1

Rurality and “Government Retreat”

The New York Times ran a story yesterday, dateline Roseburg, Oregon (population 21,000), headlined “Where Anti-Tax Fervor Means All Government Will Cease.”  This is not exactly breaking “news.”  This story has been around in some form, with varying degrees of urgency, for about five years.  See earlier installments here, here and here.  The gist of it is that many rural counties in the West which rely on federal funding streams (e.g., PILT, Secure Rural Schools and Community Self Determination Act monies, covered by stories herehere and here), have seen those monies taper off and in some cases dry up.

I want to be clear before going further that the federal funding streams these counties rely on are not giveaways, at least by my assessment.  They are intended to replace, in some small measure, tax dollars the counties cannot generate because property taxes cannot be levied on federal lands, which comprise vast portions of the West.  (The existence of such extensive public lands is also associated with other controversies, of course; read more here and here).  The existence of public lands may also have an impact on other ways local governments might choose to plump up their public coffers (read more here and here), and the existence of these lands limits the ways in which locals can earn a living, as in the timber industry or in ranching.

As a result of these funding cuts, many nonmetropolitan counties–those least likely to have other funding sources (taxes on robust business enterprises, for example)–are  cutting critical services.  Most news reports to date have focused on cuts to law enforcement, which has cultivated some “informal justice”/citizens “militias” type activity.  But this NYTimes story focuses on cuts to other services.  Highlighted in the story and illustrated by a photo is the fact that Douglas County–at 5,134 square miles, more than 2.5 times the size of Delaware and nearly as large as Connecticut–is about to close the last of the 11 library branches it previously boasted.  The one in Roseburg, the county seat, will be the last to go.  Kirk Johnson, NY Times reporter based out west, reports that Douglas County residents recently voted down a ballot measure that “would have added about $6/month to the tax bill on a median-priced home,” a measure that would have saved the libraries from crisis and closure.

I could digress here into a long discussion about how critically important libraries are for all sorts of reasons, not least these days that–in my suburb and many other California locales–they accommodate many homeless people during the day, providing them a lifeline (the Internet) to identifying and getting services.  I know that my family and I use our neighborhood library on a weekly basis, even though I have ready access to a fabulous academic library.  A 2013 story about the particular benefits of libraries in rural communities is here, and broadband is a big part of the story.   A more recent library story out of rural northern California about the power of books in children’s lives is here.

But Johnson makes the point that libraries are not the only thing on the chopping block in Douglas County.  The failed library initiative is like many others in Douglas and neighboring counties (e.g., Curry and Josephine) that voters have rejected in the last decade.  Another very sobering illustration of the southwest Oregon situation is the fact that Curry County has only one full-time employee in the elections division of its clerk’s office and therefore may have difficulty holding an election this fall.  (I’ve documented here and here similar phenomena in my home county in Arkansas, another place heavily reliant on PILT because of the presence of public lands set aside as Ozark National Forest and Buffalo National River).

There is so much I could say about this particular rural trend to shrink government, sometimes to an extreme degree.  But I just want to make a few points in regard to theoretical legal geography regarding how spatiality and law are co-constitutive.   I have argued as a related matter that rural society and rural spatiality are co-constituting, as reflected in a less robust presence of law, legal actors, and other institutions and agents of the state in rural places.  I framed it as “space tames law tames space” in a frustrating feedback loop:  it is expensive for the state to do its work when the area to be governed is vast and when residents emotionally and intellectually resist vesting power (including via tax dollars)  in the state.  I would characterize this feedback loop as disabling, though I understand some rural residents of a more libertarian bent would see it as enabling–enabling the individual, that is, fostering self-sufficiency.

My argument about the relative “lawlessness” of rural and remote places has not been uncontroversial.  Lots of folks see small towns as the epitome of order and law-abiding-ness and have pushed back against my argument.  Yet it seems that my point is very well illustrated by this detail from Johnson’s article, which he offers as an illustration of “government retreat”:

It looks like the house on Hubbard Creek Road in Curry County, where owners went for more than 10 years without paying any property taxes at all because the county assessor’s office couldn’t field enough workers to go out and inspect. The house, nestled in the woods with a tidy blue roof and skylights, dodged more than $8,500 in property taxes that would have gone to support the schools, fire district and sheriff, because government had gotten too small to even ask. So things fall even further, with cuts to agencies that actually bring in revenue prompting further cuts down the line.

