Wuerth on the Constitutional Rights of Foreign Nations

Ingrid B. Wuerth, Vanderbilt University Law School, has posted The Due Process and Other Constitutional Rights of Foreign Nations, which appeared in the Fordham Law Review 88 (2019): 1-58:

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states.

Careful analysis shows that the conventional wisdom and lower court cases are wrong for reasons that change our basic understanding of both Article III and due process. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, designed to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” imposes procedural limitations on federal courts that we today associate with due process. In particular, Article III presupposes both personal jurisdiction and notice for all defendants, not just foreign states. Under the Fifth Amendment, foreign states are “persons” due the same constitutional “process” to which other defendants are entitled. “Process” only reaches defendants within the sovereign power, or jurisdiction, of the issuing court, clarifying the obscure relationship between due process and personal jurisdiction for all defendants.

Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of Article III and due process. The analysis also lays the groundwork for determining whether foreign states have additional constitutional rights.

--Dan Ernst

New Stories about the Warren Court

In Locking Up Our Own, James Forman described the work of public defenders as “the unfinished work of the civil rights movement.” Nearly two generations after the Warren Court’s due process revolution—which was supposed to protect minorities and the poor in the criminal justice system—our country is grappling with mass incarceration (and mass arrests, according to recent scholarship that has shed light on the much larger proportion of misdemeanor cases that never end in imprisonment). It seems that not a day goes by without another story in the papers highlighting the themes of poverty, race, and criminal (in)justice.

In recent years, there’s been a reexamination of the due process revolution, especially as we’re confronting a carceral state with a prison population made up disproportionately of racial minorities and the poor. To explain how we got to this point, Linda Greenhouse and Michael Graetz argued in The Burger Court and the Rise of the Judicial Right that any progress that the Warren Court had made was undone by the subsequent Burger Court’s counter-revolution. By contrast, William Stuntz argued that the Warren Court had erred by creating procedural rights rather than establishing substantive rights. The technical nature of proceduralism, he maintained, worsened inequality in the criminal justice system.

I don’t disagree with the main contours of these accounts. But they share a premise that the Warren Court was indeed revolutionary and that the justices took sides in the “battle” between crime control and due process. Herbert Packer famously coined the “Two Models of the Criminal Process,” a paradigm that has deeply informed histories written on American criminal justice (see more here).

Much of my scholarship so far has focused on telling a different history. For example, one of the main arguments in Policing the Open Road is that twentieth-century jurists—beginning with Chief Justice Taft and including liberal justices on the Warren Court, not to mention Chief Justice Warren himself—embraced proceduralism in order to legitimize discretionary policing. Many midcentury jurists, and not just law enforcement advocates, argued that liberty and security were compatible. The perspectives of those who appreciated order and security while celebrating American due process have been overshadowed in the literature about the Warren Court.

One explanation for this oversight may be that the adversarial nature of criminal litigation can tend to overemphasize conflict. Another reason may be that those writing about the Warren Court themselves view criminal justice in battle mode. But it’s one thing to describe past historical actors as thinking within a dualistic framework and quite another for a historian herself to adopt that perspective. Making this distinction in my writing has been surprisingly challenging, in part because the opposition between crime control priorities and individual rights is entrenched in our understanding, perhaps even more so today than when Packer published his article in 1964.

As a result, there’s been a general over-emphasis in the literature not only on the dichotomy, but also on one side of it, the due process side. What I mean here is that many histories of twentieth-century criminal procedure focus on the landmark cases that have most advanced due process rights. And if we look only at cases like Miranda v. Arizona, Gideon v. Wainwright, and Mapp v. Ohio, then it makes sense that our current woes would lead us to conclude that these cases either got it wrong (Stuntz) or that later developments gutted them (Greenhouse and Graetz). Focusing on a limited set of cases makes it more difficult to see that our issues are not the same as those the Warren Court was trying to address, and that that might be the reason why Miranda, Gideon, and Mapp have not been, and may not be, the solutions to today’s problems.

So, what did midcentury reformers, lawyers, and judges see as problems in the criminal justice system? How did the Warren Court think its criminal procedure decisions would solve those problems? What were the justices hoping to accomplish? Did they think they were starting a revolution?

