Duke Univ

formerly lacrosse

see law school nancy mclean?

essay was originally published in The Atlantic on Aug. 28, 2022 and can be accessed online here.

We Can Be Framers Too

*The Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.

By Jedediah Britton-Purdy

The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to “return” the abortion question “to the people and their elected representatives.” Concurring in West Virginia v. EPA, which restricts regulators’ ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of “the people’s representatives” rather than “a ruling class of largely unaccountable ‘ministers.’”

In New York State Rifle and Pistol Association v. Bruen, which struck down New York State’s 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Court’s severe, originalist approach to the Second Amendment as a vindication of a judgment “by the people” against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomes—Dobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Act—they all claim to protect the rightful power of “the people.”

Liberal critics, in turn, have appealed to democracy in attacking the Court as “radical” and “illegitimate.” Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic “people” the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and ’60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a “second bill of rights,” including rights to good work and economic security; or even an “abolition constitution” rooted in radical traditions of freedom and equality.

But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what they—we—believe American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.

The feeling that the Court is dangerously abusing its power is a new experience for many of today’s liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats’ grip on national power.

That’s why, in his first inaugural address, Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to “put the fear of God into judges” who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal laws—a proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, “we have never had a more irresponsible Supreme Court.”

What has been unusual in the past 70 years—that is, all of living memory—is that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Act’s Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.

The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Court’s power, which denies the Court’s legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Today’s liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.

The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges’ life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular vote—something that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trump’s presidency represented significantly less than half of the country’s population).

But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.

There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, it’s no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past century—upholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear arms—have all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.

It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words “We the People.” That “we” is the subject of the first sentence of the Constitution, and it goes on to “ordain and establish” everything that follows. On its own terms, it is law because “we” made it law.

But that “we” isn’t us. When that language was ratified in 1789, its “we” was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.

As striking as the demographic differences are between who counted as “the people” in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If today’s Americans could freely decide that the Second Amendment’s “right of the People to keep and bear arms” should remain our fundamental law today, it wouldn’t really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.

Indeed, even if those past political processes had been much more inclusive, they would still belong to the past. If we take seriously the democratic principle of ratification that the phrase “We the People” suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.

Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices’ opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called “incantation and abracadabra.”

At the moment, the most notorious abracadabra is originalism. The method of the Court’s recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis inDobbsas more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worship—worse, the selective worship of some Americans’ white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices’ power as compatible with democracy—at least notionally.

Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we haven’t made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.

Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?

Each side can clearly see Du Bois’s abracadabra in the other. Each is partly right about the other’s democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principles—a colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders’ minds).

But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.

The real irony in originalism’s march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the country’s top institutions. It has done so because conservatives in the 1970s—the last decade when it was really possible to regard courts as vehicles of broad progressive reform—saw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.

Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbsopinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alito’s 79 pages, plus appendices, is how the Supreme Court writes “6–3.” That is six votes out of some 330 million Americans. But then again, Obergefellhad only five.

So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.

A more directly democratic approach would bring that pregnant phrase “We the People” back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.

The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senate’s two-seat-per-state structure—both major vehicles for minority rule.

There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitution’s Framers, such as James Wilson (also an early Supreme Court justice), who insisted that “the people” would be able to change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.”

Although James Madison wrote that the Constitution he did so much to design was marked by “the total of exclusion of the people in their collective capacity” from any share in government—that is, our system boxes out direct democracy—he also held that the power “to alter or abolish its established government” always resided with the majority. (He justified the Constitution’s arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederation—a position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitution’s first words indicate, because they are the people’s commitments.

It’s fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalism’s basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalism’s basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problems—and dissolve the need for both originalism and living constitutionalism as we know them.

How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a “we.”

Constitutional conventions have about the same odor in liberal circles as “citizen sheriffs” and the posse comitatus—cranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservative—quite the contrary—and if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.

The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.

Could it really happen? After all, we start out in the world of Article V’s high barrier to change.

The first thing to see is that it will never happen if we don’t think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.

Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.

What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?

There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moment’s passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional process—perhaps with some clarification that, for instance, “freedom of speech” does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.

Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rule—judicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.