So there you have it:  a community envisages itself as not needing law, regulation and the state, so it underfunds government to such an extent that the state can no longer support itself and perform (m)any government functions.  This, in turn, further fuels the imaginary–and reality–of an anemic and unhelpful state.  The state is thus discredited, thereby further undermining the state’s ability to justify the raising of revenue or to do, well, much of anything.

Which came first, the chicken or the egg?  the state’s inability to be effective?  or the perception that it would necessarily be ineffective and a consequent decision not to fund it, thereby rendering it (more?) ineffective, unhelpful, and inefficient?

As for when a community goes too far in its retreat from public institutions…well, the defeat of the library tax crossed that line for some.  Johnson quotes a Douglas County resident, 54-year-old Terry Bean, a construction manager who supported the library tax, though he had opposed other local taxes.  In explaining his position he invoked another concept associated with rural livelihoods:  community.

There is conservative, said Bean, flicking a cigarette butt into the bed of his pickup truck, and then there is community. And people got them confused.

The library, he said, was something a person could use — for computers, if not for books — even if that person didn’t have a dime, and he still respects that.

And that, in turn, brings me back to my earlier point:  doesn’t everyone reap communitarian benefits from the public library?  even the richest of folks who may never darken its doors.

3

Presidential Chats With An FBI Director About Investigations

The Deputy White House Press Secretary is asserting on television that that “legal scholars” are saying that it was not inappropriate for the President and the FBI Director to discuss whether the President was under criminal investigation. These “legal scholars” are not named.  (Indeed, they sound like the “top men” that are researching the Ark of the Covenant).

The Deputy White House Press Secretary’s statement is incorrect.  It was not illegal for the FBI Director and the President to have these conversations standing alone.  But it was inappropriate.

0

Did You Hear the One About the Alaska Legislator Who Said …

We have folks who try to get pregnant in this state so that they can get a free trip to the city, and we have folks who want to carry their baby past the point of being able to have an abortion in this state so that they can have a free trip to Seattle.

One might think, at first blush, that this is a bad joke.  Yet this quote actually did fall from the lips of Alaska state representative David Eastman of Wasilla (Anchorage suburb, of Sarah Palin fame) last week, in conversation with the Associated Press.  Eastman subsequently made similar comments to other media outlets.  Bear with me as I bracket Eastman’s impeachment of women’s character, returning to it below.

Like me, you are probably wondering about this “free trip” thing, given that the Hyde Amendment prohibits the use of federal funding for abortions.  Turns out, according to the AP story, that the “Alaska Supreme Court has held that the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs.”  Mighty progressive, if you ask me, not least because many women in Alaska must travel vast distances to reach an abortion provider, given the size of the state.  And this can be mighty expensive and involve multiple plane journeys, even within Alaska.  (Bear in mind that the villages around Bethel and the Yukon-Kuskokwim Delta are among many Alaska places not accessible by road.) Ditto for those who must travel for other medical services, which the Alaska court has wisely recognized.

Indeed, speaking of distance, the dust-up created by Mr. Eastman reminds me of one of the most knuckle-headed things I’ve ever seen a judge say about the “undue burden” standard under Planned Parenthood of S.E. Pennsylvania v. Casey (1992):

A woman in Alaska, for example, could be required to travel 800 miles to get to an abortion clinic merely because she lives in one place and the nearest abortion clinic is on the other side of the state. But that certainly doesn’t constitute anything even approaching an undue burden.

The judge who wrote this was Dee Benson (now a senior district judge), and the case was Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) (discussed here).  Why the Utah judge thought it appropriate or necessary to use an example from Alaska rather than Utah is unclear.  I suppose he was looking for the most extreme example of distance he could find–to then make the point that such travel would still not trigger a constitutional problem.  Given that Alaska is the largest state in terms of land area, Judge Benson necessarily turned to “The Last Frontier” to illustrate his point.

Interesting in light of this point is the fact that the second largest state in the union, Texas, became the subject of the latest round of litigation over abortion restrictions, culminating in the U.S. Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.  Of course, distance ultimately loomed very large in relation to the Court’s assessment of the undue burden standard there because women would have been challenged to travel as far as 550 miles each way (from El Paso to San Antonio) to reach an abortion provider had the Court not struck down Texas H.B. 2.  Read more here and here.  Distance as an undue burden is also a reminder of my recent exchange with Prof. Carol Sanger of  Columbia Law  on this blog regarding  the significance of spatiality/geography/rurality as it relates to abortion access.

