by Doug Kendall and Elizabeth Wydra

Today, Constitutional Accountability Center (CAC) filed a Supreme Court brief in Caperton v. A. T. Massey Coal Company on behalf of CAC and 27 other national, state, and local organizations that are committed to preserving judicial independence and integrity. As discussed previously on Text & History, in Caperton, the Court will address whether the 14th Amendment’s Due Process Clause requires a judge to recuse himself from a case involving a litigant who has made substantial contributions to the judge’s state election campaign. CAC’s brief, on behalf of clients including Justice at Stake, Appleseed, Common Cause and the American Judicature Society, discusses the importance of judicial independence to the framers of the 14th Amendment and explains how the Court’s ruling on the constitutional question could further, or impede, ongoing state judicial selection reform efforts.

The facts of Caperton vividly illustrate the problem with modern judicial elections. Don Blankenship, chairman, CEO, and president of A.T. Massey Coal Co., spent $3 million supporting Justice Brent Benjamin’s campaign for a seat on the West Virginia Supreme Court of Appeals – more than 60% of the total amount spent in support of Justice Benjamin’s successful candidacy. At the time of Benjamin’s election, Massey was preparing an appeal of a $50 million fraud verdict against the company to Benjamin’s court. After winning a seat on that court, Benjamin refused to recuse himself from Massey’s appeal, instead casting the tie-breaking vote in Massey’s favor.

CAC’s brief explains why this violates due process, not just under the Court’s jurisprudence, but also in light of the history of the Due Process Clause. One of CAC’s animating principles is that the history of the Civil War Amendments (including the 14th) is underappreciated in modern constitutional debates. This case illustrates this problem — our brief provides the first extended discussion of this history in the case so far — and our brief begins to rectify it. We explain that securing impartial justice was of particular concern to the drafters of the 14th Amendment’s Due Process Clause, who acted against the backdrop of widespread maladministration of justice in the South, whereby neither freed slaves nor Unionists could be sure of due process in the courts. The drafters of the 14th Amendment were also keenly aware of the particular injustices wrought by the Fugitive Slave Act in the North. Under the federal Fugitive Slave Act of 1850, the commissioner who decided whether the person brought before him was a fugitive slave received $10 for returning a purported slave, but only $5 for declaring him free. The Reconstruction Framers wrote the Due Process Clause to secure justice for all and guard against justice for sale. Applied to the facts of this case, the history of the 14th Amendment points strongly to a ruling that preserves the appearance and reality of equal justice by setting an outer limit on how much litigants can spend to get their favored judges elected without triggering constitutionally-required recusal.

Our brief also discusses the intersection of constitutional law and policy that will be the focus of much of the debate in this case. Many of the organizations joining CAC on the Caperton brief have documented the serious problems raised by modern judicial elections and suggested ways to reform judicial selection. As we explain in our brief, a ruling by the Court for Caperton will push forward ongoing state reform efforts, which will work within the contours of the Court’s constitutional ruling to find solutions to the questions of “wise policy” raised by the serious threats to judicial impartiality posed by judicial campaigns and elections. On the other hand, if the Court does not find that the egregious facts of this case rise to the level of a due process violation, state reform efforts will be weakened by the Court’s acceptance of the perceived and actual threats to judicial impartiality posed by high levels of campaign contributions to judicial candidates. While the Court’s constitutional ruling need not cross the line into the realm of policymaking, it will inevitably influence the momentum—and perhaps even the ultimate success—of judicial selection reform.

Constitutional Accountability Center was established in June 2008 as a think tank, law firm and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. CAC’s predecessor organization, Community Rights Counsel, documented judicial ethics violations involving stock conflicts and judicial junkets, and won reforms that prevent these violations. This brief thus illustrates the organizational continuity (in our focus on judicial accountability) and change (in our broader focus on topics including the history of the Civil War Amendments) in the evolution from Community Rights Counsel to Constitutional Accountability Center.

by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Happy New Year from Text & History! While we and many others were away enjoying the holiday break, a number of events occurred around the country that implicate several different provisions of the Constitution, including some lesser known but hardly insignificant portions of the text. Americans may take a vacation, but the Constitution never does. Here’s a recap:

• The Exclusion Clause — Can the Senate Bar Blago’s Appointee?

Ignoring calls that he not exercise his power under state law to appoint someone to fill Barack Obama’s Senate seat, embattled Illinois Governor Rod Blagojevich on December 30 named former state Attorney General Roland Burris to finish Obama’s senatorial term. This brought an immediate promise by Senate leaders not to seat Burris, a plan that garnered approval from the President-elect. Although some seem to be taking it for granted that the Senate can bar Burris, does it really have that power?

