Imagine trying to visit your favorite website, only to find -- BZZT! -- the site's been blocked by the government. It happens every day in China and Iran, but now the U.S. Senate wants to bring Internet censorship home.
This week the Senate Judiciary Committee is planning to pass a bill called COICA which would let the Attorney General force all American ISPs to block particular websites. It'd be the first time the we'd set up an Internet censorship regime in the US, and yet most senators don't seem to see any problem with it. Can you sign our urgent petition today?
While we have already posted several telling interviews from our filming at Glenn Beck's 828 Restoring Honor Rally, but we haven't yet posted our most emotional, interactive, and intense experiences. Towards the end of our day downtown, we stopped to chat with some folks from the crowd- as we did throughout the day. When we began our interview with Madonna from Indiana, we were in the exact center of a circular cement area that is the entrance way to the World War II Memorial. Our conversation started with Madonna, the only person in her group of 5 or so who decided to stop and chat with us. Quickly, however, not only did several of her friends decide to join our discussion, but several onlookers decided that they belonged in our conversation as well. Before we knew it, we were encircled by 30 or so rally goers who decided to engage us (verbally) in an effort to try and convert us to Glen Beck's White Christian Civil Rights Utopia. Below is the majority of the half hour experience in 6 parts and at the very bottom is all 30 minutes of our discussions unedited.
As I wrote a few weeks back, when I sat down to write my book The Progressive Revolution on the history of the American political debate, I knew that the themes that animated our current political debate would be the same as in the past.
What I underestimated was that we would start to re-fight some of the exact same issues that have been fairly settled for the last 50 years or even longer. It is a sign of how radical conservatives in the last couple of years have become that they are raising issues that have seemed settled for so many decades. Republican nominees and elected officials for major offices have, over the last few months, made open arguments for:
-the repeal of the 17th amendment to the Constitution, passed in 1914, allowing people to vote directly for their Senator rather than have them appointed by the state legislature
Now comes the most radically extreme proposal yet: Senate Majority Leader McConnell and other Republicans are now calling for amending or even outright repeal of the 14th amendment to the Constitution. To understand how profoundly reactionary this proposal is, let me refer to my book:
The 14th Amendment was passed at the height of the Radical Republican frustration at Johnson’s alliance with Southern conservatives on Reconstruction. Section 1 asserted that the federal government, not the states, decided who US citizens were and gave that citizenship to all those born in the United States or naturalized by the federal government. The states were prohibited from denying those citizens their civil rights and “the equal protection of the law.” It was the first time the Constitution created a definition of national citizenship as opposed to just leaving it to the states. Section 2 stated that any state denying the right to vote to any of its (male) citizens was to proportionally lose seats in Congress and the Electoral College. Sections 3 and 4 denied Southerners who had held federal office before the war and then served the rebel cause the right to run for federal office again, and ensured that the debts that the Confederacy had incurred would never be paid by either federal or state governments. The 14th Amendment was designed by progressives to be a long term stake in the heart of states’ rights and slave power by asserting that the federal government, not the states, had the right to guarantee American citizens their civil and political rights under the law. It literally extended the Bill of Rights to all American citizens, no matter what state they lived in, and gave the federal government the power to enforce those rights.
A little background: contrary to right wing hagiography, our founding fathers were not gods or perfect men. There were some brilliant and courageous people among them, but they were politicians not that dissimilar to the current crop. Some, like Thomas Jefferson, Tom Paine, Ben Franklin, and George Mason were more progressive minded thinkers, while some were more conservative, and all were products of the time and the white, male, privileged constituencies that elected them. The constitution that was written, like every other set of laws written by politicians, thus had flaws in it. Not only was slavery embedded into the document, but the authors of the constitution agreed to a series of compromises with the strongly pro-slavery politicians from the deep South that were designed to make slavery a permanent part of our nation rather then phasing it out as even some slaveholders (like Jefferson) proposed. These provisions – chief among them the notorious 3/5 of a man rule for counting slaves in the census for Congressional apportionment – combined with the constitutional conventioneers just punting on the issues around who gets to vote/have basic civil rights/be a citizen and leaving those crucial issues to the states left the country heading inexorably to a civil war. The compromises of 1820 and 1850 just delayed the inevitable. Lincoln was right, the country could not survive as half slave and half free.
