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Marty Lederman has an excellent post on the strategies of the United States Department of Justice when the government agrees that a law is unconstitutional–ranging from Attorney General Holder’s decision to enforce a law, appeal it, but not defend it in Court, to Solicitor General Bork’s decision to file a brief that opposes the Attorney General’s brief. Read it. Here is the intro:

When the constitutionality of a statute is challenged in court, and the attorney general – the state’s chief litigating officer – agrees that the statute is unconstitutional, what should (or can, or must) he do?

In the usual case, the attorney general defers to the presumed view of the legislature and the chief executive who signed the legislation, and defends the law without mentioning any constitutional doubts.  When the chief executive himself weighs in, however, and agrees that the law is unconstitutional, the practice is typically different.  Sometimes the executive stops enforcing the statute, especially in cases where a constitutional defense is untenable.  Increasingly, however, the federal executive branch does what President Obama and Attorney General Holder decided to do in 2011 regarding Section 3 of the Defense of Marriage Act – namely, to cease defending, or even to argue against, the constitutionality of the law, but to continue to enforce it and take the necessary steps, including appeal, to ensure that the Supreme Court has the final word on the constitutional question.  In the wake of the Court’s landmark decision in United States v. Windsor last Term, several state attorneys general have adopted such an “enforce-and-appeal-but-don’t-defend” posture in litigation challenging the constitutionality of state laws limiting marriage to opposite-sex couples.

Other strategies are less common.  There is at least one case in which the acting U.S. solicitor general (John Roberts) attacked the constitutionality of federal statutes before the Supreme Court even though the President had recently signed the laws and had not publicly questioned their constitutionality.  In still other cases, as I explained in a SCOTUSblog post last year, the executive might enforce and not defend at the outset, but then decline to appeal a lower-court ruling that the statute is unconstitutional and cease enforcement – which is what the governor and attorney general of California did in theHollingsworth v. Perry litigation.  And in very rare cases – I only know of one example in the Supreme Court – the Department of Justice might defend the constitutionality of a statute even after the chief executive has publicly announced his view that it is unconstitutional.

Even less well known is yet another strategy, which was first employed by then-Solicitor General Robert Bork in Buckley v. Valeo in 1975.  Bork and Attorney General Edward Levi filed two briefs inBuckley, on opposite sides of the First Amendment questions raised in that case.  As far as I know, no one has emulated the Bork dual briefing in the four decades since Buckley . . . until now, in a remarkable recent filing by Ohio Attorney General Michael DeWine in Susan B. Anthony List v. Driehaus.

Continuing my tradition, I will review the latest constitutional law book with a Constitution on the cover. The latest installation is Louis Michael Seidman’s On Constitutional Disobedience. Here is the cover.

Jeremy Waldron pithily summarizes the cover in his review in the Harvard Law Review:

The dust jacket of Louis Michael Seidman’s new book consists of a sepia facsimile of the 1787 manuscript version of the Constitution of the United States, with a red cross-out scrawled all over it and the word “NOT” interpolated in red at the top somewhere near the end of the preamble. These visuals set up the book’s title, which appears in stark white on a black smear of crayon across the middle of the original text.

The word “NOT” is interpolated in the Preamble, between “Establish this” and “Constitution of the United States of America.” Though, if you’ll notice, the Red X leaves in tact most of Article I, including Article I section 8. So even in the anarchist government of Seidman,we can rest assured that Congress can punish pirates.

See my earlier reviews of books by Barnett, Chemerinsky, Balkin, Grieve, and Epps.

As an aside, I was somewhat disappointed I could not put a Constitution on the cover of Unprecedented. I requested some kind of graphic that merged the Supreme Court and the Constitution, but they said it was too busy.

Back in May 2012, I made these mock-ups which, thankfully, never went beyond this blog. Though the stormy clouds did survive.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

The Company was originally founded in 1912 as “The Litchfield Creamery Company” in Litchfield, Illinois by Martin Jensen. In 1915, Charles Hauser entered the business soon followed by William Hartke. These men incorporated the company and built a new plant in 1916 at its current Litchfield location. World War I created a tremendous demand for dairy products for export to our allies and in 1919 the company processed more than 23 million pounds of milk, primarily sold as sweetened, condensed, and evaporated. The company grew gradually during the 1920’s and in 1930 began manufacturing MILNUT.

Milnut was a new product to consumers, and for several years sales were slow. In 1932 Milnut operations started a rapid expansion under Mr. Hauser. Late in 1939 the name was changed to Milnot. An additional plant was purchased in Indiana in 1936 to increase sales. In 1946 a new Milnot plant was constructed in Warsaw, Indiana and production started in 1947. Also during the 1940’s, Mr. Hauser came to Seneca, Missouri and purchased land lying on the Missouri-Oklahoma line to expand production capacity. The Seneca, Missouri plant was opened for production in 1948. A brass floor marker running through the plant denotes the division of the states to this day. Today, all canned milk production has been consolidated at the Seneca, Missouri plant.

In 1983, the company developed Dairy Sweet® sweetened condensed milk, by adding sweeteners to its evaporated whole milk product. Since its introduction, Dairy Sweet has generated wide acceptance by consumers.

We at The Milnot Company are proud of the products that have supported our long history and the users who have (and continue to) build the foundation of our heritage. We will continue the tradition of providing quality, innovative products for our consumers to share with their friends and families.

Eventually, I will finish my article on this case. I have so much to write the history of the Carolene Products company.

I came across this 19th Century opinion which states, quite forcefully, that the Supreme Court should be bound by how the Constitution “was understood at the time of its adoption.”

If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

This passage comes from Chief Justice Taney’s opinion in Dred Scott. Here are the next two paragraph:

What the construction was at that time we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word “citizen” and the word “people.”

And, upon a full and careful consideration of the subject, [p427] the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts, and consequently that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.

Stephen Halbrook shared another great story about the aftermath of Printz v. United States. Attorney General Reno sent a letter to all Chief Law Enforcement Officers in the United States, to remind them that they still need to wait five days before they could transfer a handgun, if no background check was performed. But she didn’t write “days.” She wrote “dismays.” And no one caught it. Remarkable. Here is Stephen’s recollection of the letter from a 2012 discussion:

It led to a great anguish and gnashing of teeth in the Clinton administration.  Janet Reno sent a letter out basically telling chief law enforcement officers that you still have to wait five “dismays” before you can transfer a handgun if no background check is done.  Her proofreaders weren’t too good.  I did not misspeak.  She said five “dismays” instead of five “days.”  They were very dismayed about the opinion.

I asked Stephen for a copy of the letter, and he said he would dig it up.