Barry University School of Law and the American Constitution Society present
Constitutional Law Scholars Forum
A discourse on cutting-edge issues in Constitutional Law by national scholars
March 20, 2015
8:00 a.m. - 5:15 p.m.
Breakfast and lunch will be served
This event has been approved for 6.5 CLE credits by the Florida Bar.
Registration Fee: $50 for attorneys seeking CLE credit; free for students
Click here to register. You will be contacted with information on how to pay the registration fee, if applicable.
Program
Check-in and breakfast: 8:00-8:45 a.m.
Welcome: 8:45-9:00a.m.
Session 1: 9:00-10:30 a.m.
LGBT Civil Rights Movement
Professor Terri Day, Barry University School of Law
Professor Danielle Weatherby, University of Arkansas School of Law
Uncovering Affirmative Action's Compelling Interests
Professor Robert Knowles, Valparaiso University School of Law
Judicial Review and Socio-Economic Status: The Judiciary’s Achilles Heel?
Professor M. Akram Faizer, Lincoln Memorial University Duncan School of Law
Session 2: 10:45 a.m.-12:15 p.m.
Preemption, Epidemics, and Quarantine
Professor Eang Ngov, Barry University School of Law
Immodest Defense: Extraordinary Legislation, Federalism, and the Supreme Court
Professor Stephen Schnably, University of Miami School of Law
In Defense of Shelby County's Principle of Equal State Sovereignty
Professor Jeffrey Schmitt, Florida Coastal School of Law
Lunch: 12:15-1:30 p.m.
Session 3: 1:30-3:00 p.m.
Why Justice Scalia is Wrong: A Defense of Inferentialism Over Textualism
Professor Ken Levy, Louisiana State University School of Law
The Meaning of Constitutionality
Professor Craig Jackson, Thurgood Marshall School of Law, Texas Southern University
Parole Reform Litigation: Using the Due Process Clause to Redress Mass Incarceration
Alexa Van Brunt, Northwestern University School of Law
Sheila A. Bedi, Northwestern University School of Law
Session 4: 3:15-5:15 p.m.
Arguments Supporting Delayed Executions Prove Too Much
Professor Russell Christopher, University of Tulsa College of Law
The Confrontation Right and New Technology
Professor Brian Sites, Barry University School of Law
Net Neutrality and the First Amendment: An Analysis of Constitutional Concerns Arising From Federal Regulation of the Internet
Professor Robert Wood, University of Central Florida, Department of Legal Studies
One Nation, Under Drones
Timothy M. Ravich, University of Central Florida, College of Health and Public Affairs, Legal Studies Department
Forum Topics and Abstracts
LGBT Civil Rights Movement
Abstract: The movement to legalize same sex marriage and to extend the umbrella of anti-discrimination laws to members of the LGBT community has been dubbed the civil rights movement of the 21st century. As proponents of LGBT rights have achieved numerous legal successes, they have also faced strong opposition. Opponents have employed the referendum process so that a majority of voters can ban LGBT-friendly initiatives, and anti-LBGT rights advocates have appealed to the courts to overturn legal battles won in lower courts. Depending on which side of the battleground parties are situated, the legal battles have attempted to extend or block equal protection and substantive due process rights to the LGBT community.
With this backdrop, this article follows previous work that explored the implications of the Affordable Care Act’s HHS Mandate. The first article, published in the Georgetown Journal of Law & Public Policy, considered how the HHS Mandate violated free exercise rights from a Catholic perspective. The second article, published in the Pepperdine Law Review, focused on the Hobby Lobby issue in the context of the non-delegation doctrine. It also argued that a ruling in favor of Hobby Lobby would open the floodgates to state RFRA claims, essentially allowing private businesses and service providers to discriminate under the guise of religious freedom.
With this paper, we continue where the previous papers left off, arguing that state RFRA laws, like Bill H.B. 5958 recently passed by the Michigan House of Representatives, provide a platform for healthcare professionals to refuse service to members of the LGBT community under the guise of religious freedom. We submit that state RFRA laws, especially those that surpass the federal RFRA’s protection of religious freedom, will permit private discrimination in the delivery of services to members of the LGBT community. This is particularly disturbing as some of these state RFRA laws will allegedly permit medical providers, including pharmacists, to refuse services or treatment to LGBT patients on the basis of free exercise rights.
Uncovering Affirmative Action's Compelling Interests
Abstract: The future of affirmative action in public institutions is on a knife’s edge. A sharply divided Supreme Court in Grutter approved the limited use of race-conscious measures in state higher education to further a compelling interest in achieving a diverse student body. But since that 2003 decision, as the Court has become more conservative, it has expressed increasing skepticism about all race-conscious measures.