Article I, Section 5, Clause 1 of the Constitution provides that “Each House shall be the judge of the elections, returns, and qualifications of its own members.” At least in a literal sense, there would seem to be no issue of “elections” and “returns” here, so if the Senate is to turn Burris away under this Clause, it appears, again at least literally, that it could only do so pursuant to its right to judge the “qualifications” of its members. But what does that word mean?

Well, back in the 1960s, the House of Representatives refused to seat New York Congressman Adam Clayton Powell, who had been reelected even though a House subcommittee found that Powell had misappropriated congressional funds. Powell sued, and in a 1969 opinion by Chief Justice Earl Warren in Powell v. McCormack, the Supreme Court held that under Article I, Section 5, Clause 1, “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” That is, the constitutionally specified qualifications of age, citizenship, and residency.

No one has suggested that Roland Burris lacks any of those “qualifications” for membership in the Senate. Thus, with Burris fighting for Obama’s seat, and Senate leaders determined not to let him have it, it’s not clear exactly how all this will play out. One thing does seem pretty clear, however — the controversy over whether Burris will be able to take a seat in the Senate is only just beginning. (For a more detailed analysis of the constitutional questions involved, see Lyle Denniston’s post on Scotusblog here.)

And who said that examining relatively obscure constitutional text isn’t fascinating?

• The Full Faith and Credit Clause to the Rescue

Speaking of constitutional provisions that aren’t exactly on most people’s tongues . . . the Full Faith and Credit Clause — hardly a household name — recently provided a very welcome holiday present to a gay male couple and their adopted son. In 2006, Oren Adar and Mickey Smith adopted a baby boy in New York through an order of adoption duly entered by a New York family court. Because the boy had been born in Louisiana, Adar and Smith asked that state for an amended birth certificate for their son listing them as the boy’s legal parents. The new document was necessary among other reasons because without the birth certificate, Smith had been having difficulty obtaining health insurance coverage for the boy under his employer’s policy.

Louisiana, however, refused to issue an amended birth certificate, even though Louisiana law requires that when a child born in Louisiana has been adopted in another state, Louisiana must issue an amended birth certificate to the adoptive parents upon presentation of the adoption decree. According to the Louisiana Attorney General, because that state does not allow unmarried parents to adopt, it was not required to recognize the New York adoption decree.

Adar and Smith brought suit in federal court in Louisiana. Represented by Lambda Legal, the parents argued that Louisiana’s refusal to recognize the New York adoption decree violated the Full Faith and Credit Clause of the Constitution (Art. IV, Sec. 1), which requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (Emphasis added.) Louisiana, however, argued that the state should be exempt on public policy grounds from giving “full faith and credit” to an out-of-state adoption decree that Louisiana itself would not grant.

In an opinion issued on December 22, federal district court Judge Jay Zainey — a George W. Bush appointee — rejected the state’s argument as contrary to “the long history of precedent regarding full faith and credit of [court] judgments.” Adar v. Smith, 2008 WL 5378130, *4 (E.D. La. Dec. 22, 2008). Quoting the Supreme Court, Judge Zainey wrote that one state’s obligation to recognize the judgments of another state is “exacting.” Id. (quoting Baker v. General Motors Corp., 522 U.S. 222, 233 (1998)). Judge Zainey therefore granted summary judgment to Adar and Smith and ordered Louisiana to issue an amended birth certificate for their son. No word yet on whether Louisiana intends to appeal.

• He’s Baaaack . . . Michael Newdow Challenges “Alteration” of the Presidential Oath

Michael Newdow, perhaps best known for his unsuccessful efforts to have the courts strike the phrase “under God” from the Pledge of Allegiance, has also been on another quest — to keep presidential inaugurations free of government-sponsored prayer. In 2001, shortly after George W. Bush’s first inauguration, Newdow filed a lawsuit in federal court seeking a declaration that the prayer delivered by clergy during the ceremonies violated the Constitution; he filed a similar suit before President Bush’s second inauguration in an effort to bar prayer at that event. Newdow lost those cases on standing grounds, the courts holding that prayer during the inauguration did not and would not cause Newdow to suffer the concrete “injury” necessary for him to have standing to sue. (The second court also held that Newdow, having lost the first case on standing grounds, was also precluded from raising the same matters again.)

Michael Newdow, however, is not one to give up easily. With Barack Obama’s inauguration only weeks away, Newdow is back in court. On December 30, Newdow filed yet another lawsuit challenging government-sponsored religious expression at a presidential inauguration. This time, however, besides seeking to bar government-sponsored prayer at the event, Newdow is also asking the court to declare that Chief Justice John Roberts, who will administer the oath of office to Barack Obama, cannot add “so help me God” at the end of the oath, a practice that reportedly has existed since the inauguration of FDR. Newdow argues that the official administering the presidential oath has no authority to alter the oath, which is spelled out in the Constitution. Article II, Section 1 states that the president, before entering the office, “shall take the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’”

As interesting as it would be for a court to determine the merits of this textual argument, it’s a pretty safe bet that no court will do so. It seems far more likely that this case will suffer the same fate as Newdow’s other inaugural challenges — tossed out for lack of standing. (Those standing rulings, by the way, have some troubling implications, but that discussion is far beyond the scope of this post.) Newdow himself is under no illusions about the likely fate of his latest lawsuit. “I have no doubt I’ll lose,” he said last week.

