Nativism Blocked at the Schoolhouse Door

by Anurima Bhargava, Leadership in Government Fellow, Open Society Foundation and Senior Fellow, Harvard Kennedy School

Over the past few months, school administrators and teachers have raised concerns about a rise in harassment and bullying in schools; indeed, a significant percentage of the incidents of hate or bias being reported are occurring in the nation’s K-12 schools. At the same time, school officials are concerned about a drop in attendance of students who are undocumented, or who have family members who are undocumented. These students are afraid of being picked up at or on the way to school, or that they will return home and members of their family will be gone. Throughout the country, children are experiencing the loss of dignity and the rise of fear.




Castro and the Potential Nativist Turn in Constitutional Law

by Steve Vladeck, Professor of Law, University of Texas School of Law

The so-called “entry fiction,” pursuant to which “arriving aliens” stopped at the border are treated, for at least some constitutional purposes, as if they are not actually on U.S. soil, has been a point of controversy in judicial doctrine and legal scholarship for generations—and remains so today. But the one point on which there has been common cause has been its inapplicability to individuals living in the United States—regardless of how they got here or their current immigration status. Indeed, the Supreme Court has so held in an unbroken line of cases stretching back to the 1880s, since a contrary reading would suggest that undocumented immigrants could be tried without due process; could be subjected to cruel and unusual punishment; and so on.

Among other things, these decisions, from Yick Wo v. Hopkins to Wong Wing v. United States to Mathews v. Diaz to Plyler v. Doe, have provided important if implicit bulwarks against a true nativist turn in constitutional law. Even during periods of heightened anti-immigrant sentiment, they have generally prevented the political branches from singling out undocumented immigrants for anything other than deportation. And if undocumented immigrants cannot be singled out for especially restrictive measures, it follows a fortiori that those with lawful immigration status cannot be, either.




The Constitution of Undue Burdens

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

“Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.




Reinvigorating Civil Rights in the Era of Trump

by Chiraag Bains, Visiting Senior Fellow, Harvard Law School, Criminal Justice Policy Program. Follow Chiraag on Twitter: @chiraagbains

Constitutional law is driven in part by public and judicial attitudes about the security of our core American values: liberty, equality, democracy and human dignity. Narratives about the extent to which government threatens, or does not threaten, these values can shape how easy or difficult the courts make it to enforce constitutional rights and how narrowly or expansively courts read those rights. This suggests that the Trump Administration — which has singled out certain minority groups and backed away from civil rights enforcement — might push courts to rethink current doctrine and make constitutional protections more robust.




Rethinking National Security

by Shirin Sinnar, Associate Professor of Law, Stanford Law School

The Trump presidency has put into sharp relief fundamental constitutional questions about national security and the role of courts. In the travel ban cases, for instance, courts question the degree of deference they owe the executive’s national security assertions where there is unprecedented evidence of discriminatory animus. Significant as such questions are, the current political moment also invites us to reflect on a deeper question: how we conceptualize the very notion of “national security” in the face of official policies and rhetoric that subject certain communities within the nation to radical insecurity.




We Need a National Debate on a Federal Tax on Wealth

by Walter Dellinger, Douglas B. Maggs Professor Emeritus of Law, Duke University School of Law and Dawn Johnsen, Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

America’s increasing economic inequality threatens our liberal democracy. Economic inequality translates into political inequality and corrodes our democratic institutions and the viability of our Constitution. Ganesh Sitaraman describes these threats in his excellent new book, The Crisis of the Middle Class Constitution: Why Economic Inequality Threatens Our Republic. We need urgently to find innovative tools to counter the erosion of our foundational, shared belief in opportunity and fairness, the American Dream.

It is time to begin a serious national debate about the wisdom and constitutionality of a federal tax on wealth – an annual tax of a small percentage of an individual taxpayer’s net worth in excess of some large minimum. Just for example: a 1 percent annual tax on wealth in excess of 10 million dollars, which would affect less than 1 percent of Americans. We leave the details to those skilled in economic and tax policy. Nor do we have in mind the short-term political viability of such a tax in the current Congress – though we will note that in 1999 Donald Trump suggested a one-time 14.25 percent tax on net worth in excess of 10 million dollars.




Economic Inequality, Trump’s Election, and the Possibility of Change

by Kate Andrias, Assistant Professor of Law, University of Michigan Law School

Ours is an economy and a political system from which many ordinary Americans feel excluded; they feel forgotten by those in power; and they worry that their opportunities are declining. Their perceptions are based in reality. Today, income inequality in the United States is at its highest level since the period leading up to the New Deal. The top 1 percent of earners in the United States take home nearly a quarter of our national income. Workers’ real wages have barely grown during recent decades, even as productivity and educational attainment have increased. The situation is most dire for people of color, particularly African Americans, but white men have also fallen behind, suffering mounting health problems and diminishing opportunities. Political inequality has soared as well. Numerous studies demonstrate the outsized influence of economic elites, both individuals and corporations, at every level of the legislative and administrative process.




