The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Frederick Douglass

The Continuing Relevance of Frederick Douglass

Douglass is best-known for his role in the abolitionist movement that helped end slavery. But much of his thought is also relevant to contemporary issues.

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Frederick Douglass.

 

February is Black History Month. And there are few more prominent figures in black American history than Frederick Douglass. Today, he is primarily remembered for his role in the abolitionist movement, and for his inspiring and compelling autobiography, which recounts his escape from slavery and subsequent life. But Douglass was also a wide-ranging thinker who wrote about numerous issues. Many of his  writings and speeches, including lesser-known ones are strikingly relevant to modern controversies. In this post, I cover a few notable examples.

While Douglass is best-known for arguing for racial equality within the United States, he also argued, in his 1869 "Composite Nation" speech (a critique of then-growing calls for restricting Chinese immigration), that the same principles forbid immigration restrictions, particularly those motivated by a desire to keep out particular racial, ethnic, or cultural groups:

I submit that this question of Chinese immigration should be settled upon higher principles than those of a cold and selfish expediency.

There are such things in the world as human rights. They rest upon no conventional foundation, but are external, universal, and indestructible. Among these, is the right of locomotion; the right of migration; the right which belongs to no particular race, but belongs alike to all and to all alike. It is the right you assert by staying here, and your fathers asserted by coming here. It is this great right that I assert for the Chinese and Japanese, and for all other varieties of men equally with yourselves, now and forever. I know of no rights of race superior to the rights of humanity, and when there is a supposed conflict between human and national rights, it is safe to go to the side of humanity.

Douglass was one of the first to realize that immigration restrictions have much in common with racial discrimination. That speech also addresses a number of still-standard justifications for immigration restrictions, such as fears that they are justified by the need to prevent natives' culture from being "swamped" by that of migrants.

Douglass' 1871 Decoration Day speech is highly relevant to longstanding debates over how Americans should remember the Civil War. To this day, there are those who argue that the Confederate cause was justified, or at least that—for the sake of national unity—we shouldn't denigrate it. Douglass had little patience for such ideas:

We are sometimes asked, in the name of patriotism, to forget the merits of this fearful struggle, and to remember with equal admiration those who struck at the nation's life and those who struck to save it, those who fought for slavery and those who fought for liberty and justice.

I am no minister of malice. I would not strike the fallen. I would not repel the repentant; but may my "right hand forget her cunning and my tongue cleave to the roof of my mouth," if I forget the difference between the parties to that terrible, protracted, and bloody conflict….

The essence and significance of our devotions here to-day are not to be found in the fact that the men whose remains fill these graves were brave in battle. If we met simply to show our sense of bravery, we should find enough on both sides to kindle admiration….

But we are not here to applaud manly courage, save as it has been displayed in a noble cause. We must never forget that victory to the rebellion meant death to the republic…. If today we have a country not boiling in an agony of blood… if now we have a united country, no longer cursed by the hell-black system of human bondage…. , we are indebted to the unselfish devotion of the noble army who rest in these honored graves all around us.

This has obvious relevance to modern controversies, such as the debate over taking down Confederate monuments, and the more general issue of how we should think about the slavery and the Civil War. As I have pointed out previously, condemning the Confederacy and celebrating its defeat does not require us to excuse or justify everything done by the Union side in the war (nor did Douglass make any such claim).

One of Douglass' most famous works was his 1852 July 4 speech, "What to the Slave is the Fourth of July?" This is today mainly remembered for its blistering condemnation of American slavery and hypocrisy about liberty. But it's worth emphasizing that it also praises the ideals of the American Founding, and even the founders themselves, as in this passage:

The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.

They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.

They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was "settled" that was not right. With them, justice, liberty and humanity were "final;" not slavery and oppression. You may well cherish the memory of such men.

Both Douglass' denunciation of slavery and hypocrisy and his praise of the American Revolution and Declaration of Independence are relevant to current debates about how we should teach and think about American history. The former is a rebuke to those on the right who seek to minimize or ignore America's wrongs. The latter to those on the left who claim its liberal ideals are insignificant compared to those wrongs, or even contributors to them.