Because I offer my answers to these questions in Policing the Open Road, I’ll end this post with what it doesn’t tackle. The book focuses on the Fourth Amendment cases that expanded the police’s powers, so the Court’s landmark cases on due process receive fuller treatment in “Democratic Policing before the Due Process Revolution.” This essay offers a theory for synthesizing the Warren Court’s Fourth, Fifth, and Sixth Amendment jurisprudence by examining how midcentury jurists understood due process as a democratic constraint on the police. It took me years to finally realize that their concept of due process was not the same as my concept of due process.

Once I was able to set aside my own entrenched understandings, it became clear that the midcentury idea of due process was not intended to constrain discretionary policing. No wonder, then, that the Supreme Court’s criminal procedure cases have done little to stem the imprisonment crisis. In fact, by sanctioning police discretion, they’ve done more to facilitate the buildup of our carceral state.

Sarah Seo

Green on the 14th Amendment's Due Process Clause

Christopher R. Green, University of Mississippi School of Law, has posted Our Bipartisan Due Process Clause, which is forthcoming in the George Mason Law Review:

What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Seo on Democratic Policing before the Due Process Revolution

Sarah Seo, University of Iowa College of Law, has posted Democratic Policing Before the Due Process Revolution, which is forthcoming in the Yale Law Journal.

In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.

Oxford Handbook of the Indian Constitution

The Oxford Handbook of the Indian Constitution (ed. Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta) is just out. From the publisher:

The Indian Constitution is one of the world's longest and most important political texts. Its birth, over six decades ago, signalled the arrival of the first major post-colonial constitution and the world's largest and arguably most daring democratic experiment. Apart from greater domestic focus on the Constitution and the institutional role of the Supreme Court within India's democratic framework, recent years have also witnessed enormous comparative interest in India's constitutional experiment.  

The Oxford Handbook of the Indian Constitution is a wide-ranging, analytical reflection on the major themes and debates that surround India's Constitution. The Handbook provides a comprehensive account of the developments and doctrinal features of India's Constitution, as well as articulating frameworks and methodological approaches through which studies of Indian constitutionalism, and constitutionalism more generally, might proceed. Its contributions range from rigorous, legal studies of provisions within the text to reflections upon historical trends and social practices. As such the Handbook is an essential reference point not merely for Indian and comparative constitutional scholars, but for students of Indian democracy more generally.

This volume covers a dizzying array of topics, with a section on legal history. Here is the Table of Contents: 

Tate on Magna Carta and Due Process

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Fundamental Right to Due Process, which appears in Magna Carta: 800 Anos de Influência no Constitucionalismo e nos Direitos Fundamentais, ed. Zulmar Fachin, Jairo Néia Lima, and Éverton Willian Pona (2015), 129-137:

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter's importance. This Article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 – specifying the proper location and manner of hearing certain civil cases – must also be taken into account in assessing the Charter's importance.

The Rise of the Undue-Burden Test

Pro-Life Activists, March for Life, 2015 (Credit: American Life League)

One of the enduring mysteries in constitutional jurisprudence involves the meaning of the undue-burden test in Planned Parenthood of Southeastern Pennsylvania v. Casey. Charting the rise of antiabortion incrementalism made me wonder not about the application of the test but about its origins.

I have only a few clues about where the test came from. Historians have documented the appearance of the undue-burden test in Solicitor General Rex Lee’s 1983 amicus brief in City of Akron v. Akron Reproductive Health Center (Akron I) a case on the constitutionality of what was then the blueprint for incrementalist regulations. But before Akron I, the Court had used similar language in certain kinds of abortion cases—particularly those involving minors and demands for financial support. In defending the Hyde Amendment, leading antiabortion attorneys from Americans United for Life suggested that an undue burden test applied to all abortion regulations. So too did Solicitor General Rex Lee and the Reagan Administration in Akron I.

