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I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.
Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work.
From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms.
Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law?
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My thanks to Deborah Pearlstein for her thoughtful reply, which illustrates well the professional disregard for both women and family in academia as well as in the law firm and corporate contexts—though, by virtue of de facto independent contractor status of most professors, the groves of academe are sweet compared to the bitter hardships borne by single moms. I've been helping a single mom in my parish church for the last several weeks try to retrieve her car from an impound lot when the sheriff towed it (after her ex-husband turned her in for various alleged vehicle-code violations). Stepping into her well-worn shoes for even these brief moments has been unnerving, to say the least. To make an unbelievable story short, after several continuances (which took no account of her job or child-care responsibilities), the judge recognized the charges to be more spousal spite than legal breach, and dismissed. When single mom went to get her car, the city had (wrongfully) sold it, and so now we begin a civil action which will no doubt worsen the Bleak House nature of it all. In the meantime, she knows the car is out there somewhere, because, apparently, the city sold it to a scofflaw who is running up parking tickets under her registration.
This personal experience merged together this morning with Deborah's intervention of her own experience among the haughty con-law fraternity and another response to my earlier post, this one from a reader who forwarded an article on "maternal profiling" which suggests that in some places—Pennsylvania (which has a primary, last time I looked, later this month)—employers are not only turning a dismissive eye on the value of family like our professor "colleagues" and the law firms but actually and brazenly (and apparently lawfully) discriminating against single women with a family. According to the Pittsburgh Post-Gazette, Pennsylvania state law allows employers to inquire into one's maternal status and use that openly to make an adverse hiring decision.
The presidential candidates are crisscrossing the keystone kingdom, and while sometimes they are accused of floating at levels of generality that exceed my vagueness in the classroom, on this topic, they stand amidst tangible opportunities to bring worthwhile change to the lives of, apparently, one of Pennsylvania's most suspect classes (presently without the benefit of strict scrutiny, of course): single moms.
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So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between "fundamental rights" and "everything in the Bill of Rights." (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular "[m]arriage and procreation are fundamental to the very existence and survival of the race.")
I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that "fundamental rights" include at a minimum everything in the Bill of Rights). Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I'd-reverse bucket.
Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when I noted, for example, "the highly contextual availability of those rights (even the great First Amendment)..."). I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is "fundamental." Because you apparently think Amendments 1-8 or 9 are all "fundamental," I can see why you wouldn't think that the necessary implication at all. Glad to have the record straight.
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With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post-Convictions world), let me offer a few thoughts in response to Jack's post on the Second Amendment and more broadly on constitutional interpretation by "progressive constitutionalists."
Jack's of course right that we should all know a lot more about the framers (and framing) of the 14th Amendment. Count me in. I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War. Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.
But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with "baggage" (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of "interpretive weight" as against the statements of the no-doubt-far-more-enlightened views of Senator Howard. Of course it would've been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states. But alas, that is the legal road we have traveled. It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause. It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental.
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[Deborah Pearlstein] Can't wait to read the Obama posts, but first thanks to Jack for the interesting post about the nature of constitutional rights, fundamental and otherwise. Nonetheless, I confess it didn't quite overcome my lingering sense of puzzlement about where the Second Amendment fits in the constitutional hierarchy. To start I'll need some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second. But I've always been inclined to support a relatively eclectic methodology of constitutional interpretation (i.e. start with the text and if that doesn't settle everything, at least consider other sources that might plausibly shed light) so I won't quibble much in a non-litigation setting.
There's also, however, the problem that the Supreme Court seems rather early and often to have disagreed with the Senator's take on what "privileges and immunities" under the Fourteenth Amendment includes. Now I'm hardly a supporter of the Slaughterhouse view of matters, but surely (harking back to our living constitution dilemma) such precedent counts for something, even in a post-Roberts world.
And then there's the logic puzzle. As I read Howard, he says whatever "privileges and immunities" means, it includes "fundamental rights" (per Corfield) plus the first 8 amendments of the Constitution (i.e. "to these should be added the personal rights guaranteed..."). While he later suggests it's all "fundamental" in some sense, his initial cut could at least be read as distinguishing all the good stuff we know about in the Bill of Rights from other rights, deemed fundamental, not necessarily enumerated in the first 8 tries. His views as in support of living constitutionalism I'd buy. But that Howard sheds any light on the jurisprudential distinction between rights "fundamental" and not, I don't quite see it.
Which brings us back to the original question - how do we know a fundamental right when we see it? Or, how do we know the Second Amendment fits the bill? Inclusion in the Bill of Rights per se, and perhaps strangely enough, hasn't actually seemed sufficient. Indeed, given the highly contextual availability of those rights (even the great First Amendment), someone new to Supreme Court case law might reasonably conclude that a right is more likely to be found fundamental if it's only claim to textual fame is the "substantive due process" clause (so to speak). The grand jury is apparently not implicit in the concept of ordered liberty; bodily integrity is. Now it could be that I've just been making this more complicated than necessary, and calling a right "fundamental" is just a way of getting it treated like a right we would've included in the Bill of Rights but for those pesky word limits. I'd be delighted for clarification. For now, though, I guess count me as unconvinced of the fundamental status of the right as Mr. Heller sees it.
