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

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

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

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

by David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center (CAC).  This article is cross-posted at ACSBlog.

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

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

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

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

by Doug Kendall, President, Constitutional Accountability Center

This front-page story in yesterday’s Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment’s Privileges or Immunities Clause “flotsam.” Flotsam is defined by Webster’s Dictionary as “floating debris”: trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald’s attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of “bucking for some place on a law school faculty” by advancing an argument in text and history that was “the darling of the professoriate.”

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn’t fit with his longstanding argument against judicial protection of substantive fundamental rights.

Throughout his tenure on the Supreme Court, Justice Scalia has disparaged the doctrine of substantive due process, under which the Supreme Court has recognized fundamental substantive rights including the right to reproductive choice in Roe v. Wade and the right to sexual intimacy in Lawrence v. Texas. Scalia has called substantive due process “babble” and an “oxymoron” and repeatedly sought to overturn rulings like Roe, arguing they cannot be squared with the Constitution’s text and history. In dissent in a 1999 case called City of Chicago v. Morales, Scalia asserted: “[t]he entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called “substantive due process”) is in my view judicial usurpation.” Read more »

by Doug Kendall, President, and Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

The media has made much of the purported rift between the pro-gun-rights advocates in the McDonald v. City of Chicago case, in which gun owners have asked the Court to extend against infringement by state and local governments the individual right to keep and bear arms recognized against the federal government in Heller v. District of Columbia.  Scrutiny increased after the National Rifle Association (NRA) sought and obtained 10 minutes of counsel for McDonald’s oral argument time.  The NRA, represented by former Solicitor General Paul Clement, sought argument time to focus on “incorporation” of the right to keep and bear arms through the 14th Amendment’s Due Process Clause; Alan Gura, McDonald’s counsel, has made arguments for incorporation under both due process and the 14th Amendment’s Privileges or Immunities Clause, with heavy emphasis on the latter argument.

But it is important to keep in mind as we head into argument on March 2, that while the time between the pro-incorporation advocates may be split, their arguments come together in the history of the 14th Amendment, on which both Clement and Gura rely.  If the Court were to embrace either argument and recognize that incorporation of fundamental substantive rights is correct as a matter of original intent and public meaning, it would be a huge victory—not just for the advocates and their amici (including Constitutional Accountability Center), but, most important, for the Constitution.

In his briefs, Gura has powerfully presented the history of the 14th Amendment and its Privileges or Immunities Clause, recounting how the Framers of the 14th Amendment expressly sought to secure the individual right to keep and bear arms for self-defense as a privilege or immunity of citizenship. Constitutional Accountability Center (CAC) filed an amicus brief on behalf of a group of prominent constitutional scholars from across the ideological spectrum supporting this theory, explaining that this provision of the 14th Amendment was intended and understood to protect fundamental substantive rights, including those set out in the Bill of Rights.  Read more »

The ever-escalating war over executive and judicial branch confirmations is often associated with big-picture ideological battles over the meaning of our Constitution and the direction of the nation’s highly influential appeals courts.  Rarely do we consider how such fights — often waged using procedural tricks like holds and filibusters — directly affect Americans seeking justice in courts around the country.  Yet a clear illustration of the negative impacts of obstructionism over nominees has emerged in our own backyard at the D.C. Superior Court, the local trial court that serves the residents of the District of Columbia.  Because the District is federally administered, its trial judges have the (dubious) distinction of being subject to Senate confirmation – and thus to the procedural whims of 100 Senators.

There are currently three vacancies on the Superior Court, two of which have been open for more than a year.  President Obama has nominated the following, well-qualified candidates to these three vacancies:

• In March 2009, President Obama nominated Magistrate Judge Marisa Demeo, a former federal prosecutor in the U.S. Attorney’s Office for the District of Columbia and current Magistrate Judge in the Criminal Division of the Superior Court, to an Associate Judge position vacated by former Chief Judge Rufus King in 2008.
• In June 2009, President Obama nominated Stuart Nash, who currently serves as Associate Deputy Attorney General and director of the DOJ’s Organized Crime and Drug Enforcement Task, to an Associate Judge position vacated by Judge Rafael Diaz in early 2009.  Nash had previously been nominated by President George W. Bush to fill Chief Judge King’s seat.
• In January 2010, President Obama nominated Magistrate Judge Milton “Tony” Lee to fill the vacancy on the D.C. Superior Court created by the retirement of Judge Jerry Byrd.  Lee has served as a Magistrate Judge on the Superior Court for more than a decade and serves as the presiding judge of the Court’s Fathering Court.

