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More on Interpreting the ERA

In Dillon v. Gloss, the Supreme Court stated in dicta that the ratification of a constitutional amendment must “sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which, of course, ratification scattered through a long series of years would not do.” The Twenty-Seventh Amendment violates this principle, but Dillon does highlight an important assumption of originalism.

Simply put, originalism works for a constitutional above a very basic level only if the condition expressed in Gloss is met. This does not present a problem for any existing part of the text. No provision was ratified over an extended period before the 27th Amendment, and that one is basic enough to avoid an issue.

Not so the ERA if it gets ratified. This is an argument that could be used by Congress to deny ratification. In effect, can there be a portion of the Constitution where originalism fails? If there can, then originalism is arguably not a comprehensive theory of interpretation? Originalist theory will need to adapt to the ERA in some fashion if Congress chooses ratification if and when the time comes.

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The Blue Slip Policy

The next fight over judicial nominations will involve the custom that the Senate does not take up a district or circuit nominee if one home state senator objects. Declining to return the so-called “blue slip” is a way of blocking a nominee and asserting a senator’s right to be consulted by the White House. Senator Al Franken, for instance, is refusing to return his blue slip on David Stras, a nominee from Minnesota for the Eighth Circuit.

Maybe this is simplistic, but it strikes me that the blue slip policy makes more sense only if both home state senators object to somebody.  If only one does, that gives an individual senator too much power to block a nomination (basically, a total veto). If both senators from the relevant state object, though, then I think there is a federalism interest that other senators should respect, though of course it’s their call.

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Originalism and the ERA

I want to continue my posts about the ERA, as there are many fascinating questions raised by the possibility (whatever it is) that more states will join Nevada and ratify this year.

Here’s an example of why I say that ascertaining the original meaning of the ERA will be almost impossible given the long span between its proposal and ratification. During the ratification debates of the 1970s, a major bone of contention was whether the ERA would protect gay rights, including same-sex marriage. Since most people opposed those ideas then, supporters of the ERA denied that legal distinctions on “account of sex” included sexual orientation.

Today, though, there is litigation arguing that employment discrimination based on sex under the Civil Rights Act of 1964 does include sexual orientation discrimination. The Seventh Circuit accepted this logic, and the Supreme Court will probably weigh in next year. Suppose that the Court affirms the 7th Circuit. The states that ratify the ERA after that will be doing so against that backdrop. Under a usual way of interpreting original public meaning, we would say that those states were endorsing that new view of sex equality.

Extending the hypothetical, which original understanding should control–the one from the 1970s or the one from the 2010s? Is sexual orientation in or out?

In the next post, I’ll talk about how this sort of problem poses a challenge to constitutional theory.

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America’s Greatest Contemporary Jurist: Posner Stepping Down

This from the Chicago Tribune:

“Judge Richard A. Posner, one of the nation’s leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago.

Posner, 78, is stepping down effective Saturday, according to a news release Friday from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is “proud to have promoted a pragmatic approach to judging” as well has his view that “judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.”

→ The Complete Posner on Posner Series (2015)

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A Lament of Many Judges

“This is one of those cases which too frequently occur, in which the court is called upon to interpret legislative expressions of doubtful import, without a clue to ascertain, with precision, what was the real intention of the framers of the law. After the closest examination of the point on which the controversy hangs, we can truly say, that our mind rather inclines to the opinion which we shall deliver, than that we feel a full confidence in its correctness.”

Goodwin v. United States (1811) (Washington, J., Circuit Justice).

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Princess Diana’s Nonexistent Right of Publicity

Today I attended a lecture by Mark Roesler, one of the leading right of publicity attorneys in the country and an alum of the law school where I teach. The lecture was quite interesting, and one thing I learned that I did not know is that Princess Diana no longer has a valid right of publicity.  (Since we are at the 20th anniversary of her death, I thought this was a good time to address this point.)

At the time of Diana’s death, the UK did not recognize a post-mortem right of publicity. An attempt by the charity set up by Diana’s estate to enforce a publicity right in the United States was rejected by the Ninth Circuit in 2002 and led to a settlement that cost the estate a considerable sum in attorney’s fees. The charity shut down in 2012, and at this point there is no active effort to revive her publicity claims. As a result, anyone can pretty much slap her face or name on merchandise, as a Google search shows.

Whether this is a good or bad outcome I leave to your considered judgment.

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Can A State Withdraw an Article Five Ratification?

