Feb
2
Citizens United v. FEC: A Debate
February 2, 2010 | Tagged Constitution, Supreme Court | Leave a Comment
On January 21, 2010, the Supreme Court of the United States overturned Austin v. Michigan Chamber of Commerce in a landmark decision. Penned by Justice Anthony Kennedy, the majority opinion in Citizens United v. FEC struck down several federal laws that prohibited independent political expenditures by unions and corporations (1). The decision did not overturn the ban on direct contributions from unions or corporations to candidates (2).
Some praised the 5-4 ruling, while others say it was destructive, giving corporations and special interests even more power in Washington. Senate Minority Leader Mitch McConnell applauded the ruling, while Senators John McCain and Russ Feingold, co-crafters of the 2002 Bi-Partisan Campaign Reform Act, denounced the court’s decision. “There’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns.” While McCain was disappointed by the decision, he was not surprised. “Chief Justice Rehnquist and Justice O’Connor, who had taken a different approach to this issue, both had significant political experience, while Justice Roberts, Scalia and Alito have none. (3)”
While several prominent Republicans opposed the court’s ruling, most libertarians and conservatives praised the decision. Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said “The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court. (4)” Such was the reasoning of the high court. Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. (5)”
Feb
1
Does the Punishment Fit the Offender?
February 1, 2010 | | Leave a Comment
Life without the possibility of parole is a lenient sentence for an adult convicted of murder. It is also a lenient sentence for a youth offender convicted of murder. It is not, however, a lenient sentence for a juvenile convicted of a non-homicidal crime. In fact, life without the possibility of parole for non-homicidal youth offenders is cruel and unusual.
Most juvenile offenders are adjudicated in juvenile court. In Virginia, that court is called the Juvenile and Domestic Relations Court. The juvenile justice system focuses on rehabilitation, unlike the adult system, which focuses on punishment. States have these separate systems because of the general consensus that kids and adults are different, warranting different treatment. There are two main differences between juveniles and adults. Juveniles are not as competent as adults and there is a greater likelihood that they will change.
The Supreme Court is soon expected to issue an opinion on whether life in prison without the possibility of parole violates the 8th Amendment proscription against cruel and unusual punishment. The Court took up the issue in response to two recent cases. Joe Harris Sullivan was sentenced to life without parole at the age of thirteen. He was convicted of raping an elderly woman. Even adult rapists are not typically punished as harshly as Joe Sullivan. The other case at issue involved a seventeen year old name Terrance Jamal Graham. He was sentenced to life without parole for committing armed robbery while on parole. It seems unquestionably clear that life without parole is disproportionate to the crime of robbery.
Jan
20
Mitigate the Filibuster
January 20, 2010 | | Leave a Comment
The health care reform effort, or shall we call it “The Grinch,” has stirred debate aplenty. What’s wrong with death panels, anyway? Do you want the government in charge of your health care, or do you want to keep Medicare? Would you accept drugs from Canadians? A former judge even dubiously argued that the legislation itself is unconstitutional. (The guy who wrote the textbook on the Constitution reminded him of the Commerce Clause.)
Having elected a president and members of Congress who campaigned on the need to reform health care, we could have expected results within a year or so. But the bill spent months floundering in the Senate, the world’s greatest deliberative body, where debate matters more than results. Now with Scott Brown’s victory in the Massachusetts Senate race, the Republicans once again have 41 votes — nothing near a majority, but enough to jettison the proposals already passed by both Houses of Congress.
We can now have a serious debate: whether it makes sense to derail the filibuster. If the Constitution does not allow for ending it, we should at least mitigate its effect on future legislation.
The Founders did not create the filibuster, and it stuck as a thorn in the side of one of the five greatest Senators. When a group of Senators challenged the Treaty of Versailles, President Woodrow Wilson insisted on enacting cloture—the ability to cut off debate. Until 1975, cloture required a two-thirds vote (67 votes). Now, of course, the infamous tally is 60. As Paul Krugman recently noted, the filibuster has not always proved such a dangerous weapon. Only since 2006 has the minority dramatically increased its use of the filibuster (or at least, the phantom filibuster) on major legislation.
Jan
7
2010 ACS National Student Writing Competition
January 7, 2010 | | Leave a Comment
The American Constitution Society for Law and Policy and the University of Pennsylvania Law School’s American Constitution Society student chapter announce the fifth annual National Student Writing Competition for law students nationwide. The student authors of the top three papers will receive special recognition at the ACS National Convention in the summer of 2010 and a cash prize for their work. The winner will awarded $3,000. Each of the two runners-up will receive $1,000.
