On the Slippery Slope to Gay Marital Bliss

On Friday, November 6, Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern, visited William & Mary School of Law and gave a talk on gay marriage. His speech was presented by the Institute of Bill of Rights Law and the American Constitution Society.

Koppelman stated that the gay marriage movement is one of the mot successful such movements in U.S. history; ten years ago, no gays could marry; in 1999, Vermont was the first state to allow it, and at present there are nine states, representing almost 25% of the United States by population, that give same-sex couple all the rights of married couples (though only four states actually use the term ‘marriage’). There is a clear trend towards continued acceptance of gay marriage: 58% of 18-34 year olds support it, whereas only 24% of those over 65 do.

Much of Koppelman’s talk focused on presenting a response to the work of the so-called  ‘new natural law’ theorists, such as Robert George, John Finnis, and Patrick Lee. These thinkers have attempted to sketch out what makes the relationships of heterosexual couples intrinsically more valuable than those of homosexuals, even when the former couple is unable to conceive a child.

According to Koppelman, one of the approaches taken by these theorists includes the argument that heterosexual sex involves some ‘two in one-ness,’ or a biological unity, that gay sex doesn’t. According to this argument, each human is an incomplete, potential part of a mated pair that becomes one during the sex act.


Published in: on November 9, 2009 at 11:17 pm Comments Off on On the Slippery Slope to Gay Marital Bliss

Lies Cannot Drive Out Lies; Only the Truth Can do That

About a month ago Congressman Alan Grayson (a Democrat from the Florida 8th) stood on the floor of the House of Representatives and described the Republican’s idea of health care as “‘Don’t get sick, and if you do get sick, die quickly.” While it would take a stretch of the imagination to say that more than a few Republicans have been interested in helping with the current health care legislation, it takes a fantastic level of cynicism to say that any United States Representative doesn’t care about human life at all and just prefers some folks die quickly.

Nonetheless, many liberals have held Congressman Grayson up as an idol in wake of these outlandish comments. He has raised hundreds of thousands of dollars as a result and been praised by many (including himself) as a “Congressman with Guts.” I do not think this is because liberals are ideologically disposed to false accusations and name-calling; they are just tired of being called names.

There are those on the far right that have no trouble fitting into the same sentence the odd and often contradictory claims that President Obama is a socialist, a communist, a fascist and a racist. Liberals are tired of the lies that are coming from the likes of Glenn Beck, Rush Limbaugh and many others. They are tired of hearing about “death panels” and claims that President Obama was born in Kenya. Apparently Congressman Grayson and his many supporters have decided it is time to fight fire with fire and time to make up crazy lies of their own. While perhaps there is some psychologically rewarding feeling that comes from this strategy, it is fundamentally the wrong path for the progressive message to go down.


Published in: on October 26, 2009 at 9:27 pm Comments Off on Lies Cannot Drive Out Lies; Only the Truth Can do That

The End of Privacy

[What follows is a summary of a fantastic article (Jay Rubenfeld, The End of Privacy, 61 Stanford L. Rev. 101 (2008)) (PDF link) on reconceptualizing the Fourth Amendment. I hope this summary will make the article more widely accessible, but if you have any interest in the Fourth Amendment, or privacy generally, you should definitely read the article.]

The deep background is this: The Fourth Amendment opens:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

We started to interpret these words in 1928 in the Olmstead case, which held that the presence or absence of Fourth Amendment protection turned on whether or not a ‘person, house, paper, or possession’ had been the subject of a search or seizures. In this vein, large backyards (‘open fields’) were not protected, and could therefore be searched without any justification, because they were not persons, houses, papers or possessions. This interpretation was completely uprooted in Katz, which held that the Fourth Amendment’s inclusion of “persons” within its ambit of protection protects people, no matter where they are, so long as they have a reasonable expectation of privacy.

Now, Professor Rubenfeld is arguing that Katz, just like Olmstead, is focused on the wrong part of the Amendment. (more…)

Published in: on March 18, 2009 at 11:39 pm Comments Off on The End of Privacy

Access Denied? The Fight for Corporate Accountability

Our chapter recently screened the documentary “Access Denied? The Fight for Corporate Accountability”, which features the tragic story of Diana Levine.

Levine, a professional musician,  was suffering from migraine’s and sought relief at a hospital. Due to faulty labeling on her medicine, Levine ended up having to get her arm amputated. A completely preventable error ruined her livelihood. 

