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On Balkinzation, Richard Primus writes about a debate he and I had at the University of Michigan in October. Though he links to the video I posted, he does not refer to me by name. Instead, he refers to me as “another law professor—a relatively thoughtful defender of the Trump Administration’s executive orders.”

Several months ago, I transcribed portions of Primus’s remarks. I sent them to him for his approval, and incorporated his proposed changes. Here they are, with time stamps.

30:50 : I am not here to tell you that I have looked into Professor Blackman’s soul and found evil. I have known Professor Blackman for some years, though I do not know him closely, he has always presented in his direct interactions with me as a very friendly person. But I think almost everyone looks back in history and identifies episodes as evil, and I don’t see any reason to think that evil is a thing that existed in the past, and disappeared from the earth. It is difficult to call evil by its own name.

33:00: What should the lawyer do when faced with a policy that is evil? When Justice Scalia faced policies he thought were evil and were of questionable constitutionality, he worked to discover that they were unconstitutional from his point of view. That is appropriate stated in that way. If you are faced with an evil, and it is obviously unconstitutional, then fine. If you are faced with an evil, and it is obviously constitutional, then that is regrettable. You can try to do something about it in politics or otherwise. If faced with evil about which you entertain doubts, or if faced with an evil about which you could make some good creative arguments to show why this might be constitutional, I have to ask, why do that. Maybe you have a client, maybe you are bound ethically to serve your client and that is the side you are on, and there are reasons you can’t resign your post. And if you’re just you, thinking about this question, and there are really good arguments that the thing is unconstitutional, and then you hear an argument, maybe if I look at it this way, and squint, maybe that’s constitutional, if you rest there, you’re not doing your job.

59:08: I use the word evil. I think it is. I think the people who put it forward are evil, I think the people who defend it and execute it are enabling something evil. I am willing to say that other people will disagree. I don’t think I’m immune from that. I am perfectly capable of engaging in or enabling evil. I hope people will call me out when I do. I can think of instances where people would say such things. I am not predicting that the Supreme Court will take my view of the matter. I don’t know what I would have predicted when Korematsu was going to be argued. I wasn’t alive. I can’t think myself back, I don’t know what I would have done. What I do know is that Korematsu was wrong and the Supreme Court upholds 3.0 the Court will be wrong. Four Justices who were in the majority in Korematsu also ruled with the Court in Brown, and I don’t think they were particularly evil people as Supreme Court Justices go, but people who were not as a general categorical matter evil people are sometimes vulnerable to accepting plausible-sounding legal arguments for deferring to the president in national security situations and denying that what they have done is racist or enabling of racism. That’s what happened in Korematsu. I think that when faced with the situation like that, what I ought to do is to say this is unconstitutional. The law on it leads me easily to that conclusion and that’s all I need.

Primus remarks in October, as well as his recent post, preview the template of how the professoriate will react to the Supreme Court’s (expected) decision to uphold the travel ban–especially if the Justices signal at arguments that the lower court judgments will be reversed. The Justices today would be enabling evil as did the Justices in Korematsu. Lawyers (like me) who defend the travel ban are also enabling evil as did the lawyers who defended the policies at issue in Korematsu. It’s evil all the way down.

Last year I explained why it is a mistake to analogize the travel ban case to Korematsu. Adam Liptak linked to my analysis in his recent preview of Hawaii v. Trump.

There are, of course, major differences between the two orders, as legal scholars have noted. Roosevelt’s order applied to people living in the United States, many of them citizens, while Mr. Trump’s order concerned nationals of other countries living abroad. (The countries initially included Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. Last week, the administration lifted restrictions on travel from Chad.)

In enforcing Roosevelt’s order, moreover, the military singled out “persons of Japanese ancestry.” Mr. Trump’s order, by contrast, is neutral on its face, though it disproportionately affects Muslims.

If Neal Katyal tries to invoke Korematsu, as he did in the 9th Circuit, I expect Justice Alito will raise both of these points: that the order applies to people outside the United States, and is facially neutral. In response, Katyal will then have to invoke Primus’s specter of evil. That argument will not resonate with a majority of the Court. But under Primus’s view, that majority is simply enabling evil. It’s evil all the way down.