About the author: Jedediah Britton-Purdy is a professor at Duke Law School. His books include AfterNature and This Land Is Our Land, and, most recently, Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope.2022

kochademia

https://progressive.org/op-eds/elite-schools-quit-koch-money-banks-211201/

12/21

many universities, such as Harvard earlier this year, have earned accolades for divesting their endowments from fossil fuels and promising to fight climate change.

while Duke University has yet to divest, the school’s president, Vincent Price, was recently prompted by activist pressure to acknowledge Duke’s responsibility to address climate change. “We’re going to work to leverage our significant research and policy resources toward sustainable environmental solutions,” Price said.

But in February, Duke announced a lecture from author Bjørn Lomborg on his favorite topic: decrying climate change as a hoax. Why did Duke agree to host thisoft-debunked climate denialist? It may be a question of who was paying.

The invitation came from Duke’s “Center for the History of Political Economy.” The center’s lecture series hosting Lomborg, as well as its expanded staff and programming, is funded by a$5 million grant that came from the Charles Koch Foundation. The foundation is the tool of billionaire fossil fuel magnate Charles Koch, a well-known funder of right-wing politics.

Besides Lomborg, the center’s other recentlecture topics have included “Economic Freedom and the Wealth and Health of Nations” and “Free Market Liberalism Is Humane.”

Duke,Harvard and other universities that advocate for climate justice are also still taking money from the climate change-denying Koch network and their right-wing allies. Some have followed their acceptance of these donations with conspicuous support for academics or research that support Koch’s political views. To truly live up to their word, these universities need to stop giving academic legitimacy to fossil fuel apologists.

Charles Koch said back in1974 that “the educational route is both the most vital and the most neglected,” for advancing his radical capitalist philosophy. One of the network’s primary tools is the funding of campus centers and think tanks, and their efforts are accelerating. Research from my organization, UnKoch My Campus, has revealed that Charles Koch, from 2005 to 2019, donated through his foundations more than $458 million to universities and colleges across the country. In 2019 alone, the Charles Koch Foundation donated more than $112 million to 225 distinct campuses and campus-rooted nonprofits.

New research that we supported by Jake Lowe, a student at George Washington University, found that the Koch network has led a surge in funding for GWU’s Regulatory Studies Center — almost $7 million, most of it in the past four years, from just four right-wing funders, including the Koch Foundation and the ExxonMobil Foundation.

In response, the RSC has almost universally advocated against government regulation, with 96 percent of its public comments on federal regulations arguing for relaxed standards. The RSC’s leadership has repeatedly questioned the scientific consensus around climate change.

Duke and George Washington are hardly alone.

George Mason University and its right-wing think tank, the Mercatus Center, have long been the Koch network’s top academic recipients. Charles Koch and his late brother David had “decision-making roles” in the center’s academic appointments through at least 2009, according to The New York Times.

Florida State came under fire in 2014 when it was revealed that the university had accepted millions of dollars from the Koch Foundation in exchange for aligning its curriculum with Charles Koch’s philosophy, giving him a say in which professors were hired.Tufts University announcedplans to divest from fossil fuels but then its Koch-funded study center issued acontroversial attack on the state’s efforts to limit carbon emissions.

The money these universities accept from the Koch network is, in some ways, more damaging and insidious than the university’s investment in fossil fuel companies. Money is fungible, but academic credibility is not.

This column was produced for The Progressive magazine and distributed by Tribune News Service.

Jasmine Banks

Jasmine Banks is the executive director of UnKoch My Campus.

READ MORE BY JASMINE BANKS

https://www.thefire.org/schools/duke-university/

high rating

duke law propaganda looks good bundy 1st amend clinic

but voices of am law is what/ who?

https://law.duke.edu/voices/citizens/

1 of 3

TEACHER GUIDE:Citizens United v. FEC

LEGAL BACKGROUND:

This case challenged provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA, often referred to as McCain-Feingold) that banned corporations and unions from broadcasting “electioneering communications” prior to federal elections. This landmark First Amendment decision, which overruled two prior cases, has ignited a firestorm of debate over freedom of speech and the role of corporate money in the democratic process.

DOCUMENTARY OVERVIEW:

The documentary, a transcript of which is available on the Voices of Law website, consists of interviews with the following people involved with the case:

David Bossie: Executive Director, Citizens United, and executive producer of Hillary: The Movie.