In honor of the holidays, the New Year, and what we hope will be a true New Birth of Freedom with the inauguration of President-Elect Barack Obama, Text & History is taking a vacation to cogitate over the progressive Constitution. Look out for continued news and analysis in the new year, starting Jan 5, 2009.

Happy Holidays!

by Doug Kendall, President, Constitutional Accountability Center

Today, in a ruling that surprised many, the Supreme Court held, 5-4, that federal law does not “preempt” state trial courts from reviewing deceptive advertising claims brought by smokers of “light” cigarettes and their loved ones against Altria (Philip Morris’ parent). Ms. Good and other claimants argue that Philip Morris promoted “light” cigarettes as delivering less tar and nicotine to consumers than do regular brands, even though the company knew this was false or misleading.

We’ll let others give more detail about the facts of the case and the implications for future tobacco litigation. At this point we’ll just chime in with a brief discussion of a couple of the other interesting aspects of the case.

First, the scope of Justice Stevens’ accomplishment in this case should not be understated. Sixteen years ago in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), Justice Stevens wrote a plurality opinion joined by Chief Justice Rehnquist and Justices O’Connor and White. None of those justices is on the Court today, yet Justice Stevens was able to turn that 4 justice plurality into a 5 justice majority, despite a trend in the Court’s preemption case law in favor of broad preemption. He accomplished this feat by bringing two justices that weren’t on the Court at the time of Cipollone (Justices Breyer and Ginsburg) and two justices that were on the Court but had a different view of the case then (Justices Souter and Kennedy) around to his position. As this ruling indicates, Justice Stevens’ impact on the Court – measured in his ability to persuade his colleagues about his view of the law – goes far beyond his one vote. This is something folks on the left should keep in mind. The Court is likely to shift to the right when Justice Stevens retires, no matter who is named as his replacement.

Second, Altria v. Good is one of a relatively few recent preemption cases in which the Court has split sharply along ideological lines. What has made preemption cases so interesting for litigators over the past two decades is precisely the fact that the justices have been unpredictable in their voting patterns. This is the way it should be: preemption cases involve a wide variety of detailed federal statutory schemes. There is or should be no set “liberal” or “conservative” way to read a federal statute. But, sadly, this seems to be changing when it comes to express preemption cases, where the Court’s conservative bloc appears to have coalesced around a fairly rigid pro-preemption position. Justice Thomas’ Altria dissent was joined by Chief Justice Roberts and Justices Scalia and Alito.

Justice Thomas attributes this ideological split to the fact that the conservative justices refuse to apply a “presumption against preemption” in express preemption cases, and he argues at some length against the wisdom of this presumption. This echoes earlier opinions by Justice Scalia in Cipollone and Justice Thomas in Bates v. Dow; it is the first time Chief Justice Roberts and Justice Alito have tipped their hand in this debate. But this strikes us as something of a red-herring. The “presumption against preemption” has always played a minor to non-existent role in preemption cases – it has, as many commentators have noted, been “honored in the breach.” While Justice Stevens cites the presumption as part of a discussion of black letter preemption law, the rest of his opinion is a straightforward explication of why an anti-preemption position here is the best reading of the Federal Cigarette Labeling and Advertising Act.

All the Justices appear to agree that the Court’s most fundamental duty is to honor the words chosen by Congress. Increasingly, the Court appears to be splitting along ideological lines in terms of how to perform that duty.

by Doug Kendall, President, and David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy. Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia – the most fervent of the challengers – argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s – and hence not the judge’s – workbox.” But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution. On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.

The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

What should be striking about this list of protected rights is how closely it dovetails with the results of the Court’s substantive due process jurisprudence. The rights of heart and home that the Court’s substantive due process cases have vindicated beginning with Meyer v. Nebraska are the very rights that the framers of the Fourteenth Amendment sought to guarantee for the newly freed slaves. The framers recoiled at the treatment of slave families – parents were denied the right to marry and often separated, children were taken from them, and education and free worship were limited or prohibited altogether – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home.

Thus, the results the Court has reached under substantive due process need not be jettisoned; the Court simply has focused on the wrong clause of the Fourteenth Amendment. That should make the task of developing a new Privileges or Immunities jurisprudence considerably easier. The Court should not (and need not) start from scratch; it can turn to the lessons learned over 135 years of wrestling with the questions about what constitutes protected substantive liberty.