I have personally created several corporations in my time, and never once have I thought any of them to be separate "people" - if I had I would have been granting myself more than the "one man, one vote" concept of our Constitution and all related laws.
Now we have the Supreme Court allowing Corporations (and, yes, Labor Unions - also not separate "people") the ability to spend unregulated amounts of money on elections... because they are "people" within the law.
This week in a San Francisco Federal District Court, a legal odd couple will be on display. Attorney David Boies, who represented Al Gore before the U.S. Supreme Court in the infamous 2000 case ofBush v. Gore, and conservative attorney Ted Olson, who represented George W. Bush, are joining forces to overturn California's Proposition 8. It will be their contention that the initiative passed by voters in 2008 banning same-sex marriage in the Golden State violates the Equal Protection and Due Process clauses of the U.S. Constitution, singles out gays and lesbians for a disfavored legal status, and discriminates on the basis of gender and sexual orientation.
Regardless of which side prevails, experts agree the case is likely to be appealed all the way to the highest court in the land.
Have you ever wondered why corporations like Exxon Mobil have free speech "rights" under the Constitution when corporations can't "speak," and when the Constitution was written to protect "We the People" and never mentions "corporations"? Do you worry that maybe, just maybe, the Supreme Court is putting the interests of corporate America over the rights of hard-working Americans?
If so, then you probably want to learn more about a piece of legal fiction called "corporate personhood." And you should probably start with this terrific lecture from that preeminent legal scholar, Stephen Colbert:
If, after watching Colbert, your interest is piqued - as it really should be -- then I urge you to take a look at this discussion draft of a report on corporate personhood, recently released by the Constitutional Accountability Center (CAC, where I work), which tells you more than you probably ever wanted to know about the topic. (CAC is planning to release a final version of this report in January 2010). While we've already distributed this to a number of legal blogs in an effort to get feedback, we also wanted to publish it here, to reach a broader audience.
This week I learned that the folks over at Rasmussen have conducted yet another embarrassingly-misleading poll, "gauging" the American populace's opinion of the Supreme Court. The poll, conducted late last month, asked 1,000 likely voters a familiar question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The problem with this question, of course, is its false assumption that a judicial decision based on a proper interpretation of the Constitution would, by definition, not be fair or just. I can only assume that in order to come up with a question like this, the folks at Rasmussen must not have read much constitutional text, or history, which in fact make clear that the Constitution - including its 200 years of amendments - is itself largely based on a sense of fairness and justice.
Not surprisingly, a whopping 70% of respondents chose "what's written in the Constitution," while a mere 25% selected "a sense of fairness and justice." (We're declaring the 6% who went with "Not sure" the winners here.) Also unsurprisingly, our friends at NRO's Bench Memosseized these figures as evidence of widespread rejection of President Obama's call for judges with empathy.
Setting aside, however, the problem with how this poll was constructed, I have a different take on what these figures could mean. Interestingly, the difference between responses on this issue is becoming more pronounced. Back January, when Rasmussen conducted the same poll, only 64% of respondents chose "what's written in the Constitution" (27% chose "a sense of fairness and justice"), and when it conducted the poll in June 2008, only 54% of respondents chose "what's written in the Constitution." (37% selected "a judge's concept of fairness and justice.") I think this steady increase in the percentage of respondents selecting "what's written in the Constitution" is due not to a stealthy success of conservative talking points about "activist" or "empathetic" liberal judges, but to a growing recognition by voters everywhere that the text and history of the Constitution uphold the progressive legal outcomes they prefer. Perhaps a high-profile Supreme Court confirmation this past summer - featuring a judge who pledged allegiance to the "immutable" words of the Constitution - helped contribute to the latest results. Or perhaps Americans across the political spectrum are discovering that the text and the history of the Constitution embody a sense of fairness and justice, illustrated, for example, in the document's guarantees of due process, equal protection, and fundamental individual liberties for "We the People."
