The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this Article explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them is met. It concludes that Sell has created an unnecessarily complicated and often counter-productive legal regime that should be abandoned in favour of the regime that pre-existed it.
Category: 89:6
Court-Mandated Story Time: The Victim Narrative in U.S. Asylum Law
The Unwarranted Weight of a “Paper Barrier”: A Proposal to Ax the Apex Doctrine
Response—Factions for the Rest of Us
This response paper highlights the author’s three objectives in writing Liberty‟s Refuge: one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. The normative theory contends that we ought to protect dissenting private groups even at the cost of stability and uniformity. The introductory remarks by Professor Magarian and the three essays from Professors Bhagwat, Vischer, and Appleton address these objectives through generous engagement and thoughtful critique. In the limited space of this response, this comment focuses on six themes prompted by the commentators: expression, violence, relationality, power, funding, and commerciality.
Commentary—Liberty’s Forgotten Refugees? Engendering Assembly
This paper addresses three specific issues: Professor Inazu‘s treatment of the always-contested divide between public and private, his overly narrow reading of the Supreme Court‘s intimate association doctrine, and his failure to distinguish exclusion from subordination. Although asking the woman question illuminates some of what is absent from Professor Inazu‘s analysis, the paper offers these comments with both collegial enthusiasm for his scholarship and commitment to ―engaging with the ideas that Liberty’s Refuge sets forth.
Commentary—How Necessary Is the Right of Assembly?
As a political culture seemingly hard-wired for the full-throated championing of individual rights, we are not quite sure what to do with liberty claims by groups. Whether we are talking about corporate speech rights, the treatment of religious student groups at public universities, the limits of the ministerial exception, the Boy Scouts‘ right to discriminate, or churches‘ access to public schools, we have seen a recent spate of conflicts involving groups that have spawned both political battles and landmark Supreme Court rulings. As such, our uneasiness with the right of association as a constitutional matter may have something to do with our uneasiness with the freedom of association as a political matter. We do not quite know what to do with groups. Judging from the public reaction to the Court‘s Citizens United ruling, we do know that Americans tend to reject the notion that the corporate person possesses rights on par with the natural person. And while citizens are more inclined to defend the autonomy of religious groups, it is not clear whether that inclination is just a relatively weak extension of our traditionally strong commitment to individual religious liberty, or whether there is meaningful recognition of the importance of group liberty. Especially outside the context of religious organizations, the deference owed to groups by the surrounding political community remains unsettled.
Commentary—Liberty’s Refuge, or the Refuge of Scoundrels?: The Limits of the Right of Assembly
Liberty’s Refuge is an important book with a lot of original and interesting things to say about the First Amendment. In many ways, however, the best thing about this book is not just what it says, but how it says it. Impressively, while advancing strong and controversial positions, Professor Inazu somehow avoids the trap into which so much constitutional scholarship falls of purporting to provide a final and complete theory which provides the grounding for an entire area of law and rejecting all other perspectives as wrong-headed. Instead, this book self-consciously sets out to start a conversation about important questions: how and why forgotten First Amendment rights such as peaceable assembly should be revived, and what role assembly promises to play in the political process. This conversation promises to be a rich and exciting one.
Introduction—Entering Liberty’s Refuge (Some Assembly Required)
This brief discussion of a book I greatly admire, by an author I am fortunate to know as a colleague and a friend, cannot hope to capture all of the book’s important and interesting contributions. I will simply describe three of the book’s primary facets. Liberty’s Refuge is, first, a work of intellectual history: Inazu seeks to recover from history’s tall grass a legally respected Anglo-American tradition of assembly. The book is also a work of constitutional interpretation and legal analysis: Inazu aims to revitalize the right of assembly for our time, critiquing the legal decisions that he sees as having buried or distorted assembly and charting a path toward renewed constitutional protection for assembly. Finally, the book is a work of normative political and legal theory: Inazu’s legal analysis reflects his powerful normative commitment to the autonomy of groups—assemblies of all manner, size, and repute—that counter the state’s power and allow individuals to define themselves through engagement with others. That all sounds rosy, and in many ways, it is. But Inazu’s argument leads him into challenging and highly fraught terrain.
Linking the Questions: Judicial Supremacy As a Matter of Constitutional Interpretation
This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation. Without a clear sense of what constitutional interpretation involves, one cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. This Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself. Having explored the conventions of argument that constitute the practice of constitutional interpretation, this Article concludes that the Supreme Court can claim expertise with respect to determining constitutional meaning, but that its expertise has limits. It proceeds to explore whether and how this insight might be translated into limits to judicial supremacy. Toward that end, this Article develops a framework for assessing when the work of constitutional interpretation should be shared between the Supreme Court, the other branches of government, and the public itself. Finally, it uses the Court’s doctrine with respect to race-conscious legislative districting to illustrate how the proposed framework might work.
Rebellious State Crimmigration Enforcement and the Foreign Affairs Power
The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration (“crimmigration”), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of “cooperative federalism” that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting foreign affairs complications render the new spate of immigration policing laws infirm.
The Article argues for the need to give due weight to statements of interest by the executive on the foreign affairs implications of rebellious state crimmigration enforcement. The Article argues that the caste-carving approach of the “attrition through enforcement” multi-front attack strategy behind the laws contravenes national immigration enforcement policy and strains foreign relations. The analysis provides a basis for distinguishing the Supreme Court‘s recent decision in Chamber of Commerce v. Whiting, which upheld a state employer licensing regulation, from the current spate of legislation pending in the courts. The distinction that makes a difference is conflict with a national enforcement policy calibrated to avoid turning suspected foreign nationals into untouchable caste-like “subjects of suspicion and abuse,” thereby marring community and international relations. The analysis in the crimmigration context also enriches our understanding of what cooperative—and uncooperative—federalism enforcement means and the dangers of the phenomenon in areas of special national concern fraught with localized animosity.
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