Demeo and Nash cleared the Senate’s Homeland Security and Government Affairs Committee in May and July of 2009, respectively, with no opposition, and simply await a floor vote.  Demeo is now the longest-pending judicial nomination of the Obama presidency.  The extraordinary delay in these confirmations recently prompted Read more »

Early last year, we wrote about a case out of Louisiana in which a federal district court judge held that the Full Faith and Credit Clause of the Constitution (Art. IV) requires the state of Louisiana to provide an amended birth certificate to a gay couple identifying them as the parents of their adopted son, who was born in Louisiana and then  legally adopted by the couple in New York.  Louisiana refused, claiming that the New York adoption decree violated its own policy of not allowing joint adoptions by unmarried persons, and appealed the case to the U.S. Court of Appeals for the Fifth Circuit.  Late last week, the Fifth Circuit unanimously affirmed the district court’s ruling, and ordered the state to supply the new birth certificate

In 2006, Oren Adar and Mickey Smith adopted a little boy who was born in Louisiana, and asked that state for an amended birth certificate listing them as the boy’s parents — among other reasons because without the certificate, Smith could not get his son covered by his employer’s health insurance. Louisiana refused to issue Adar and Smith an amended birth certificate, even though state 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.

Adar and Smith brought a lawsuit in federal court in Louisiana to obtain the new birth certificate and won, with the judge – a Republican appointee – stating that, under the Constitution, and in accordance with clear Supreme Court precedent, one state’s obligation to recognize the judgments of another state is “exacting.”  As noted above, Louisiana appealed the decision to the Fifth Circuit, one of the most conservative appeals courts in the country, where last week a three-judge panel (two of whose members are were also Republican appointees) unanimously upheld the district court’s decision, holding that “under the Full Faith and Credit Clause of the Constitution of the United States, Louisiana owes full faith and credit to the New York adoption decree.”

The Fifth Circuit is to be commended for faithfully applying the plain text of the Constitution,  and not allowing Louisiana to play ideological politics with a little boy’s well-being.

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

On March 2, the Supreme Court will hear argument in one of the biggest cases this Term: McDonald v. City of Chicago, in which gun owners have asked the Court to extend against infringement by state and local governments the individual right to keep and bear arms recognized against the federal government in Heller v. District of Columbia.  McDonald will likely be the biggest constitutional case of this Term— Citizens United, the other contender for this year’s constitutional blockbuster, was technically a hold-over from last Term — and it gives the Court a rare opportunity to correct a century-and-a-half-old precedent that is responsible for wiping out one of the most important rights-protecting provisions of the 14th Amendment.  McDonald also presents interesting questions regarding Chief Justice Roberts’s willingness to overrule precedent—so unfortunately displayed in last month’s Citizens United decision—and Justice Scalia’s commitment to his originalist vision—which was notably absent in Citizen United, a ruling contrary to the text and history of the Constitution.

In McDonald, the city of Chicago is defending its gun control measures against a challenge by petitioners who argue that the city’s handgun ban violates their right to keep and bear arms—a right, these petitioners argue, that is protected against state and local government infringement by the Constitution’s 14th Amendment.  Otis McDonald and his fellow petitioners ground their argument primarily in the Privileges or Immunities Clause of the 14th Amendment, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  Constitutional Accountability Center (CAC) filed an amicus brief on behalf of a group of prominent constitutional scholars from across the ideological spectrum supporting this theory, explaining that this provision of the 14th Amendment was intended and understood to protect fundamental substantive rights, including those set out in the Bill of Rights.  It is only because an 1873 Supreme Court ruling in The Slaughter-House Cases woefully misinterpreted the Privileges or Immunities Clause—and, indeed, the entire project of post-Civil War Reconstruction—that the Clause has been relegated to a constitutional “inkblot.”

