ACSBlog: The Blog of the American Constitution Society

The latest edition of the Harvard Law & Policy Review, the official journal of the American Constitution Society, is now available. This issue includes discussions on progressive visions of the corporation, ensuring access to quality education, the reshaping of the global warming debate, liberty in a democratic society, and articles from two symposia on housing policy and health care, plus several short essays. Links to the articles are below the fold.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Daniel Conkle, Professor of Law at Indiana University School of Law--Bloomington, introduces his paper, "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard."

In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on “legal judgment,” an approach informed by doctrinal and policy considerations but not controlled by any formal test.

In this Essay, I suggest that Justice Breyer may have been right in Van Orden–if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables.

ACS released an Issue Brief today entitled “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals,” by Anthony F. Renzo, Professor of Law at Vermont Law School.

Professor Renzo calls the Bush Administration’s claim of authority to subject civilians detained in the United States to trial by military commission unprecedented in scope and lacking in historical support. He explains that “[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury.” 

Professor Renzo notes “[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King’s use of military courts and judges who owed their loyalty to the King.” He concludes that constitutional text and tradition require that civilians be provided with a civilian jury trial unless a civilian court determines that the detainee is “either under the command of the enemy’s armed forces or engaged in battlefield hostilities against American forces.” 

ACS is pleased to release an issue brief on "A Progressive Agenda for Women's Reproductive Health and Liberty on Roe v. Wade's Thirty-Fifth Anniversary" by Dawn Johnsen, Professor of Law at the Indiana University School of Law-Bloomington.

In the brief, Professor Johnsen writes that those who would criminalize abortion have much to celebrate regarding their progress since the 1980's. "Decades of mounting legal restrictions combined with harassment and stigmatization of health care provides have made abortion services increasingly less available to growing numbers of women." To overcome these setbacks, pro-choice progressives must articulate an agenda that works "to protect genuine reproductive liberty and reproductive health for all."

I would suggest three shifts in strategic priorities to augment ongoing efforts to persuade courts to invalidate abortion restrictions. First, focus more on persuading the public to support meaningful reproductive options through political action, grassroots organizing and public education. Second, focus relatively less on the threat of criminal abortion bans that would be enforceable if the Court were to overrule Roe and more on abortion restrictions already in place or on the immediate horizon, obstacles both legislative and extra-legal that cumulatively deprive growing numbers of women of access to abortion services. Finally, situate abortion within the full range of progressive policies essential to genuine reproductive health and liberty, policies that empower women and men to prevent unintended pregnancies and to bear and raise healthy and wanted children.

The issue brief is available here.

"The Emerging Threat of Regulatory Preemption" is a new ACS Issue Brief written by Georgetown University Law Center Professor David C. Vladeck. Professor Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. He concludes:

While the public watches the Supreme Court wrestle with the preemption questions presented in Reigel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view. The quiet but insidious erosion of state tort law remedies --- and the health and safety benefits that are associated with them --- continues unabated. Our health and safety agencies have been subject to a hostile-takeover by an Administration that cares more about constituent-serving outcomes than their statutory mission to protect the public. The winners will be the Administration’s corporate patrons who will be given the immunity from tort liability they never could have gotten from Congress. The loser will be the tens of thousands of Americans injured through no fault of their own but who will no longer have any means of redress.

Watch Professor Vladeck discuss the issue of regulatory preemption at a panel discussion on Reigel v. Medtronic (full video).  A video excerpt of Professor Vladeck discussing Congress and preemption:

ACS recently released an issue brief entitled "Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability," by Muneer I. Ahmad, professor of law at American University Washington College of Law.

Professor Ahmad examines how the Military Commissions Act of 2006 allocates rights premised on a distinction between citizens and noncitizens, which, he argues, creates a rights differential supported by neither law nor reason.

Next week, the U.S. Supreme Court will hear argument in Boumediene v. Bush and Al Odah v. U.S., at the core of which is the question of whether the MCA constitutionally removes the right of habeas corpus for Guantanamo Bay detainees. Professor Ahmad argues the ramifications of the Court's decision may extend well beyond Guantanamo to encompass the rights of all noncitizens.

ACS released an issue brief entitled "The Seventh Amendment: The Key to Reversing Buckley v. Valeo" by William P. Kreml, distinguished professor emeritus at the University of South Carolina--Columbia. Professor Kreml argues that our campaign finance system implicates the relationship between debtors and creditors, with large campaign contributions being similar to unencumbered contracts of the eighteenth century that undermine the democracy that the Bill of Rights was enacted to protect, and therefore the regulation of such contributions is constitutional.