The American Constitution Society welcomes all papers furthering and promoting a progressive vision of the Constitution, law, and public policy. Entrants are encouraged to view this topic broadly, and we welcome submissions on a variety of substantive areas. Examples of possible topics include:
- access to the courts,
- civil liberties,
- consumer rights,
- criminal justice,
- disability rights,
- freedom of speech,
- GLBT rights,
- human rights,
- immigration,
- labor law,
- voting and the political process,
- privacy,
- protection of health, safety, and the environment,
- racial equality,
- religion,
- separation of powers and federalism, and
- women’s reproductive rights and reproductive freedom
Nov
23
On the Regulation of Corporate Political Speech: Response to Professor Meese
November 23, 2009 | | Leave a Comment
By Sam Robinson
First, a note of thanks to both Prof. Van Alstyne and Prof. Meese for sharing their wisdom on these important matters. Recognizing that I come to this debate at something of a disadvantage against these two heavyweights, I would nonetheless like to offer this brief response to Prof. Meese’s comment.
At the outset, I agree completely with Prof. Meese’s analysis regarding what he terms the “shareholder protection rationale.” It seems to me that the act of investing money in a corporation implicitly imparts considerable authority to the board of directors of a company to make decisions on behalf of the investor. Moreover, I agree that there are a variety of mechanisms, imperfect though they may be, that check the power of board of directors to spend money when it will not be in the interest of the company. However, I very strongly disagree with the premise that bans on “’corporate speech’ are really bans on individual speech, and they must stand or fall under the same standards applied to analyze bans on individual speech.” Investors do not authorize speech per se, they authorize the pursuit of profit through the means allowed to corporations by the government.
I think that Prof. Meese’s argument too quickly determines that “there is no good reason for treating corporations, large or small, any differently from Ross Perot or Bill Gates.” Simply put, if the argument is: corporations are much like individuals, therefore they should have the same speech rights as individuals, I don’t find that at all persuasive. While I will acknowledge at the outset that I view political spending by individuals as troubling and would welcome an end to the notion that spending equals speech, I think that arguments for limiting political contributions and financed speech have a special urgency when applied to corporations (and especially large corporations).
Nov
20
ACS Holiday Reception
November 20, 2009 | | Leave a Comment
Please join the Board, staff, fellow ACS members and supporters and special guests as we celebrate another successful year for the American Constitution Society. We will thank outgoing Board members Teresa Wynn Roseborough and Paul Smith for their outstanding service and hear welcome remarks from our distinguished speaker:
Thomas J. Perrelli
Associate Attorney General of the United States
Thursday, December 3
6:00 – 8:00 p.m.
American Constitution Society
1333 H Street NW, 10th Floor
Washington, DC 20005
Nov
18
It’s Time to Close Guantanamo?
November 18, 2009 | | Leave a Comment
President Obama’s plan to transport suspected terrorists from Guantanamo Bay, Cuba to the United States to be tried in American criminal courts came one step closer to fruition on Tuesday when congress voted down a measure to prevent the move. Nevertheless, those who oppose the president’s plan have not given up hope. Rep. Mark Kirk, R-Ill., assured Fox News on Tuesday that “the closure of Guantanamo is ‘not a fait accompli.’”
The strategy of those in opposition to the plan seems to be to stall its progress for as long as possible, hoping that the closer to the congressional elections in next November we get, the fewer senators will be able to afford supporting the president on this one, and… they may be right. Public support for the measure isn’t exactly soaring.
According to Rasmussen Reports, 51% of American voters oppose the president’s plan to try suspected 9/11 terrorists in New York. Only 30% of American voters believe that suspected terrorists should have access to U.S. courts. And, 55% of Americans are opposed to the president’s plan to close the infamous Guantanamo Bay detention center by January. Support for the plan has been shrinking pretty much since it was announced. With numbers like these, what incumbent would want voters going into the booth with their support for such an unpopular plan fresh on their minds?