In 1986, in  Thornburgh v. American College of Obstetricians and Gynecologists, the Court issued its first 5-4 decision on the constitutionality of a multi-restriction law, making clear that Reagan’s nominees could revolutionize abortion law. After Thornburgh, both antiabortion attorneys and their allies in the White House often stopped pushing for the undue-burden test, instead asking for Roe to be overruled altogether.  In a brief signed by Solicitor General Charles Fried, the United States argued that the Court had already adopted an undue-burden test but should go further and abandon the 1973 decision. Attorneys working with the National Right to Life Committee pursued a similar strategy.

Much about this story remains obscure for me. Who came up with the undue-burden test? Did the Reagan Administration borrow from or collaborate with cause lawyers opposed to abortion? How vigorously did antiabortion lawyers come to oppose an undue-burden test when they believed they could convince the Court to overrule Roe?

If my knowledge of the history of the undue-burden test is incomplete, the stakes of the history seem clear. Where the test came from, and whose interests it advanced, may change our understanding of how it works today. At least at some points, antiabortion attorneys promoted the use of an undue-burden approach, viewing it as another weapon in the effort to chip away at Roe. Pro-life attorneys may have seen the test as an important tactic in the broader incrementalist agenda. The Reagan Administration also relied on the test, and administration officials may have treated it as a way of satisfying antiabortion constituents without offending swing voters. A third possibility is that the Court’s undue-burden test, at least as set forth in Casey, differs from any version set out by opponents of the Roe decision. This third account would lend credibility to arguments that the undue-burden test was designed to balance the competing interests of the fetus and the woman.

The politics of the undue-burden test vary considerably in each of these narratives. Possibly, the undue-burden test emerged from the kind of incrementalist approach documented in After Roe. Or the undue-burden test could be what some in the Reagan Administration proposed, a political settlement that could defuse antiabortion anger without straying too far from what most voters seemed to want. Finally, Casey’s test could reflect an honest effort on the part of the Court to grapple with the hard moral and constitutional questions surrounding abortion.

The origins of the undue-burden test certainly deserve further study. As the Court weighs taking certiorari on a pair of abortion cases this fall, the undue-burden test will likely take center stage. We still know far too little about what that means for the future of abortion law and politics.

Storrs Discusses "The Second Red Scare"

Karen has previously noted the publication of Landon Storrs's The Second Red Scare and the Unmaking of the New Deal Left (2013).  Professor Storrs discusses the book, which provides an engrossing perspective on the federal loyalty security program, based on recently available sources, on Marshall Poe's New Books in History podcast.

Pro-Lifers, Legal History, and Judicial Activism

Election seasons tend to prompt discussion not just about party realignment but also what would happen if Roe v. Wade were overruled. The central role played by Roe in federal judicial nominations has attracted more than its fair share of criticism, and the likely outcome of Roe’s overruling seems predictable enough. The Guttmacher Institute recently put out an explanation of what state abortion policy would dictate in the absence of Roe. All of this, however, tends to ignore what would happen if abortion opponents actually won, since the movement has long endorsed more than the overruling of Roe. As I explore in my current project, antiabortion constitutionalism in the decade after Roe was far more ambitious, proposing the recognition of a right to live rooted in natural law, in the Declaration of Independence, in international human rights principles, and even in pre-Roe substantive due process cases.

Now, we tend to associate antiabortion constitutionalism with the judicial politics of the Right—with commitments to originalism and judicial activism. In the aftermath of Roe, abortion opponents remained skeptical about the idea of originalism (as late as 1977, activist and Fordham Professor Robert Byrn explained that the movement did not need to take a position on the question of judicial activism). Antiabortion attorneys themselves were diverse. Some, like Kenneth Vanderhoef, a Seattle attorney who had represented a local Catholic diocese, believed their religious and professional obligations to be inextricably connected. Others defined themselves as liberals, Reform Jews, or human rights attorneys.

In spite of this diversity, movement members agreed on the broad outline of constitutional change that was strikingly similar to the one promoted by abortion-rights activists in the lead-up to Roe (see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California, 1998)). Both constitutional agendas urged the courts to protect an unenumerated right from popular interference and contended that this right represented a logical extension of existing substantive due process law. Something changed, of course, with the advent of the Reagan Administration and the revival of attacks on judicial activism in the early 1980s. Largely for strategic reasons, abortion opponents began framing their own objections as concerns about judicial overreaching, but this shift came for strategic rather than for substantive reasons. Whether abortion opponents changed their ultimate goal or merely adopted a different approach in it, by 1980, incrementalism, a subject that I hope to address in a future post, was already on the rise.

