal immigrants should not be US citizens at birth. Yet the Fourteenth Amendment has long been understood to exclude from US citizenship only three categories of persons born in the United States: (1) children of diplomats with diplomatic immunity from US laws; (2) children born to foreign military personnel who are part of an invading army, which would also be generally immune to domestic US law; and (3) children of sovereign Indian tribes that are also not subject to US laws. (American Indians today are US citizens because of a statute, not because of the Fourteenth Amendment.) Were the longstanding interpretation of the Fourteenth Amendment changed, many more people than just Yasser Hamdi would lose their claim to birthright citizenship. Famous Americans such as US Senator Pete Domenici (the child of an illegal Italian immigrant) and Louisiana Governor-Elect Bobby Jindal (born to a foreigner in the US on a student visa) would not be US citizens at birth under the proposed, new interpretation of the Fourteenth Amendment.

Even if one accepts that a foreigner in the United States only temporarily or illegally is not “subject to the jurisdiction” of the United States—an interpretation that the Departments of Justice and Homeland Security would dispute, as it might deprive them of authority to prosecute and expel such persons—the policy implications of changing the current interpretation of the Fourteenth Amendment are significant. Without the current, simple interpretation of the Fourteenth Amendment, the government would have to adjudicate the citizenship status of every child born within US borders based on the exceedingly complex rules of derivative citizenship, or citizenship by blood. Currently, DHS takes more than a year to make such determinations, and the process is expensive and fraught with error. As a result of the law’s complexity, DHS often takes into custody and attempts to deport many derivative citizens on the mistaken notion that they are foreigners. DHS keeps no statistical records on how many citizens it has erroneously tried to deport, but news accounts indicate that the numbers are substantial. A new interpretation of the Fourteenth Amendment will increase these numbers substantially. Thus, changing the longstanding interpretation of the Fourteenth Amendment may in the end only benefit immigration lawyers, while adding yet another layer of complexity to the lives of ordinary Americans who seek driver’s licenses, passports, mortgage loans, or even the opportunity to vote in the next state or federal election.

Point-Counterpoint: Affirmative Action Hiring Practices in the New Court Era

Federalist Society — Fri, 30 Nov 2007 20:27:00 GMT

Someone Should Sue
By Roger Clegg

Two things that the past few months have proved about the Supreme Court, when it comes to civil rights: five justices insist on interpreting statutory language to mean what it says, and are very, very skeptical about racial and ethnic preferences.

The thesis of this article follows rather directly from this observation: since American companies frequently use employment preferences based on race, ethnicity, or sex, and since these preferences are inconsistent with the text of the Civil Rights statutes, they will likely be struck down. Companies need to rethink them.

First, though, we need to define one term, namely “affirmative action.” Its original meaning was taking positive, proactive steps—affirmative action, get it?—to get rid of discrimination. Another meaning is casting a wide net— recruiting far and wide for the best candidates, not just using an old-boy network. Neither of these kinds of affi rmative action is controversial today or raises any legal issues. But that is not true of the use of preferences based on race, ethnicity, or sex—“affirmative discrimination,” as Nathan Glazer aptly termed it. This means that the best qualified people are not being hired and promoted because of their skin color, the country their ancestors came from, or their gender, and this is both unfair and presumptively illegal.

Eight out of ten business executives said that affi rmativeaction programs had resulted in them giving jobs and promotions to applicants who were less qualifi ed than others, according to a survey conducted ten years ago by Yankelovich Partners, and commissioned by the PBS show “Nightly Business Report.” Things have only gotten worse since then.

It is not diffi cult to find evidence of corporate preferential treatment. Just visit some corporate websites, or look at their own brochures. The trumpeting of minority numbers is deafening, and it is implausible that this bean-counting does not reflect and encourage the use of quotas and preferences.

Consider Wal-Mart. The company has told its managers that they have “diversity goals,” and that they should avoid discrepancies between the percentage of qualifi ed minorities/ females who apply and the percentage actually chosen—or risk losing at least part of their annual bonuses. Thus, if a manager is faced with hiring the most qualified candidate or meeting the diversity goal, she or he knows what to do.

Here is another example. Recently the Center for Equal Opportunity received an e-mail, apparently from one of Intel Corporation’s employees, forwarding a description by Intel of its “Diversity Employee Referral Program.” The gist is that Intel will pay a $6,000 bonus to employees who make successful hiring referrals of “women, African Americans, Hispanics and Native Americans,” but only $2,000 for successful hiring referrals of anyone else, i.e., men who are of European, Asian, or Middle Eastern background.

One employee of a large Fortune 500 company contacted the Center when the company announced (internally only, of course) that when managers were hiring interns, if they hired three, one had to be female, one a minority, and one a “top performer.” (Note the soft bigotry of low expectations.)

According to an October 17, 2005 article in Newsweek about Xerox, “Managers are judged—and compensated —on meeting diversity goals.” The article indicates that the company’s CEO, Anne Mulcahy, is dismissive of affi rmative discrimination concerns: “Tales of preferential treatment —along with numerical targets for women—might raise the ire of affirmative-action opponents. So be it. ‘If [somebody] wanted to write an editorial in Th e Wall Street Journal, I don’t particularly care,’ Mulcahy says.”

Companies may be assuming that some “diversity” justification in hiring and promotions will shield them from legal challenge, since the Supreme Court has accepted it for university admissions. This is not true. Statutory language makes the legal justifications for employment discrimination much weaker.