Class 25

Protecting “Dignity” II

• Study Guide questions (1272-1273)
• Obergefell v. Hodges (Read the full opinion)

The lecture notes are here.

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives.

Here are a few other pictures from the event.

In 2012, 538 forecasted support of same-sex marriage over the next eight years. This did not turn out to be accurate.

Class 21

Equal Protection III

• Frontiero v. Richardson (1107-1114)
• Craig v. Boren (1114-1119).
• United States v. Virginia (1119-1133)
• Cleburne v. Cleburne Living Center, Inc. (1134-1142)

The lecture notes are here.

Frontiero v. Richardson

This is Sharron and Joseph Frontiero

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first female cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.

Cleburne v. Cleburne Living Center

This is the location of the former Cleburne Living Center at 201 Featherton Street.

Twelve years ago, I walked into law school absolutely clueless. I had never taken a class in constitutional law and could not tell you what the acronym SCOTUS meant. That cluelessness changed when I entered Professor Ronald Rotunda’s ConLaw I class. I was immediately hooked. Ron, as I would come to know him, was able to seamlessly blend probing questions, compelling lectures, and uproarious humor. In the early days of this blog, I recounted my favorite Rotunda joke about the Mann Act: “A zookeeper fed his long-lived dolphins sea gulls, which was the secret to their longevity. One night he was was carrying the gulls, but he had to jump over a sleeping lion, and so he was arrested for transporting gulls across staid lions for immoral porpoises.”

Even his one-paragraph syllabus was comical:

For the first day of class, please read the U.S. Constitution (pp. lv-lxxix), in Rotunda, MODERN CONSTITUTIONAL LAW (Thomson West, 8th ed. 2007). Then, we will read Chapters 1 & 2. Then we will read §5-1 of Chapter 5. After that, we will read Chapters 3 & 4. Then, we will read Chapter 6, §§ 6-1 & 6-2. All pages include the associated pages in the 2007 Supplement. Finally, we will return to Chapter 5 and decide what parts of that chapter we will read next. For each class, please read about 30 pages beyond where we finished in the previous class. If you do that, you will often be ahead of the class but never behind.

A few weeks into the semester, I invited Ron to participant in a Federalist Society event with Roger Pilon (of the Cato Institute) on the 9th Amendment. Ron replied that he may not be the right person to participate. “I suppose you want someone who has a view of the 9th Amendment more restrictive than Roger’s. I’m not sure.” Eventually, Professor Nelson Lund indicated he would be willing to debate Roger. Ron agreed to moderate. “I’m a very moderate person,” he replied. When we tried to figure out the timing, Ron joked, “My guess is that the students like to ask questions rather than watching us talking heads.” The debate was a great success. It was the first event that I put together as a student, and inspired my ongoing involvement with the Federalist Society. (I became fortunate to count Nelson and Roger, along with Ron, as friends and colleagues.)

Ron and I would email quite frequently about the most arcane issues of constitutional law. And–unlike many law professors–he would always respond with clarity and care. Ron was always willing to engage with any questions I posed. At one point, Bill Clinton suggested he could run as Hillary Clinton’s VP. I asked Ron if that was constitutional under the 22nd Amendment. He replied, “I don’t think answering legal questions is Bill’s forte,” adding “he and Hillary are from the same state and the President and Vice President cannot be from the state state, amendment 12.” In another email, I inquired about then-candidate Rudy Giuliani’s proposal to “brib[e] the states with money and power.” Ron replied, “Giving money to the states is ok if there are not strings.  Sadly, there are always strings.” Later in the semester, I asked him whether the Virginia GOP could require voters to sign a loyalty oath. (This plan was designed to prevent Democrats from interceding in the Virginia’s open-primary.) He quickly wrote back, and pointed me to the Oaths cases in the textbook, and said “there is a real free speech problem. A few days later, Ron emailed me back to note that the GOP dropped the pledge. He thought that much of his students that, unprovoked, he sent me items that would interest me. I missed one class for a reason I cannot recall. During that class, Ron answered some question I asked earlier in the semester. Even years later, Ron would still carp that I missed the class where he answered my question