Cushman on Carolene Products

Barry Cushman, University of Virginia School of Law, has posted Carolene Products and Constitutional Structure.  Here is the abstract:

Harlan Fiske Stone

Justice Harlan Fiske Stone's majority opinion in United States v. Carolene Products Co. is well-known for its statement of two principles. The first is that regulatory legislation affecting ordinary commercial transactions is to be afforded a strong presumption of constitutionality. The second principle, articulated in the famous Footnote Four, qualifies the first: such a strong presumption of constitutionality is not warranted when legislation appears on its face to violate a provision of the Bill of Rights, or restricts ordinary political processes, or is directed at discrete and insular minorities. At the time the decision was announced, however, Carolene Products was understood to stand for an important principle of constitutional federalism. This essay, originally delivered as a public lecture for Notre Dame Law School’s Program on Constitutional Structure, seeks to recover that understanding. This effort at recovery offers a reinterpretation of Justice William Day's majority opinion in Hammer v. Dagenhart (1918), arguing that it is best understood as incorporating and resting upon a principle of substantive due process rather than simply upon principles of constitutional federalism. This lays the groundwork for the development of an enhanced appreciation of the important role that the Fifth Amendment's Due Process Clause played in the allocation of state and federal regulatory authority in the Progressive Era, and of the signal role that Carolene Products played in the passing of that regime of constitutional law.

Protesters & Police Powers

The editors of Time  chose to celebrate "the protester" as the magazine's "Person of the Year" for 2011.  The editors explained their unconventional choice (last year Time named Facebook's Mark Zuckerberg Person of the Year) this way:

No one could have known that when a Tunisian fruit vendor set himself on fire in a public square, it would incite protests that would topple dictators and start a global wave of dissent. In 2011, protesters didn't just voice their complaints; they changed the world.

Read more about Time's selection here.  One can find similar year-end reminiscences celebrating the global protest movements in numerous other  news magazines and newspapers.

Consider how those pieces compare to the much less sanguine and much more substantive analysis of the recent protest movements offered by Alasdair Roberts (Suffolk--Law & Public Policy) in the Boston Review.  Roberts argues that Occupy Wall Street has been "contained" through use of the police power.  He also analyzes American protest movements' encounters with local police forces from a historical perspective.  Here's an excerpt:

Throughout Europe, this is the season of protest. There are massive, angry demonstrations—tens of thousands in the streets of a dozen capitals laying siege to finance ministries and parliaments, shutting down roads and rail, and seizing public spaces. ...

Americans have reasons to be outraged too. But American protests have been muted by comparison. ... After decades of increasingly sophisticated policing and changing notions about the boundaries of legitimate protest, public demonstration in the United States today is not only tamer than in Europe, but perhaps also tamer than at any time in the nation’s history.

For a challenge to the view that local police have "shut down" OWS, see this Wash. Post opinion piece by Gina Glantz.  OWS in fact has proliferated, the author argues, notwithstanding its supposed "containment" by police under color of health, safety and welfare laws.

Starger on Competing Traditions and Due Process Dissent

Exile on Main Street: Competing Traditions and Due Process Dissent has just been posted by Colin P. Starger, University of Baltimore School of Law.  It will appear in the Marquette Law Review, Vol. 95, 2012.  Here's the abstract:

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in caselaw. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in empirical approach, this Article proposes an alternative method that permits analysis of contextual and inter-textual aspects of doctrinal development. This method proceeds by dividing doctrinal territories into rival schools of thought and then constructing opinion genealogies for each competing school. Connections between opinions – majority, concurring, and dissenting – are justified using both citation and more nuanced hermeneutic analyses. Through systematic tracking of debate between rival schools over generations, the impact of dissents is revealed in the turns taken during unfolding doctrinal argument.