If Rasmussen had elected to word its poll more carefully - and had not given respondents choices that presume, erroneously, that following the Constitution and following a sense of fairness and justice are somehow mutually exclusive - then it might have found stronger evidence of this trend. Instead, we are left once again with a lousy poll; one with little substantive meaning and that is based on a profound lack of understanding of the text, history, and principles of our Constitution.
Originally posted at Text & History. Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
This month, the U.S. Supreme Court is threatening to strike down key provisions of the 2002 "McCain-Feingold" bipartisan campaign finance reform act, overruling two of its prior rulings in the process and uprooting a century-old principle - existent in American law since Teddy Roosevelt's Administration - that corporations should be barred from making unlimited expenditures in elections.
Wait, what? What did I just say? Corporations might soon be able to make unlimited expenditures in elections? Can they do that?
The answer is yes, if the Supreme Court says they can. And if you didn't know that already, you should certainly keep reading.
The case I'm referring to, of course, is Citizens United v. Federal Election Commission, which is being argued before the Court, for the second time, tomorrow morning. The reason the Court is hearing this case again is because in June, the Court ordered that the scope of the case be dramatically expanded following its first oral argument in March. At that time, Citizens United, a conservative non-profit corporation, was focused upon the FEC's decision to treat "Hillary: The Movie" - its feature-length film criticizing Hillary Clinton during last year's Democratic primaries - as a standard attack ad for the purposes of campaign spending regulations. Citizens United, which is subject to campaign regulation because it accepts money from businesses, argued that the film did not constitute an "electioneering communication" as defined by federal law. Not surprisingly, the FEC disagreed.
However, once the Court decided to hear the case, Citizens United - represented by Bush Solicitor General Ted Olsen -- began to push for massive changes in settled campaign finance law, arguing that corporations' "speech" (i.e., their expenditures) in elections was entitled to just as much protection under the First Amendment as speech by individuals. This argument has been raised many times by conservatives and business leaders throughout the years, and rejected repeatedly by the Court. (While current federal law allows business corporations to form political action committees, or PACs, with money collected from individuals associated with the corporation, it clearly prohibits them from using money from their general treasuries -- where all their profits sit - to influence elections.) Nevertheless, to the horror of the members of Congress and progressive groups who worked so hard to pass campaign finance reform, the conservative justices on the Roberts Court seemed amenable to the argument that restrictions on corporate spending on elections were unconstitutional. Rather than deciding the case last June, the Court asked the parties to supply supplemental briefing on the constitutional question, scheduling a special September session to re-hear argument.
What the Court threatens to do now is remove these restrictions, and say that corporations can funnel unlimited amounts of money from their corporate treasuries into elections. Citizens United argues that because individuals can spend unlimited amounts of money to influence elections, corporations should be able to do so as well, in essence asserting that there is no difference between corporations and individuals when it comes to spending money on elections.
That this is an absurd assertion should be obvious to everyone, but especially to progressives, who have been fighting corporate "voices" for generations. If the Court accepts this argument, it will be undoing over 100 years of progress in campaign finance rules, starting with the Tillman Act of 1907, which established that corporations are distinct from individuals and must not be able to spend their profits in elections. This distinction builds on the text of our Constitution, which never mentions corporations, and on two hundred years of Supreme Court rulings that treat corporations and individuals differently. Abolishing this distinction will release the floodgates of corporate money - in quantities that are orders of magnitude greater than what is spent now - into federal and state elections. It will, in one fell swoop, undo decades of hard work by progressives who have fought to adopt strong campaign finance and disclosure laws. And perhaps most urgently, such a ruling stands to undo the benefits of the months of exhausting work done by millions of progressives to elect Barack Obama and progressive leaders in Congress, undermining or placing out of reach nearly every outcome on the progressive agenda, from health care reform, to clean energy, Net neutrality, consumer protection, civil rights, and more.
