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The lecture notes are here.

Individual Liberty I

• Pierce v. Society of Sisters (1476-1478).
• Buck v. Bell (1428-1432).
• Griswold v. Connecticut (1478-1494).

Pierce v. Society of Sisters

This is the Hill Military Academy, a private school shut down due to the compulsory education law.

Buck v. Bell

This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.

This is Carrie Buck with her mother, Emma Buck.

This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.

This is the  courthouse in Amherst County, Virginia where Buck’s case was first “heard”:

This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.

Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.

 

Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:

The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.

In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”

 Here is Carrie Buck shortly before she died.

Here are several pieces of American propaganda about Eugenics.

This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”

This piece of propaganda says “Eugenics is the self direction of human evolution.”

Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”

Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:

It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”

In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.

Vivian died at the age of 8 due to intestinal diseases.

Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.

25 year after William’s death, Buck married Charlie Deatmore.

Here is Carrie Buck shortly before she died.

Here is a sign in Virginia to commemorate Buck v. Bell.

Griswold v. Connecticut

Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.

Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.

A penumbra is a partial shadow outside the complete shadow of an opaque body.

I was the primary author, along with Ilya Shapiro, of an amicus brief filed in U.S. v. Texas on behalf of the Cato Institute and Professors Randy Barnett and Jeremy Rabkin. We make two primary arguments: First, that DAPA is inconsistent with the President’s duty to take care that the laws be faithfully executed; Second, that the writ should be dismissed as improvidently granted.

Here is the summary of the argument:

The question this Court has added to those presented in the petition was well-founded. “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA)—the president’s euphemistically named policy of systematically suspending and rewriting federal law, is not an act of prosecutorial discretion. Instead, it is an effort, in the face of direct congressional opposition, to nullify the existing law because the president’s preferred law was not enacted. Regardless of one’s views on existing immigration law, DAPA conflicts with five decades of congressional policy as embodied in the Immigration and Naturalization Act (INA) and is inconsistent with previous uses of deferred action. Nor is it a good-faith effort to allocate prosecutorial resources in a manner best suited to enforcing the law. Instead, DAPA amounts to the president’s refusal to enforce the law—in violation of his duty to take care that the laws be faithfully executed.

The Take Care Clause originated in response to the British monarch’s practice of suspending the law, crossing the line between executive and legislative functions. As the Constitution’s authors well knew, the English Bill of Rights reasserted Parliament’s legislative power in the wake of the Glorious Revolution, eliminating “the pretended power of suspending . . . or the execution of laws by regal authority.” The Bill of Rights, 1 W. & M., c. 2 (1689).

Nevertheless, King George III routinely refused his assent to laws enacted by colonial legislatures, insisting that they contain a clause authorizing the king to suspend their authority. This blurring of legislative and executive power yielded the first two grievances in the Declaration of Independence. Many of the early state constitutions that predated the federal Constitution also mandated that their executives faithfully execute the laws—or prohibited governors from suspending them.

In Philadelphia in 1787, early versions of the Take Care Clause from the Committee of Detail focused on the president’s “duly” executing the laws. Later revisions from the Committee of Style and Arrangement—staffed by James Madison and Alexander Hamilton—shifted the focus by emphasizing the President’s obligation to “faithfully” execute the laws. 3 The Records of the Federal Convention of 1787, at 617, 624 (Max Farrand, ed. 1911); Federalist No. 77 (Hamilton).

A textualist examination of the Take Care Clause reveals that its fulcrum is the president’s faithfulness to his enforcement duty. The Clause specifies that the president “shall take care that the laws be faithfully executed.” This duty entails four distinct but interconnected components.

First, the president “shall” execute the law. The duty is mandatory, not discretionary.

Second, he must act with “care” or “regard” for his duty. Kendall v. U.S. ex rel Stokes, 37 U.S. (12 Pet.) 524, 612-13 (1838).

Third, the president must “execute” Congress’s laws, not engage in a legislative act himself. Little v. Barreme, 6 U.S. (2 Cranch) 170, 177-78 (1804).

Fourth, and most importantly, the clause requires that the president act “faithfully”—literally, in good faith. While no president can perfectly execute the law, and he may have to prioritize his actions given limited resources, he must nevertheless make a faithful effort to execute the laws.

For two primary reasons, DAPA is inconsistent with the president’s duty to take care that the laws be faithfully executed. First, the circumstances that gave rise to DAPA demonstrate that it is not a good-faith exercise of prosecutorial discretion, but instead a blatant effort to nullify a law that the president sought unsuccessfully to repeal.

Second, DAPA is not an execution of the law, but amounts to a legislative act: the granting of lawful presence to a class of millions to whom Congress expressly denied that status. Further, DAPA is not consonant with congressional policy, nor has Congress acquiesced in it. On the contrary, it is a “measure[] incompatible with the expressed . . . will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Ordinarily, this would mean that the president could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. But as Congress has virtually the entire power at issue here—and there are no claims of inherent executive power—that leaves the President with nothing.