Part 1 (beginning to 6:16): Citizens United andCelsius 41.11

David Bossie relates how the release of Michael Moore’s film Fahrenheit 911 spurred him and the conservative organization he heads, Citizens United, to produce their own film in response. The film, excerpts of which are included in the documentary, focuses on 2004 presidential candidate John Kerry’s views and war record and praised President George W. Bush. Bossie hopes to release Celsius 41.11 during the 2004 presidential campaign but is advised by the Federal Election Commission that the film would be subject to the campaign finance regulations of the McCain-Feingold Act, and that therefore advertisements for the film would be considered “electioneering communications.” Citizens United shows Celsius 41.11 in theaters, and Bossie is convinced that the medium of film could be very effective in communicating his organization’s conservative message.

Part 2 (6:16 to 12:58):Hillary: The Movie

Citizens United develops its own film studio and proceeds to make a succession of films advocating conservative causes. In 2006, Bossie decides to make a film about Senator Hillary Clinton, a candidate for President in 2008. Titled Hillary: The Movie, the film features a series of conservative commentators and explores both Clinton’s history as First Lady and her record in the Senate. Several excerpts from Hillary: The Movie are featured.

Part 3 (12:58 to 16:28): Marketing the movie and filing suit

As with Celsius 41.11, Bossie plans to release Hillary: The Movie during the 2008 presidential election campaign. Citizens United produces a series of television commercials for the film; Bossie anticipates that the ads will be restricted once again by federal campaign finance law, and he decides for file suit against the Federal Election Commission seeking a declaratory judgment that the limitations placed on his film violate the First Amendment.

Part 4 (16:28 to 23:39): The legal arguments

The FEC argues that under existing Supreme Court cases, Citizens United would have to disclose all corporate donations used for the production of Hillary: The Movie; Bossie responds that most of the donations it receives go into Citizens United’s general funds and are not specifically earmarked for any particular film. The FEC’s primary argument is that the film constitutes the functional equivalent of express advocacy for a particular candidate and should be regulated like any other campaign advertisement.Bossie argues that the film is more balanced and never specifically asks viewers not to vote for Clinton.

SUGGESTED APPROACHES TO USING THE DOCUMENTARY:

Two simple approaches to using the documentary are to show the entire case video in class or to assign students to watch it outside of class. The documentary concludes when the Supreme Court grants review, leaving discussion of the Court’s opinion for the classroom; we have found that the documentary is most effective when viewed before reading the opinion, because students are better prepared to analyze and discuss the factual setting and the legal issues in the case when they have heard from the parties involved.

You can also simply show a part of the documentary to provide the students with an understanding of what Bossie was doing and how the documentary was organized and structures. While there are a couple of clips available on the internet, the documentary provides a good overview of the approach and style. If you want to show some in class, it is possible to show Part 2 or Parts 2 and 3 together to get a good representative sampling of the documentary.

This documentary is a different than others in the series; it does not include interviews with lawyers or parties from the other side (here the Federal Election Commission). Rather, the documentary presents the origins of Citizens United’s commitment to film through and then presents key excerpts from the Hillary documentary. This is the heart of the factual context of this case: what was the purpose of the documentary and, as a result, what Constitutional protections should it be afforded.

In many ways, the Supreme Court went way beyond the specific factual and legal context of the case as it was presented in the lower courts. Citizens United’s main arguments were that the documentary was not “the functional equivalent of express advocacy” and that as a result, it did not need to include disclaimers on its commercials. On this point, Citizens United lost – the Court readily concluded that it could not find any protections from regulation under that approach. The corporate funding issue had never been a major part of the case: this is not an example where some company underwrote the costs of this political documentary. Citizens United obtained only a few thousand dollars in direct corporate support for Hillary: The Movie. Most of the funds were from the general operating funds of the organization [who says? proof?], obtained largely from individual donations but also some corporate donations.

omg origin of evil"

From their point of view … It reveals a culture where white men are acceptable targets of hate who deserve no sympathy and no due process, and where the left-wing mob wields tremendous power through its command of the public sphere.

That view connects to a broader assumption shared by many conservatives: that white Christian men are a persecuted minority in modern America.

To non-conservatives, this sounds absurd. White men are the country’s most powerful and privileged citizens. The party they dominate currently controls two and a half branches of government, and they sit in a disproportionate number of powerful seats in the private sector. But in this argument, conservatives follow a maxim generally attributed to the late provocateur Andrew Breitbart: “Politics is downstream from culture.” By this, Breitbart meant that the balance of power in day-to-day politics is determined, in the long run, by the cultural ideas that shape the way people approach politics.