Think for a second about how you would have reacted to a proposal sponsored by the Bush Administration in 2003 to repeal a century's worth of campaign finance laws that limit the ability of corporations to influence elections. Constructively engaging and pushing back against the conservative activism of the Roberts Court is trickier, but no less important. At the very least, we should all be expressing our outrage. The justices on the Supreme Court do keep an ear toward public opinion, and it is too often because progressives at large are silent about the issues and cases that come before them that they're able to quietly, though tragically, chip away at our work. We owe it to ourselves not to let that happen here. We need to make noise about this case, and we need to do it now.
Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
Recently there have been several instances of people showing up to presidential town halls with loaded weapons. They claim to be defending a beseiged right of gun ownership. How well does that explanation stand up?
For more on pruning back executive power see Pruning Shears.
Yesterday morning, several Republican Senators took to the Senate floor to make speeches outlining their "concerns" about Supreme Court nominee Sonia Sotomayor. By and large, the speeches were entirely predictable, and if I'd been playing a drinking game keyed to mention of Judge Sotomayor's "wise Latina woman" remark, I'd have been three sheets to the wind by lunchtime.
But who could have predicted that Senator Jeff Sessions, Ranking Member of the Judiciary Committee, would be critical of Judge Sotomayor for following the words of a statute? That's right. Sen. Sessions spent much of his time criticizing a dissent by Judge Sotomayor in the case of Hayden v. Pataki, written about here, in which Judge Sotomayor followed the plain words of the federal statute in question, apparently to Sen. Sessions' dismay. Who knew?
The plaintiffs in the case had challenged New York's felon disenfranchisement law as a violation of the Voting Rights Act of 1965 (VRA), which prohibits voting laws and practices that result in racial discrimination in voting. The plaintiffs claimed that the state law, which prohibits convicted felons from voting until pardoned or cleared from parole, violated Section 2 of the VRA, which provides that:
[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied in any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the of the United States to vote on account of race and color.
The district court dismissed the complaint at the pleading stage, before the plaintiffs had an opportunity to prove their case. The question on appeal was whether the VRA applied at all. When the full Second Circuit heard the case it ruled, 8-5, that it did not. Judge Sotomayor was among the dissenters. In addition to joining a dissent by Judge Parker, Judge Sotomayor also wrote one of her own, a brief and simple opinion to make the point that the many pages of the majority and concurring opinions had given the impression that the case was complex, when it was not. According to Judge Sotomayor:
It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that [the New York statute] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.
When Sen. Sessions criticized Judge Sotomayor today over her dissent in this case, he began with a mischaracterization of her dissent, claiming that Judge Sotomayor had held that felon disenfranchisement laws violated the Voting Rights Act. She had held no such thing. All her dissent would have done is allowed the plaintiffs to have their day in court in an effort to prove that the New York statute discriminatorily denied African-American and Latinos their right to vote. The merits of the case were not at issue on appeal at all, only whether the VRA was even applicable to felon disenfranchisement laws.
Perhaps more astonishing, however, was that Sen. Sessions claimed that Judge Sotomayor would no doubt defend her dissent by saying that she'd been a "strict constructionist" by literally applying the Voting Rights Act to the case. The Senator said that he preferred the term "fair constructionist," and that he did not think it a "fair construction" of the Voting Rights Act to use it to overturn felon disenfranchisement laws.
So let's get this straight. Sen. Sessions is objecting because Judge Sotomayor followed the plain language of a statute? Apparently he would have preferred the majority opinion, which used arguments rooted in legislative history to undercut the result compelled by the clear statutory text in order to get a preferable result - an approach that Justice Antonin Scalia, for one, has criticized.