Pro-Choice-Life

by Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

An aroused public can shape judicial appointments, and shape law.

Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.

Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.




Congress’s Power to Do Nothing

by William Marshall, Kenan Professor of Law, University of North Carolina School of Law

The subject of this essay may seem nostalgic to some; the constitutional implications of the congressional obstruction that plagued the Obama Administration during six of its eight years in office. After all, we are now living in a period of an ostensible united government under a Trump presidency and a Republican Congress, a phenomenon that, as other writers in the Symposium point out, raises its own set of constitutional concerns.

Nevertheless, the problem of Congressional obstruction is one that is likely to return to the constitutional landscape. The country’s equally divided electorate, combined with the nation’s intense polarization means that we can fully expect future episodes of divided government and more prolonged periods when the Congress, no matter which party controls it, will be intent upon using whatever tactics may be available to frustrate the agenda of an opposing party’s presidency.




The Supreme Court is Not the Only Court

by Nancy Gertner, Senior Lecturer on Law, Harvard Law School

I want to stop focusing on the United States Supreme Court as if it is the site of all decisional law, or even all constitutional law. It is not. It takes fewer and fewer of the cases in which cert is sought; even fewer cases that are otherwise important are not in the mix at all.

I do not want to ignore the lower federal courts – district and appellate – as progressives have done, except insofar as these are routes to the Supreme Court. I want to imagine a system in which the lower federal courts are in fact common law courts, considering new constitutional issues on the merits, prefiguring arguments that may one day make it to the Supreme Court – or not—either way shaping the way justice is actually delivered.




Is the Second Amendment Becoming Irrelevant?

by Adam Winkler, Professor of Law, UCLA School of Law

One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.




Trump and the Decline of the American Middle

by Jamal Greene, Dwight Professor of Law, Columbia Law School

The election of Donald Trump as president represented a failure of American politics. No healthy political culture could have produced his presidency. What is less clear, and what I wish to address here, is whether Trump’s election also represented a failure of the U.S. Constitution. Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016? If so, does that mean that the long-term remedy for that failure lies in constitutional reform? Does our constitutional fate, in other words, determine our political fate?

Trump’s election has many causes, some of which are clearly contingent. It is easy to imagine Hillary Clinton winning an election held one week later, say, or two weeks earlier. And so the question that interests me arises from the possibility of Trump’s being elected rather than the fact of his election itself. The question does not, moreover, depend on Trump’s particular cocktail of policy interests (such as they are). Trump’s presidency is a crisis not because of his policy positions but because of his corruption, his infantile temperament, his dangerous self-obsession, his sexism and sympathy to white nationalism, his indifference to the truth and his fundamental indecency. A leftist version of Trump is imaginable and, in my view, equally frightening.




April 14th Symposium on “The Future of the U.S. Constitution”

Over the next week, the ACS blog will feature posts from some of the nation’s leading constitutional law experts as they prepare to gather on Friday, April 14th at the Indiana University Maurer School of Law to examine “The Future of the U.S. Constitution.” ACS and the Indiana Law Journal (ILJ) join Maurer School of Law as cosponsors for this symposium in Bloomington, Indiana, and a live stream will make the day available to all, at youtube.com/iumaurerlaw. The symposium participants have been active in academia and public life, including in government, nonprofit advocacy, and as members of the ACS Board of Academic Advisors. They will address the great constitutional challenges of our time: presidential power, judicial review, congressional dysfunction, political polarization and mobilization, economic inequality, plutocracy, immigration, race, religion, refugees, abortion, guns, voting, disenfranchisement, presidential conflicts of interest, anti-intellectualism, disdain for facts, discrimination, exclusion, nativism, and justice. A special ILJ symposium issue is forthcoming in September 2017, with essays from participants and several others. In the meantime, we hope you will enjoy this special ACS blog series on “The Future of the U.S. Constitution.”




Utopian Thinking for Progressive Constitutionalists

by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Progressive litigators who have to deal with the Supreme Court unsurprisingly count votes and understand that to win there they have develop arguments that have some chance of getting votes from Justice Kennedy and perhaps Chief Justice Roberts. That leads them into what I have called a defensive crouch: Maybe we can win by showing how what we think the Constitution means in this specific case is consistent with what Justice Kennedy has said the Constitution means in some other case.

For a litigator that is a sensible tactic (though not the only one – sometimes you can ask for the sky and let the justices think of themselves as moderates by coming up with a solution that gets you pretty much what you wanted in the first place). And, to the extent that scholars think of themselves as providing reflective or theorized arguments that litigators can adopt, it is also a sensible course for some progressive scholarship – even if that scholarship sometimes seems to treat Justice Kennedy implausibly as having especially deep insights into what the Constitution really means.




Countermajoritarian Difficulties and the Political Branches: Contesting “Elections Have Consequences”

by Neil S. Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.

The improbable election of Donald Trump resulted almost immediately in widespread protests around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.