Student admission decisions are, for the most part, governed by Title VI of the Civil Rights Act of 1964, while hiring and promotion decisions are addressed by Title VII of that act. The courts have interpreted the two statutes diff erently, so that what is permissible under Title VI is not necessarily permissible under Title VII.

Title VII contains a categorical ban, forbidding any employer to “discriminate” on the basis of “race, color, religion, sex, or national origin” in hiring, firing or “otherwise… with respect to [an employee’s] compensation, terms, conditions, or privileges of employment.” And, unlike the situation with Title VI, the Court has not conflated Title VII with the Equal Protection Clause. Accordingly, the Court’s recent ruling in the University of Michigan cases that the latter permits discrimination in the name of “diversity” is inapplicable.

Will the courts nonetheless create a “diversity” exception to Title VII’s prohibition of racial and ethnic discrimination, as they have for Title VI? Even before a case reaches the Supreme Court, that is very unlikely.

The statute, again, admits to no exceptions. To be sure, the Court did allow racial preferences in United Steelworkers v. Weber, handed down in 1979, and preferences on the basis of sex in Johnson v. Santa Clara Transportation Agency, a 1987 decision. But the rationale the Court approved in these two cases was not based on “diversity” but on “remedying” or “redressing” past employment practices that resulted in a “manifest imbalance” of the discriminated against groups “in traditionally segregated job categories.” In 2007, and with every tick of the clock, it is becoming less and less likely that a company can plausibly assert that any imbalance, manifest or not, is traceable to “traditional[] segregat[ion].”

It is one thing to say that an anti-discrimination statute allows preferences in order to remedy discrimination; it is very different to say that such a statute allows discrimination so long as the employer and the courts think there is a good reason for it. There is simply no way to reconcile the latter “interpretation” with the words of the statute. (The distinction between remedial and non-remedial preferences is one that proved critical in the Court’s decisions in the and school cases, by the way.)

Note also that the Court in Johnson stressed that preferences could be used only to “attain” and not to “maintain” greater balance; this would make no sense if the justifi cation is diversity. What is more, the diversity rationale is premised on a belief in racial, ethnic, and gender differences that is quite at odds with the insistence in Title VII—and by five justices of the Court—that people be judged individually, without regard to stereotypes.

If a “diversity” exception is created, it is hard to see why other exceptions might not also be put forward. Yet, in the case of Title VII, and not for Title VI, Congress explicitly declined to create even a “bona fide occupational qualifi cation” exception to the statute for race, even as it did so for sex, religion, and national origin.

Furthermore, the diversity rationale could be—and frequently is—used to support discrimination against members of racial, religious, and ethnic minority groups and women. If a company’s aim is greater “diversity” and less “underrepresentation” in its workforce, this means that any group that is “overrepresented” will be on the short end of any preferential hiring or promotion. That means, depending on the company, racial and ethnic minorities and women could all lose out. It seems very unlikely that Title VII was written to allow such anti-minority and anti-female discrimination so long as an employer could adduce a business reason for it.

Does anti-minority policy in the name of diversity sound far-fetched? Xerox recently lost an employment discrimination case before the U.S. Court of Appeals for the Fifth Circuit. At issue was the company’s “Balanced Workforce Initiative,” begun “in the 1990s for the stated purpose of insuring that all racial and gender groups were proportionately balanced at all levels of the company.” The office detected a racial imbalance, and so its general manager took steps “to remedy the disproportionate racial representation” there, “set[ting] specific racial goals for each job and grade level….” Th e Fifth Circuit found that “the existence of the [Balanced Workforce Initiative] is sufficient to constitute direct evidence of a form or practice of discrimination.” After all, “Xerox candidly identifi ed explicit racial goals for each job and grade level,” and the evidence “indicate[d] that managers were evaluated on how well they complied with” the initiative’s objectives—an appalling company policy, and an excellent judicial decision. And here is the kicker: Th e plaintiffs were African-Americans, and the company had concluded that “blacks were over-represented and whites were under-represented.”

So, it is not surprising that the two federal courts of appeals—one in the Third Circuit, and one in the Fifth—that have been presented with the diversity rationale in Title VII cases have refused to accept it.

Even before the ascendancy of Chief Justice Roberts and Associate Justice Alito, it was unlikely that there would have been five votes for the diversity rationale. In 1997, when the Court had granted review in the Third Circuit case just mentioned, the civil rights establishment was so afraid of losing on this issue that it raised enough money to pay off the claims of the plaintiff and the fees of her lawyer.

It is fine for companies to celebrate their diversity—and use “affirmative action”—if that means making their workplaces attractive and friendly to as many people as possible. But it is wrong for them to aim for a predetermined racial, ethnic, and gender mix, and use preferences in order to achieve it—wrong, and illegal.

(Roger Clegg is President and General Counsel of the Center for Equal
Opportunity in Falls Church, Virginia.)

Affirmative Action: Legally Sound And Good for American Business

By Wade Henderson

Corporate affirmative action makes good business sense and remains lawful under Supreme Court precedent which has been on the books for decades. American companies can rest assured: Employers have substantial latitude to use affirmative action to hire and promote a diverse workforce under Title VII of the Civil Rights Act of 1964, the law addressing race- and gender-based employment discrimination in the private sector.