Even the most controversial of the Court’s substantive due process precedents – Roe and Lawrence v. Texas – flow logically from the substantive fundamental rights the framers of the Fourteenth Amendment wrote the Privileges or Immunities Clause to secure. Both cases, it should be mentioned, are about equality as well as substantive liberty, but our focus here is on the Court’s recognition of a protected liberty. As Jack Balkin and others have recognized, Roe protects a right of bodily integrity. A woman’s right to terminate a pregnancy flows out of her right to control her body. The right of bodily integrity has a long heritage as a core aspect of liberty. The framers of the Privileges or Immunities Clause called this right the right of personal security, and there is little doubt that they considered it one of the privileges of national citizenship. Lawrence, too, is rooted in the substantive liberties that the framers of the Privileges or Immunities Clause sought to protect. Lawrence held that the rights of heart and home recognized by the framers and protected since Meyer apply to all Americans, regardless of sexual orientation.

There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. This has been doubly damning. On the Court, Justice Scalia has gotten far too little push back on his reading of the Constitution’s text and history – a reading that views the Reconstruction Amendments as minor tinkering around the edges of our original Constitution. No one on the Court consistently challenges Scalia on how to read the Constitution’s text and history. Off the Court, Republican presidents and politicians argue that we need more Justices like Scalia who are committed to the Constitution’s text and history, while Democratic politicians all too often talk about the results of cases they care about, not the Constitution. For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights. Progressives have the chance to rejuvenate the Clause in the Fourteenth Amendment that was meant to protect the substantive liberty of all Americans, and to show how the Constitution’s text and history support the Supreme Court’s existing fundamental rights jurisprudence. With a text that explicitly protects the substantive liberties of all Americans finally back in the Constitution, claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.

Originally posted at Balkinization.

by David Gans, Director of Human and Civil Rights, and Doug Kendall, President of Constitutional Accountability Center

There has been a tremendous amount of attention paid recently to the conservative unrest (expressed most forcefully by Fourth Circuit Judge J. Harvie Wilkinson III) about Justice Scalia’s opinion in Heller v. District of Columbia, which Judge Wilkinson criticizes for dragging the Court into another hot button political topic (gun control) without a clear constitutional mandate. What few commentators have realized is that the next wave of Second Amendment litigation, involving challenges to state gun control laws, will raise an even more interesting question about how the provisions of the Bill of Rights are “incorporated” against the States, and provide an even greater test of conservative originalism.

Heller involved a District of Columbia statute. Because Congress controls the District’s laws, the Second Amendment applied by its own force. Virtually everyone assumes that the Court will take the next step of saying that the individual, Second Amendment right, recognized in Heller, applies also as a limit on state and local laws. Justice Scalia powerfully points in this direction in a footnote in Heller that flags this issue and undercuts the three 19th century precedents holding that the Second Amendment does not apply to state and local laws.

But if the fact of incorporation is a given (and we think it is), the method is not, and that’s where things get really interesting. Indeed, the “how” question with Second Amendment incorporation could be one of the most profoundly important questions of constitutional law decided in decades. In past cases, the Court has turned to the Due Process Clause to incorporate virtually all the rights in the Bill of Rights, but that approach does not sit well with the Constitution’s text, especially for substantive rights like the Second Amendment. Incorporation in those cases relies on the doctrine of substantive due process, which conservatives love to hate. Now some conservative lawyers are championing the Privileges or Immunities Clause as an alternative means of incorporation. The very day that the Court handed down Heller, Heller’s attorney, Alan Gura, filed a lawsuit attacking Chicago’s ban on hand guns, principally as a violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Gura’s new lawsuit, not surprisingly has failed so far, but he is biding his time until he gets to the Supreme Court.

Gura is right to invoke the Privileges or Immunities Clause. The Court should rule that the Second Amendment – like the other substantive guarantees in the Bill of Rights – binds the States. And it should do so through the Privileges or Immunities Clause. The Privileges or Immunities Clause protects the substantive fundamental rights of all Americans from hostile state legislation. (For further explanation, see the first post in this series and our recent report, The Gem of the Constitution). At the very least, this means that States may not violate the fundamental constitutional rights listed elsewhere in the Constitution, such as in the Bill of Rights. As the first Justice Harlan wrote in Twining v. New Jersey — one of his many prescient dissenting opinions of the era — “[t]he privileges or immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law, were thus secured to every citizen of the United States, and placed beyond assault by any government, Federal or state.” As Justice Harlan emphasized, “the plain words of the Constitution” dictate this protection of fundamental rights; we need not be derailed by having to show that the Due Process Clause protects substantive fundamental rights.

