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Today, while giving a presentation of Unprecedented to the faculty here at South Texas, a thought occurred to me that I had not fully appreciated before. One of the arguments that I have been making is that one of the primary reasons why the challenge to the individual mandate, articulated through the activity/inactivity distinction, gained traction is because political movements got  behind it. When Randy and others first released their seminal report at Heritage in December 2009, Senator Orin Hatch was present. This movement was also conterminous with the rise of the Tea Party, which easily latched onto this constitutional argument–it hit the right points, as it favored a limited federal government and promoted individual liberty. So, in short, what took place outside the courts enabled the judges inside the courts to react. I don’t want to delve too far into the popular constitutionalist arguments here.

Rather, I’d like to flesh out other examples of constitutional arguments that gained traction based on social movements.

One example that immediately came to mind was President Obama’s decision not to defend DOMA, and (after being “nudged” by Biden’s blunder) endorsing same-sex marriage. These positions were conterminous with a number of court decisions striking down laws such as DOMA, Prop 8, and others. I don’t know that courts could have been able to act as they did without the political backing of a major political party, and the President himself.

Now, another example: birtherism. Preface. I am not a birther. I am just using this as an example, so please indulge me. Birtherism is, at its heart, a horribly flawed constitutional argument based on the Natural Born Citizen clause. This argument, if successful, would have resulted in the disqualification of the President (again, indulge me). Most mainstream Republicans stayed very, very far away from this argument. In fact, any Republican who got behind the idea was immediately lambasted as a loon. However, ultimately the President gave into these crazies, and released a copy of his birth certificate. Why? Think back. The Donald. The king of the quacks. It was Donald Trump, who pursued the birtherism position, and challenged the President. For reasons beyond me, Trump has a political backing. It was this political pressure that led Obama to finally giving in, after 5 years of relentless attacks.

I recognize this is a terrible example, and in no way am I comparing the validity of this argument to the constitutionality of the ACA or SSM. Rather, I think it illustrates that people can latch onto constitutional ideals, and the support of political parties is what makes these ideas become more valid.

So what other examples are there?

I don’t want to focus on social movements that led to constitutional amendments (such as the 13th, 14th, 15th, 19th, and 26th Amendments). Rather, I want to focus on social movements that changed constitutional meaning outside the normal confines of Article V. I suppose the failure of the movement to enact the Equal Rights Amendment, which indirectly led to Reid v. Covert and other gender equality cases may fall in this rubric. Perhaps the abortion cases may be subsumed within that movement. Maybe FDR’s New Deal (a la Bruce Ackerman).

Any others?

Happy Constitution Day (our Constitution was signed on September 17, 1787)! If you get a moment, listen to the first minute or so of David Currie’s reading of the Constitution. It is a treasure. Also this primer on The Coase Theorem may be helpful for class.

Here are a number of links about Title Insurance in Texas, which we will go over in class:

• Terms of Texas Title Insurance – http://www.tdi.texas.gov/pubs/consumer/cb058.html
• See generally – http://www.tdi.texas.gov/title/index.html
• Title Insurance Rates- http://www.tdi.texas.gov/orders/titlerates2004.html ($50,000 property pays $503 premium, $100,000 property is $843)
• Title Insurance Forms- http://www.tdi.texas.gov/title/titlemm2.html
• Owner’s Policy of Title Insurance: http://www.tdi.texas.gov/title/titlem2b.html#Form T-1

Section B (Afternoon)

• Lecture Notes
• Live Chat 

Section D (Evening)

• Lecture Notes
• Live Chat

If you get a minute, list to David Currie’s legendary reading of the Constitution. You will enjoy it. If only James Madison took the time to record it.

I gave a presentation of my draft paper, Unprecedented, to the South Texas College of Law Faculty. I’ll be giving this talk about 6 times over the next few months. It was received very well.

Here is a video:

 

And here is the presentation from the podium.

Mike Allen at Politico has some choice excerpts of Toobin’s new book about the Roberts Court: “The Oath.” The book comes out on 9/18. I already preordered my Kindle. Here are the key parts concerning ACA:

Chief Justice John “Roberts was a conservative and lifelong partisan Republican. … Roberts had dual goals for his tenure as chief justice – to push his own ideological agenda but also to preserve the Court’s place as a respected final arbiter of the nation’s disputes. … A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign … Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. … Gradually, then with more urgency, Roberts began looking for a way out. …

“[T]he tax argument stayed with the chief justice. In April and May, it started to become apparent to the other justices that Roberts was going ‘wobbly’ in his determination to overturn the law. Voters are never final until the decision are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions being circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts – in the most important case of his tenure as chief justice. What happened next was unprecedented in recent Supreme Court history. [JB: Take a shot!] For pending cases, the Court has a nearly perfect record for avoiding leaks. But conservatives on the Court – especially law clerks – were so outraged that Roberts might betray them that they started to talk.

“The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. … [Justice Antonin ] Scalia was enraged at the chief. … With all the changes, the cross-references among the various opinions became confused. … By a vote of 5-4, the Court would uphold the heart of the Affordable Care Act. … [F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. … Roberts at a minimum laid down a marker on the scope of the commerce clause. … Roberts’s opinion is potentially a significant long-term gain for the conservative movement. … Roberts bought enormous political space for himself for future rulings. … Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely.”

 

Update:  Jeff Rosen has a review of Toobin’s book. Interestingly, he adds nothing new about the ACA case.

About the Affordable Care Act case, Toobin has no notable scoops. Building on earlier reporting by Jan Crawford of CBS News, he writes that Roberts, having initially decided to strike down health-care reform as an overly expansive reading of Congress’s power to regulate interstate commerce, began to have second thoughts in May of last year. But Toobin offers no insight into why he changed his mind, except for the suggestion that “by demanding that Roberts kill off the entire health care law, [his conservative colleagues] prompted him to look for some kind of middle ground.”