While Douglass was a trenchant critic of the racial bigotry and oppression of his day, he also warned against responding to it with "pride of race"—what we today might call identity politics:

"[d]o we not know that every argument we make, and every pretension we set up in favor of race pride, is giving the enemy a stick to break our own heads?… We cannot afford to draw the color-line in politics, trade, education, manners, religion, fashion, or civilization. Especially we cannot afford to draw the color-line in politics."

In the last speech of his life, The Blessings of Liberty an Education," he counseled relying on universal principles instead:

We hear, since emancipation, much said by our modern colored leaders in commendation of race pride, race love, race effort, race superiority, race men, and the like. One man is praised for being a race man and another is condemned for not being a race man. In all this talk of race, the motive may be good, but the method is bad. It is an effort to cast out Satan by Beelzebub….. The evils which are now crushing the negro to earth have their root and sap, their force and mainspring, in this narrow spirit of race and color, and the negro has no more right to excuse and foster it than have men of any other race. I recognize and adopt no narrow basis for my thoughts, feelings, or modes of action. I would place myself, and I would place you, my young friends, upon grounds vastly higher and broader than any founded upon race or color…. We are not recommended to love or hate any particular variety of the human family more than any other….

Hence, at the risk of being deficient in the quality of love and loyalty to race and color, I confess that in my advocacy of the colored man's cause, whether in the name of education or freedom, I have had more to say of manhood and of what is comprehended in manhood and in womanhood, than of the mere accident of race and color; and, if this is disloyalty to race and color, I am guilty. I insist upon it that the lesson which colored people, not less than white people, ought now to learn, is, that there is no moral or intellectual quality in the color of a man's cuticle; that color, in itself, is neither good nor bad; that to be black or white is neither a proper source of pride or of shame.

If this is an indictment of left-wing identity politics, it also  equally at odds with the ethno-nationalism of much of the modern right, such as the "national conservatives."

Douglass' views on the US Constitution also have great potential relevance for our time. He started out as an adherent of the view—advanced by the great abolitionist William Lloyd Garrison—that the Constitution was irredeemably pro-slavery. But he gradually shifted to the almost completely opposite view that the Constitution—even before the enactment of the Thirteenth Amendment—was actually anti-slavery.

Along with other abolitionist constitutionalists, he reached that conclusion by elevating text and natural right principles over what modern legal theorists call "original expected applications" (how contemporaries thought the Constitution would be applied).

This approach poses a challenge to many on the left who reject textualism and originalism in part because they believe these methodologies inevitably lead to racist results. But it also challenges many conservative versions of originalism, that give original expected applications more weight.

My co-blogger Randy Barnett insightfully explores some of the implications of abolitionist constitutionalism in an important 2011 article. The subject has attracted interest from other modern scholars, as well. But modern constitutional theory could benefit from much greater engagement with this body of work.

Unlike in the case of Douglass's views on immigration, the Civil War, the American Revolution, and racial pride, I am only partly persuaded by his take on the Constitution. I fear the pre-Civil War Constitution was more heavily tainted by compromises with slavery than Douglass was willing to admit (though not as much so as claimed by Garrisonians, nineteenth century defenders of slavery, and many modern left-wing critics of originalism). But abolitionist constitutionalism nonetheless deserves our serious consideration and respect.

The above does little more than scratch the surface of Frederick Douglass's relevance to modern debates. There is much, much more, where that came from. But I hope I have at least said enough to convince readers to take a closer look at these and other aspects of his writings. They pose significant challenges to right and left, alike.

In reading even the greatest thinkers of earlier eras, we commonly find ideas that are parochial, anachronistic, obviously invalidated by later developments, or just simply irrelevant to modern concerns. Douglass's work isn't completely free of such problems. But the extent to which he avoided them is remarkable.

