Naming and Shaming: Pro Bono Becomes Political Ammo

By Ben Neumeyer

For the right-wing media, criticizing the Department of Justice under Eric Holder and its handling of the war on terror  has become a bit like the proverbial “spaghetti test”: throw what you can against the wall and see if it sticks.  The newest salvo has come from Keep America Safe, a political advocacy organization dedicated to defending Bush-era policies in the war on terror.  The organization, founded by Liz Cheney, Bill Kristol and Deborah Burlingame, the survivor of a 9/11 victim, released a video calling the patriotism of the Depart of Justice into question.  It’s dishonest, condescending, and wrong, but has to be see to be believed. (Available here)


The video attempts to portray seven political appointees at the DOJ as jihadi sympathizers for fighting for due process for Guantanamo detainees pro bono while they were working at large law firms.  Even better, it suggests that Justice (or the “Department of Jihad”) is covering up their identities for unsavory reasons.   In the past few days, the video has become a minor right-wing news meme.


Published in: on March 23, 2010 at 7:51 pm Comments Off on Naming and Shaming: Pro Bono Becomes Political Ammo
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Obamacare: the New McCarthyism?

By Andrew Bruskin

Fox News is at it again. According to Hannity, Obama is “pushing the single biggest power grab and move towards ‘socialism’ in the history of our country.” And according to the right wing blog The American Thinker, their writers have finally figured out what the American people should have known all along: Obama really is a “socialist”! From reading these media outlets, it seems like everyone should quickly gather their belongings and run to…Canada!


Oh, wait, we can’t go there. Canada is a very socialist country!

Well, then we will go to Mexico!


Published in: on March 2, 2010 at 5:11 pm Comments Off on Obamacare: the New McCarthyism?
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Citizens United v. FEC: A Debate

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).

Money & Politics

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)”


Published in: on February 2, 2010 at 1:58 pm Comments Off on Citizens United v. FEC: A Debate
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Does the Punishment Fit the Offender?

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.


Published in: on February 1, 2010 at 4:35 pm Comments Off on Does the Punishment Fit the Offender?

Mitigate the Filibuster

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.)
jimmy stewart
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.


Published in: on January 20, 2010 at 6:11 pm Comments Off on Mitigate the Filibuster

2010 ACS National Student Writing Competition

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


    Published in: on January 7, 2010 at 8:16 pm Comments Off on 2010 ACS National Student Writing Competition

    On the Regulation of Corporate Political Speech: Response to Professor Meese

    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).


    Published in: on November 23, 2009 at 9:58 am Comments Off on On the Regulation of Corporate Political Speech: Response to Professor Meese

    ACS Holiday Reception

    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


    Published in: on November 20, 2009 at 1:54 pm Comments Off on ACS Holiday Reception

    It’s Time to Close Guantanamo?

    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?


    Published in: on November 18, 2009 at 8:03 pm Comments Off on It’s Time to Close Guantanamo?

    On the Regulation of Corporate Political Speech

    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.”


    Published in: on November 16, 2009 at 10:48 am Comments Off on On the Regulation of Corporate Political Speech