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January, 2012

In October 2010, CAC released a study to answer a question raised by, among others, Justice Stephen Breyer, about whether the success of the Chamber of Commerce in Supreme Court cases is a new development. We decided to compare the success of the Chamber in the Roberts Court to its success in the five Terms before Justice Scalia joined the Court in 1986, a comparable period of stable Court membership that was bookended by Justice Sandra Day O’Connor joining the Court in 1981. 

On January 20, 2012, CAC published Reversing Citizens United: Lessons from the Sixteenth Amendment. Released to coincide with the two-year anniversary of Citizens United, this Issue Brief tells the story of the how progressives in the early 20th Century amended the Constitution to overturn the Supreme Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust, a 5-4 ruling that struck down a federal income tax law and, much like Citizens United, departed from first constitutional principles and a long line of precedents. In telling the story of how the people took the Constitution back from the Lochner-era Supreme Court, the Issue Brief offers critical lessons for modern progressives fighting to reverse Citizens United.

In December 2008, CAC released the first narrative in its Text and History Narrative Series. This narrative tells the sad story of the Privileges or Immunities Clause of the Fourteenth Amendment, which was supposed to be the centerpiece of the Fourteenth Amendment and the critical constitutional language that guarantees the fundamental rights of all Americans. Instead, the Supreme Court wrote it out of the Constitution in 1873 and it has lain dormant ever since. The report argues for a reconsideration of the Clause and its critical role of protecting fundamental rights and liberties.

In June 2009, CAC released The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment, the second in CAC’s Text and History Narrative Series and the follow-up to The Gem of the Constitution, our report on the Privileges or Immunities Clause.

Congress clearly had the authority to pass health care reform--including the individual mandate--and the legal challenges to the Act, filed by a handful of State Attorneys General, are more political theater than genuine constitutional argument.

On March 10, 2010, CAC released the third narrative in its Text and History Narrative Series. Entitled A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law, the narrative builds on the scholarly research discussed in CAC’s amicus curiae brief in the Supreme Court case Citizens United v. FEC. The narrative examines a key issue that the Court addressed in the case: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics.

Read our report, Hostile Environment, which documents the threat that anti-environmental judicial activists sitting on the federal bench pose to protections for the environment, specifically by denying plaintiffs their day in court due to "lack of standing."

In April 1998, CAC's predecessor organization, Community Rights Counsel released a comprehensive investigative report that chronicles and critiques the increasingly successful campaign by conservative legal activists to use the court system to further an anti-regulatory political agenda. The report traces what it dubs the "Takings Project" from its roots in the U.S. Justice Department under Attorney General Edwin Meese, through the systematic efforts of developers and property rights groups to move takings cases through the court system and finally to the case law, where conservative jurists have ignored procedural rules and made significant leaps in the face of precedent in order to upend the accepted interpretation of the Takings Clause.

On November 16, 2011, CAC released Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment, the fourth volume in CAC’s Text and History Narrative Series. This narrative tells the story of how the American people, after the Civil War, re-wrote the Constitution to guarantee equality to all persons, bringing the Constitution back in line with the principle of equality laid out in the Declaration of Independence.

On May 19, 2011, CAC released a discussion draft, written for CAC by Professor James E. Ryan of the University of Virginia School of Law, that describes the rise of conservative originalism during the Reagan era and documents its success in shaping the conversation about the Constitution. It goes on to explain why the initial response by progressives was only partially successful and was in some ways counterproductive. It then explains the shift in the academy towards new textualism and reviews the important scholarly work done to date documenting the progressive promise of the Constitution’s text and history. The Draft ends with an outline of the work that remains.

On March 31, 2011, CAC's Chief Counsel Elizabeth Wydra released an Issue Brief distributed by the American Constitution Society on the Citizenship Clause’s guarantee of constitutional citizenship, rebutting attacks on this critical component of the 14th Amendment. The issue brief explains that a close study of the text and history of the Citizenship Clause demonstrates that birthright citizenship is guaranteed to every person born on U.S. soil and subject to its jurisdiction, regardless of the immigration status of the child's parents.

In December 2010, CAC released an empirical study examining the success of the U.S. Chamber of Commerce before the Supreme Court during the last 11 years of the tenure of Chief Justice William Rehnquist.

 If federalism is about protecting the States, why not listen to them? In the last decade, the Supreme Court has reworked significant areas of constitutional law with the professed purpose of protecting the dignity and authority of the States, while frequently disregarding the States' views as to what federalism is all about. The Court has ignored the views of the States in two directions: striking down federal laws despite the nearly unanimous opinions of the States that a federal role is appropriate, and invalidating State initiatives despite impassioned calls by the States about the ambiguity of the federal interest and the need for State innovation. The Court, according to the States, is protecting federalism both too much and too little.  Redefining Federalism is a book edited by Doug Kendall and published in 2004.