Short Circuit: A Roundup of Recent Federal Court Decisions

Alaskan Natives, Alaska Airlines, and Alaskan students.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Alaska's sparse population creates unique educational challenges. To address these, the state created "correspondence programs," in which a student's public school uses the post office or float planes to deliver lessons and then pick up and grade assignments. In 1997 and again in 2014, the law was broadened to allow parents more freedom to design their children's curriculum and receive reimbursement for certain educational expenses, including tuition at nonpublic schools. But now the program is under attack, and IJ has teamed up with a group of Alaska families who benefit from the program to defend it in court.
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Scholars for Peace in the Middle East Open Letter re Allegations of Antisemitic Bias by GW Prof Lara Sheehi

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I have been following from a distance a controversy over the alleged conduct of Prof. Lara Sheehi, who teaches a mandatory DEI class to psychology grad students at George Washington University. The key allegations amount to her denigrating, bullying, and otherwise mistreating students who are Israeli, Jewish, and/or pro-Israel. Professors who should know better claim that she's being targeting for her pro-Palestinian views. The allegations suggest otherwise, and also raise the question as to why a professor would be bringing her views of the Palestinian-Israeli conflict into a psychology DEI class to begin with… Note that even those of us, like blogfather Eugene and me, who are quite skeptical of hostile environment law based on speech in general, draw a clear line at hostile speech by faculty that is individually targeted at specific students.

In any event, Scholars for Peace in the Middle East has put out an open letter on the controversy, and I thought it was quite good (though as you might expect I have a few quibbles, so I'm not adopting the entire letter as my own perspective), so I'm sharing it.

Open letter to George Washington University (GWU) regarding allegations of antisemitism

We, the undersigned, are mental health clinicians and educators, practitioners of psychotherapy and psychoanalysis, and scholars of antisemitism from several disciplines. We are a diverse group, including those from the political left, right, and center; Jews and non-Jews, and those with varied views on Zionism.

We are deeply concerned about allegations regarding Dr. Lara Sheehi, the newly elected President and former Secretary of the Society for Psychoanalysis and Psychoanalytic Psychology (Division 39 of the American Psychological Association) and chair of the American Psychoanalytic Association's Teachers' Academy. Dr. Sheehi teaches a required Diversity course for graduate students in psychology at The George Washington University. A formal complaint has been made on behalf of several of her Jewish and Israeli students describing a series of failures on her and the University's part to treat all students equally and with respect. (We urge the reader to review the entire StandWithUs complaint to grasp the magnitude of the accusations.) These allegations are alarming and, if true, expose an egregious abuse of the trust customarily placed in educators and constitute a clear violation of Title VI, which prohibits discrimination on the basis of national origin and other characteristics in institutions receiving government support.

Since this complaint appeared, several letters in defense of Dr. Sheehi have circulated, and gained wide support, claiming that concerns about her teaching and her online presence – which is rife with profanity and hateful rhetoric against Zionism and Israelis – are the result of a right-wing Zionist conspiracy. It is shocking to reflect that those signatories signed letters that did not even consider the possibility that the students' allegations might be true, nor demand they be given respectful consideration. Would this be the case if the students were not Jewish or Israeli? Imagine the scandal that would erupt if a group of students from another background – Black students, Muslim students, or LGBT students – alleged that their professor excluded and shamed them based on their religion, ethnicity, national origin, or sexual orientation in a required course on diversity. The calls for such a professor's resignation or removal would be swift and severe. And while these remain allegations at present, Dr. Sheehi's tweets and online interviews regarding Israelis render the allegations quite plausible, with more than enough reason to warrant careful scrutiny. (Her deleted twitter account included statements such as the following: "Israelis are so f***ing racist," "Zionists are unhinged," "you can't be a Zionist and also a feminist" "F*** Zionism, Zionists…" "F*** every person who is not yet an anti-Zionist," and "Zionists are so far up their own a****".)

Therefore, compelling Jewish and Israeli students to take a course with Dr. Sheehi while these complaints are being investigated is highly inappropriate. As precedent, consider the case of Professor Amy Wax, a University of Pennsylvania law professor who made hostile remarks about Black students in a required course and was then removed from this teaching role.