Using this method, this Article examines two key Due Process territories – economic liberty and “incorporation” – and demonstrates how uncited Supreme Court dissents dramatically changed the course of these doctrines. First, it is demonstrated that uncited dissents by Joseph Bradley in the Slaughter-House Cases and by Oliver Wendell Holmes in Lochner v. New York directly contributed to the well-known rise and fall of economic liberty. Second, the momentous battle over incorporation is proven to have dramatically turned under the influence of uncited dissents by John Marshall Harlan in Hurtado v. California and Hugo Black in Adamson v. California. The incorporation story features analysis of John Paul Stevens’ final passionate dissent after 35 years on the Court, which came in last Term’s blockbuster Second Amendment incorporation case, McDonald v. City of Chicago. Apparent contradictions in this critical opinion are resolved by connecting Stevens to the tradition of uncited great dissents that forever changed substantive due process doctrine.

To illustrate the results of its method, this Article introduces an innovative series of “opinion maps” that graphically represent the competing due process genealogies in economic liberty and incorporation doctrine. Rendered using custom software designed by the author, the opinion maps present information-rich, epic-scale historical portraits of these key constitutional doctrines. The maps have practical and theoretical use. Practically, they offer accessible guides to the place of and relationships between major opinions in two crucial substantive due process debates. Theoretically, the figures rendered collectively suggest deep metaphors for the interpretative space we call doctrine and for the vital role dissents play in drawing lines of authority that define the shape and boundaries of this interpretative space.

Robinson on Japanese Confinement in North America

Columbia University Press has posted an excerpt of Greg Robinson, A Tragedy of Democracy: Japanese Confinement in North America (2009). It's taken from Chapter 5: Military Service and Legal Challenges, and is about the imposition of martial law in Hawaii. You can access it here. (For a fuller sense of the scope of the book, see the TOC, here.)

The Press has also posted a brief interview with the author. Robinson (l'Université du Québec à Montréal) addresses why we need a new book on a topic that seems to be well covered and why this history is relevant today.

I found interesting his explanation of why he uses the word "confinement" rather than "internment":

In technical legal terms, the word “internment” refers to the imprisonment of enemy aliens by governments in time of war. The Justice Department did intern a few thousand Japanese aliens, as well as a similar number of German and Italian aliens, in this manner. All such aliens were granted hearings soon after they were taken into custody, and only those individuals considered dangerous were actually interned. In Canada the federal government interned hundreds of Italian Canadian aliens in addition to some citizens and only later granted them hearings. However, this differs greatly from the shoddy treatment received by West Coast Japanese Americans and Japanese Canadians, where entire populations consisting predominantly of native-born children were taken away with no hearings and locked away in remote areas despite the fact that they were citizens. The word “internment” is even less useful for Mexico’s treatment of Japanese since people were forced to move themselves. That there is no exact term to define these actions reveals how unprecedented and extralegal they were, although both governments invented euphemisms such as “evacuation” for them. In order to avoid confusion and promote understanding, I chose to use the words “removal” and “confinement” because they give a reasonable sense of what occurred and are also inclusive enough to cover the gamut of policies that were put in place in different countries.

You can read the rest of the interview here.

Image Credit; Hat tip: bookforum

Gedicks on the Originalist Roots of Substantive Due Process

Originalist Roots of Substantive Due Process: Higher-Law Constitutionalism and the Fifth Amendment has been posted by Frederick Mark Gedicks, Brigham Young University J. Reuben Clark Law School. This short essay for the BYU Law School magazine is based on Gedick's longer article on the same subject. Here's the abstract:

The notion of “substantive” due process originated in Sir Edward Coke’s notion of a “higher-law” constitutionalism that understood natural and customary rights as limits on crown prerogatives and perhaps even parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, carried it with them through independence and constitutional ratification, and constitutionalized it in the Fifth Amendment Due Process Clause.

Substantive due process of law is made textually consistent with the Fifth Amendment Due Process Clause by the normative definition of “law” inherited from the classical natural law tradition, which maintained that an unjust law was not really a law. Deprivations of life, liberty, or property effected on the authority of unjust legislative acts did not comply with the law of the land or the due process of law, because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true “law.” The classical understanding of law and the substantive understanding of the due process of law that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791. On balance, these authorities show that one widely held public understanding of the Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment.