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Julie Nice on the “Responsible Procreation” Argument in Same-Sex Marriage Constitutional Litigation

May 14, 2012 By: seeta Category: 2012 Election, Anti-Racism, Civil Rights, Intersectionality, LGBTQ

From ConLaw Blog:

With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive “evolution,” it’s a good time to take a look at scholarship on the constitutional arguments.

Obama specifically mentioned same-sex couples “raising kids together.” But one of the more odd – – – at least on first review – – – arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more “encouragement” to marry. This is the so-called “responsible procreation” state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York’s highest court, an opinion subject to a skewering analysis – – – and fun read – – – in John Mitchell’s Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.

ConLawProf Julie Nice has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice “traces the genealogy of responsible procreation.”

She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

U.S. Constitution Archaic, No Longer World Model

February 07, 2012 By: seeta Category: Anti-Racism, Civil Rights, Corrupt Judiciary, Corrupt Legislature, International Law, Intersectionality

From NYT:

Our Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by our Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.”

NYC Mayor Daddy Bloombucks Pulls a Scalia on the First Amendment

November 16, 2011 By: seeta Category: Anti-Racism, Civil Rights, Economic Terrorism, Poverty

From Constitutional Law Prof Blog:

[Yesterday] the early morning police eviction of protesters from NYC’s Zuccotti park by police officers was quickly followed by a Temporary Restraining Order prohibiting the city from evicting protesters from the park and enforcing rules prohibiting tents and other property.

The hearing on that order, before Judge Michael Stallman, resulted in a new order denying the motion for a more longstanding temporary restraining order.

In Matter of Waller v City of New York, the judge assumed that the First Amendment applied. However, he held that the “movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.” Judge Stallman wrote:


The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City’s enforcement of law so as to promote public health and safety.

(h/t: Ruthann Robson)

See also:

Supreme Court to Hear Case Challenging Health Law

November 14, 2011 By: seeta Category: 2012 Election, Anti-Racism, Civil Rights, Consumer Rights

From NYT:

The justices agreed to hear a challenge to the 2010 health care overhaul law, setting the stage for a ruling in the midst of the 2012 presidential race.

ThinkProgress has a nice round-up on the legal basis/constitutionality of the PPACA:

[The Constitution] provides that the United States may “regulate commerce…among the several states.”

Modern judges do not need to speculate what the founding generation understood these words to mean when they were written into the text of the Constitution. Chief Justice John Marshall — himself one of the ratifiers of the Constitution — told us what they mean in the 1824 case of Gibbons v. Ogden. Marshall wrote that there is “no sort of trade” that the words “regulate Commerce” does not apply to. He said that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’ power to regulate commerce “among the several states” applies to all trade that “concern[] more states than one.”

So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade — trade for health services — and it regulates a health services market that is both pervasive and nationwide. The Affordable Care Act cases are some of the easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that even a handful of judges have struck the law down.

Constitution’s Influence Declines

September 27, 2011 By: seeta Category: Anti-Racism, Civil Rights

From The Declining Influence of the United States Constitution:

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution.

Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. We then evaluate the possibility that an alternative paradigm, in the form of either a prominent national constitution or a human rights treaty, has emerged as a newly dominant constitutional model. First, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries.

Full article on SSRN here.