One of the issues surrounding the potential ratification of the Equal Rights Amendment is that a few states tried to repeal their “yes” ratification votes back in the 1970s. Thus, it is not clear how many states have ratified the amendment. If these rescissions are not counted, then the answer is 36. (38 are required.) If they are counted, then it’s less than 36. But should they be counted?

The answer is that Congress is the judge of whether a state ratification is valid.  This was the holding of Coleman v. Miller, a 1939 Supreme Court case. Thus, if the ERA ever gets back before Congress, they can decide how to count or not count state ratification repeals.

It’s worth pointing out, though, that Congress has never recognized the right of a state to withdraw a ratification. When the Fourteenth Amendment was ratified, Congress counted states that had repealed a prior ratification as “yes” votes. The same was true for the Fifteenth Amendment, as New York tried to repeal its vote in favor and was still counted as “yes” in the final tally. Congress is free to reject these precedents, but those are what they are FWIW.  (I’ll have to look into whether other amendments after the first ten involved any ratification repeals.  I don’t think so, but I’m not sure.)

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Tenure-Track Position at IU–McKinney

Believe it or not, my law school is hiring again after years of austerity. I’m on the Search Committee this year, and here is the description of the position:

Tenure-Track/Tenured Health Law Position at Indiana University Robert H. McKinney School of Law

The Indiana University Robert H. McKinney School of Law invites applications for a tenure-track/tenured faculty position. We invite applications from entry-level and experienced scholars. The position primarily would involve teaching courses in the Health Law curricula and participation in the scholarly and student-centered activities organized by the law school’s Hall Center for Law and Health.

Applicants should indicate what Health Law courses they could offer and any additional courses they would be interested in teaching. Interested candidates should submit their application (cover letter, CV including three references, and writing sample) at https://indiana.peopleadmin.com/postings/4442

All applications received by September 25, 2017, will receive full consideration.

We are committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits.

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Why the ERA Is Still Pending Before the States

Let’s delve more deeply into the question of why the ERA can still be ratified by the states.

In some constitutional amendments, a time limit for ratification was written directly into the amendment’s text.  Take the Eighteenth Amendment, which imposed Prohibition. Section 3 of that amendment stated: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

This “inoperative” language, which also appears in the Twenty-First and Twenty-Second Amendments, sets a deadline that Congress cannot change through ordinary means. The only way to extend the seven year period would be to start from scratch and propose a new amendment. If Congress had tried to change the deadline through legislation, a court would have been bound to say that the amendment (if ratified after more than seven years) could not be applied.

Starting with the Twenty-Third Amendment, though, the ratification timeline was not included in the amendment’s text. Instead, Congress included a preface to the amendments that said they “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”

There are two things that stand out here. One is that the preface is not part of the amendment. If it is not part of the amendment, then it is hard to see why a subsequent Congress cannot change it through ordinary means.  (This was, in fact, done by Congress in 1978 to extend the ratification deadline for the ERA from seven to ten years.) The other point is that “inoperative” is missing from the preface. I think that inoperative is a way of saying that Congress cannot change the ratification timeline. Without that word, the deadline can be changed. When Congress proposed another (unsuccessful) amendment in 1978 to give the District of Columbia representation in Congress, the debate over extending the ERA timeline informed the decision to put the “inoperative” language back into a proposed amendment.

If Congress can just change the ERA ratification timeline, does that make the timeline meaningless? No. Congress must still act. If Congress does not change the timeline, then the ERA cannot be ratified. If there was no timeline (as was the case with constitutional amendments proposed before the 20th century), then no congressional action would be required for ratification to occur. What we call the Bill of Rights, for example, was just proclaimed as part of the Constitution by Secretary of State Jefferson when enough states voted aye. Congress took no action at all.

None of this, I’ll add in conclusion, relies on the notion that Congress can just do whatever it wants with respect to the ratification process because that presents a political question. That may be the case, but if not a court would still be bound to say that Congress can alter the ERA’s ratification timeline at its discretion.

In the next post I’ll talk more about interpreting the ERA if it is ratified in the coming years and discuss what was said in the Nevada Legislature during its ratification debate this Spring.

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The Original Understanding of the ERA

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here? That the proposal and most of the ratifications happened in the 1970s? Is that the baseline? Or do you blend those views with the ones from today? Does that, though, just let judges choose the original understanding that they want? Won’t the next few states to take up the ERA be tempted to insert statements (say about abortion) that attempt to create a record for interpretation?

Maybe my next article is here.