With liberal elites largely in charge of the country’s entertainment and higher education, in the Breitbart-conservative view, that means they control the commanding heights in our society.

The concept of white men being the persecuted in America largely comes down to being told they’re wrong, or freaking out over nothing when they’re told it’s something by the right-wing outrage machine. And within the “commanding heights,” whether it be scientists, Hollywood, the media, or Democrats, calling stupid ideas stupid has somehow become “elitist” and evidence of bias. It’s one of the most bitter ironies that the people who bitch and moan about political correctness and wear shirts saying “fuck your feelings” are the ones whining about respect whenever a TV show or movie has a story which steps on their toes, or a science article actually advocates … you know, science which goes against one of their beliefs.

It’s as if we are trying to placate children who want people to hold their hands and play along while they wish really hard for unicorns to be real.

From Reeeves Wiedeman at New York Magazine:

After work one day in January 2007, Scott McConnell left his office at the magazine The American Conservative in Arlington, Virginia, and walked to a nearby Thai restaurant that was hosting a panel discussion about the Duke lacrosse scandal… McConnell and his magazine had largely ignored the scandal; identity politics weren’t top of mind for conservative media then, and most outlets weren’t especially interested in defending a group of rich jocks who had hired a stripper. But by January, the case was imploding. The accuser had changed her story more than half a dozen times, one of the players had a well-documented alibi, and DNA tests found no match with any member of the team, a fact the prosecutors initially hid from the defense. McConnell was reminded of The Bonfire of the Vanities, Tom Wolfe’s novel about 1980s New York in which an overzealous prosecutor, the media, and the city’s liberal elite rushed to condemn an innocent white man accused of killing a black man. “There was this palpable yearning among the liberal establishment for guilty white people they could put on trial,” McConnell said, of the lacrosse case.

McConnell and one of his editors, Michael Dougherty, went to the Thai restaurant panel hoping to find someone to write about the case. They knew most of the speakers — an economics professor, an editor at the WashingtonTimes, a men’s-rights blogger — but their talks were so boilerplate that neither McConnell nor Dougherty could recall much about them. The fourth speaker, however, was a Ph.D. candidate in Duke’s history department who delivered a blistering critique of the Duke faculty’s rush to prejudgment. “Scott and I both thought, Here’s a young guy, he presents himself well, and his talk was the most interesting of the night,” Dougherty said recently. “God, I hate to think that we were part of creating this.”

Richard Spencer, the fourth speaker, is now America’s most famous self-identified white nationalist. “In this funny chain of events, the Duke lacrosse case changed the course of my career,” Spencer told me recently. “My life would not have taken the direction it did absent the Duke lacrosse case.” The speech at the Thai restaurant — “Ironic, isn’t it?” he said — pushed him from an academic track toward a more activist one. McConnell commissioned Spencer to write a piece for The American Conservative about the case, and, by the end of the semester, Spencer had dropped out of school to work at the magazine full-time. A year later, he coined the term “alt-right.” … It not only launched Spencer’s career, but that of White House adviser Stephen Miller, too. On the morning of Spencer’s talk at the Thai restaurant, Miller — who was then a senior at Duke — published a column in the student newspaper titled “A Portrait of Radicalism,” just a few days after he appeared on Bill O’Reilly’s Fox News show to chastise Duke’s faculty. Donald Trump didn’t have much to say about the scandal at the time; he hadn’t yet joined Twitter and was devoting his cable-news appearances to his simmering feud with Rosie O’Donnell. But Miller seemed interested in little else. He had become known to some at Duke as the “Miller Outrage Machine” for his willingness to take controversial stands in his biweekly “Miller Time” column, which he wrote for the campus newspaper as a way, he says, to “defend the idea of America.”

This sort of behavior is also present in conservative women.Recent research and ponderings attempting to identify why white women support Republicans and conservative policies more than their non-white sisterhood have largely explained the difference through gender roles and subservience to their partners. For example, during the recent hearings for Supreme Court Justice Brett Kavanaugh, Republican women (who are for the most part white) were the only demographic among which support for Kavanaugh increased as the process went along.