The debates in Congress over the Fourteenth Amendment bear this out. Senator Jacob Howard gave one of the best discussions of the Clause, and he was explicit that the Clause would require states to abide by the protections of the Bill of Rights, specifically including “the right to keep and bear arms.” Senator Howard recognized that the Supreme Court had held that the Bill of Rights did not apply to the States, and wrote the Privileges or Immunities Clause to overturn that result: “The great object of the first section of this amendment is . . . to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

The framers of the Fourteenth Amendment were deeply concerned about Second Amendment rights. The Black Codes prohibited the former slaves from having their own firearms, and some Southern plantation owners demanded that their former slaves agree to labor contracts giving up their right to bear arms. The framers of the Amendment viewed these efforts as breaches of the fundamental rights of all Americans, and meant the Privileges or Immunities Clause to invalidate them. For example, during the debates, Rep. Pomeroy viewed the right to bear arms as one of three indispensable “safeguards of liberty,” arguing that all Americans “should have the right to bear arms for the defense of himself and family and homestead.” Likewise, Rep. Raymond argued that the Fourteenth Amendment’s citizenship rights included the right to bear arms. “Make a colored man a citizen of the United States and he has every right which you and I have as citizens of the United States under the laws and Constitution of the United States. . . . He has a right to defend himself and his wife and children; a right to bear arms . . . .”

How, then, did the Supreme Court reach a contrary conclusion? In The Slaughterhouse Cases and subsequent rulings, the Court distinguished rights of state and national citizenship, and concluded that virtually all constitutional and common law rights were state rights; only rights connected to the workings of the federal government or the Union were rights of federal citizenship. In a trio of cases – United States v. Cruikshank in 1875, Presser v. Illinois in 1886, and Miller v. Texas in 1894 – the Court seized on this dichotomy to conclude that the Second Amendment does not apply to the States. As the Court wrote in Cruikshank: “The second amendment declares that [the right to bear arms] shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the federal government . . . .”

In Heller, Justice Scalia recognized these as dubious precedents that gave no real consideration to the question of incorporation, setting the stage for overruling them at a later date. But there is no reason to simply stop at these three Second Amendment rulings. The Fourteenth Amendment’s text and history point powerfully toward overruling Slaughterhouse and applying the Second Amendment to the States via the Privileges or Immunities Clause.

But notice the predicament for a conservative originalist like Justice Scalia. The only answer a committed originalist can provide to the incorporation question is incorporation through the Privileges or Immunities Clause. While Justice Scalia is a “faint-hearted originalist” — meaning he’s sometimes willing to follow established, non-originalist precedent — that is no answer to the question of how to incorporate because the Court will have to overrule parts of Cruikshank as well as two other very old cases to find incorporation at all.

The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).

A Supreme Court ruling that the Privileges or Immunities Clause is not a dead letter and, indeed, mandates that judges wrestle with the question of what constitute the “privileges or immunities of citizens of the United States,” unquestionably would put a stronger constitutional foundation under the Court’s rulings in cases like Roe v. Wade and Lawrence v. Texas. Judge Wilkinson’s really not going to like that.

Originally posted at Balkinization.

by Douglas Kendall, President, & David Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

Today, the Constitutional Accountability Center (CAC) will release a report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause, the first of a series of “narratives” about the text and history of critical constitutional provisions. The report is available here. Jack Balkin, who serves on CAC’s Advisory Board, has kindly given us the opportunity to start a conversation about this report and the Privileges or Immunities Clause on his blog in a series of posts over the next several days.

Why start with the Privileges or Immunities Clause? Of all the great words and important clauses in our Constitution, why would a new organization with a mission of promoting the progressive force of the Constitution’s text and history choose as the star of its first narrative a clause that has been a virtual dead letter for 135 years? We will discuss two answers to this valid question in this series of posts.

The first answer is that the hole left in the Constitution by the Supreme Court’s refusal to honor the text and history of the Privileges or Immunities Clause has produced a gaping chasm that separates Americans today in the debate over the protection of fundamental human rights and liberties. The text matters, and when it comes to the constitutional protection of civil and human rights, the Privileges or Immunities Clause is indispensible text. Second, the left/right/center scholarly consensus about the Court’s shabby treatment of the Privileges or Immunities Clause – coupled with recent murmurs on the Court itself – suggest that the time is ripe for a serious push towards a reconsideration of the Clause and the central role it was supposed to play in American constitutional law.

In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called Section One of the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.” The Privileges or Immunities Clause is at the core of Section One: it was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the “unalienable rights” to which the Declaration referred. Yet, the Clause was never allowed to fulfill its promise. The Supreme Court interred the Privileges or Immunities Clause in the Slaughterhouse Cases in 1873, and it has been little more than a dead letter ever since. Slaughterhouse is an embarrassment to anyone who cares about the text and history of the Constitution; it wrote out of the Constitution one of the document’s most important protections of human and civil rights. And, it is sorely missed today. Without any clear textual hook in the Constitution for protecting fundamental rights against the actions of state and local governments, debates over the basic human rights all Americans possess have run aground, mired in endless debates about whether the Constitution’s text, in fact, protects substantive liberty.