Faced with a grave risk to the separation of powers, the Court should affirm the judgment of the Fifth Circuit and enjoin DAPA’s enforcement. Alternatively, the Court should dismiss the writ of certiorari as improvidently granted.

I plan on attending oral arguments, and will report more on the case afterwards.

I was the primary author, along with Ilya Shapiro, of an amicus brief filed in U.S. v. Texas on behalf of the Cato Institute and Professors Randy Barnett and Jeremy Rabkin. I also filed amicus briefs for Cato in the District Court and the 5th Circuit. I think writing briefs at all three levels is the FedCourts equivalent of hitting for the cycle! It’s all the more remarkable that all three briefs were filed in a 16 month span. This case has taken more twists and turns than I could have ever anticipated when I started to follow this issue back in November 2014.

I’ll discuss the merits of the brief in a separate post.

In the L.A. Times, Howard Gillman and Erwin Chemerinsky have an important editorial on the state of free speech on college campuses. The duo teach a freshman seminar on the First Amendment, and they explain that most students are never taught why free speech is important to protect. As a result, they say, it shouldn’t be surprising that students demand that professors provide trigger warnings or Deans expel students who say offensive things.

Teaching a freshman seminar on freedom of speech on college campuses has made us aware of the urgent need to educate the current generation of students about the importance of the 1st Amendment. From the beginning of our course, we were surprised by the often unanimous willingness of our students to support efforts to restrict and punish a wide range of expression. Not a single student in the class saw any constitutional problem with requiring professors to give “trigger warnings” before teaching potentially disturbing material.

Surveys across the country confirm that our students are not unique. According to the William F. Buckley Jr. Program at Yale, 72% of students support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” Too few students grasp that one person’s offense can be another’s expression of truth to power.

The authors explain how their students gain a clarity after discussing the history of censorship:

Our students came to realize that there was no way to create a “safe space” on campuses where students could be free from one set of offenses without engaging in massive censorship, and perhaps creating another kind of offense. …

At the beginning of the semester we took a vote in the class: Who would agree that the University of Oklahoma was right to expel students who had led a racist chant in a bus on the way to a fraternity event? All hands were raised. By semester’s end, many, but not all, had changed their minds, and those who still supported the university did so with a much more sophisticated understanding of the balance of issues.

Gillman and Chemerinsky make a powerful argument, but they don’t quite complete it. They are correct that the students don’t deserve all of the blame. They don’t know any better. But why don’t they know any better? The authors stop short of assigning much of the blame where its due–teachers. From Kindergarten through High School, teachers drill students in all manners of political correctness, and impose conformity of thought.All they likely learned about constitutional law is that the founding fathers were slaveholders. Is it any surprise that when these young skulls of mush arrive on college campuses, they have no clue that it may be important to protect ideas that fall outside the generally-prevailing norms?

Whenever I talk about constitutional law with High School students, I always ask them to repeat a few premises. First, “There is no such thing as hate speech.” This term of art has no legal relevance in the United States (as oppose to a hate crime, which involves an actual act). Second, “The First Amendment provides the greatest protection for the most unpopular speech.” Students are totally foreign to this concept. Third, “The First Amendment protects your right to say something offensive to someone else.” And I tell them to promise me that when they get to college, they will remember these lessons, and fight for free speech. They promise me, but who knows if they’ll keep it.

The blame doesn’t stop with primary school teachers. Colleges today, equipped with safe spaces and trigger warnings, offer no meaningful opportunity for students to engage in free speech. (Gillman and Chemrinsky’s class, excepted, it seems). Is it any wonder that when first year law students come to my class, they have no conception of the First Amendment? I give all of my ConLaw students a similar lesson that I give the High School  students, though backed up by fancy words like strict scrutiny and political speech. I sincerely hope my students get it, but who knows.

What scares me the most, as I noted in a post last October, is what will happen when the students in school today grow up to be professors tomorrow. As today’s professoriate–many of whom grew up in the Vietnam-era of protest–phase out, and they are replaced by trigger-warning-happy millenials, the last vestiges on the campuses to protect free speech wither away. I truly fear for this day.

The authors put the stakes clearly:

Rather than mock students or ignore their concerns, we need to make sure they understand the context of the Constitution’s free speech guarantees. At stake is not merely the climate on our campuses, but the longevity of the great social benefits associated with the rise of modern free speech traditions.

Nonetheless, even Gillman and Chemerinsky offer the mildest endorsement of this campus censorship–in two places, they say that “legitimate” speech ought to be protected.

Unpopular speakers are victimized, and legitimate opinion silenced . . . .

Another key lesson was that censoring intolerant or offensive speech can be all but impossible to manage without threatening legitimate debate.