Despite the recent Supreme Court ruling about school districts attempting to achieve classroom diversity through race-conscious policies, a wide range of corporate affi rmative action programs remain on firm legal footing, because Congress has the final say on what private companies can do. And Congress, as the Supreme Court has recognized for thirty years, views such programs as tools to achieve Title VII’s goal of eradicating the vestiges of discrimination in the private sector workforce.

Even a Supreme Court aggressively opposed to race-conscious policies would be loath to assail the lawfulness of affirmative action under Title VII. The current Court’s most conservative members have recognized that stare decisis is at its high-water mark on issues of statutory interpretation, because if Congress disagreed with the Court’s interpretation of what the legislature meant it could change the statute. Congress left the door open for corporate affirmative action policies to play a role in reaching the goal of workplace fairness. Why? Because centuries of discrimination made a simple ban on conscious discrimination against women and minorities inadequate to the task of restoring racial and gender fairness in the job market. The Supreme Court observed that Congress intended Title VII as a “catalyst to cause employers and unions to self-examine and to self-evaluate their employment practices,” in order to root out the vestiges of discrimination. To this day, the residue of a long history of discrimination continues to manifest itself in the form of insidious bias in the American workplace, even though conscious discrimination is banned.

Seton Hall law professor Tristin Green observed that subtle forms of discrimination, not easily addressed by anti-discrimination enforcement, are an impediment to the advancement of minorities in the workplace.1 African Americans and other minorities continue to face subconscious bias concerning their job qualifications, and they are often excluded from business circles that facilitate opportunities for white men. Meanwhile, the white men who have long held the great majority of top positions simply do not have to worry about unspoken devaluing of one’s skills, or not being connected to the right social cliques at the office.

And studies show that a majority of both men and women in corporate offices agree that a “glass ceiling” exists for women. In other words, subtle bias—unspoken discomfort with women in supervisory roles, the lack of women in the clubby circles of management—makes it harder for women to break into various types of corporate jobs.

In the first few years following the enactment of Title VII, the prohibition of outright discrimination against women and minorities made only modest inroads into the vast gender and racial disparities in the job market. These subtle obstacles to the advancement of women and minorities were not readily overcome solely by anti-discrimination enforcement. The advent of corporate affirmative action programs beginning in the late 1970s brought about slow but sure progress.

Moreover, overcoming the continuing effects of discrimination is a decidedly good business practice. The list of companies that have implemented affi rmative action programs is not limited to corporate do-gooders. As a Goldman Sachs adviser stated, “diversity is a good business practice;” “there is a connection between diversity and fi nancial success,” though not always readily quantifi able.

Affirmative action programs are good for business because they offset subconscious factors affecting a company’s recruiters and interviewers, often rooted in negative stereotypes or “comfort levels,” rather than explicit bigotry, which result in the exclusion of highly qualified minority and female applicants. And affirmative action counteracts the exclusion of talented women and minorities from informal good-old-boys networks.

Finally, by making the effort to promote and train qualifi ed women and minorities so that one’s workforce better refl ects the diversity of the labor pool, companies can foster an image and environment that appeals to the many women and minorities entering the workforce from which they hire—thus achieving a wider pool of applicants, including talented applicants of all races and genders.

Although some ideological opponents of any type of affirmative action would claim that the recent Supreme Court cases involving the use of race by government entities, including the Parents Involved school integration case, raise questions about corporate affirmative action, the truth is that these cases shed little light on the issue of private sector affi rmative action.

Under current Supreme Court precedent, the Equal Protection Clause of the Constitution limits public sector affirmative action to cases where the entity in question has a history of discriminatory conduct—unless there is another compelling justification for the race-conscious policy. In Parents Involved, the Court was split, with a narrow 5-4 majority

concluding that diversity is a compelling justifi cation for race-conscious school assignment policies where the schools did not themselves have an unremedied history of discrimination. It remains unclear whether a majority on the Court would support a diversity rationale for private actors governed by Title VII.

Ultimately, however, private employers do not need to point to diversity as a justification for race- and gender-conscious policies. Th e critical diff erence between Title VII and the Equal Protection Clause lies in the fact that under Title VII a private company can pursue affirmative action policies to correct an imbalance between its workforce and the labor pool at large, even absent any demonstrable history of discrimination within that company.

Given the continuing racial and gender discrepancies in many of ’s business sectors, the goal of remedying such an imbalance continues to provide ample support for many corporate affirmative action policies. Whether the current Supreme Court likes such private sector policies is irrelevant; by declining to proscribe their use, Congress has tied the Court’s hands.

The Supreme Court laid out the specific criteria for corporate affirmative action plans in two major Title VII affi rmative action cases, United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987). The Court unequivocally held in those cases that Congress intended Title VII to allow voluntary affirmative action programs by private employers if they are designed to address “a manifest imbalance” in the representation of women or minorities in traditionally segregated job categories, as determined by comparing the percentage of minorities in an employer’s workforce and the percentage in the qualified labor pool.2 Unlike in the public sector, the company implementing the practice need not itself have engaged in any discriminatory practices which led to the imbalance.

Thus, for example, where an employer recruits nationally among college graduates and has shown that the rate of participation for a minority group or women in its entry-level workforce is conspicuously smaller than the percentage of recent college graduates from one of the respective groups, an affirmative action plan should be lawful under Title VII. Such plans are most likely to be viewed favorably by the courts when, rather than using set-asides or quotas, race and gender are used only as factors considered in a more broad-based evaluation of the individual applicant.