In her dissent in Hayden v. Pataki, Judge Sotomayor stated that "[t]he duty of a judge is to follow the law, not to question its plain terms." Does Sen. Sessions really want judges who don't feel compelled to follow the law?
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
Yesterday, the Supreme Court issued its much-anticipated opinion in NAMUDNO v. Holder, holding that the plaintiff, a small Texas utility district, should have a chance to prove that it is entitled to an exemption - in technical parlance, a "bail out" - from the preclearance requirement of the Voting Rights Act of 1965. The Court's opinion, written by Chief Justice Roberts and signed by every Justice except Justice Thomas, declined to decide the plaintiff's constitutional challenge to Congress' 2006 decision to renew the preclearance provision, one of the most important and successful provisions of the Voting Rights Act.
This is an incredible turnaround - during oral argument in April, the Court's conservatives all seemed poised to declare that the preclearance provision exceeded Congress' power under the Fourteenth and Fifteenth Amendments. Faced with the prospect of invalidating one of our nation's most important and iconic civil rights laws - renewed in 2006 with overwhelming support across the political spectrum - the Supreme Court backed one step away from a very steep cliff. Only Justice Thomas argued that the preclearance provision is unconstitutional. We should all breathe a sigh of relief that the Voting Rights Act is still intact.
Although the Court did not reach the constitutional questions in yesterday's opinion, the Chief Justice's opinion invites future litigants to renew the constitutional attack on the Voting Rights Act, describing the Act's preclearance requirement as in tension with principles of constitutional federalism and claiming that it may have run its course, citing "considerable evidence that it fails to account for current political realities." This is hardly an opinion faithful to the text and history of the Civil War Amendments, which were enacted to change the Constitution's balance of powers between the federal government and the States, and give Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote. Thus, although the Voting Rights Act dodged a bullet today, the threat to the Act, and to fundamental constitutional principles, is still at code red.
Emblematic of the Court's appreciation of the text and history of the Civil War Amendments is its discussion of Reconstruction and its aftermath. In the Court's eyes, Congress failed to take up its constitutional duty to enforce properly the Fifteenth Amendment's guarantee of the right to vote. In Chief Justice Roberts' words, "[t]he first century of congressional enforcement of the Amendment can only be regarded as a failure. Early enforcement acts were inconsistently applied and repealed with the rise of Jim Crow." The truth is that much of the blame goes to the Supreme Court. It was the Court that sapped Congress' enforcement powers under the Civil War Amendments, ensuring that the new constitutional guarantees would not actually be enjoyed by the newly freed slaves and other Americans. For example, in the 1876 case of United States v. Reese, the Court adopted a tortured construction of the Enforcement Act of 1870 - Congress' first exercise of its Fifteenth Amendment enforcement powers - to justify holding the Act unconstitutional. Reese dismissed a prosecution of Kentucky election inspectors who refused to count the votes of African American voters - a blatant violation of the Fifteenth Amendment - because the Court thought the Act could also apply to vote denials that had nothing to do with racial discrimination. As Judge Michael McConnell has written of Reese, "the reasoning was transparently faulty and the practical effect was to undo a major underpinning of Reconstruction."
Other decisions of the era made it impossible to protect African Americans and their allies against the campaign of terror waged by the Klu Klux Klan, who turned to violence and intimidation to prevent African Americans and their allies from voting. As we show in our recent report, The Shield of National Protection, in the 1870s and 1880s, the Supreme Court held that Congress had no power to protect the constitutional rights of the freedmen against "private" action. These rulings effectively gave the green light to groups like the Klu Klux Klan to terrorize African Americans to make sure they did not vote.
As The Shield demonstrates, the framers of the Civil War Amendments gave Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote because it did not trust the Supreme Court - so soon after its abominable ruling in the Dred Scott case - to properly enforce the new constitutional Amendments. This was a prophetic judgment - since then, the Supreme Court has, all too often, stood in the way of Congress' enforcement of the Constitution's guarantees.