Letters written in support of Dr. Sheehi have claimed that she is being "silenced" because of her views on the Israeli-Palestinian conflict. Let us clarify that this is simply not the case. She remains free to express her political and academic views, which are not relevant here. Her classroom conduct is. If the complaints against her are supported by the facts, then her willingness to bully, belittle, and retaliate against students of a particular religious and ethnic background and national origin are highly unprofessional. That being so, we are dismayed by the totally inadequate response to the students' concerns displayed by the faculty in GWU's psychology program and by the administrators at higher levels of leadership. In a time when considerable resources are poured into promoting diversity, equity, and inclusion, singling out Jews and Israelis as undeserving of those protections is nothing short of antisemitic. Moreover, it is ironic to see Jewish Voice for Peace criticizing StandWithUs, the organization that filed the complaint on behalf of the GWU students, for "…conflating some Jewish students' emotional discomfort with targeted harassment…." This is especially disingenuous when diversity, equity, and inclusion efforts argue that impact supersedes intent in matters of racism and discrimination. The particular politics of StandWithUs as an organization have no bearing on the issue of whether the students' allegations should be taken seriously.

Unfortunately, the many letters circulating in support of Dr. Sheehi deflect from the important matter and claim that concerns about her alleged classroom conduct are simply attempts to restrict her academic freedom, encourage threats to her safety, advocate for "doxxing," and/or come from a right-wing "playbook." These claims are baseless. Indeed:
We deplore any threats to Dr. Sheehi's safety (or those close to her) in the strongest possible terms.

We vigorously oppose any attempt to "dox" Dr. Sheehi, or to publish private information about her in a malicious effort to damage her reputation ahead of the US Department of Education's Office of Civil Rights investigation. The allegations against her are worrisome enough as they stand. There is no need for these reprehensible tactics.

We strongly support academic freedom, though many of us disagree with Dr. Sheehi's framing of the Israeli-Palestinian conflict.We deny that concerns raised about Dr. Sheehi come only from the right wing or from a Jewish conspiracy of powerful individuals and will not dwell on the tired antisemitic trope that this argument represents. The concerns about her conduct and her suitability for specific educational and leadership roles comes from across the political spectrum.

We acknowledge that the allegations in the StandWithUs complaint are, as yet, allegations. We urge the Department of Education and GWU to promptly and dispassionately conduct their own investigations by carefully evaluating the testimony of the Jewish and Israeli students in light of substantial corroborating evidence.

The fact that some extremists are subjecting Dr. Sheehi to doxxing and death threats, while deeply unfortunate, should not be used to silence legitimate concerns about her suitability for teaching or leadership roles. Dr. Sheehi is amply entitled to her opinions, her academic freedom, and, above all, her personal safety. But as a teacher of a diverse group of students and leader of a diverse organization, she must not allow her political views to prejudice her interactions with students, patients, or colleagues. [emphasis added by DB]

We hope that this expression of concern dispels the egregious misconceptions present in the various letters of support Dr. Sheehi has received thus far. We choose to speak out because cases like these involving Jewish and Israeli students being bullied, belittled, and excluded are increasingly commonplace on campuses across the United States and seldom get the scrutiny and impartial treatment they deserve. They not only feed a global resurgence of antisemitism but fuel a dangerous turn in the mental health field where activism is entering the consulting room, where "anti-discrimination" efforts covertly condone discrimination, and where frankly unprofessional and unethical behavior masquerades under the guise of academic freedom.

In conclusion, we call upon GWU to relieve Dr. Sheehi of teaching roles in required courses until this matter is adjudicated. In light of the online material available, if the allegations against Dr. Sheehi are corroborated in part or in whole, this may also cast doubt upon her suitability to train psychotherapists in general.

Respectfully and sincerely signed,

CLICK HERE TO SIGN

From My Commonplace Book, No. 5

Lon Fuller on the rule of law

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[Earlier posts in this series: No. 1 / No. 2 / No. 3 / No. 4]

From Lon Fuller, "The Principles of Social Order":

My final conclusion is that, like many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, multiplying and strengthening the bonds of reciprocity among nations. When this has occurred—or rather as this occurs—the law can act as a kind of midwife—or, to change the figure, the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow and to grow properly. Our task is to make them want this.