The Supreme Court has also held that companies may facilitate the selection of qualified minority or women employees for executive or other high-ranking positions, or for training programs for these positions, if the percentage of minorities and women in these upper-level positions is conspicuously out of balance with the percentage in the labor pool.

The contours of corporate affi rmative action programs the law permits vary depending on the industry and labor pool. However, studies suggest that race and gender imbalances persist in many sectors. Across sectors, those imbalances tend to be especially pronounced in upper-level positions, even as the representation of women and minorities slowly improves at the entry level.

Using law firms as an example, recent data show that approximately 50 % of law school graduates are women and nearly 20 % are minorities. Law firm employment of women and minorities at all levels still lags behind their numbers in the qualified labor pool. At the entry level, there has been significant improvement in recent years, particularly for women. According to the EEOC, as of 2003, the number of women associates was approximately 40 %. African-American and Latino representation among associates at firms is much further behind, at approximately half the rate of their representation among law school graduates.

The contrast is even starker at higher levels. According to a 2005 National Association for Legal Career Professionals survey, only about 17 % of law firm partners are women, and less than 5 % belong to any minority group. Similar patterns exist in other industries, like finance, where EEOC data suggest that progress in participation for women and minorities has also been slow.

As the Supreme Court has recognized, the goal of corporate affirmative action programs should be to move the private sector to a place where such programs are no longer necessary. Well-designed programs are moving us in that direction but it is clear from extensive employment and education data that both the disparities and their underlying causes persist.

Corporate efforts to improve the representation of women and minorities among their employees remain legal. Th ey are also sound business policies that offset the stubborn barriers to the participation of women and minorities in our economy, making American companies stronger and more competitive in the process. According to Jeffrey Norris, President of the Equal Employment Advisory Council (EEAC), “Affi rmative action continues to be needed in employment to address the inequalities that still exist in some workplaces for women and minorities.”

Endnotes

1 Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Th eory, 38 Harv. C.R.-C.L. L. Rev. 91 (2003).

2 The Supreme Court off ered little guidance to elucidate what kinds of job categories can be considered “traditionally segregated.” The Court appears to consider the manifest imbalance in gender or minority representation to be itself evidence of traditional segregation, which makes sense given the body of evidence demonstrating that these imbalances continue to emanate from both explicit and structural discrimination.

(Wade Henderson is President and CEO of the Leadership Conference on Civil Rights.)

FISA and the Mukasey Hearings

Robert F. Turner — Tue, 30 Oct 2007 16:55:00 GMT

Administration critics continue to insist that Judge Michael Mukasey not be confirmed as attorney general unless he reverses his position and agrees that the President must comply with the Foreign Intelligence Surveillance Act (FISA). As explained by Yale Law School Professor Jed Rubenfeld in a recent New York Times op-ed, Judge Mukasey is undermining “the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.”

The real issue here is not whether the President is “above the law,” but rather which “law” he must see “faithfully executed” when there is a conflict between the Constitution and an inconsistent statute. I submit that his highest duty is to the Constitution itself, and that our real problem here is that Congress has forgotten that it, too, is subject to the “rule of law.”

In 1803, Chief Justice John Marshall declared in Marbury v. Madison that “an act of the legislature repugnant to the Constitution is void.” From the earliest days of our history until the mid-1970s, it was understood by all three branches that – in no small part because Congress could not be trusted to keep secrets – the Constitution had left the President (to quote Federalist No. 64) “able to manage the business of intelligence as prudence might suggest.” During a House floor debate in 1818, the legendary Henry Clay declared that expenditures from the President’s “secret service fund” were not “a proper subject of inquiry” by Congress. And this was in keeping with existing appropriations acts, which from the earliest days of the presidency of George Washington had told the President he need account specifically only for diplomatic and intelligence expenditures which “in his judgment may be made public . . . .”

When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in the new law would limit “the Constitutional power of the President” to collect foreign intelligence information. Every Administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign intelligence wiretapping.

In the 1980 Truong case, for example, the Fourth Circuit Court of Appeals noted that the Carter administration “did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment.” Instead, it relied upon a “‘foreign intelligence’ exception to the Fourth Amendment's warrant requirement.” The court upheld the Carter Administration’s position that: “In the area of foreign intelligence . . . the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.”

In the 1989 Von Raab case, the Supreme Court reaffirmed “the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Other well-established exceptions to the Fourth Amendment’s warrant requirement include border searches, searches of commercial airline passengers and their luggage, and the requirement imposed by Congress that all citizens who wish to enter a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search of their persons and possessions absent the slightest probable cause to believe they pose the slightest threat to anyone.

When FISA was being enacted in 1978, Carter Administration Attorney General Griffin Bell told the Congress that FISA “does not take away the power of the President under the Constitution” in this area; but he explained that the statute could nevertheless still work, because President Carter was “agreeing to follow the statutory procedure.” That was Carter’s prerogative, but neither he nor Congress could take away the constitutional powers of future presidents. Amending the Constitution requires the approval of three-fourths of the states.

The Foreign Intelligence Surveillance Court of Review (created by FISA and composed of federal appeals court judges) noted in a unanimous 2002 opinion that every federal court to decide the issue held the President has constitutional power to authorize warrantless foreign intelligence electronic surveillance, and added: “FISA could not encroach on the President’s constitutional power.”