Yet even as affirmative action’s role in public institutions has grown increasingly endangered, it has enjoyed steady support in many private institutions—especially in higher education. And affirmative action still plays a crucial role in the public institution held in highest esteem by the American public—the military.
The divergence between affirmative action’s dire prospects before the courts and its continued vitality elsewhere is puzzling. Although the Court’s conservative majority has articulated its view of why race-conscious measures are generally bad policy, it has failed to account for why such measures are still relied on by so many institutions, particularly the military. Moreover, the debate over affirmative action—in the courts and in the academy as well—has focused almost exclusively on theory and the justices’ own views, rather than the ways in which affirmative action’s success might be tangibly measured.
This Article seeks to re-orient the debate by drawing on the military’s experience with affirmative action. The military experience is an important, but under-examined, case study because the military has used affirmative action quite aggressively, and the heavily-scrutinized nature of military life makes the results easier to measure. The military’s experience reveals that there exists a broader range of compelling interests served by affirmative action—interests which the courts have failed to account for, and which the military itself has often failed to recognize. In particular, the use of race-conscious measures by the military has proven to be a powerful means of advancing a compelling interest in social cohesion, as evidenced by the high rate of intermarriage in military communities.
Judicial Review and Socio-Economic Status: The Judiciary’s Achilles Heel?
Abstract: The French economist Thomas Piketty’s “Capital in the Twenty First Century” refocused the political culture’s attention to the problem of income and wealth inequality, which has grown dramatically since the 1970s. Although this problem has manifested itself worldwide, Piketty’s analysis paints perhaps the bleakest picture of the United States, which has seen both a marked uptick in inequality since the Reagan Revolution of the 1980s, in conjunction with a pronounced drop in socio-economic mobility. This income and wealth inequality hat has superimposed itself upon the country’s historic racial cleavages such that the academic achievement, wealth and prison incarceration rate difference between African Americans and Whites are at historic highs.
This pronounced degree of inequality has been altogether disregarded by all three political branches of the country’s federal government, including the judiciary, which has applied a very deferential standard of review in adjudicating socio-economic legislation. Indeed, this deferential review standard, in conjunction with the Court’s recent decisions in matters of voting rights and racial imbalance in public education has, if anything, worsened the problem. This article will analyze this jurisprudence in view of the United States’ current predicament as the most income and wealth unequal country in the developed world and conclude the Court’s jurisprudence will most likely exacerbate the political, socio-economic and racial polarization that bedevils U.S. society and renders the U.S. less capable of addressing its citizens’ needs in an increasingly globalized, competitive and resource-scare twenty-first century.
Preemption, Epidemics, and Quarantine
Abstract: The outbreak of Ebola in Africa and its recent emergence in America has brought to light that the ambit of state sovereignty in the face of federal policy is unsettled in the public health field. Quarantine laws have historically been recognized as an exercise of state police powers and, absent discriminatory uses, courts have afforded much deference to states when the federal government is dormant. This article explores federalism implications when the purview of regulating Ebola, other epidemics, and quarantine is contested by federal and state sovereigns. This article examines how the federal government can assert supremacy to regulate treatment of epidemics and quarantine through preemption and evaluates the value of federal and state sovereignty over such matters.
Immodest Defense: Extraordinary Legislation, Federalism, and the Supreme Court
Abstract: Whether we call them super-statutes, landmark bills, or (as I will term them) extraordinary legislation, some statutes seem larger than life. This impression may rest on their peculiar substantive importance; they may represent and reinforce important social values or consensus. Or it may rest on the unusual difficulties, sometimes extending over decades, that stood in the way of their passage. Formally subject to repeal at any time, in practice they straddle the line between legislation and constitutional amendment. As such, they might be expected to command greater respect from the courts.
In the last few years, the Supreme Court has faced federalism challenges to aspects of several forms of extraordinary legislation, the Voting Rights Act of 1965 and the Affordable Care Act. We might conclude that Court has been boldly indifferent to the extraordinary nature of the legislation, given that it invalidated key portions of both statutes on constitutional grounds and has shown a willingness to constrain the ACA on statutory grounds. Or we might look to the fact that a conservative Court obviously skeptical of the legislation nevertheless left both standing (if deeply wounded) as a sign of the power of extraordinary legislation to survive scrutiny that might fell a lesser statute.
Deference or judicial boldness: which best characterizes the Court’s approach? The dichotomy fails to capture the distinctive feature of the Court’s practice, one which I will call “immodest deference.” Immodest deference is embodied in the Court’s consistent tendency to defer not to contemporary legislative processes, determinations or judgments but to imagined or past versions of them. It is deference to a politics the Court effectively constructs for its own genuflection, not engagement with any actual politics.