The text and history of the Privileges or Immunities Clause are clear and straightforward. The text – following on the heels of the Citizenship Clause’s grant of national birthright citizenship – provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The key words – privileges or immunities – have gone out of favor in modern American usage, but for most of our history, a privilege was the same thing as a right. This is how James Madison used the word when proposing the Bill of Rights – he called “freedom of the press” and “rights of conscience” the “choicest privileges of the people.” This example is just the tip of the iceberg; as Professors Akhil Amar and Michael Kent Curtis have painstakingly shown, similar examples abound from the founding era through the Civil War. Thus, the words of the Clause secure the fundamental rights of American citizens against hostile state action.

In adding this protection of substantive liberty, the Reconstruction framers acted both from principle and experience. They sought to add this protection to make the words of the Declaration of Independence – invoked by Lincoln at Gettysburg in his call for a “new birth of freedom”– into a constitutional mandate. The Declaration’s protection of “life, liberty, and the pursuit of happiness” was foremost in the mind of the Reconstruction framers because in 1865 and 1866, just after the Civil War, Southern state governments passed the Black Codes, laws that violated virtually all of the fundamental rights of Americans in their efforts to keep African Americans in slavery. Many of the fundamental rights the Clause was meant to protect were rights enumerated in the Bill of Rights, but some were not. The post-Civil War framers regularly invoked fundamental rights – such as the right of access to courts, the right to personal security and bodily integrity, and the right to have a family and raise children – that have no textual basis in the Bill of Rights. Thus, as Professor Michael Gerhardt has written, the Privileges or Immunities Clause is the “natural textual home . . . for unenumerated fundamental rights.”

This account should hardly be controversial. Indeed, it reflects the scholarly consensus of the text and history of the Fourteenth Amendment, thanks principally to the writings of Michael Kent Curtis, Akhil Amar, Larry Tribe, John Hart Ely, Jack Balkin, Randy Barnett and others. Doctrinally, however, Slaughterhouse still reigns supreme, despite its indefensible reading of the text and history of the Privileges or Immunities Clause. Slaughterhouse has been demolished everywhere but on the Court. As Akhil Amar has observed, “[v]irtually no serious modern scholar – left, right, and center – thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

Slaughterhouse got the text and history of the Privileges or Immunities Clause dead wrong. It refused to read the Clause to protect the fundamental rights of all Americans. Instead, it read the Clause to protect a narrow set of rights connected to the workings of the federal government or the Union. According to this reading, the Clause protected rights that promoted access to the federal government, such as the right to access federal waterways or come to the seat of government; it did not protect free speech or bodily integrity, rights that were crucial to the freed slaves’ liberty and security in the South. This narrow reading rendered the Clause effectively meaningless. Indeed, the few rights Slaughterhouse recognized as Fourteenth Amendment privileges or immunities were already protected by the Supremacy Clause, which would forbid state action that interfered with the workings of the federal government or the Union. Justice Samuel Miller, who wrote for the Court, never liked the Privileges or Immunities Clause. During ratification, he favored a version that did not include it; he wanted it out of the Fourteenth Amendment. And Slaughterhouse gave him the chance to effectively write the Clause out of the Amendment.

With the Privileges or Immunities Clause out of the Constitution, the Court eventually turned to the Due Process Clause to protect substantive liberty, making that Clause do the work of two. We are facing the consequences today. Substantive due process reads like a contradiction in terms, and requires courts to engage in legal gymnastics to sustain the protection of fundamental substantive liberties. Despite efforts by some of the greatest constitutional lawyers in history, there is no account of substantive due process that commands respect. The result is our modern-day war over the Constitution and the future of the Supreme Court. Conservatives point to liberal devotion to substantive due process as Exhibit A in their case that liberals care little about the text of the Constitution and are content to have judges make things up as they go along. Progressives see the conservative attack on substantive due process as evidence that conservative judges are willing to roll back protection for even the fundamental liberties enshrined in the Bill of Rights.

There is a straightforward way out of this seemingly unwinnable war: restore the text of the Privileges or Immunities to its rightful place. The time could not be better. After all, we live in an age in which text and history are the touchstone for constitutional analysis, yet the text and history of the Privileges or Immunities Clause – meant to be the centerpiece of Section One of the Fourteenth Amendment – have been lost to us for over a century.