While it is true that the Supreme Court has never decided this issue, it has had at least six opportunities to require a warrant for foreign intelligence electronic surveillances or otherwise limit presidential power in this area – and it has each time declined to do so. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted “national security” wiretaps from its holding; and when it required a warrant for national security wiretaps of purely domestic targets in 1972, it repeatedly emphasized that its holding did not limit electronic surveillance of the “activities of foreign powers and their agents” in this country. The Supreme Court has had no less than four other opportunities to impose a warrant requirement on foreign intelligence electronic surveillance when cases have been appealed, and – as usually happens when the circuit courts are in accord (unless, of course, the justices believes they are uniformly wrong) – it has on each occasion refused to grant certiorari.

Sadly, much of the contemporary debate over presidential claims of power to ignore “laws” has failed to appreciate the alarming congressional practice since the Vietnam War of enacting flagrantly unconstitutional statutes. That is much of the explanation for the increased use of presidential “signing statements” in recent decades. On June 11, 1976, Senator Robert P. Griffin (R-Mich.) inserted a lengthy statement I had drafted into the Congressional Record explaining why “legislative vetoes” of executive department actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. Shockingly, the congressional response to Chadha has been to enact more than 500 new unconstitutional legislative vetoes over the past two-dozen years.

Some of these unconstitutional statutes have done serious harm to our national security and facilitated terrorist attacks that have claimed thousands of American lives. On May 19, 1988, the Congressional Record included speeches by Senators Sam Nunn, John Warner, and several of their senior colleagues denouncing the harm done by the 1973 War Powers Resolution to our national security. Future Senate Majority Leader George Mitchell, for example, declared that the statute “threatens not only the delicate balance of power established by the Constitution. It potentially undermines America’s ability to effectively defend our national security.”

I strongly share the view expressed by Gen. P. X. Kelley that the highly partisan congressional War Powers Resolution debates in September 1983 about continuing our peacekeeping mission in Lebanon provided a major incentive for the terrorist bombing of the Marine barracks in Beirut the following month that killed 241 sleeping Marines. As Commandant of the Marine Corps, Gen. Kelley had cautioned the Senate Foreign Relations Committee of that danger in the early stages of the debate – but his cautions were ignored. More than three years before the 9/11 attacks, Osama bin Laden told ABC News that the prompt American withdrawal from Beirut following the October 23, 1983, bombing proved “the weakness of the American solder” and that America was “unprepared to fight long wars.”

FISA itself clearly made bin Laden’s 9/11 attacks easier. General Michael Hayden, who served as NSA Director from 1999 until 2005, has stated publicly that, had the terrorist surveillance program approved by President Bush after those attacks been in operation earlier, ““it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.”

In 2002, FBI lawyer Colleen Rowley was named one of Time magazine’s “persons of the year” for her scathing memo to FBI Director Robert Mueller exposing incompetent senior FBI lawyers who had refused to even request a FISA warrant she had sought so the contents of Zacharias Moussaoui’s laptop computer could be examined and the 9/11 attacks perhaps prevented. In reality, Rowley was repeatedly told that a FISA warrant was not a lawful option because Congress had failed to anticipate the threat of a “lone wolf” terrorist like Moussaoui, who was not technically an “agent” of al Qaeda. In addition to blatantly usurping the President’s constitutional power, Congress had made it a felony for our intelligence professionals to engage in the kind of effective surveillance of foreign terrorists that might have prevented the 9/11 attacks.

Judge Mukasey was right to promise that he would resign rather than violate his oath of office if the “president proposed to undertake a course of conduct that was in violation of the Constitution” and could not be dissuaded. He was also right – and for precisely the same reason – to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any Senator who elects to vote against Judge Mukasey because of this issue has a duty to explain to the American people by what theory an unconstitutional statute (which John Marshall told us is “void”) has suddenly taken on a superior position to the Constitution itself.

_____________________

This is an expanded version of an article that first appeared in the Wall Street Journal on October 24 under the heading “The Surveillance Law That Matters”(available online at: http://www.opinionjournal.com/editorial/feature.html?id=110010773). For Dr. Turner’s Sept. 5 statement to the House Judiciary Committee on this issue, see: http://www.virginia.edu/cnsl/pdf/Turner-HJC-5Sept07-(final).pdf .

D.C. Gun Ban in the Cross-Hairs

Bob Levy — Thu, 30 Aug 2007 03:58:00 GMT

In a blockbuster opinion on , the U.S. Court of Appeals for the District of Columbia Circuit struck down , The court held that the Second Amendment protects an individual right to keep and bear arms. This fall, the U.S. Supreme Court will decide whether it wants to review the appellate court’s decision. If the Supreme Court takes the case, a final opinion will likely be issued by June 30, 2008.

I serve as co-counsel for the plaintiffs in Parker v. District of Columbia, the first and only federal appellate decision to overturn a gun control law on Second Amendment grounds. At issue in the case are three D.C. laws that prohibit law-abiding citizens from possessing functional firearms in their homes for self-defense. First, the city has banned registration of handguns since 1976. Second, even if one were to possess a pre-1976 handgun, it cannot be moved from room to room without a special permit. And permits are not available. Third, D.C. requires that all firearms be unloaded and either disassembled or bound by a trigger lock at all times while kept at home.