I'm a huge Lon Fuller fan; if you are unfamiliar with his work, I would start with "The Morality of Law," which is, in my opinion, one of the truly great works of legal theory. The above quotation, from an essay on international law, packs a lot of interesting ideas into a short and rather brilliantly-phrased paragraph: that many "precious human goals" can best be achieved by a kind of misdirection, or averted vision; that the law is like a gardener pruning a tree "to help the tree realize its own capacity for perfection"; and that "our task" is to help "all concerned" to "genuinely want" it to reach that state.

Guns

Fifth Circuit Holds People Can't Be Disarmed Just Based on Civil Restraining Order

Judge James Ho concurs, adding "I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another."

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From U.S. v. Rahimi, decided today by the Fifth Circuit, in an opinion by Judge Cory Wilson, joined by Judges Edith Jones and James Ho:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022), it is not.

The court rejected the view that, under Heller and Bruen, legislatures can disarm anyone who isn't a "law-abiding, responsible citizen[]":

There is some debate on this issue. Compare Kanter v. Barr (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111, with Binderup v. Att'y Gen. (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). As summarized by now-Justice Barrett, "one [approach] uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away." The Government's argument that Rahimi falls outside the community covered by the Second Amendment rests on the first approach. But it runs headlong into Heller and Bruen, which we read to espouse the second one.

Unpacking the issue, the Government's argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles….

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Campus Free Speech

Instant Karma's Gonna Get You

Should conservatives worry about breaking the norm of political non-interference with state universities?

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Jennifer Frey, a philosopher at the University of South Carolina, had a very interesting tweet in response to the Ron DeSantis higher education reforms unveiled yesterday.

I'm very sympathetic to this form of argument in general when it comes to free speech debates, but in this case I don't think conservatives will find it very persuasive. It is worth unpacking why.

In short, we are further down the game tree than Frey assumes that we are. Read More

Free Speech

David Lat on Law Student Anonymity

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Some very interesting observations and queries, much worth checking out. An excerpt:

Should law students be able to protest anonymously? I view school as a period of experimentation and exploration, and one reason I have argued against holding college writings against judicial nominees is because of the chilling effect it would have. Students would be much less willing to experiment, explore, and write and say controversial things—all valuable parts of the educational process—if they felt that their words and deeds would come back to haunt them, years later.

When I was in charge at Above the Law, we had a policy of generally not naming law students involved in controversies; instead, we would come up with (often cute) pseudonyms for them (e.g., Johnny Applethief). We did this because we didn't think it fair for a law-school controversy—often a pretty silly law-school controversy—to dominate a student's so-called "Google footprint," i.e., what comes up when the student is the subject of a Google search.

One of the reforms that Yale Law instituted in the wake of last year's protest debacle was a ban on surreptitious recording. In announcing the ban, Dean Heather Gerken pointed out that it "mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas." And although the ban received criticism (from both the left and the right), one can see the logic of it. Students would be much less willing to participate in discussion, especially to voice a controversial opinion or to play "devil's advocate," if an out-of-context snippet of their remarks could make its way to Twitter or TikTok.

So that's the pro-anonymity case. There's a case to be made against anonymity, which Professor Nancy Rapoport makes in this blog post (discussing a situation in which anonymous law students filed complaints against a professor—complaints a university investigation concluded were unfounded):

Read the whole thing.

Free Speech

Gag Order Bans Political Tweeter from Naming Man Who Accused American Conservative Union President of Groping

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Plaintiff, a Republican political operative, had sued the ACU president for allegedly groping him:

In his time involved with the Republican Party, plaintiff "has served political campaigns and political committees as a field coordinator, field director, grassroots director, and political director, among others." While working for one of these campaigns as a political staffer, plaintiff alleges that, "[o]n October 19, 2022, a high-profile person in conservative and Republican Party politics committed a sexual battery upon [him] in Georgia." This sexual battery incident became more public on January 6, 2023, when the Daily Beast ran an article detailing the sexual battery incident, without naming plaintiff, and "[o]ther media outlets picked up the story, and the incident became widely known" [link -EV]. Although the Daily Beast and the other media outlets did not identify plaintiff's name as the victim, plaintiff asserts that "many in the political and journalism communities were aware of his identity."