Should the Voting Rights Act return to the Supreme Court, let's hope the Supreme Court learns these lessons, and respects Congress' express constitutional power to secure the right to vote. Unfortunately, the Court's failure in NAMUDNO to even acknowledge its own role in undermining Congress' efforts to enforce the right to vote in the Reconstruction era provides little basis for optimism.
Originally posted at Text & History. David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
The nomination of Sonia Sotomayor to replace Justice Souter on the Supreme Court has sparked national conversations-some good, some bad, and some very, very ugly-about the qualities we want and need in the judges who sit on the highest court in our land. This week's Supreme Court decision in Caperton v. A.T. Massey Coal Co. should be part of that conversation. The decision shows how the current Supreme Court Justices grappled with our Constitution and legal precedent in the context of a case about judicial bias. The majority opinion, authored by Justice Kennedy and joined by the four "liberal" Justices-Stevens, Souter, Ginsburg, and Breyer-wrestles with the facts of the case, the mandates of the Constitution, and relevant Supreme Court precedent to decide the case. Interestingly, the dissenting opinions authored by Chief Justice Roberts and Justice Scalia reveal a disregard for precedent and the text of the Constitution, despite these Justices' proclaimed fidelity to such judicial limitations. As we prepare for Judge Sotomayor's July confirmation hearing in the Senate and think back to the confirmation hearings of some of the Justices already on the bench, it is useful to look at the Caperton case as a reminder that clever metaphors and broad labels are no substitute for a demonstrated commitment to applying the Constitution to the facts at hand to protect fundamental rights.
Chief Justice Roberts's dissent from Tuesday's ruling in Caperton v. A.T. Massey Coal Co. (discussed here), joined by Justices Alito, Scalia, and Thomas, trots out the legal aphorism that "hard cases make bad law" in criticizing Justice Kennedy's majority opinion holding that a West Virginia judge was disqualified from hearing a high-stakes case involving a major campaign contributor.
What Roberts misses, however, is that it is not just the extreme facts of Caperton that are driving the majority's decision. Instead, the Court reached its decision after grappling with relevant precedent and considering the Constitution's textual guarantee of due process of law, which neither Chief Justice Roberts-despite his professed fidelity to precedent-nor Justice Scalia-despite his professed fidelity to constitutional text-face up to in their dissents.
In considering Chief Justice Roberts's dissent, it is useful to recall his now-famous statement from his confirmation hearings:
Judges are like umpires.... Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
Given this statement, it is surprising that Chief Justice Roberts never once attempts to distinguish a key precedent on which Justice Kennedy's Caperton opinion relies: Ward v. Monroeville.
When I taught Ethics and The Constitution, I never ran across anything resembling a "Feasibility" Clause..!
It's really sad that clearly President Obama still does not get it...
The Constitution is not a Chinese menu from which you can and choose one from Column A and one from Column B...a document of convenience..one you can make it up as you go merrily along..!
Once you leave the comfort and shelter of the Constitution you are on the road to ruin, as both Dick Cheney and Nancy Pelosi are learning the hard way, and suffering the ramifications thereof..and President Obama shall apparently learn the hard way as well..sadly...for us all..and his legacy..
Imagine that you're a resident of, say, Massachusetts, and you decide to bring your spouse down to D.C. for a long weekend of visiting monuments and museums. Now imagine that when you get to D.C., you're suddenly no longer married, because D.C. refuses to recognize your Massachusetts marriage. Just like that, you've lost all the legal protections that being married brings. Heaven forbid that while you're here visiting, your spouse is hit by a Tourmobile and seriously injured. She's rushed to a D.C. hospital, where she's placed in intensive care. And then you find out that only spouses and other immediate family members are permitted to visit patients in the ICU, so you are denied access to your loved one at this moment of great need.