After our constitutional law class, Ron remained a presence in my life, with his characteristic wit. During my 2L year,  I asked him if he had some time to chat about clerkships at a certain time. He replied that my preferred day wouldn’t work: “I will have a small private lunch with the President!  I’m excited. It will be at a Georgetown restaurant.” In a follow-up email, he wrote “Speaking of the President, our lunch was great. Bush was in great form. He spoke, impromptu, for over an hour. We were about 6 feet from him the whole time. He told me that I have to obey Kyndra (his wife) because she is a Major and outranks me. I told him that I already knew that.” Another time he apologized for being unable to attend an event at GMU: “Tomorrow, I get two wisdom teeth extracted, so the next time we chat, I’ll have less wisdom.” After Boumedienne v. Bush was decided, Ron quipped, “As for bin Laden, I think he would get habeas after this decision, although the case has a lot of fudge words in it (e.g., Kennedy complained that people were detained for an ‘undue’ amount of time, with no definition of what amount of time is due.” Shortly before District of Columbia v. Heller was decided, he predicted “Scalia will write the majority.” Hours after it was decided, Ron wrote back “I’m trying to edit the case now to put it in the casebook. It is too long. But, there is a lot of discussion of how to interpret.  I’m editing Stevens now.”

Even after Ron left George Mason for Chapman, we kept in touch. During my 3L year, when I attended a clerkship workshop at Pepperdine, Ron and Kyndra picked me up in a snazzy Mercedes coupe and took me out to dinner. (In an earlier email, he joked that he had some car trouble: “There was a loose flux capacitor or something like that. They put in a new one.”).

After I started teaching, Ron and I grew closer. I sent him copies of my articles, and he always sent back pithy comments. (I thanked him in the dagger note of my recent piece on Model Rule 8.4(g).) He not only affected my scholarship, but also made a significant impact on my teaching. Many of the specific points I make in class come directly from Ron. For example, he would always complain that most constitutional law casebooks exclude Justice Blackmun’s citation to Buck v. Bell in the excerpt of Roe v. Wade. He wrote in an email, “they excise it from the opinion. I guess they wanted Blackmun and the Court to look better than they really are. That is what acolytes do.” (Rotunda had a fascinating exchange with Justice Blackmun about Roe.) When I became an editor of Cases in Context, I ensured that our casebook included that citation. Ron would always send me copies of his latest writings. “Hot off the presses!” the subject line would usually say. His writings were always punchy. In a 2015 email about Masterpiece Cakeshop, Ron offered a definition of the word “liberal”: “someone who doesn’t care what you do as long as it’s compulsory.”

In 2016, I spoke at the FIU Law Review Symposium on the separation of powers. It was my honor to be on the same program as both of my ConLaw professors: Ron and David Bernstein. I remarked to both of them that much of what I teach came directly from their class. I was very fortunate to have such amazing professors at George Mason. I wouldn’t be the professor I am today without having learned from them.

Earlier this week, the Fowler School of Law at Chapman University announced the heart-breaking news that Professor Rotunda passed away. Though Ron is gone, his memory will live on in the hearts and minds of his students, his colleagues, and the rule of law, which he cared so deeply about. This post is but a mere first step in remembering Ron’s remarkable legacy.

I encourage you to read other remembrances from Steve Bainbridge, Roger Pilon, Hans von Spakovsky and Elizabeth Slattery, John Dean, and The Federalist Society.

Ilya Shapiro and I published an Op-Ed in the Wall Street Journal on California v. Trump. Here is the introduction:

California lawmakers oppose President Trump’s pledge to step up deportations. They’ve enacted three so-called sanctuary measures designed to make it harder for immigration officials to perform their missions. There’s a long history of states resisting unpopular federal policies. Abolitionist states like Pennsylvania actively thwarted the Fugitive Slave Act by throwing slave catchers in jail, while South Carolina “nullified” federal tariffs to protect its agrarian economy. On immigration, too, states have attempted to frustrate federal policy from both sides. During the Obama administration, Arizona passed a series of measures stricter than federal law and policy.

But while states have broad police power within their own jurisdictions, they can’t interfere with federal law, which the Constitution proclaims is the “supreme law of the land.” California’s three sanctuary policies, which Attorney General Jeff Sessions challenged in a new federal lawsuit last week, fall on both sides of this constitutional line. As strong supporters of federalism, we see U.S. v. California as an opportunity to restore constitutional order and resolve simmering tensions between federal and state powers.