But let me return now to the issue most directly implicated by Eastman’s comments,  which is less about the burden of distance (and therefore the “situation of women”)–which the state of Alaska has pragmatically taken care of, at least in part–and more about the character of women.  The AP story, by Becky Bohrer, includes not only helpful background for us on abortion availability in Alaska and, for late-term abortions, in Seattle, she also fills us in on the furor Eastman’s comments have generated:

In a speech on the House floor Friday, Democratic Rep. Neal Foster of Nome said Eastman’s comments were unacceptable and said he hoped Eastman would apologize.

“It shocks the conscience to think that a female in a village would want to endure the physical and the emotional pain of getting an abortion just so that they could get a free trip to Anchorage,” Foster said.

Most of the women who live in villages that Foster represents are Alaska Native and feel Eastman’s comments were directed toward them, Foster said. Many Alaska communities are not connected to a road system and smaller communities often have limited health services that necessitate travel to larger communities for care.

Two other “rural lawmakers,” demanded a public apology from Eastman, and Rep. Geran Tarr of Anchorage said she might “seek a motion to censure Eastman,” calling his comments “deeply offensive, racist in nature, and misogynistic.”

It is encouraging to see other legislators standing up for Alaska Natives and other rural populations.  And it also brings me back to the really outrageous part of what Eastman said–that women might purposefully get pregnant so that they can have a day out on the town, a freebie trip to the bright lights to get an abortion … and then tie on some shopping or a fancy meal, maybe even a jaunt up the Space Needle. This outrageous suggestion ties perfectly into Sanger’s over-arching point in About Abortion:  Terminating Pregnancy in the 21st Century:  women take abortion seriously–and we should presume they can make good decisions about it for themselves.  We should certainly not presume–as Eastman suggests–that they will get pregnant willy-nilly to “earn” a frolic in the city.  Insulting, misogynist and racist, indeed.

4

The Six Stages of Scandal

This is a classic that I bring out once every couple of years to describe the political crisis du jour. Now it’s Donald Trump’s turn.

Stage 1:  That’s ridiculous.  It can’t possibly be true.

Stage 2:  It’s not true.

Stage 3:  You can’t prove it’s true.

Stage 4:  Why are you trying to prove it’s true?

Stage 5:  It’s disgusting that you proved it’s true.

Stage 6:  What’s the big deal anyway?

0

Vanderbilt Law Review, Volume 70, Number 4

The Vanderbilt Law Review is pleased to announce the publication of our May 2017 issue:

ARTICLES

Neil S. Siegel, Reciprocal Legitimation in the Federal Courts System, 70 Vand. L. Rev. 1183 (2017)

Kiel Brennan-Marquez, “Plausible Cause”: Explanatory Standards in the Age of Powerful Machines, 70 Vand. L. Rev. 1249 (2017)

Morgan Ricks, Organizational Law as Commitment Device, 70 Vand. L. Rev. 1303 (2017)

 

NOTES

Loren D. Goodman, For What It’s Worth: The Role of Race- and Gender-Based Data in Civil Damages Awards, 70 Vand. L. Rev. 1353 (2017)

Carly A. Myers, Police Violence Against People with Mental Disabilities: The Immutable Duty Under the ADA to Reasonably Accommodate During Arrest, 70 Vand. L. Rev. 1393 (2017)

1

FAN 151 (First Amendment News) Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland

I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. – Ira Glasser 

∇ ∇ ∇ ∇ 

Morgan Weiland

Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.

The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:

“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”

“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”

As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories:  “the republican and liberal tradition.” Against that conceptual backdrop, she adds:

“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.

This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”

 Related 

Weiland on Press Clause & Shield Legislation 

“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”

“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]

Podcast: Interview with former ACLU Executive Director Ira Glasser

[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .Ira Glasser 

Ira Glasser

Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).

In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from

  • his teaching math at Queens and Sarah Lawrence Colleges,
  • to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
  • to his admiration for Jackie Robinson,
  • to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
  • to his understanding of  how real political change comes about,
  • to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
  • to his activism during the Nixon years
  • to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
  • to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
  • to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
  • to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]

Related 

[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. Ira Glasser (2011)

From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression Read More

2

The Inner Workings of the Marshall Court

A big part of my Bushrod Washington research will be on the Marshall Court. Chief Justice Marshall and Justice Washington served together for twenty-eight years. They were once described by Justice Johnson (in a letter to Jefferson) as “one judge.” For the most part, this has been taken to mean that Washington basically just silently followed the Chief’s lead.