The history of the Privileges or Immunities Clause shows that the drafters of the provision were particularly concerned with protecting the right to keep and bear arms for newly freed slaves and Unionists in the South, who were experiencing violent persecution in the aftermath of the Civil War.  Accordingly, the McDonald case provides a rare, clear opportunity for the Court to apply the Privileges or Immunities Clause as it was originally intended and protect this individual right to keep and bear arms against state and local infringement.  Reviving the Privileges or Immunities Clause would not just protect the gun rights asserted in McDonald, however; as CAC has explained in its report, The Gem of the Constitution, reinvigorating the Clause would strengthen other fundamental, substantive rights—including the right to reproductive choice recognized in Roe v. Wade and the protection for sexual intimacy recognized in Lawrence v. Texas—by giving these rights a stronger textual foundation in the Constitution.

But the revival of the Privileges or Immunities Clause, however appropriate, could be side-stepped in McDonald: the petitioners, as well as the NRA and other amici, have argued that the Due Process Clause of the 14th Amendment is an alternative method of “incorporating” Second Amendment gun rights against state and local governments.  Read more »

This week, the New York Times featured the story of Quig Hong Wu, a young man who, at the age of 5, legally immigrated to the U.S. with his family from China – and is now facing deportation.  Wu’s case illustrates the importance of an upcoming Supreme Court ruling concerning the Sixth Amendment right to effective assistance of counsel.

As the Times reveals, when Mr. Wu was 15 he was arrested and pled guilty to a string of robberies, before being sentenced to 3-9 years in a reformatory.  The New York judge who heard his case in 1996, now-retired Judge Michael Corriero, told Mr. Wu that if he turned his life around, he would stand behind him.

Mr. Wu responded by doing just that – becoming a “model inmate,” staying out of trouble, working to support his mother and climbing the ranks of a national Internet technology company to become its vice president.  Nearly 15 years after his guilty plea, feeling he had fully reformed, Mr. Wu applied for citizenship, and his criminal record came to the attention of immigration authorities.  Mr. Wu did not realize until after he submitted his application that having pled guilty to a crime as a teenager made him ineligible for citizenship, and automatically deportable. Read more »

SCOTUSBlog reports this morning that the Washington state Supreme Court has issued a ruling incorporating the Second Amendment against the states via the Due Process Clause of the Fourteenth Amendment.

This question – of whether, and if so, how, the Second Amendment individual right to bear arms, recognized in Heller v. District of Columbia – is precisely the one the U.S. Supreme Court will address this Term in McDonald v. City of Chicago, set for oral argument on March 2.  The Washington court acknowledged that the Supreme Court had yet to address this question, stating that on this issue “lower courts need not wait for the Supreme Court.”

In an amicus brief filed in McDonald on behalf of a broad range of prominent constitutional scholars, CAC argues that the Second Amendment is incorporated via the Fourteenth Amendment.  However, in contrast to the Washington court’s approach, our brief reveals why this should be done via the Privileges or Immunities Clause, rather than the Due Process Clause.

The Washington Post reports this morning that, in a recent survey conducted jointly by the Post and ABC News, a “large majority” – 65% of Americans – “strongly” oppose the Supreme Court’s ruling last month in Citizens United v. FEC, in which the Court invalidated a century’s worth of restrictions on corporate expenditures to influence elections.  At the same time, 72% support reintroducing limits on such expenditures.  The Post adds:

The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent)… Indeed, the poll shows remarkably strong agreement about the ruling across all demographic groups, and big majorities of those with household incomes above and below $50,000 alike oppose the decision. Age, race and education levels also appeared to have little relative bearing on the answers.

This is highly significant, because in Washington, the response to the Court’s decision in Citizens United has been bitterly divided. The disagreement has fallen chiefly along party lines, with Democrats, most notably President Obama, expressing outrage at the decision and supporting measures to limit corporate electioneering, and Republicans, such as Senate Minority Leader Mitch McConnell, wildly applauding the ruling (Citizens United is a political action committee formed by David Bossie, an opposition researcher for Republican candidates) and almost uniformly opposing any attempt to fix it.

Such division clearly has not characterized the public’s response to the decision.  The Post-ABC poll is one of only several conducted since the decision came down that consistently reveal an overwhelming majority of Americans oppose the Court’s ruling.  One poll, conducted jointly by Republican and Democratic strategists and sponsored by several groups opposed to the ruling, found that 64% of respondents opposed the decision, while a mere 27% favored it. The pollsters elaborated: Read more »