No state in the country imposes an outright ban on functional guns the way , Yet the Second Amendment means what it says: The “right of the people to keep and bear arms, s l not be infringed .” Of course, that right – like every other constitutional right including free speech and religious liberty – is subject to reasonable regulation. But a total ban is not a “reasonable regulation.”

Despite the hysterical claims of many anti-gun groups, a Supreme Court ruling that affirms the appellate court will not result in the wholesale elimination of gun laws from coast to coast. Laws that forbid felons, children, or lunatics from possessing guns will not be affected. But laws whose primary purpose is to discourage gun ownership and make it more difficult -- unless they are shown, unambiguously, to produce countervailing social benefits -- should be invalidated. The courts must look at gun control the way they look at laws interfering with other constitutionally protected rights -- with one eye on legitimate public safety concerns and one eye on the Constitution.

A Good, But Mixed, Bag -- With a Puzzle Inside

Federalist Society — Fri, 29 Jun 2007 19:43:00 GMT

by Roger Clegg

For those of us who don’t like racial preferences and classifications, the news yesterday from the Supreme Court in the two cases involving race-based student assignments was mostly good, with some bad, and a puzzling question.

First, the good.

1. The best thing was the bottom line: Five justices voted that the race-based student assignment plans being used by school districts in Seattle and Louisville were unconstitutional.

2. The practical effect of this will be significant, and is already visible. School board members across the country will pick up the paper and read what the Court did, and they will conclude that using skin color to determine school assignments is a bad idea.

One would hope that they already had some moral misgivings about such discrimination.

One would also think that, morality aside, they must suspect that most parents don’t like it when they are told that their children’s choice of schools hinges on what color they are. Recall the overwhelming approval that ballot initiatives banning state-sponsored discrimination and preference have garnered in California, Washington and, most recently, Michigan.

Now, on top of all this, school board members will know that, when their counterparts in Seattle and Louisville used race-based student assignments, they enmeshed their respective school districts in years of litigation, ultimately losing and ultimately requiring them to pay, not just their own lawyers, but the opposing side’s lawyers as well.

No thanks, other school boards will say. The Seattle and Louisville plans were not atypical and were not particularly sloppy or badly thought out, and they were skillfully defended. But they lost.

According to one paper, conservative legal groups, like Pacific Legal Foundation, have identified several other districts--even including one that had earlier withstood a legal attack, namely Lynn, Massachusetts--whose policies now seem ripe for challenge. According to another paper, the president of San Francisco's school board, once a leading advocate for using a student's race to make school assignments, said he is now likely to abandon that stand in the wake of the Court’s decision.

3. It’s also good news that the two newest members of the Court, Chief Justice Roberts and Associate Justice Alito, joined with conservative stalwarts Scalia and Thomas in the principal opinion.

4. That opinion made clear its skepticism for all racial and ethnic classifications and preferences, and made clear that it would require much more than a desire for “diversity”--that is, mere racial balance--to justify them. To satisfy those joining this opinion, there will have to be very tight fit between a clearly nonracial end and any racial means.

5. In particular, the opinion made clear that the Court’s earlier decision in Grutter v. Bollinger (2003)--about the persuasiveness of which, by the way, at one point Chief Justice Roberts seemed to be rather grudging--would be “take[n] … at its word”: That universities using race in admissions had better be able to show that what they have is “`not an interest in simple ethnic diversity’ but rather a ‘far broader array of qualifications and characteristics’ in which race was but a single element.’” Hear that, college administrators?

6. Finally, the Court’s opinion was right not only in its skepticism about the purported benefits of weighing race, but also in emphasizing that “the costs are undeniable.” Too often, debates about affirmative action begin and end with the question of asserted benefits; it is also critical to go on and discuss that, whatever the benefits, they must be weighed against the divisiveness and unfairness of racial discrimination.

I especially liked this line, which underscores the inherent costs of such weighing: “To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end.”

Still, it was not perfect day.

1. The stridency and extremism of the dissent, and the fact that four justices joined it, is sobering. We are one justice away from a Supreme Court that sees racial discrimination as no big deal so long as it is done for politically correct ends. Something to keep in mind in 2008.

2. Chief Justice Roberts’s opinion did not quite close the door on some future school board trying to justify racial balancing by parading a social scientist or two who purport to show that such balancing “has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits.” Granted, the opinion did reject the school boards’ arguments in this case--on the grounds that, even if those results were obtained, the use of race was not narrowly tailored to them--but it would have been nice to have put an end to the notion that murky social science can justify clear racial favoritism.

3. And then, of course, there is the fact that Justice Kennedy did not join all of Chief Justice Roberts’s opinion.

Which brings us to the puzzle: Why didn’t he, and what exactly is it that Justice Kennedy would let a school board do that the other four conservatives would not?

That’s the question I’d like to pose to all of you out there in blogland today.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed in each of the two school cases decided by the Supreme Court.

The Constitution A La Carte

Federalist Society — Tue, 29 May 2007 14:15:00 GMT

Randolph J. May

Randolph J. May is President of The Free State Foundation, a free market think tank in . A substantially similar version of this article appeared on CNET on May 22, 2007.

Federal Communications Commission Chairman Kevin Martin wants to force a so-called “a la carte” regime on cable television operators. Under a la carte, cable subscribers would be allowed to pick and choose the individual channels to which they wish to subscribe.

So if you think you want to watch only a classic movie channel, C-SPAN’s BookTV, the Weather Channel, and ESPN, the theory goes, you should be able to select and pay for only those channels.