President-elect Obama is perfectly positioned to make this restoration a central part of his legal agenda. Not only did Obama win a commanding victory by appealing to the common ground we all share, his own writings capture the essence of the Privileges or Immunities Clause and the Declaration of Independence on which it is based — the principle that all Americans, as their birthright, share a basic set of fundamental rights that no government may abridge. As he put it in Audacity of Hope:

For all our disagreements we would be hard pressed to find a conservative or liberal in America today . . . who doesn’t subscribe to the basic set of individual liberties identified by our Founders and enshrined in our Constitution and common law: the right to speak our minds; the right to worship how and if we wish; the right to peaceably assemble to petition our government; the right to own, buy, and sell property and not have it taken without fair compensation; the right to be free from unreasonable searches and seizures; the right not to be detained by the state without due process; the right to a fair and speedy trial; and the right to make our own determinations, with minimal restriction, regarding family life and the way we raise our children. . . . We consider these rights to be universal, a codification of liberty’s meaning . . . .

There is good reason to think that the Supreme Court will be receptive to this approach. In 1999, in Saenz v. Roe, the Supreme Court invalidated a welfare reform measure for violating the right to travel protected by the Privileges or Immunities Clause, marking the first time in modern constitutional law that the Court treated the Clause as anything other than a dead letter. A seven-Justice majority united behind Justice Stevens’ opinion for the Court. Justice Thomas, the only currently sitting Justice to dissent, agreed that the Clause protected fundamental rights, though he disagreed that California had violated such a right. More important, Justice Thomas signaled a willingness to overrule Slaughterhouse, a suggestion he repeated in 2000 in Troxel v. Granville, a case that affirmed the unwritten fundamental right of parents to direct the upbringing of their children.

So far, we have bracketed the big question — what rights should count as fundamental rights protected by the Clause? Our next two posts will take on that question. On Thursday, we will look at the Second Amendment incorporation question. After Heller, gun rights advocates have argued that the Privileges or Immunities Clause should be the vehicle to incorporate against the states the individual right recognized in Heller. Next Monday, in our final post, we will examine the protection the Clause should give to fundamental rights not enumerated elsewhere in the Constitution.

Originally posted at Balkinization.

The Supreme Court will hear argument tomorrow in Ashcroft v. Iqbal, a qualified immunity case raising the question of whether high-ranking officials can be personally subjected to suit for allegedly unconstitutional detention policies based on race, religion, or national origin, arising out of the investigation into the September 11, 2001 terrorist attacks.

Javaid Iqbal is a Pakistani citizen who was arrested in November 2001 by federal officials in New York City during the post-9/11 federal investigation. Suspects who were detained pursuant to this investigation and deemed to be “of high interest” to the terrorism investigation were housed in the Administrative Maximum Special Housing Unit of the Metropolitan Detention Center in Brooklyn, New York. Iqbal was held for more than 150 days in this maximum security unit after being classified as “of high interest.” He claims that he was presumptively classified as “of high interest” to the 9/11 investigation solely because of his race, religion, and national origin. While in maximum security detention, Iqbal claims he was subjected to solitary confinement, unnecessary and abusive strip searches, and beaten by correction officers. He was never charged with terrorist activity, but plead guilty to ID fraud, served 16 months, and was deported to Pakistan.

While the substance of Iqbal’s claims would warrant close interest on their own, the defendants against whom these allegations are pressed raise the stakes: Iqbal sued not just the FBI agents and prison officials with whom he had direct contact, but also then-Attorney General John Ashcroft and FBI Director Robert Mueller. Filing his action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which the Supreme Court held that federal officials may be held personally liable for violations of the Constitution, Iqbal alleged that the federal defendants violated his First, Fourth, Fifth, Sixth and Eighth Amendment rights. As part of these claims, Iqbal alleged that former Attorney General John Ashcroft and current Director of the FBI Robert Mueller were responsible for a policy that directed that detainees like Iqbal would be confined in maximum security solely because of membership in a particular race, religion, or national origin.

In October 2004, prior to any discovery, several defendants, including Ashcroft and Mueller, moved to dismiss Iqbal’s complaint arguing, among other things, that they were protected from suit by the doctrine of qualified immunity. Under this doctrine , government officials are immune from suit for rights violations unless a claimant can show that the official violated a clearly established constitutional right of which a reasonable person would be aware; when this doctrine is applied to a supervisory official, the claimant must generally show that the high-ranking official was directly involved in the violation. The policy rationale for qualified immunity—that officials would be distracted from the work of government if they had to constantly respond to public litigation—arguably applies even more strongly to high-ranking officials, who are highly visible and carry wide-ranging public responsibilities. Moreover, the higher up the chain of command an official is, the less likely he or she will be involved in every in-the-field decision that allegedly leads to a rights violation.

The lower courts, however, said that the context of the 9/11 attacks made it more likely that high-ranking officials like the Attorney General and the FBI Director would be personally involved in setting the detention policy challenged here. The lower courts further ruled that allegations that Iqbal was confined in significantly harsher conditions solely because of his race and religion were sufficient to state a violation of clearly established law.