Of course, there is another way of interpreting this “one judge” description. Perhaps they were more like partners. This would throw Washington’s role on the Court into a different light, since the great Marshall opinions (for example, Marbury or M’Culloch) would look more like joint efforts. We now know that Justice Brennan exerted a considerable influence on the Warren Court even though his name was not always on the opinions. (Justice Van Devanter did something similar for the Taft Court.) We lack, though, a clear written record of what went on behind-the-scenes in the Marshall Court, though I’ll try to find more.  Some of that was due to the unusual living arrangements of that Court (they all shared the same boarding house and table) which meant that many of their debates were oral and probably interspersed with toasts.

Lawyers still have a romantic notion that John Marshall did everything himself. Indeed, I get the sense that some of Marshall’s biographers (notably Beveridge) talked Washington down to talk Marshall up. The Chief Justice certainly did a lot by modern standards, but most of the decisions were unanimous because the other Justices had significant input into the result. Washington (before Story’s arrival) was probably the leading force in this respect, and even afterwards he was probably formidable. Can I take this from a hypothesis to proof? We’ll see.

 

0

Carol Sanger Replies to Linda McClain: Man Decides Against Fatherhood!!

I am hugely grateful to Linda McClain not only for taking on but for expanding the research program suggested in my “innovative” (Linda’s kind words) chapter Fathers and Fetuses: What Would Men Do?   The fact that it is innovative (and it is!) takes us to one problem about how abortion gets talked about: men fall out of the picture, except when, like Mike Pence and his accompanying swarm of other white men (plus now Charmaine Yoest) they are setting abortion policy.

This chapter attempts to put men into the picture not as policy makers but as players in the actual world of reproductive decision making.  Although McClain gets exactly what I am with this approach to show that decisions about becoming a parent may be more generic than gendered, she puts the question of whether the attempt will “make a theoretical or practice difference?”  Ouch!  More specifically, McClain asks whether knowing about “men’s moral reasoning” will   “make women’s moral reasoning seem more ‘moral’ or ‘responsible’?”

I think the answer is yes, but I want to clarify two points.  The first concerns the characterization of the reasons men gave in the frozen embryo cases I looked at as “moral reasoning.”  There was almost no discussion at all of morality in the embryo or the surrogacy cases.  Consider the case of the father who rejected a disabled newborn born to a surrogate mother on the ground that no child of his could have such defects. Morality didn’t come into the calculus, at least in any overt or articulated way.  Other men didn’t want their embryos implanted because they didn’t like the ex, they had enough children, or they were single again (woo-hoo!) and didn’t want to be burdened by fatherhood.  They didn’t say a thing about ending embryonic or fetal life, or about that having been an aspect of what concerned them.  It was all much more straightforward and practical and no nonsense.  In this regard, their explanations contrasted to the thought processes of women, where at least some today confront the fact of what an abortion does (though most proceed anyway). Yet the stories of women today differ from those of women who chose abortion before it was legal and for whom being able to terminate their pregnancy was an unqualified relief.

But assuming that, for example, “having enough children” includes “taking care of them properly.”  Then we do have a moral calculus and so to McClain’s question: “Is the moral calculus in a man’s decision about when to become a parent likely to change the mind of someone who believes abortion decisions are primarily made for reasons of ‘convenience’?”  McClain is skeptical, especially when it comes to legislators. Avoiding responsibility is not enough to excuse taking the life that anti-abortion activists vest in all forms of prenatal life, and this is likely to be true, says McClain whether the shirker is a man or a women.  Indeed, in recent weeks we have gotten a peek at how men too are on occasion regarded as selfish or at least disenfranchised from adult responsibility for not having children.  During the French elections, the accusation was hurled at Emmanuel Macron by his opponent Marine Le Pen: “He talks to us about the future, but he doesn’t have children.”  That argument (nor any other) carried the day, though one wonders what would have happened had the shoe been on the other foot. Even Margaret Thatcher knew she needed to have children in order to improve her Conservative street cred.  (Lucky for her she had twins and got it over with at once.)

Let us return to McClain’s suggestion that knowing the parallels between men and women’s reasons isn’t going to move the needle toward a greater understanding of women. I therefore agree with McClain that this interesting information may not (yet) be a persuasive pitch to pro-life legislators.  This is because its present value may be for women alone. And what is the value to women?  It is to suggest to them that they are not wicked, because men make the same decision and no one calls them selfish or immoral.  It is to see that the decision was not whimsical but rational—just like the decision of some men on the same matter—despite the tinge of disrepute that hovers over the woman’s choice.