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On the David/Emily/Dahlia/Orin chat about how many are minding the unitary executive's store in selling the Heller case to the court, I agree with Orin's speculation that there are certainly some (conservative) base politics at work here in the VP's amicus brief. But the visible inelegance with which this particular operation has been carried out smacks more of a lame-duck executive than a binary (much less unitary) one. Could just be me, but I've had the increasing impression that there's no one in particular minding the executive's store these days. Rove and other first-order appointees have by now left in large numbers, the president is busy tap dancing about the economy (and apparently other matters as well), and it's not yet clear that Judge Mukasey has anyone's attention internally, given the relative silence in response to his announced opposition to the death penalty for the handful of Guantanamo detainees actually accused of involvement in the 9/11 attacks. I hasten to add that my comments here are, in keeping with my worst fears of the blogosphere, without basis in any actual information about any of the relevant internal decision-making. I'd thus gladly defer to Marty, Dawn, Walter, or any of those who've engaged DoJ/SG processes first hand. Setting aside our unusual vice president's office these days, who should be engaged in making such calls?
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Despite the years that I've labored in the law of crime, today marks the first time I find myself on a "Convictions" list. Happily, I've assumed the label not in a court of law but in this court of public opinion just launched by Slate. The brains behind this new blog is that lawyer-journalist-veteran extraordinaire, Phillip Carter. My heartfelt thanks to Phil for this opportunity to join what promises to be a spirited online discussion on matters of law, criminal and otherwise.
A brief "Who am I?" to begin my end of this dialogue: Visiting professor of law at the University of California-Berkeley School of Law, on sabbatical from my steady gig as professor of law at the University of California-Davis School of Law (Martin Luther King Jr. Hall). Trained as a federal criminal defense lawyer, I specialize in the study of law's responses to globalization, paying particular attention to how national, regional, and international legal regimes interact as they endeavor to combat atrocity and cross-border crime. Subjects of my recent publications range from Guantánamo and Abu Ghraib to U.S. courts' consultation of extranational norms to the impartiality deficit in international criminal justice. These days I'm at work expanding an earlier biographical study of John Paul Stevens, the U.S. Supreme Court justice for whom I, along with "Convictions" colleague Deborah N. Pearlstein, had the privilege of clerking.
Along with two dozen other women who focus on international law, policy, and practice, I'm a proud member of the year-old IntLawGrrls blog, where I expect to cross-post many of my "Convictions" contributions.
Looking forward to e-talking.
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With many thanks to Phil Carter for putting together Slate's new contribution to the legal blogosphere, I guess I'll begin by taking Phil up on his offline suggestion, viz. you might want to begin by saying something about who you are and why you're here. Roger that, Phil.
So first, it must be said, I am a late-comer and relative neophyte to the blog genre. I've tried once or twice—OK twice—but only at others' instigation. There was this, at the invitation of Opinio Juris and in response to State Department legal adviser John Bellinger's blog on all matters international law, human rights, and counterterror. (You'll have to scroll down.) And earlier, there were these first entries from Guantanamo Bay in late August 2004 (again, scroll down) at the wise insistence of Human Rights First's then-communications director, Jill Savitt. To be fair, I didn't even really "write" much of this myself; the posts were phoned in to Jill late-night from the semiprivacy of my own room on the leeward (read mostly empty) side of the U.S. naval base there. It had taken us close to two years to convince DoD to let us send some human rights monitors down to Gitmo to watch the opening of military commission proceedings. We weren't sure at that point if they'd let us have e-mail access from the base (or if we wanted to take advantage of it if they did). So we did as good human rights researchers do and took our own satellite phones. If nothing else, we'd call in news of all motions filed when we stopped in for Egg McMuffins en route to the "courthouse." In any case, I'll ask to beg a month or two of indulgence as I get used to the blog-it-yourself idea here.
Point 2, then, must be some explanation of why I'd be blogging with John Bellinger and what I was doing eating Egg McMuffins at Gitmo in August 2004. (A further digression to say if you think those two items are at all of interest, you either don't spend enough time reading the rest of the news on Slate and/or will find my future posts of potential interest.) The immediate answer is that I spent from 2003-2006 (and a little of 2007) setting up and directing the Law and Security program at Human Rights First, a New York-based NGO formerly known as the Lawyers Committee for Human Rights that thought (and I believe still thinks) that parts of the United States' counterterrorism response to 9/11 were concerning enough to start a domestically focused program at an organization whose major work to date had been largely about protecting international refugees, figuring out how to do justice for the victims of crimes against humanity, and supporting human rights defenders interested in, say, finding disappeared relatives in places like, say, Guatemala. Mine was a wonderful and horrible job.
I didn't start out as a human rights lawyer. My first job after college was, of all things, writing letters, messages, and eventually speeches for then-President Clinton. No, I didn't work in the West Wing. But I did have a blue badge. No idea if that still means anything in the post-'90s White House. From there it was off to law school, which I loved, and soon thereafter to clerking for Justice John Paul Stevens, which I loved even more. And though I thought I wanted to go straight to academia to teach constitutional law, I also thought it might be wise to learn anything about how to practice law first. So to a few mostly happy years at a law firm that let me do a marvelous amount of pro bono work and even some interesting paid cases involving some actual constitutional law as well. And just as I was starting to think about when to take the academic plunge, 9/11 happened. And there followed, it seemed to me, some of the most important constitutional events I was likely to see in my lifetime. And so it was I came to meet Phil, one of the many and inspiring members of the military I came to know while in human rights practice. And so it is that several years later than I'd intended, I find myself tip-toeing back to academia, at the moment under the very generous auspices of the Law and Public Affairs program at the Woodrow Wilson School at Princeton University.
That's got to be plenty to start. Ah, but for one other feature of my bio that I should forewarn may draw my blog focus in the appropriate season (and on rare occasion) away from government power and individual rights and toward, my apologies, what legal matters may arise in a certain professional sport. The Indianapolis Colts and I moved to Indiana the same year. Unbeknownst to the team, we have been attached ever since.
Biases I hope fully revealed, I look forward to the blogging adventure.