The documentary, produced by the Alliance for Justice, follows Levine as she seeks a remedy in the federal court system. Seemingly every step she takes, Levine is thwarted by the legal issue of preemption.

Eventually, the Supreme Court granted cert on Levine’s case and it was argued on Nov. 3, 2008 (Wyeth v. Levine). Legal experts do not expect Levine to get the result she was hoping for, which will surely disappoint millions of Americans that seek to hold corporations more accountable.

After the film, we were happy to host Prof. Tortorice as he gave a lecture on the topic of statutory construction and federal preemption. 


Published in: on February 3, 2009 at 11:34 pm Comments Off on Access Denied? The Fight for Corporate Accountability

Coming and Going; the Going Part: Saucier Overruled

Yesterday, in Pearson v. Callahan, the Supreme Court overruled Saucier v. Katz. This is a really big deal. Section 1983 makes it a crime for anyone to violate the civil rights of another citizen ‘under color of law’. Given that expansive language (which is just as expansive as it sounds), and the availability of private damage awards, 1983 suits make up a significant proportion of the federal docket — over 40,000 per year as of 1999. The opposing principle to such a broad provision is that of ‘qualified immunity,’ under which the defendants in such cases (usually police and correctional officers) are not liable under section 1983 if at the time of the violation, it was not ‘clearly established’ that their conduct was unconstitutional. Under Saucier v. Katz, the courts were required to actually decide whether the conduct at issue was a violation of the plaintiff’s (ie. the criminal defendant’s) constitutional rights BEFORE the court decided whether or not the plaintiff was entitled to qualified immunity.

This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation. ‘The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.’

Naturally, courts didn’t want to do it; they would rather skip to the qualified immunity part by just assuming the conduct was unconstitutional. The problem is, when the standard is whether the unconstitutionality of the conduct was ‘clearly established,’ skipping the part of the decision that establishes it does not provide any guidance for police and correctional officials in the future (or any precedent on which to hold them accountable). That is what the Court in Saucier meant by “stagnation,” and why, under the Saucier “order of battle” rule, if a suit was brought, and the court thought the even if there had been a violation of the Fourth Amendment, the defendants were entitled to qualified immunity, it could not decline to decide the question of the constitutionality of what the police did before it completely dismissed the case. Today, that rule is overturned.


Published in: on January 22, 2009 at 10:18 am Comments Off on Coming and Going; the Going Part: Saucier Overruled

Reconciling Federalism with Progressive Political Beliefs…

… is tough to do in this day and age, but it’s exactly what I’ve been trying to do the last week or so, in my head. When I’m in classes and hear issues that pertain to constitutional law, I find myself appalled whenever courts circumvent the Constitution.  I then wonder things to myself like, “Am I a Federalist?” and “Am I a strict constructionist?”  It’s a tough intellectual debate and I flip-flop (with all apologies to John Kerry) from day to day.  I came to the realization, though, that the biggest reason why I don’t identify as a federalist is not because I disagree with the fundamentals of a republican (little r) government based on principles of federalism.  No, my biggest qualm with federalism is the way in which it has been used (and abused) in the past to justify appalling and disgusting policies like slavery and Jim Crow laws.  People masquerading as federalists during that time period shouting, “States’ rights!” were really just racists that were attempting to ratify their immoral code of keeping African-Americans down.  (For interesting discussions of the taint on federalism caused by these atrocities see: herehere, here, here, here, and here.) But, one of the things I’ve wrestled with throughout this thought experiment is whether I should throw out a perfectly good idea just because of the awful historical baggage attached to that idea.

On the other hand, many of the people who are holding themselves out as federalists now use the same shouts of “States’ rights!” to justify rolling back Roe v. Wade and banning gay marriage through the use of states’ legislatures.  The basis of Roe v. Wade is a reading into the 14th amendment of a right to privacy.  Therefore, states passing a law to the contrary would be unconstitutional.  The federalist counter-argument is that Roe v. Wade should never have been decided by SCOTUS and that the right to privacy doesn’t exist in the 14th Amendment and therefore, should be overturned and the issue returned to the states.  I happen to disagree with that; I believe that there IS a right to privacy.


Published in: on October 30, 2008 at 9:45 am Comments Off on Reconciling Federalism with Progressive Political Beliefs…

VA Attorney General Bob McDonnell Visits W&M

Virginia Attorney General, Bob McDonnell, visited William & Mary School of Law earlier today and spoke to The Federalist Society and guests. Although ACS and I have some strong ideological differences with AG McDonnell, he should be commended for staying relatively non-partisan in his lecture.