Caroline Wren, herself a Republican political operative,

was aware of plaintiff's identity and began attacking plaintiff on Twitter in the wake of the Daily Beast story. Specifically, defendant allegedly made false statements about the type of work that plaintiff did for the campaigns he worked on, and she accused plaintiff of being "fired from multiple campaigns for lying and unethical behavior" and for being a "habitual liar." Because of these allegedly false and defamatory statements, plaintiff claims he "suffered damages, including … embarrassment, humiliation, distress, and reputational harm."

Plaintiff then sued Wren for libel, and Chief Judge Beryl Howell (D.D.C.) in Doe v. Wren (1) allowed him to go forward pseudonymously, and (2) "prohibited [Wren] from publicly disclosing plaintiff's identity or any personal identifying information that could lead to the identification of plaintiff by nonparties, except for the purposes of investigating the allegations contained in the Complaint and for preparing an answer or other dispositive motion in response." Here's the justification Chief Judge Howell gave for pseudonymity (all the quotes above and below are from the opinion):

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Let's Talk Pork!

Not the political kind, the real kind, the stuff you get from pigs

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The Supreme Court has a pretty interesting, and potentially very important, "dormant commerce clause" case before it this term—National Pork Producers Council v. Ross. Dormant commerce clause doctrine is a tangled, internally-contradictory mess, and this case gives the Court an opportunity to clarify—or to even more thoroughly mess up—some important principles governing state power in a national marketplace.

The relevant facts (taken here from the opinion below) are straightforward:

California (through Proposition 12, passed by the voters in 2018) bans the sale of uncooked pork products if the seller knows (or should know) that the meat came from a breeding pig that was confined "in a cruel manner." The law defines that to include, among other things, providing less than 24 square feet of living space—roughly the size of two bath towels—per breeding pig. California accounts for around 13% of total pork consumption in the U.S.; virtually all of the pork sold in California (>99%) comes from producers in other States. At present, only around 4% of U.S. pork producers meet California's space requirements for breeding pigs.

The Pork Producers Council (PPC) challenge this law on ground that it violates the Dormant Commerce Clause. They concede that the law does not fall under the DCC's prohibition against State laws that "discriminate" against out-of-state producers in favor of in-state producers; Prop 12, they acknowledge, treats in-state and out-of-state pork producers and sellers alike.

They rely instead on two of the other strands of DCC doctrine:

  • First and foremost, that the CA law "impermissibly regulates extraterritorial conduct" outside of California's borders by compelling out-of-state producers, as a practical matter, to change their operations (at considerable cost) so as to comply with California standards.
  • Second, that it imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's "philosophical preferences about conduct occurring almost entirely outside California," and its "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders," cannot justify the burdens imposed on pork producers nationwide.

[Quotations above are from the PPC's brief, available here ]

The "extra-territoriality" claim is especially important and potentially far-reaching. All sides agree that California may not actually compel pork producers in Iowa or Arizona—in the sense of imposing a legal obligation on them enforceable by means of a fine or other punishment—to adopt California's pig-breeding standards, just as it may not compel businesses in Iowa or Arizona to abide by California's minimum wage rules, or California's business licensure rules, or California's public accommodation law, and so forth.

While this principle of territorial allocation of state authority is clear enough, it has proven a little tricky to pinpoint exactly where, in the Constitution (or elsewhere? the "common law of nations"?), this prohibition is articulated; as Prof. Douglas Laycock once put it*, the prohibition against extra-territorial exercises of state coercive power was "so obvious that the Founders neglected to state it." Much ink has been spilled over the question whether such action violates the Dormant Commerce Clause, or the Due Process Clause, or both, and the Court may take this opportunity to weigh in on that question. But wherever it comes from, the principle itself seems quite firmly established.