But not much hovers over men.  After all, if men were regarded as badly as aborting women, then it would be fitting for pro-life activists to protest outside vasectomy clinics, or for legislators to enact a waiting period, or require that video of life-begetting sperm swimming around be offered at the clinic before consent is valid, or to produce their very own sperm, as with mandatory ultrasound.  But we don’t require any of this, and not just because sperm are different in kind from embryos.   It is because male reproductive behavior is understood differently than women’s.  Men were never assigned the “paramount destiny and mission of … fulfill[ing] the noble and benign offices of wife and mother, that Justice Bradley announced in his concurrence in Bradley v. Illinois. And those familiar with the oft quoted line know who made this assignment: “This is the law of the Creator.”

I am trying to show women that men have similar concerns when it comes to deciding about parenthood, even discounting for the fact that in calculating their preference, men do not have to weigh in the pregnancy and child birth that precede childbirth nor the years of childcare that follow it.  It is the dense underbrush of maternalistic ideology that makes it hard to see or accept the equivalency or to push it publicly.  Nevertheless, as an internal readjustment of what women themselves experience—that their decision is “wrong but the right thing to do”—might drop the wrong all together. There may be solace in seeing a gender-free universality of what some men and some women regard as necessary for flourishing on their own terms.

I am deeply grateful to Linda for pushing me on all this; I am not a theorist of the family as is Linda.  In responding to her post, I went back and read nearly two decades of her work on abortion.  I will mention only one piece, a chapter called Equality, Oppression, and Abortion: Women Who Oppose Abortion Rights in the Name of Feminism that took on gender as a problem among women themselves.  (Editors of Concurring Opinions! Please invite me to be a commentator when Linda puts these pieces together into her own book on abortion.)

The chapter is from an anthology called Feminist Nightmares: Women At Odds. But like Linda, I am tired of abortion being a nightmare for women, instead of a decision, however morally imbued it may be for many, that they are capable of making.  As a way of moving things forward, Linda has suggested research avenues that might clarify the role of gender in the public politics of abortion and in its private practices as well.  A fruitful place might be at the decision making process or consultations between partners confronted by an unwanted pregnancy, or at the advice that trusted men friends give to women in contrast to the advice by trusted women friends.  (To date, scholarly work has focused on the accounts of men whose ex-girlfriends had an abortion which gives us only an after glimpse; there are also healing and forgiveness online sites for men suffering from their complicity or loss regarding a pregnancy that was terminated.)

Each of us brings our own skill set (that was for male readers) to the question of abortion.  What this Symposium has shown me was that our distinctive interests and approaches results not only in an important division of analytical labor but in a generous and deeply intellectual exchange that will advance our collective interest in this topic.  As Dave Pozen said at the start, what Sanger is after is “less heat and more light.” I want to thank Linda McClain and the other contributors for providing a lot more light. I am grateful.

0

Judge Kevin Newsom

The New York Times is reporting that the President will nominate Kevin Newsom, the former Solicitor General of Alabama, for a seat on the Eleventh Circuit.  This is wonderful news. I met Kevin nearly twenty years ago when we were at the same firm (and shared the same office suite). He is an outstanding lawyer and a person of incredible integrity. (And wrote a terrific article in Yale Law Journal on the incorporation of the Bill of Rights). If we didn’t live in such a polarized age, he would be confirmed unanimously by the Senate. I will do what I can to make that happen.

3

Why Write About Bushrod Washington?

Before I unleash the barrage of details about Justice Washington, I want to explain the themes that are motivating me to write this book.

  1. I’ve never written about the Founders. A biography of Washington is a fresh way of doing that for a few reasons. First, there will have to be a lot of George Washington in this book. Second, Washington was a delegate at the Virginia ratifying convention in 1788. Third, he knew and corresponded with all the usual suspects (Jefferson, Madison, Lafayette, to name just three).
  2. I’ve never written about the Marshall Court.  This book will, of course, talk a lot about that.
  3. I’ve never written about slavery from the perspective of a slaveowner. This is a more complex point that I will need to wrestle with for some time. Washington’s relationship with slavery was tortured.  He may have fathered a child with a slave. He was the first president of the American Colonization Society, which supported gradual abolition and deportation to Africa. He ruled in favor of slaves from the bench and carried out George Washington’s wishes to free his slaves. On the other hand, he later brought slaves back to Mount Vernon and sold some in a way that broke up families. Even worse, he defended this conduct is a particularly nasty way.
  4. I’ve never really written about Corfield v. Coryell and the Fourteenth Amendment. In my Bingham book, I noted that Bingham was not a big fan of Washington’s opinion defining the privileges and immunities of national citizenship. Many other members of the Thirty-Ninth Congress, though, were very keen about the opinion, and I need to grapple with that.