The problem with Chairman Martin’s renewed push for a la carte --apart from serious matters of public policy raised by such direct government interference in a competitive marketplace --is that the government may not take an a la carte approach as to which constitutional provisions it chooses to follow. By interfering with the discretion of cable operators to present their programming as they prefer, mandatory a la carte very likely violates the First Amendment’s free speech guarantee.

What rationale is offered for government-mandated a la carte? In late April, when the FCC released its highly-publicized report on television violence, Chairman Martin repeated his oft-stated view that a la carte would be a tool “to give parents more direct control over the television content that comes into their homes.” He says he is concerned with the amount of indecent and violent programming aired and its potential harmful effect on children.

Martin acknowledged the constitutional difficulties whenever the government attempts to regulate program content. But he suggested that requiring cable (and satellite) television operators to adopt a la carte “would be a more content neutral means for Congress to regulate violent programming and therefore would raise fewer constitutional issues.”

Mandating a la carte may pose less of a slam dunk constitutional objection than, say, an outright government edict banning HBO’s hit show, The Sopranos, because it is “violent” or Sex and the City because it is “indecent.” But the constitutional objection nevertheless is strong.

Imagine if the government required the Washington Post to be offered a la carte on the basis that readers should not be required to pay for the News section, which, with a war on, contains some “violent” content, or the Style section, which contains some content that may be considered “indecent.” Many readers surely would prefer to pay only for the Sports section. Now imagine the same thought experiment with respect to Time. The magazine contains sections readers might prefer to do without if only the government required it to be sold on an unbundled basis.

No one suggests a government-mandated a la carte regime for newspapers or magazines would pass First Amendment muster.

Under the Supreme Court’s current jurisprudence, it is true that laws that impose special restrictions on cable operators are not subject to precisely the same level of strict scrutiny under the First Amendment as laws that restrict the print media. But in the leading case of Turner Broadcasting System v. FCC, the Supreme Court nevertheless made clear that special restrictions on cable operators still call for “heightened First Amendment scrutiny.” The government generally must show that the speech-restrictive law serves an important government interest that cannot be satisfied in a less restrictive manner.

Assuming there is an important government interest in protecting children from viewing indecent and violent programming, there are certainly less restrictive means to accomplish this objective. Even putting aside the notion that it might be enough that parents may choose not to subscribe to cable television at all or, if they do, restrict what their children watch, the government might require that cable operators allow blocking of channels parents find objectionable. But Martin has acknowledged “cable operators already block any channel that a consumer requests to be blocked.” Channel blocking is a less restrictive alternative than negating cable operators’ editorial discretion to decide how they wish to package program content.

An a la carte regime almost certainly would involve the government setting the prices for the unbundled channels. Otherwise cable operators could set the price for individual channels in a way that, in effect, establishes incentives not much different than those that exist in current regime that allows subscriber blocking, but without any billing credit. This is why Martin has suggested an a la carte regime “could simply require the cable operator to reimburseconsumers for the channels they request to have blocked.” One way or the other the government surely will get involved in setting the reimbursement rate.

This doesn’t trouble Martin. He says: “While the Constitution protects the right to speak, it certainly doesn’t protect a right to get paid for that speech.” But this formulation misses the mark. One of the landmark free speech cases of the twentieth century, New York Times v. Sullivan, involved a paid ad in the Times. What the Constitution protects against are government restrictions, in the face of less restrictive alternatives, that impact the amount of speech a speaker wishes to convey, or the format in which the speaker chooses to convey the speech to those willing to pay to obtain it.

Mandatory a la carte almost certainly will diminish the amount and diversity of programming available to cable subscribers, a result at odds with First Amendment values. This is because the current system of packaging programming in tiers that subscribers, on the whole, find attractive allows cable operators to subsidize new program networks while they try to gain a foothold and to maintain existing networks that have a narrow appeal, such as to minority interests. This is why so many civil rights groups oppose mandatory a la carte. If the government dictates a la carte, the economics of the cable business will force operators to drop some less popular individual channels.

When Chairman Martin was asked in early May about the Don Imus imbroglio, he said it is preferable for the market, not government, to address offensive expression. The marketplace drove Imus from the air, and it is entirely possible, especially in today’s increasingly competitive video marketplace, that one or more pay television providers will decide to offer programming on an a la carte basis. A considerable amount of video programming already is moving to the Internet, and even to cellphones, platforms well-suited to a la carte video consumption. Cable, satellite, the telephone companies offering pay television services will be responsive to consumer preferences.

But, in the meantime, our government cannot choose to ignore the First Amendment. A la carte constitutionalism simply won’t do.

Carhart, Equality and the Constitution

Federalist Society — Mon, 30 Apr 2007 22:34:00 GMT

by Wendy Long

Is Carhart, or is it not, a departure from the Court’s prior abortion precedents? The problem in answering this definitively is that the abortion precedents were themselves so unclear and malleable from the start – in short, the antithesis of what a good judicial opinion should be. Moreover, the Court’s entire abortion jurisprudence has, from its conception and infancy in 1973, been a sort of ultra vires exercise. When a line of cases is fundamentally flawed and inconsistent with the text, history, and principles of the Constitution to begin with, the stare decisis analysis arises in an entirely different light.