AG McDonnell touched on a variety of topics, and also spoke about what aroused his political interest. As a former prosecutor, he felt that in the late 80s and early 90s that too much attention was being paid to the needs of criminals, while not enough attention was being paid to victims.

Prior to discussing specific issues and the things that are occurring these days in the Virginia legislature, the AG also spent some time discussing his political philosophy. His philosophy really focuses on paying a great deal of attention to the 9th and 10th Amendments to the Constitution, and his belief that powers not expressly given to the federal government are definitely best left to the states. This is not a novel concept but it provides insight into his view of why government should be smaller than it currently is.


Published in: on February 27, 2008 at 9:03 pm Comments Off on VA Attorney General Bob McDonnell Visits W&M

Hangovers and Accomplice Liability

To all the 1Ls studying for Crim Law, check out this interesting case in Florida where a 20-year-old was busted for accomplice liability and felony murder.

He was hungover in the morning and lent his car to some buddies so they could go pick up some grub… or so he thought. Instead, his buddies tried to steal a safe full of weed and things got a bit complicated. A young woman was killed in the confusion of the botched burglary.
Now the 20-year-old car lender is sleeping off his hangover in prison for life.

According to the national ACS blog, “Although derived from English common law, this aspect of the felony murder rule has been abolished by other common law countries. ”

Much more interesting than your TA’s hypo, eh?


Published in: on December 9, 2007 at 1:43 pm Comments (1)

John Payton Visits W&M ACS

On November 12, over fifty students crowded into room 124 to hear John Payton, a partner at the D.C. law firm of Wilmer Hale. Payton’s talk was on the new races cases and the legacy of Brown v. Board of Education, and he led of by stating that he intended to be provocative.

In the two races cases from Louisville and Seattle, the Court held that the voluntary public school integration plans were unconstitutional. But, according to Payton, these decisions were about something larger. In handing down the opinions, Chief Justice Roberts ended his opinion with a flourish, by invoking the heritage of Brown: “no matter what positives, no use of race should be tolerated.” Roberts referred distinctly to the arguments by plaintiffs’ counsel in Brown, but, posed Payton, would plaintiffs’ counsel from Brown have agreed with the new chief justice? (more…)

Published in: on November 26, 2007 at 7:02 pm Comments Off on John Payton Visits W&M ACS

Food For Thought…

…and possibly an olive branch?

There was a big to-do in the Supreme Court on Wednesday as the Justices heard oral arguments in the Danforth v. Minnesota case. The issue in that case is, if the Supreme Court recognizes a new rule of criminal procedure and says it will not apply retroactively, whether state courts can decide that it shall apply in state post-conviction proceedings. It may be metaphysical, but one can only imagine the importance of the issue.

There are two reasons we should all agree that states can make new procedural rules retroactive even when the Court does not. The first is easy– federalism. It’s about power — how can the Supreme Court say that state courts do not have the power to make these new constitutional rules retroactive when those same states could at once adopt the rule as a matter of state constitutional interpretation and decide those rules are retroactive? And if a state court did adopt a retroactive version of a new procedural rule, as a matter of political authority there would be nothing the Supreme Court could do about it, short of deciding that some arbitrary clause of the Constitution (I’ll go with the Supremacy Clause) forbade states from interpreting their state constitutions except in conformity with the Supreme Court. Basically, it seems that to reach the conclusion that state courts can’t do this the Supreme Court has to forgo its “independent and adequate state grounds” doctrine. That is, the Constitution would at once be the minimum and the maximum of the rights available to the citizens of this country. That’s some strange concept of federalism.

Second, there is a more basic question of interpretive theory. Originalists deny that the meaning of the Constitution can change over time (referential meanings might be more flexible, but that’s not really the point). Those who believe in the “living Constitution” are less clear about it, but generally believe that for a Constitution to be legitimate it must bear some relation to the people it is meant to govern. Both theories want to be objectively true (or else this ongoing debate is a real waste) because if your theory is that the Constitution means whatever the balance of some subjectively derived set of values dictates then all of a sudden you are not talking about a Constitution, or even about law. Even the political-power theory of Constitutional meaning (that the Constitution means whatever its enforced, or enforceable, dictates happen to be at the time) would ground its theory in something like might-makes-right. So what would it mean for the Court to give up the ghost and just say that it is making bald faced policy and that as such its purpose is defeated by interference.


Published in: on November 8, 2007 at 9:33 am Comments Off on Food For Thought…
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