*See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 251 (1992)

At the same time, it is likewise true, generally speaking, that California may constitutionally impose its particular local standards—regarding product labelling, or product safety, etc.—on goods and services brought in from out-of-state and used or sold in California. Such laws may, as a practical matter, have extra-territorial effects; out-of-state businesses may have to alter their practices, possibly significantly, with regard to goods destined for sale in California, changing their method of manufacture or their packaging or labelling. But they are under no legal obligation to make those changes unless and until they choose to avail themselves of the California market and ship their goods there.

In the case at hand, California's position is: That's all we're doing—applying our local standards to goods that are sold in California. We're not compelling pork producers in Iowa or Arizona or in any other State to adopt our particular standards. Pork producers in Iowa are under no obligation whatsoever to change their pig-breeding practices because of Proposition 12; they need do so only if they wish to avail themselves of selling their pork in California.

The PPC, needless to say, sees things differently.  This is not, they say, run-of-the-mill state regulation of in-state sales:

"Though Proposition 12 applies to sales of pork meat in California, its practical effects are almost entirely extraterritorial. There are very few sow farms in California. The State imports 99.87% of the pork it consumes. Proposition 12 therefore governs the housing conditions of sows located almost exclusively outside of California, [and] the practical effect of the regulation is to control conduct beyond the boundaries of the State."

Moreover, they claim, Proposition 12 does—"as a practical matter"—compel out-of-state breeders to comply with its standards, because of the structure of the pork market in the U.S.:

"Proposition 12's extraterritorial effects are not limited to the 13% of U.S. pork production [sold] in California. A market pig progresses through multiple farms outside of California as it is raised, and then is processed into many different cuts of meat that are sold across the country. If any part of a pig is sold in California, the sow it came from must be Proposition 12-compliant. And sow farmers cannot say with certainty that no meat from any of their pigs will be sold in California, after those pigs pass through nursery and finishing farms, a packer-slaughter plant, then distributors, before their meat reaches consumers. As a practical matter, all or most [sow] farmers will be forced to comply with California requirements." [emphasis added]

In other words, because pig farmers can't tell if some piece of Elsie the Sow might end up in California, they'll have to give her 24 square feet of space, lest they find themselves violating California law when her feet end up in sausage destined for San Francisco.

That's a pretty interesting variation on the extra-territoriality theme.  I don't think the Court will buy it, though I could be wrong.  That kind of "compulsion" is entirely a function of the particular configuration, at this particular point in time, of the pork market, and California is neither responsible for that nor need it adjust its regulatory affairs to take it into account. The Dormant Commerce Clause does not and should not be read to give any industry protection for the particular manner in which it has chosen to configure its nationwide distribution schemes. That configuration can change in response to market and regulatory pressures; if enough pig breeders don't want to alter their practices to bring themselves into compliance with Proposition 12, the pork distribution market will surely respond; there is no inherent reason why distributors can't offer "California-free" contracts, promising that none of products in their product stream will be shipped to California retailers, and that will solve the "compulsion" dilemma.

While I am reasonably confident that the Court will not go along with PPC's claim that Proposition 12 violates the "extra-territoriality" prong of the Dormant Commerce Clause, I'm not at all sure how it will handle their alternative claim—that the law imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's interest here, they assert, is just a "philosophical preference," a "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders." Even if California would have the right to apply a law directed at health and safety against pork imported from out-of-state—a certificate that the pigs were trichinosis-free, say—Proposition 12 has no health and safety rationale, and therefore cannot outweigh or justify the burdens imposed on pork producers nationwide.

I'm scratching my head over that one; I'm not even sure where the Court might look to answer the question as to whether prevention of cruelty to animals is, or is not, a "legitimate" public purpose.