Carhart is consistent with the Court’s precedents, flawed though they are. The one respect in which it departs from more recent abortion precedents – and thus arguably technically does not comport with stare decisis – is that Carhart appears to have ended the super-duper-privileged status of plaintiffs challenging abortion regulations, who recently have been successful with facial challenges to those laws without proving, as ordinary litigants must, that “no set of circumstances exists” under which the law could be valid. In a narrow and technical sense, then, Carhart arguably departs from stare decisis because abortion plaintiffs were not held to this standard in Casey or Stenberg. But I think it is more correct, and a better perspective, to say that Carhart comports with stare decisis in that it is consistent with the most important of the Court’s precedents on the requirements for a facial challenge, United States v. Salerno. Earlier abortion cases had used the Salerno standard until, inexplicably, a majority went off the rails on the standard for facial challenges.

With respect to the bigger picture of stare decisis and abortion precedents, the situation is analogous. “Disrespect for stare decisis” is an odd objection to a court decision that corrects previous errors and returns a line of jurisprudence to its correct constitutional moorings. If a decision is wrong, then stare decisis is not a compelling reason to pile up more wrong precedents. In addition, the amount of weight to place on stare decisis varies with the effect that the past precedents have had, and how well settled the law and society are as a result of them. It goes without saying that abortion law has been in complete turmoil, and our society is possibly even more divided and unsettled over the issue, than before Roe. Accordingly, Roe and Casey are not candidates for the stare decisis Hall of Fame. So even if Carhart somehow, when the dust settles, appears to have shaved a sliver off of Roe and Casey and Stenberg, it is not the end of the world. Rather, one almost dares to hope it is the beginning of a new era of judicial restraint, returning in some small way the right to choose abortion policy to the people through the process of representative democracy.

One has a sense, therefore, that Carhart emerges slightly from the muck and mire that has been the Court’s abortion jurisprudence. Over time, a slight change like this can set us on a course to ultimately get things cleaned up and corrected. This is not a foregone conclusion, but a distinct possibility. The door is now open, for example, for states to go back and introduce new state prohibitions on partial birth abortion. The federal law was drafted so narrowly – necessarily so by Stenberg – that the practical effect of this decision is likely to be negligible on actual abortion practice. And, even if this law is effectively enforceable, as Justice Ginsburg noted in dissent, the Federal Partial Birth Abortion Act is not going to save the life of one unborn child. There are other ways to chop up a baby. So it’s a very modest and technical legal step in correcting the extreme and incorrect state of abortion jurisprudence.

The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg’s dissent. Roe v. Wade and its progeny have long stood as judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent, trying to reground the right to abortion around women’s “equality” and “autonomy,” is equally deficient as a rationale. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007.

Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term “men” to mean humans; I count myself among such “men”) because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.

But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not. It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the “right” to have the brains vacuumed out of the skull of one’s own baby is the cornerstone of “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship” is gravely misguided as a matter of law and as a matter of ethics.

The Power to Make War?

John Eastman — Wed, 04 Apr 2007 11:47:00 GMT

The confrontation between Congress and the President over the conduct of the war in Iraq is reaching a fever pitch. The President, exercising his constitutional authority as Commander-in-Chief, insists that Congress cannot micromanage operational decisions of the war, including troop deployments and withdrawal timetables. Congress, relying on its power to raise and support armies, is equally adamant in its view that with its power of the purse comes the power to oversee the operational conduct of the war and also to determine when and how to end the war.

A brief history lesson will bring some clarity to the dispute. The power Congress is now claiming was a power actually conferred upon it under the Articles of Confederation. Article IX of the Articles provided that Congress “shall have the sole and exclusive right and power of determining on peace and war.”

The initial proposal in the constitutional convention of 1787 would have continued this authority, giving to Congress the power to “make war.” There were, however, strong objections to this proposal, based on experience in the Revolutionary War. Charles Pinkney opposed giving such a power to the House of Representatives because it was too numerous for proper deliberation, secrecy and dispatch. Pierce Butler also opposed placing the power in the Senate, contending that the power to make war was more appropriately given to the chief executive. Accepting these concerns, James Madison and Elbridge Gerry moved to substitute “declare war” for “make war,” thus requiring the legislative judgment to launch a war, but leaving decisions both about operational conduct and the negotiation of peace terms to the President. Madison’s motion passed 7-2. Significantly, following the vote, after Rufus King noted that the power to “make” war might be understood as a power to “conduct” it, which was an Executive function, Oliver Elseworth gave up his objection and the vote of Connecticut was changed to yes.

Butler then moved to give Congress the power to “make peace” in addition to the power to “declare war,” but that motion failed unanimously, by a vote of 0-10. Justice Joseph Story would later explain in his treatise that the motion failed “upon the plain ground, that it more properly belonged to the treaty-making power. The experience of congress, under the confederation, of the difficulties, attendant upon vesting the treaty-making power in a large legislative body, was too deeply felt to justify the hazard of another experiment.”

In other words, the very question at issue today was debated and resolved in 1787. Congress was not given the power to “make war,” in the sense that it could control the operational conduct of a war. Nor was it given the power to “make peace” and bring the war to a conclusion. Both of those powers were assigned to the President who, as Chief Executive and Commander-in-Chief, could act with the secrecy and dispatch that is so often critical in such matters. Congress’s recent attempts to micromanage the war, and to terminate it prematurely by imposing a timetable for withdrawal on the President, are therefore not only unconstitutional, but downright dangerous.