All of these facts might lead the reader to expect the argument tomorrow to focus on hot-button issues like racial profiling or the tactics used by the government in the aftermath of 9/11. In fact, the argument may focus on something less controversial but still with potentially great impact on our justice system: pleading standards.

Ashcroft and Mueller don’t really challenge Iqbal’s claims that the post-9/11 detention policy actually violated his constitutional rights—rather, they challenge the standard under which the sufficiency of Iqbal’s allegations that they were directly involved in the violation should be judged. In 2007, the Supreme Court held in Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), that the Federal Rules of Civil Procedure require a complaint to allege facts sufficient to cross “the line between possibility and plausibility.” Ashcroft and Mueller claim that Iqbal’s complaint has not crossed that line because he does not allege with specificity that they were personally involved in the claimed constitutional violations. The U.S. Court of Appeals for the Second Circuit - disagreed, holding that Iqbal raised a plausible claim “because of the likelihood that these senior officials would have concerned themselves with the formulation and implementation of policies dealing with the confinement of those arrested on federal charges in the New York City area and designated ‘of high interest’ in the aftermath of 9/11.”

What the Supreme Court will likely be concerned with at argument is what exactly Bell Atlantic v. Twombly meant when it “clarified” the plausibility standard for civil pleadings. While pleading standards may not be incredibly exciting as issues of law, they are extraordinarily important: every plaintiff seeking to hold a defendant accountable for some alleged wrong must face the question of whether his or her complaint has sufficiently stated a valid claim. If the Court uses Iqbal’s case to heighten the pleading standard, even if only in cases against high-ranking officials, it could close the courthouse doors to a substantial number of plaintiffs. In cases like Iqbal’s, a heightened pleading standard could prevent plaintiffs alleging significant government abuses of power and violations of fundamental constitutional rights from having their day in court.

But Iqbal’s lawsuit is far from the only case that would be affected by interpreting Bell Atlantic v. Twombly to establish a heightened pleading standard. Since Bell Atlantic was decided on May 21, 2007, it has been cited more than 6,500 times by the lower courts. Any clarification of the meaning or application of that precedent is likely to have immediate and widespread impact on courts and litigants across the country.

Today marks the 75th anniversary of the ratification of the 21st Amendment, or the repeal of Prohibition.  Tonight, throughout the land, patriots shall celebrate the Peoples’ constitutional right to manufacture, sell, or transport “intoxicating liquors.”

While we certainly encourage Americans to help themselves to a beer or two this evening in celebration of the repeal, an important historical point bears noting.  As constitutional scholars such as Akhil Amar have observed the Constitution has “thus far and in general, followed a progressive course.”  What Amar means is that our Constitutional amendments have, for the most part, expanded Americans’ liberties. The 18th Amendment stands out as an exception to this trend, representing one of the few instances in our history where the Constitution restricted individual rights and passed a moral judgment on actions important to a sizeable portion of the American populace.  In this regard, one could argue that no amendment has taken the Constitution in a conservative direction more so than the 18th.

It just so happens, however, that the 18th Amendment is also the only amendment ever to be repealed.  This history should serve as warning to those who would seek to further amend the Constitution to restrict Americans’ individual freedoms.  This evening, three quarters of a century after Prohibition, Americans are out celebrating the repeal, rather than the ratification, of the 18th Amendment – indicating that attempts to pass moral judgment on Americans’ behavior through our nation’s founding document are unlikely to survive the test of time.

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Let’s say the government discovers that there is a salmonella outbreak traceable to a certain egg producer.  Wishing to prevent further cases of salmonella, which can be fatal in some circumstances, the government issues emergency health regulations temporarily restricting the egg producer’s contaminated eggs from entering the market.  That’s good, right?  Who wants to spoil their omelette florentine with a side of salmonella?

Well, the government may have saved you from a post-brunch trip to the ER, but in the process it also committed an unconstitutional taking of the egg producer’s profits, at least according to the Court of Federal Claims in Rose Acre Farms v. United States.  The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.”  Considering whether there was a compensable taking with respect to those contaminated eggs, the lower court in this case concluded that, “[o]n balance, plaintiff’s severe economic loss and reasonable investment expectation outweigh government’s attempt to prevent the spread of salmonella.”  The plaintiff-egg producer was awarded $5.4 million in interest in taxpayer dollars for lost profits (which begs the question of just how much salmonella-contaminated eggs are worth—apparently a lot). Note that Rose Acre Farms was allowed to continue selling its eggs during the time it was complying with the government’s emergency regulations, just in the less-profitable liquid form.  In other words, a company that was deemed to be the source of repeated salmonella outbreaks that sickened hundreds of people in multiple states was awarded millions of dollars for complying with the law by cleaning up its contaminated facilities and selling its eggs in a less-profitable form while these regulations remain