Can Popular Constitutionalism Survive the Tea Party Movement?

Jared Goldstein[*]

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The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics.  More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution.[1]  Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.[2]

The Tea Party, the Constitution, and the Repeal Amendment

Randy Barnett[*]

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On February 19, 2009, CNBC financial correspondent Rick Santelli stood on the bustling floor of the Chicago Mercantile Exchange and pronounced what will be historic words: “We’re thinking of having a Chicago Tea Party in July.  All you capitalists that want to show up at Lake Michigan, I’m going to start organizing it.”[1]  Rallies were held around the nation on April fifteenth of that year.  Over the summer, Tea Party members showed up en masse at Congressional town halls.  A September twelfth march on Washington drew thousands of people to the National Mall.  This, in a nutshell, was how the social movement called the Tea Party was born.

If We Have an Imperfect Constitution, Should We Settle for Remarkably Timid Reform? Reflections Generated by the General Phenomenon of “Tea Party Constitutionalism” and Randy Barnett’s Particular Proposal for a “Repeal Amendment”

Sanford Levinson[*]

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There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains.  As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward the national government.  Thus at least two candidates for the 2010 Republican nomination for the Texas governorship (including the ultimately successful incumbent, Rick Perry) endorsed or at least flirted with nineteenth century ideas of “nullification” and even secession as a potential response to what is perceived as an overreaching national government.[1] More striking, presumably, was the proclamation by the (unsuccessful) Republican candidate for the Senate from Nevada, Sharron Angle: “Our Founding Fathers, they put that Second Amendment in [the Constitution] for a good reason, and that was for the people to protect themselves against a tyrannical government . . . .  In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years.  I hope that’s not where we’re going, but you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.”[2]

Rethinking the Order of Battle in Constitutional Torts: A Reply to John Jeffries

Nancy Leong[*]

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Introduction

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims.[1]  That experiment began with Saucier v. Katz, in which the Court held that lower courts must decide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity.[2]  The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then overcome the defense of qualified immunity and recover damages for their injuries).[3]  But Pearson overturned Saucier’s mandate, holding that merits-first adjudication, while often appropriate, "should no longer be regarded as mandatory."[4]  The Court cited a number of reasons for its decision, including the detriment to judicial efficiency; the reality that principles articulated may be of little value, particularly if a higher court is about to pass on the same question or if the question involves state law; the difficulty of making law on uncertain facts when qualified immunity is asserted at the pleading stage; the concern that the government will be unable to appeal an unfavorable decision on the merits if it prevails on qualified immunity; and contravention of the longstanding principle of constitutional avoidance.[5]

Procreation, Harm, and the Constitution

Carter Dillard[*]

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Introduction

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating[1] in certain circumstances?  Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways.  First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the nonidentity problem and its relation to the right to procreate.  Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.[2]

The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit (Part II)

Douglas G. Smith[*]

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Introduction

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional.[1]  Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent.  I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure that would require absent class members to take some affirmative action before being swept into a class action, and prohibition of settlement classes, which Professor Redish believes are often subject to abuse.  The second portion of this Essay explores further implications and applications of Professor Redish’s theories.

The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit

Douglas G. Smith[*]

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Introduction

Much ink has been spilled over the class action device.  Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice.  Seldom does a work break new ground in a field that has been plowed as often as that of class actions.  Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception.

In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional implications of the class action mechanism.  Unlike prior commentators and courts, which have focused mainly on limited constitutional issues arising in class action cases, Professor Redish’s analysis sweeps more broadly.  In the process, he brings to bear principles of constitutional law that have long lain dormant in the field of class action practice.  His insights demonstrate that more than mere practical or policy concerns arise when class action procedures are used.  Rather, they implicate—and often infringe—fundamental principles of constitutional law.

Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause

Lisa Shaw Roy[*]

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  Introduction

The facts of Pleasant Grove City v. Summum[1] are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display.  Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court.  During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) were fully aware that the Summum litigation presented a double-edged sword.  If Pleasant Grove argued too vigorously the theory that the existing Ten Commandments monument constitutes the city’s own message, then it risked violating the Establishment Clause in a follow-up lawsuit based on the same facts.  If, on the other hand, Pleasant Grove attributed the monument’s message to its 1971 donor,[2] then the city would be hard-pressed to explain why Pioneer Park was not, as Summum claimed, a public forum that must be potentially open to all monuments without discrimination based on content or viewpoint.

The tension pervaded the oral argument.  Chief Justice Roberts opened the discussion with an observation that the city was in a double-bind.[3]  Justice Scalia guided the city’s lawyer into a discussion of Van Orden v. Perry,[4] a 2005 case in which the Court upheld the constitutionality of a public Ten Commandments display.[5]  Justice Souter pondered the possibility of discrimination.[6]  And Summum’s lawyer frankly acknowledged that the city was “on the horns of a dilemma” facing either a Free Speech or an Establishment Clause violation.[7]  Ultimately, however, the U.S. Supreme Court unanimously decided that in selecting monuments for Pioneer Park the city was engaged in government speech; the city could therefore control the content of its message without violating the Free Speech Clause.[8]  Significantly, the Court found that the city need not formally adopt the message of an existing park monument in order for that monument to constitute government speech.[9]  The stage was set for Summum’s Establishment Clause claim, but that claim would have to wait for another day.

Summum and the Establishment Clause

Bernadette Meyler[*]

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Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.  If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments?

Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.  I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem.

Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument].  And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument].  You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause.  Isn’t that what’s—I mean, that’s okay with me.  I don’t see that as an illegitimate object.  I was a Van Orden dissenter . . . .[1]

I.  A Ghostly Dialogue

A specter haunts Pleasant Grove City v. Summum[2]—the specter of religion.  Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview.  The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding.  Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter.[3]

Property and Speech in Summum

Joseph Blocher[*]

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Introduction

City of Pleasant Grove v. Summum[1] is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment.[2]  Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause.[3]  This brief Article addresses yet another feature of Summum—what it draws from, and says about, the relationship between speech rights and property ownership.[4]  This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, which often involve speech that is less physical than the monuments at issue in Summum.[5]

Part I of this Article discusses the intersection of property rights and government speech in Summum.  Part II explores how that intersection illuminates three often-hidden characteristics of all speech: ownership, rivalry, and excludability.  Focusing on these concepts may help explain the property-like characteristics of speech (even when it takes forms less physical than the monuments in Summum), and whether property ownership is itself a communicative act.