Immodest deference diminishes Congress’s power and enhances the Court’s: Judicial restraint (or at least the appearance of it) is enlisted to support holdings that displace rather than respect democratic decision making. Equally important, immodest deference obscures the Court’s deep intervention into the politics of federalism.
In Defense of Shelby County's Principle of Equal State Sovereignty
Abstract: In Shelby County v. Holder, the Supreme Court struck down a pillar of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principlewith a surprising degree of unanimity and contempt. These critics argue that the principle has no mooring in Supreme Court precedent, the text of the Constitution, or legal history. They further contend that the principle is theoretically unworkable, elevates states’ rights over individual rights, and is tainted by its use to justify slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty is a coherent and defensible legal doctrine that is deeply rooted in our nation’s history. In fact, the equal sovereignty principle need not have doomed the Voting Rights Act. Legal academics should, therefore, redirect their criticism of the content of equal sovereignty principle to the Court’s unnecessary and unwise application in Shelby County.
Why Justice Scalia is Wrong: A Defense of Inferentialism Over Textalism
Abstract: The United States Supreme Court’s “right-to-privacy” jurisprudence has generated three reactions. First is Justice Scalia’s pessimistic view that the Court has simply invented the doctrine of substantive due process.
Second is the fatalistic view that the Court has no choice but to engage in this kind of doctrinal invention. Because the text of provisions like the DPC and first ten Amendments provides little guidance as to how they should be interpreted, the justices—if they are to interpret at all, which is their constitutional duty—must make the best sense they can of these provisions. While the pessimists and the fatalists differ in their attitudes, they agree that the Court has primarily invented the values that it has attributed to the DPC and Amendments. But there is yet a third view that rejects this proposition, that maintains that the Court’s substantive-due-process jurisprudence is characterized primarily by discovery rather than invention.
So who is right—the “invention camp” or the “discovery camp”? I will argue that both are actually to some extent correct. The proper method of constitutional interpretation, which I will refer to as the “method of reasonable inference” or just “Inferentialism,” requires both discovery and invention. Part of my argument for Inferentialism will involve refuting Justice Scalia’s preferred theory of constitutional interpretation, Textualism. I will then argue that invention is not nearly as threatening as Justice Scalia makes it sound. Specifically, I will argue for what I will call the “Dynamic View” of constitutional interpretation. On the Dynamic View, the Constitution actually invites the Court to inject its assessment of the nation’s social, moral, and political norms into its interpretation of the DPC and the first ten Amendments.
The Meaning of Constitutionality
Abstract: What does it mean when a court pronounces a measure constitutional? Or unconstitutional? The question is akin to the “What is Law” inquiry that has occupied the time and energy of legal philosophers for centuries.
In our present circumstances what is constitutional is what the Supreme Court says is constitutional. But does a majority vote supply enough credence to anoint a holding as law, or is it just the outcome of a political process within and outside of the Court.
My paper will seek to examine the issue of the politicization of law through three different lens. First I examine the ideas of Oliver Wendell Holmes who believed in law as a continuing project while acknowledging that more went into judicial decision-making than the mere application of logic and mathematical precision. Holmes did not claim law as mere politics, but by distancing law from logic he set the foundation, I believe, for recognition that personal judgment on the part of judges is the real law in a given case, for better or worse. Second, to my thinking that is a tacit acknowledgement of the political nature of several important decisions: the Brown decision, and three cases addressing due process, Lochner v. New York, Heller v. District of Columbia, and McDonald v. City of Chicago. The political stakes in each of these decisions were significant, yet how the Court managed the politics in each determined or will determine the regard paid to those decisions by history.
Third, to examine the decisions, and as a subject itself, I look to interpretation theory to try to discern the intent of the theories and how they are used and whether justices using one theory over another have motives other than achieving discovery of the true law of the Constitution.
Parole Reform Litigation: Using the Due Process Clause to Redress Mass Incarceration, Amplify the Voice and Perspective of People Who Are Imprisoned, and Inform Law Students’ Perceptions Of U.S. Prisons and Jails
In this article, we examine how enforcing the due process rights of people who are on parole serves to hold accountable a system that often and systematically violates the law. We document the procedural vortex that is the parole revocation system in Illinois (the most overcrowded prison system in the country) and describe our attempts to reform the system through class action litigation. We also recount how involving law students in parole reform class action litigation exposes them to the epidemic of mass incarceration and helps inform their view of race, justice and the law. Finally, we examine the parole system and the attempts at reform through the perspective of the people who are on parole—using the lens of procedural justice.