The implication of this premise is that the government gets to decide what is “illegitimate,” and thus not worthy of protection

 

In National Association of Home Builders v. EPA (2012), an administrative law case, Judge Garland cited a law review article he had authored in the Harvard Law Review 27 years earlier, Deregulation and Judicial Review:

Second, the petitioners contend that the failure to convene a review panel is evidence that the agency acted arbitrarily and capriciously in contravention of the APA. It is true that the RFA grants us jurisdiction to review claims of noncompliance with section 604, the final regulatory impact analysis provision, “in accordance with” the APA. 5 U.S.C. § 611(a)(2). It is also true, as we said in Allied Local, that although we may not review certain challenges “in terms of the agency’s compliance with the RFA, we may consider them in determining whether EPA complied with the overall requirement that an agency’s decisionmaking be neither arbitrary nor capricious.” 215 F.3d at 79. But the challenges we reviewed inAllied Local were unlike the challenge the petitioners raise here. In that case, the allegations were that, in the course of promulgating a rule, the agency had failed to “respond to significant points raised during the comment period” and “consider significant alternatives to the course it ultimately ch[o]se.” Id. at 80. Those kinds of failings may best be described as “quasi-procedural” rather than “procedural.” “At bottom, they focus not on the kind of procedure that an agency must use to generate a record, but rather on the kind of decisionmaking record the agency must produce to survive judicial review…. Their concern is not with the external process by which litigants present their arguments to the agency, but with the internal thought process by which an agency decisionmaker reaches a rational decision. Thus, these requirements can be said to flow not from the APA’s procedural dictates, but from its substantive command that agency decisionmaking not be `arbitrary’ or `capricious.'” Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L.REV. 505, 530 (1985); see id. at 510 n. 23, 526-31, 545.

According to WestLaw, Garland’s HLR article has been cited by seven other decisions, including once by Justice Stevens’s dissenting opinion in Pittston Coal Group v. Sebben (1988) and four times by the D.C. Circuit: twice in 1985 by RBG and Judge Wald, in 1986 by RBG again, and by Judge Edwards in 2015. Plus there were two district court decisions, which were quoting from other sources. WestLaw reports that Garland’s Harvard article was cited by 156 other law reviews.

Garland’s other major article in the Yale Law Journal, ANTITRUST AND STATE ACTION: ECONOMIC EFFICIENCY AND THE POLITICAL PROCESS (1987) has been cited by seven courts, including by Justice Kennedy’s majority opinion in North Carolina State Bd. of Dental Examiners v. FTC (2015) (and no, there was not a Garland clerk in AMK’s chambers that term). In 2008, the Ninth Circuit per Judge O’Scannlain specifically referenced Garland’s pre-judicial writing:

Prior to his entering active judicial service, our colleague on the D.C. Circuit, Judge Merrick Garland, expressed the same idea in an article discussing the Supreme Court’s state-action antitrust jurisprudence. He wrote: “The post-Parker cases constitute the Court’s efforts to thread this needle — an effort to protect true state regulation, even if anticompetitive, but to bar mere state `authorization’ of private anticompetitive conduct.” Garland, 96 YALE L.J. at 500-01.

There were also citations by the 2nd Circuit (2010), a concurring opinion by Judge Henry in the 10th Circuit (1997), and the 11th Circuit (1992). As far as I can tell, the D.C. Circuit (including Judge Garland) never cited the Yale article. It has been cited 66 times by other law review articles.

Prof. John Shepard Wiley, Jr. wrote a reply to Garland’s Yale article. Garland, in turn, wrote a surreply, also in the Yale Law Journal, titled ANTITRUST AND FEDERALISM: A RESPONSE TO PROFESSOR WILEY (1987). This surreply has not been cited by any court decisions, but has been cited by  13 other law review articles.

As best as I can tell, these two articles and one essay are the only academic pieces Garland has ever written. (I searched for “Merrick B. Garland” in the Westlaw “Journals and Law Review” Database.) If he participated in any symposia or gave any lectures over the years, none of his remarks were published in law reviews. Judge Garland’s output is below average for D.C. Circuit Judges.

Of the active judges of the court, Judge Henderson has 1 article in the George Washington Law Review (1995), Judge Rogers has zero, Judge Tatel has 14 (although only four of them are in law reviews–the rest are in West’s Education Law Reporter), Judge Brown has 3 (including in the Cato Supreme Court Review), Judge Griffith has four (including his student note in the Virginia Law Review in 1984), Judge Kavanaugh has 6, Judge Srinivasan has 1, Judge Millett has 1, Judge Pillard (the only former academic on the court)  has 9 law review articles (published in 2012, 2007, 2006, 2005, 2005, 2002, 1999, 1998, and her unsigned note in the Harvard Law Review in 1987), and Judge Wilkins has 2.

If we include the senior status Judges, Judge Ginsburg has 40, Judge Edwards has 36, Judge Williams has 29, Judge Sentelle has 15, Judge Randolph has 15, and Judge Silberman has 8. I suspect judges who were confirmed in an earlier era were more likely to write more.