Free Speech

Court Orders Unsealing Names of Non-Parent Sureties Who Put Up Bail for Samuel Bankman-Fried

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From yesterday's opinion in U.S. v. Bankman-Fried, decided by Judge Lewis Kaplan (S.D.N.Y.):

At defendant's presentment on December 22, 2022, the government and defense jointly proposed a set of bail conditions. Those conditions required, inter alia, that defendant sign a $250 million personal recognizance bond to be co-signed by defendant's parents. The joint proposal required also that two additional sureties, one of whom must be a non-family member, sign separate bonds in lesser amounts to be agreed upon by the government and the defendant (the "Individual Bonds")…. The government and defense [later] agreed that the sureties would sign separate appearance bonds in the amount of $500,000 and $200,000, respectively….

Pursuant to my January 3, 2023 order, the News Organizations filed four separate applications to intervene for the purpose of seeking access to the sureties' names….

In this case, the Individual Bonds — with or without names of non-parental sureties — did not exist when the magistrate judge approved the bail package. Indeed, neither their amounts nor the identities of the sureties yet had been agreed upon. Accordingly, it is at least arguable that the Individual Bonds, on the facts of this case, are not judicial documents [that are subject to a presumptive right of public access]. Nevertheless, no one disputes that they are judicial documents. I therefore so assume for purposes of this motion. In consequence, I assume that the presumption of accessability applies here and turn to the question of the weight to which it is entitled in this case….

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Academia

The Latest DeSantis Higher Ed Reform Proposals

The Florida governor unveiled some big new ideas -- not all of them good

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Florida Governor Ron DeSantis held a press conference this morning to discuss his proposed higher education reforms. His office also released a statement and a handout summarizing his proposals to combat "academic discrimination and indoctrination."

For several of these proposals, the details will matter—a lot. Nonetheless, the bare outline is significant, even if some of these items wind up looking better, or much worse, as they get translated into policy.

DeSantis indicated that he will be making a couple of relevant budget recommendations to the legislature. They include money for New College (which now has a new set of trustees with a gubernatorial mandate), new money for civics institutes that were inspired by the James Madison Program at Princeton, and $100 million for faculty retention and recruitment.

Other proposals call for more statutory reforms of Florida higher ed. They include

  • New Western Civ requirement that might or might not include some legislative intrusion into how such courses are taught
  • eliminate Diversity, Equity & Inclusion bureaucracies and initiatives. A big deal but remains to be seen if that will include faculty-driven programming or classes
  • allow university presidents to initiate off-cycle post-tenure review of faculty. Remains to be seen whether that will alter the process or substance of the current post-tenure review system. If it only changes the timing, then perhaps not a big deal
  • allow presidents and boards of trustees to hire faculty without "faculty interference." Would be a massive change in how serious American universities operate. Giant big red warning flags on this one.
  • eliminate diversity statements for faculty hiring. Consistent with what the Academic Freedom Alliance has called on universities to do.
  • require research universities to spend at least $50 million per year on research related to STEM and business.

Will undoubtedly shape Republican debates on higher ed, even if the full package does not get adopted in Florida or gets significantly modified on the path to adoption. Will bear careful watching.

 

"Strangers on the Internet" Podcast Episode 21: Second Marriage in the Second City

Neuroscientist Prof. Talia Lerner and former military sniper Phillip Nightingale talk about their unexpected relationship

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The twenty-first episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features a conversation with married couple Prof. Talia Lerner and Phillip Nightingale. They are our first guest couple, and Phillip is our first male guest altogether on the podcast.

Northwestern University neuroscientist Talia did not think that a heavily tattooed former military sniper would be in her romantic future, and yet that is how the dating app process shook out in the end. Phillip proved to be the interesting, open-minded, poetry-writing partner that would turn into a capable stepdad to her son and involved father to their subsequent daughter together. Our Chicago-dwelling couple came from different socioeconomic classes, ethnic backgrounds, and religions, and via therapy and solid communication forged a path toward what became a happy second marriage for both of them.

How did Phillip abandon his plan to travel the world and instead navigate becoming an academic spouse? And what were the reasons Talia agreed to add a third child to their family when initially, Phillip criticizing her parenting of her oldest kid on a first zoo trip together almost led her to call it quits on the relationship? Follow us to the Midwest for this modern-day love story you don't want to miss!

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