Why is that?

https://www.ecowatch.com/north-carolina-youth-climate-petition-2509734433.html

North Carolina Youth File Climate Petition to Protect Their Futures

Tuesday, three teenagers filed a climate change petition for rulemaking with the North Carolina Environmental Management Commission. The petition calls on the commission to reduce North Carolina's CO2 emissions to zero by 2050, in accordance with the best available science.

Youth petitioners argue that the commission has statutory, public trust and constitutional obligations to protect North Carolina's essential natural resources, including the atmosphere, for present and future generations. As detailed in the petition, the proposed rule could create jobs, reduce energy costs and avoid billions in climate damages.

With the support of Our Children's Trust, Alliance for Climate Education and represented by Duke's Environmental Law & Policy Clinic, the petitioners are the latest group of young people from across the country to file legal action seeking science-based action by governments to secure a safe climate and healthy future.

"With a family history of lung disease and a love for hiking, I have personally experienced both the negative health impacts of pollution and the steady destruction of our most important natural resources, our national and state parks, due to climate change and higher CO2 emissions," Arya Pontula, 17-year-old petitioner and Alliance for Climate Education fellow from Raleigh, said.

"I hope this petition pushes our state to take concrete steps to reduce CO2 emissions, thus ensuring cleaner air for all generations. The bottom line is that, when it comes to our health, we have no other choice but to set our differences aside and work towards a common goal for cleaner, breathable air and preservation of our natural resources," Pontula added.

"North Carolina's laws declare that the Environmental Management Commission must protect water and air resources for the benefit of all, not shield polluters through delaying tactics," Ryke Longest, Duke Environmental Law and Policy Clinic director, said. "It is long past time for the commission to act on the best available science and commit to reducing carbon dioxide emissions to zero in time for the climate to stabilize."

The North Carolina petition is one of many related legal actions supported by Our Children's Trust and brought by youth in several states and countries, including Juliana v. United States, seeking science-based action by governments to secure a safe climate and healthy atmosphere for present and future generations.

d fix bs note // bacl to ther platation

PETITION: ‘We do not believe students have a protected right to use a student publication … as a platform to proliferate racist stereotypes and misinformation’

A student at Duke University who has penned columns for the Duke Chronicle that favor conservative and libertarian principles is now the target of a student protest demanding his termination as the campus newspaper’s opinion editor in a petition that calls the columnist’s views “racist” and “unsafe.”

Duke student Jonathan Zhao – a rising senior tapped as the new opinion page editor of the Duke Chronicle – has written columns in the past titled “Gay marriage is not a right,” “Equal pay is anti-feminist” and “A farewell to arms control.”

Zhao has also held positions with the Romney for President campaign and the libertarian think tank the Cato Institute, according to his LinkedIn page.

While he has often touted positions counter to mainstream politically correct beliefs on campus, the tipping point against Zhao came after he penned a column May 27 titled “The plight of black America” that stated: “The greatest obstacle to the advancement of black Americans isn’t racism or past injustices but rather the black community itself.”

Between that and Zhao’s appointment as opinion page editor, it was all too much for Duke University’s left-leaning students, who savagely smeared Zhao’s reputation in a Change.org petition demanding Chronicleeditors fire him. The petition is headlined: “We are demanding the immediate removal of Jonathan Zhao as editor of the Duke Chronicle’s editorial page.”

“[W]e do not believe students have a protected right to use a student publication meant to serve and represent the Duke community as a platform to proliferate racist stereotypes and misinformation about an entire group of people – a group of people to which the writer does not even belong,” stated the petition, written by a group calling themselves “Concerned and Conscious Duke Students.”

The petitioners do not address Zhao’s lengthy “black America” column point by point, but rather attack his character and suggest anyone who believes as he does is unfit to serve as editorial page editor.

“Certainly, that student shouldn’t be permitted to oversee one of the most well-read sections of the paper,” the petition continued. “Not only was this particular article by Jonathan Zhao abhorrent, but this writer also has a history of publishing inflammatory and ill-conceived pieces in the newspaper.”

The petition suggests Zhao is too biased to fairly edit the opinion section.

“We are concerned that if Zhao continues as an editor of the opinion column, he will also continue to abuse his position of power to create an unsafe educational environment for marginalized students,” it states. “This is not a question of being ‘politically correct,’ nor is it a matter of censorship. Rather, this is a call to hold The Chronicle’s staff and the content they produce to a higher standard of journalistic ethics.”