Nov
16
On the Regulation of Corporate Political Speech
November 16, 2009 | | Leave a Comment
By Professor Alan J. Meese
The Blog of the William and Mary Chapter of the American Constitution Society recently posted an article reporting on and summarizing William Van Alstyne’s November 11 lecture regarding Citizens United v. Federal Election Commission, currently pending before the Supreme Court. At the end of the last term, the Court ordered reargument in the case, asking the parties to address whether, for instance, the Federal Government may, consistent with the First Amendment, ban speech by Corporations in support of or in opposition to a particular political candidate. The Court first approved such a ban in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in a 6-3 decision. Two justices presently on the Court dissented: Justice Kennedy and Justice Scalia. (Justice O’Connor, it should be noted, joined Justice Kennedy’s dissent).
Among other things, the ACS article summarizes the case for stringent regulation of corporate speech as such:
“Generally speaking, the campaign reform acts were put into place to prevent large commercial corporations from being able to contribute a large, disproportionate amount of money towards a particular campaign under the idea that such a contribution would make the democratic process less pure. Another reason why the campaign reform statutes were enacted was the fact that people purchase stocks from a corporation to further their own economic interest – not to make a political statement. The Supreme Court has upheld these campaign reform acts in the past, finding that a commercial corporation contributing money from its treasury to a candidate comes too close to bribery.”
Nov
13
A New Approach to Prisoner Treatment
November 13, 2009 | Tagged prison reform | Leave a Comment
Statistics about America’s prison system are disturbing.The United States has the highest prison population rate in the world; as of 2008, it was 756 inmates per 100,000 people. There were 2,310,984 inmates in American prisons and jails as of June 2008. This number has quadrupled since 1980, due not to an increase in violent crimes but rather as a result of the “get tough” movement, which included such policies as mandatory sentencing, ‘three strikes’ laws, and a reduction in the use of parole, and has resulted in striking increases in arrests for drug possession. As Scott Turow has noted, 
“these days, you can get life in California for your third felony, even if it’s swiping a few videotapes from a Kmart.” In light of such startling figures, it is important to consider why we lock people up.
The goals of incarceration are various and can run counter to one another. Retribution, deterrence, and incapacitation are all reasonable purposes of incarceration, and the American prison system seems to have embraced such approaches. But rehabilitation is also a legitimate goal. And there are a variety of programs attempting to improve the lives of those convicted of crimes. These include efforts outside of prisons, such as drug courts, which give non-violent substance abuse offenders the opportunity to choose treatment over jail time. They also include programs inside of prisons, such as ‘restorative justice’ which is based on the idea that all sides would benefit if offenders could come to terms with what they have done and try to make amends with those they have harmed. A 2007 documentary explores one intriguing effort to make the goal of rehabilitation a reality.
The Dhamma Brothers, directed by psychotherapist/anthropologist Jenny Phillips, shows the remarkable and profound effects a silent meditation course has on a group of inmates, including rapists and murderers, at Donaldson Correctional Facility, a maximum security prison in Alabama, in 2002. Over the course of ten days, the inmates learn Vipassana meditation, an ancient Buddhist technique which originated in India and was transmitted and preserved in Burma for centuries. Vipassana has in recent years seen somewhat of an explosion in the West; there are many centers throughout the world, including throughout the United States and Canada. The course is rigorous and challenging. Participants meditate for 10 hours per day, starting out with breathing exercises, and around the fourth day switching to a focus on bodily sensations. Meditators pledge to maintain ‘noble silence’ until the final day; and no activities are allowed other than meditating, sleeping, walking, and eating; this means no reading, no writing, no exercising.
Nov
11
William Van Alstyne Speaks on Citizens United v. FEC
November 11, 2009 | | Leave a Comment
Today, William Van Alstyne, a professor at William and Mary Law, spoke on Citizens United v. FEC, a case heard before the Supreme Court this fall, and he offered his projections as to how this case is likely to be resolved. Van Alstyne pointed out that the case has vast implications for First Amendment rights and could greatly affect corporations’ abilities to become involved in political campaigns.
It is clear that the First Amendment applies to US citizens. What is not clear, however, is to what extent it applies to corporations. The Court has held that a corporate entity is considered a “person” under the Fourteenth and Fifth Amendments; however, the Court has not considered, until now, whether a corporation has rights protected by the First Amendment.
It is important to note, as Van Alstyne points out, that there is a distinction between strictly commercial corporations (like GM) and corporations that are non-profit but advancing ideological principles (like Citizens United). In addition, there is a further distinction between corporations that expend money from their general treasury to advance a cause and those that advance certain causes through PACs (political action committees), which solicit shareholders and others for specific funds.
-
Upcoming Events
Powered by FireStats