What I Want Bernie Sanders to Know Before Tuesday’s Debate, published yesterday by Beverly Mann at Angry Bear. Mann supports Bernie and is responding to the Justice Is Not for Sale Act of 2015 (PDF), a bill banning for-profit prisons Bernie recently introduced in Congress. Mann notes that private prison contracts that "guarantee occupancy" are "flagrantly unconstitutional". Also outlining how legal conservatives utilize Dred Scott to enable "the right of states to trump the rights of individuals". (My emphasis on the following quotes).
more after the sleeping orange beagle.
Mann uses phrases like "federalism, the technical term for states' rights"; "Freedom derived by virtue of your state's right"; "Supreme Court-created federalism" (link to: HECK v. HUMPHREY, 1994*); "freedom means state or local government's freedom to violate individuals' constitutional rights. Federalism, in other words, defined by the Constitution's design"; "Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design".
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* Convicted criminals seeking to challenge unconstitutional conduct that occurred in the course of their prosecution or confinement can pursue relief through two avenues. One option is relief under the habeas corpus statute, which permits a federal court to order the release of a state prisoner whose confinement violates the Constitution or federal law. The other option is available through 42 U.S.C. § 1983, which permits any person who has been unconstitutionally wronged by an individual acting under color of state law to seek damages or injunctive relief in federal court. Both statutes provide remedies for constitutional violations, so their applicability overlaps when a criminal convicted in state court challenges the constitutionality of his conviction or sentence. As a result, the Supreme Court has had to confront the question of whether the two causes of action are interchangeable when a state prisoner challenges his conviction or confinement. The Court answered that question in the negative in Heck v. Humphrey3 and established a rule that has become paramount in the realm of prisoner litigation: a prisoner seeking damages for unconstitutional conviction or imprisonment must have the conviction or sentence reversed on appeal or otherwise declared invalid before his § 1983 claim can proceed. —Defining the Reach of Heck v. Humphrey: Should the Favorable Termination Rule Apply to Individuals Who Lack Access to Habeas Corpus?, Harvard Review
Not only does Bernie's bill, Mann writes, (1) address all levels of government—Local, State and Federal; but it also (2) recognizes Congress does have the power/authority to do so:
…I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments. But, happily, I was wrong. The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”
However,
The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom… In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards. That is what I want Bernie Sanders to know before Tuesday’s debate. (links and emphasis in original)
Prior to discussing Bernie's new bill, Mann first responds to Huckabee's statements that the Supreme Court's
Dred Scott decision "remains to this day the law of the land". Apparently,
Dred Scott continues providing States a slender thread of sovereign authority to not only violate human and civil rights, but privilege fictitious rights. Mann links to this
DK diary.
Huckabee believes that:
…the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human. Does anybody still follow the Dred Scott Supreme Court decision? …if a decision is rendered that is not borne out by the will of the people either through their elected people and gone through the process, if you just say it’s the law of the land because the court decided, then Jefferson said, ‘You now have surrendered to judicial tyranny.’” The Supreme Court in the same-sex marriage decision made a law and they made it up out of thin air… until Congress decides to codify that and give it a statute it’s really not an operative law and that’s why what Kim Davis did was operate under not only the Kentucky Constitution which was the law under which she was elected but she’s operating under the fact that there’s no statute in her state nor at the federal level that authorizes her.
Huckabee turns
Dred Scott into a Civil Rights Catch-22: (1)
Obergefell is not a law; and (2) if it's made law it'll be unconstitutional.
Mann writes:
What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights… The Supreme Court said it did.
And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land. And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.
Last week Corey Robin, at
Crooked Timber, responded to Conservative scholar Robert George's "call to action" to "not accept
Obergefell as the law of the land" and that the decision does not "creat[e] a binding rule":
When Conservatives Cite Lincoln: From Dred Scott to Obergefell challenges the Conservative misuse of Lincoln:
Lincoln scholar John Burt provides a sensitive summation of Lincoln’s position on Dred Scott in a 2009 article from American Literary History [PDF].
In the 1858 Quincy debate with Douglas, Lincoln distinguished between accepting the Dred Scott decision as binding upon poor Scott and adopting that decision as a political rule. Lincoln did not propose to defy the Court in that case, or in any subsequent case similar to it. But he did propose to treat the question it had attempted to close as one that is still open, subject to further legal testing, capable of being eroded around the edges by political challenges, until finally Dred Scott loses its legitimacy, loses the background sense that its conclusions are not only reasonable but inevitable, a sense, it’s fair to say, that the Dred Scott decision never enjoyed in the first place.
I think Noah Feldman made similar points in 2011 at the Brookings Institute's
The Conservative Legal Movement and the Future of Liberal Jurisprudence, (PDF transcript, see audio at link; see also
Imagining a Liberal Court):
So the civil libertarians are themselves ambivalent about how free speech should operate in this context, because of a fear of admitting that the point of capital accumulation is to accumulate more capital… the power of capital is such that it is difficult for republican institution to counteract that power.
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That means that what we're hoping for from liberal jurisprudence — if what we’re hoping for is to reverse the course of this shift in power between capital and the liberal democratic state, or the republican state — is not going to come in the form of constitutional holdings, that is to say, affirmative constitutional holdings. Where it could come, and where it ought to come, and where it needs to come, and where the attention needs to be focused, is in shifting the doctrine so that it's no longer the case that plausible constitutional arguments can be made that say that the state has to allow the accumulated capital to influence political processes in the way that it does.
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More importantly, that hasn't been the focus of what liberal jurisprudence has been focused on. So now we're at a moment where finally the public, the liberal public, has shifted its attention from civil rights and civil liberties to the more foundational, underlying structural issues. It has done it, as is its wont, in an inchoate and unclear way. But it at least has begun to do it.
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That means that the focus from the liberal standpoint has to be on making as clear as possible to the public — and within the jurisprudential context — that those tools of constitutional jurisprudence that protect the status quo are the problem.
Because even if we manage this time around, as was managed during the progressive era, to get public support behind the idea of shaping legislation that will regulate the political process to reduce the capacity of capital to swamp it — even if we get that, that's a big if — there remains the real possibility that the crucial components of such progressive regulatory legislation could be struck down by the courts.