As of Sunday, the pseudo-censorship petition had almost 900 signatures, with many signers posting vicious comments about Zhao, calling him a disgrace and accusing him of bigotry.

In an email Saturday to The College Fix, Zhao stated that “unfortunately due to Duke Chronicle policies governing interactions with other news outlets, I am unable to provide you with a statement.”

In his column on “black America,” Zhao argued that racism and past injustices are not the main things holding the African-American community back from success.

“Instead of paving a road to prosperity, the self-defeating economic policies advocated for by the black community are shackles of poverty and disillusionment, miring blacks in a cycle of underachievement and social immobility,” Zhao wrote. “In addition to failed economic policies, there are also cultural issues within the black community such as the erosion of marriage that must be internally overcome. Because the economic and cultural problems are casually interrelated, they must be addressed simultaneously if any real progress for black Americans is to be achieved.”

Zhao acknowledged in his column that it would likely rile feathers and concluded by writing, “the black community must embrace societal institutions like marriage and the rule of law and also disavow the mentality of victimhood in favor of an outlook of empowerment. Only having done so can America truly achieve Dr. King’s dream of an integrated, colorless society.”

Following backlash from that opinion column, the Duke Chronicle released a statementsaying “we have changed the policy regarding guest columns to avoid any appearance of bias in the process.”

The College Fix e-mailed the Duke Chronicle on Sunday for comment on the petition, and Editor-in-Chief Amrith Ramkumar responded with, “Sorry, we won’t be commenting on that.”

College Fix reporter David Hookstead is a student at the University of Wisconsin Madison.

http://www.motherjones.com/politics/2016/12/trumps-newest-senior-adviser-seen-ally-white-nationalists

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Donald Trump's newest pick to be a senior adviser in the White House has long ties to a prominent white nationalist, who sees him as an ally of the movement.

Stephen Miller, a top aide to Trump's presidential campaign, will serve as a senior White House adviser for policy, Trump's transition team announced Tuesday. Miller is a former staffer for the nativist Sen. Jeff Sessions (R-Ala.), now Trump's nominee for attorney general. The announcement of Miller's new role drew praise from white nationalist leader Richard Spencer. "Stephen is a highly competent and tough individual," Spencer, who famously coined the term "alt-right" to describe the insurgent right-wing movement that has attracted white nationalists and supremacists, told Mother Jones on Wednesday. "So I have no doubt that he will do a great job."

Spencer and Miller first came to know each other in the late 2000s as students at Duke University, where they both belonged to the Duke Conservative Union. Miller earned notice for standing up for white lacrosse players falsely accused in 2006 of gang raping a black woman. Spencer also defended the Duke lacrosse players, writing about the case for Pat Buchanan's American Conservative, which later hired him as an editor.

Spencer told me that at Duke, Miller helped him with fundraising and promotion for an on-campus debate on immigration policy that Spencer organized in 2007, featuring influential white nationalist Peter Brimelow. Another former member of the Duke Conservative Union confirms that Miller and Spencer worked together on the event. At DCU meetings, according to a past president of the group, Miller denounced multiculturalism and expressed concerns that immigrants from non-European countries were not assimilating.

"I knew [Miller] very well when I was at Duke," Spencer told me when I visited himat his home in Whitefish, Montana, a few weeks before the election. "But I am kind of glad no one's talked about this, because I don't want to harm Trump."

Miller wrote about two dozen columns for the Duke Chronicle,and his articles assailed multiculturalism (which he called "segregation") and paid family leave (which he said results in men getting laid off). He also denied there was systematic racism (which he dubbed "racial paranoia").

When contacted by Mother Jones in October, Miller did not respond on the record to specific questions about his activities with the DCU or his views on race and immigration, but he denied ever being close to Spencer. "I have absolutely no relationship with Mr. Spencer," he said in an email that month. "I completely repudiate his views, and his claims are 100 percent false."

Before joining the Trump campaign last year, Miller, who is 30, served as Sessions' chief of communications. "Those who worked with them say that Sessions and Miller had a 'mind meld,'"Julia Ioffe wrote in a June Politico profile of Miller. Sessions and Miller worked closely in opposing the Supreme Court confirmation of Sonia Sotomayor, who Sessions implied might not be impartial due to her Hispanic heritage. In 2014, after the Senate had passed a bipartisan deal on comprehensive immigration reform, Sessions helped kill it in the House by distributing anti-immigration figures and talking points that were written by Miller.