Arguments Supporting Delayed Executions Prove Too Much
Abstract: In denying “Lackey claims”—claims brought by death row prisoners that execution following as much as thirty years or more of death row incarceration violates the Eighth Amendment prohibition against cruel and unusual punishment—courts employ three principal arguments. This Article demonstrates that the three arguments, both individually and collectively, are unsound because they prove too much. They are so powerful that they not only prove that as yet unrecognized constitutional rights do not exist, but also that long-standing, clearly existing constitutional rights do not exist. That is, not only do they deny extending the Eighth Amendment’s protection to excessively delayed executions, but the trio would also establish the non-existence of clearly existing constitutional rights including the Sixth Amendment rights to effective assistance of counsel and speedy trial, Fourteenth Amendment rights to an impartial jury and against discriminatory use of peremptory challenges, and aspects of the Fifth Amendment right against self-incrimination. Demonstrating that the trio proves too much—proves that which is patently false—demonstrates that the trio is unsound. Demonstrating that the trio is unsound removes the primary obstacle to courts recognizing that execution following decades of death row incarceration constitutes cruel and unusual punishment.
The Confrontation Right and New Technology
Abstract: How, if at all, should interpretation of the Confrontation Clause vary in the face of new technologies? Courts across the country have resisted efforts to cross-examine the human agents who assist machines that generate data used in criminal trials. From increasingly sophisticated forensic lab tools to crime scene drones, these machines are gradually increasing in prevalence. Meanwhile, other machines that operate with little-to-no human assistance, such as surveillance cameras and wearables, are also on the rise. As new technologies continue to creep into numerous aspects of public and private spaces, human witnesses are, as a practical matter, less and less necessary to criminal trials. This article considers whether, in light of these changes, courts should re-interpret the Confrontation Clause to provide a different type of right to "confront" the new breed of "witnesses against [us]" that cannot be put on the stand and cross-examined.
Net Neutrality and the First Amendment: An Analysis of Constitutional Concerns Arising From Federal Regulation of the Internet
Abstract: Since 2005, the Federal Communications Commission has struggled to develop regulations on the issue of “net neutrality”, a phrase used to describe the position that internet service providers should treat all internet users equally and should not be able to offer tiered services so that users who require more bandwidth would have to pay a premium to ensure their content would be delivered without interruption. Essentially, “open internet” as it is also called, requires all internet users to be treated equally.
In 2014, the latest iteration of FCC regulations were struck down by the D.C. Circuit in Verizon v. FCC. The Circuit Court did not address the First Amendment arguments of the parties, deciding the case on a question of statutory interpretation. However, the FCC Chairman just announced a new set of regulations that have been described as the “the strongest open Internet protections” ever seen. Inevitably, these latest regulations will lead to another court challenge and the D.C. Circuit may have to tackle the Constitutional questions directly this time.
This paper will examine the First Amendment issues raised by both sides in the Verizon v. FCC case, and also review the scholarly commentary that has emerged over the past year.
One Nation, Under Drones
Abstract: On February 16, 2015, the Federal Aviation Administration issued long-awaited rules effectively allowing for the commercial operations of unmanned aerial vehicles (“UAVs”) in the near future. At the same time, President Obama signed a presidential memorandum governing how federal agencies will use UAVs of all sizes. The memo has the same legal effect as an executive order and requires agencies to publish within one year how to access their policies about UAVs, particularly about the collection, retention and dissemination of information. The goal is to ensure that uses do not violate the First Amendment or discriminate against people based on ethnicity, race, gender, religion or sexual orientation. Indeed the interface of UAVs and the Constitution is a rich new area for constitutional study. This proposal offers to discuss the interaction between traditional constitutional legal concepts as applied in the enterprising new space of commercial unmanned aviation activity.
UAVs—commonly referred to as “drones”—get a lot of bad press. Their operations are portrayed as presenting a clear and present danger to privacy and property rights—the constitutional equivalent of falsely shouting “Fire!” in a crowded theater for First Amendment purposes. In regular conversation, the word “drone” takes on sinister gravity, connoting danger, imminent or otherwise. This is understandable given the technology’s military origins. “Drones” are hunter-killer robots with scary names like “Predator” and “Reaper.” They are scary “smart” with robust intelligence, surveillance, and reconnaissance (“ISR”) capabilities. In the War on Terror, they stalk human beings with indefatigable persistence and kill them with “Hellfire” missiles. Unfortunately, this context overshadows the many civil and commercial uses of UAVs, including natural gas pipeline monitoring, agriculture remote sensing, and aerial cinematography. This presentation will be the first to examine the current UAV regulatory environment as applied to common law and constitutional conceptions of privacy, liberty, free speech, and travel rights, and argue that the latest in aviation technology can and should be allowed to flourish consistent with bedrock constitutional principles.