Or imagine that you and your spouse have moved to D.C. from Massachusetts so that you can take a job with a K Street lobbying firm. When you try to enroll your spouse in your employer's health insurance plan, you're denied spousal coverage because your marriage isn't recognized in D.C.
Sound farfetched? Hardly.
Until last week's unanimous vote by the D.C. Council paved the way for D.C. to recognize the marriages of same-sex couples lawfully entered into in other jurisdictions, suddenly becoming "unmarried" when stepping across the borders into D.C. was a harsh reality for same-sex couples who have been legally married elsewhere. Is this any way to run a country?
We don't think the Framers of our Constitution thought so. Article IV, Section 1 of the Constitution requires that
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.
While some commentators believe that interstate marriage recognition may be less a function of constitutionally-mandated "full faith and credit" than of principles of "comity" or "choice of law," the decision of the D.C. Council is certainly consistent with the nation-unifying policy that animates the Full Faith and Credit Clause.
Under our system of federalism, the states have agreed to give up some of their own sovereignty in order to form a single, unified nation. This result is, in part, effectuated by the Full Faith and Credit Clause. As the Supreme Court has stated, "The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation . . . " As Justice William O. Douglas put it, the Constitution "in no small measure brings separate sovereign states into an integrated whole through the medium of the Full Faith and Credit Clause."
Under the principles that undergird the Full Faith and Credit Clause, couples who are legally married in one state have every right to expect their relationship to be recognized everywhere else in this country.
The D.C. Council is to be applauded for ending the game of "now you're married, now you're not," and for doing its part to ensure that same-sex couples legally married elsewhere can expect to have their marriages recognized in our nation's capital, whether they move to D.C. or, like so many thousands of others this time of year, are just visiting to enjoy the Cherry Blossoms.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the Constitution upholds progressive outcomes.
On Friday, the Iowa Supreme Court, in a unanimous ruling, held that a state statute prohibiting same-sex couples from marrying under civil law violated the equal protection guarantees of the Iowa Constitution. The ink was barely dry on the ruling before right-wing critics predictably began hurling charges of "judicial tyranny" and "judicial activism" at the seven justices on the Iowa High Court. (Strangely, conservatives never seem to lob these charges at judges who strike down laws that protect individuals from discrimination or otherwise rule in ways that make it more difficult for Americans to obtain justice in the courts, but we digress.)
Underlying these charges is a dangerous misunderstanding of the role of the courts in our constitutional democracy. Whether at the state or the federal level, it is the role of the legislature to make the laws, but those laws must be consistent with the requirements of the federal Constitution and, in the case of state laws, with the state Constitution as well. And when a specific law has been challenged on the basis that it violates constitutional provisions, it is the responsibility, in fact the obligation, of judges to determine whether or not that is the case.
This is, of course, the principle of judicial review, affirmed more than 200 years ago by Chief Justice John Marshall in Marbury v. Madison. As Justice Marshall famously wrote, "It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is." And as Chief Justice Marshall recognized, what would be the point of having written a written constitution, if the legislature could just ignore it in passing laws and the courts could do nothing but sit idly by?
In their opinion on Friday, the Iowa Supreme Court Justices in fact specifically addressed the nature of their obligations as judges to determine whether the challenged state law violated the Iowa Constitution:
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Constitution.
(Emphasis added.) In proceeding to make that determination by applying the provisions of their state Constitution to the challenged Iowa marriage law, the Justices of the Iowa Supreme Court were doing what they, as judges, are supposed to do. They were acting in the best tradition of John Marshall, and they should be commended, not excoriated, for doing their jobs. Critics who nonetheless claim "judicial activism" in such decisions are doing a great disservice to our democracy and to Americans' understanding of the proper role of courts in our society. And some of those critics, undoubtedly, are hurling these charges in an effort to intimidate judges.
On Friday, in Iowa, that tactic thankfully did not work.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the Constitution upholds progressive outcomes.
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