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An Interdisciplinary Clinic at Duke

A joint project of Duke Law School and the Nicholas School of the Environment, the Environmental Law and Policy Clinic operates as a live client clinic out of offices in the Duke Law School building in Durham, N.C. Students work under direct supervision of Clinic Director Ryke Longest and Supervising Attorney Michelle Nowlin. Longest worked for fourteen years as an environmental enforcement attorney for the North Carolina Department of Justice prior to coming to Duke. Nowlin is a joint-degree graduate from Duke Law School and the Nicholas School, and worked for the Southern Environmental Law Center in Chapel Hill for 13 years prior to returning to Duke.

Ryke Longest currently serves as the Director of the Environmental Law and Policy Clinic and a Clinical Professor of Law at the Duke University School of Law. He supervises students practicing in the clinic and teaches the seminar portion of the clinic.

Longest received his B.A. in English from the University of North Carolina in Chapel Hill in 1987 and graduated from the University of North Carolina School of Law in 1991. Prior to coming to Duke he ran a solo law practice and worked for 14 years at the North Carolina Department of Justice. At NCDOJ, he litigated cases before administrative agencies, state courts, federal courts and appellate courts at all levels. He also drafted legislation and advised agencies on rulemaking. Longest also negotiated and led the state’s implementation of two multimillion dollar settlement agreements aimed at reducing the adverse impacts from swine farming in North Carolina.

Since coming to Duke, Longest has served as the founding Director of the Environmental Law and Policy Clinic, a joint project of Duke Law School and the Nicholas School of the Environment. The Environmental Law and Policy Clinic operates as a live client clinic out of offices in the Duke Law School building in Durham, N.C. Students work under direct supervision of Longest and Supervising Attorney Michelle Nowlin.

Michelle Nowlin joined the Duke Law faculty in June 2008, as a supervising attorney and senior lecturing fellow for the Environmental Law and Policy Clinic. She supervises clinic students from the Law School and the Nicholas School of the Environment and co-teaches the seminar portion of the clinic. She also teaches a course in food and agricultural law and policy.

Nowlin has dedicated her career to the protection of natural resources and public health through the practice of environmental law. Prior to joining Duke’s faculty, she was a senior attorney with the Southern Environmental Law Center in Chapel Hill.At SELC, she represented nonprofit environmental and community organizations throughout the southeast. She led SELC's Hog Industry Project to develop a comprehensive regulatory program for Concentrated Animal Feeding Operations, drafted legislation to improve regulation of the inter-basin diversion of water, and represented organizations in federal, state and administrative courts to protect coastal resources, wetlands, and public lands. For her advocacy work, she was named an Honorary Warden by the North Carolina Audubon Society in 2006, and received the Bill Holman Award for Environmental Advocacy, awarded by the Conservation Council of North Carolina, in 1997. She completed a fellowship awarded by the Ford Foundation and worked in private practice for two years in Washington, D.C. prior to joining SELC.

Nowlin’s clinic practice focuses on the protection of endangered species and water quality, wetlands regulation, environmental justice, environmental impact assessment, and sustainable agricultural production. She enjoys working with and mentoring students, whose enthusiasm, energy and idealism spark creative approaches to solving current environmental problems and inequities.

Nowlin is a member of the North Carolina Bar and the D.C. Bar, and is admitted to practice in the state and federal courts of North Carolina, the U.S. Fourth Circuit Court of Appeals, and the U.S. Supreme Court. She has served on the boards of directors of several nonprofit and civic organizations, including a term as chair of the Environment, Energy and Natural Resources Law Section of the North Carolina Bar Association. She was named a Neighborhood Hero by Durham’s Inter-neighborhood Council in 2007, in recognition of her community work. Nowlin currently serves on the boards of the Duke Campus Farm and Toxic Free NC.

Nowlin earned her B.A. with Highest Honors from the University of Florida, where she was also inducted into Florida Blue Key and Phi Beta Kappa. She earned a dual J.D./M.A. from Duke Law School and the School of the Environment in 1992. While at Duke, she was on the founding committee and served as editor-in-chief of the Duke Environmental Law and Policy Forum.

Nowlin lives in Durham with her husband and three spirited daughters.