Monday, February 29, 2016

On the Miniscule Chance That a Run By Michael Bloomberg Will Precipitate a Constitutional Crisis

Billionaire and former New York City Mayor Michael Bloomberg is reportedly considering running for President as an independent.  In a recent Op-ed, Bruce Ackerman argues that such a third party run could "plunge the country into a constitutional crisis."  Ackerman envisions a scenario in which Bloomberg wins enough states that no candidate earns a majority of the nation's 538 electoral votes. Absent such a majority, Ackerman explains, the 12th Amendment requires the newly-elected House of Representatives to select the President, from among those three candidates that earned the most electoral votes.  The Amendment also provides that the delegation of each state casts a single vote, and requires a majority vote of 26 states to elect a President.  If no candidate receives such a majority, then the individual recently elected Vice President assumes the Presidency as acting President, unless that individual received less than a majority of the electoral votes cast, in which case the Senate elects the Vice President/Acting President.  Ackerman opines that such a process with degenerate into a "free-for-all," characterized by "desperate efforts," "melodrama" and political maneuverings pursuant to a process that the People find "utterly mysterious," leading them to "turn away in despair."  The original 12th Amendment, Ackerman says, "can't cope with the realities of modern politics."  If Mr. Bloomberg is a true patriot, Ackerman says, he will not allow "personal ambition" to "throw the United States into a grave constitutional crisis."

The scenario that Ackerman imagines, while theoretically possible, is highly unlikely.  For one thing, a single significant third party candidacy has never prevented a major party candidate from obtaining a majority of electors. Indeed, the 12th Amendment has come into play exactly once, in 1824, when four significant candidates (Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay) received 99, 84, 41 and 37 electoral votes respectively. If history is any guide, a third party run by Mr. Bloomberg will no more result in invocation of the 12th Amendment than did such runs by Theodore Roosevelt, George Wallace, or Robert M. Lafollette, all of whom won electoral votes.

More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's dominance of the House of Representatives.  The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois.  More importantly, Republicans currently hold majorities among the House delegations of 33 states. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that newly-elected House members would elect a President if the provision is invoked. However, given that only a handful of House races are competitive, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote.  Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017.  Mr. Bloomberg can run for President with his patriotism intact.

Tuesday, February 23, 2016

Yale Really Does Protect Free Expression (For Now)

A recent essay in the Economist magazine addresses efforts to curb free speech on college campuses around the country.  According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another.  The essay also notes that the University of Chicago has rejected such efforts and reaffirmed its commitment to "free, robust, and uninhibited debate and deliberation among all members of the University’s community."

Fortunately Chicago is not standing alone.  As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including Princeton, the University of Wisconsin, Purdue University, American University, Chapman University, Winston-Salem State and Johns Hopkins. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.)  Like Chicago, some of these institutions are private and thus not subject to the First Amendment.  Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.

The Economist also notes that support for the Chicago position is "not universal."    In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach.  The essay concedes that a 1974 report of a Yale committee --- the famous Woodward Report --- extols the "right to think the unthinkable" and "discuss the unmentionable."  Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated.  The essay also claims that the report, "when read in full . . . is confused."

Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted.  Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement.  For instance, the Woodward Report, which begins with a quote from Milton's Areopagitica, provides that:

“The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” (emphases added here and below)

The Report also recognizes that Freedom of Expression supersedes other important values, including harmony, civility and mutual respect.  Thus the Report provides as follows:

Without sacrificing its central purpose, [the University] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respectTo be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends.  But it will never let these values, important as they are, override its central purpose.  We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.” 

The report also makes it clear that each individual who voluntarily enters the Yale community thereby takes on the obligation of protecting Freedom of Expression, “above all.”

"By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows.  Above all, every member of the university has an obligation to permit free expression in the university.  No member has a right to prevent such expression.”

The Report recognizes that there are "slurs or epithets" that "no member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression.  This language, while certainly correct, may well be the source of the "confusion" the Economist alleges.  However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression.  Instead, after noting these "ethical obligations," the Report expressly "reject[s]" the "argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions" as well as "the argument that such behavior entitles others to prevent speech they might regard as offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge."  As a result, the report concludes "even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions."  Such "secondary social and ethical responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument."  

In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive.  Like Justice Louis Brandeisthe Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression.  Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. 

To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of  Yale community apparently disagreed with portions of the Report.  But then the main student newspaper at the University of Chicago objected to the Chicago statement. Such dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment.  Perhaps more to the point, Yale has codified the Woodward Report in its "Undergraduate Regulations." (See here, pp. 47-49).  The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event."  (See id. at 49).

It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression.  Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. Indeed, Yale is not alone in anticipating Chicago's statement.  A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose.  Here in Virginia, for instance, three universities  --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the Foundation for Individual Rights in Education, a non-profit organization that “defends and sustain individual rights at America’s colleges and universities”  Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah,  (See here for a full list of schools that have received FIRE's highest rating.)  

Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the 1977 Soviet Constitution --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda."   (Article 52)  As Judge Learned Hand famously explained, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."  In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community.  Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago.  They must, in addition, continually affirm and defend the paramount value of freedom of expression.  In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter.  

Tuesday, February 16, 2016

Justice Scalia, Rest in Peace

Justice Antonin Scalia died unexpectedly over the weekend. Individuals who often disagree about fundamental legal and political questions have offered effusive praise for the Justice, filled with superlatives such as "giant of jurisprudence," "great man," "legal giant," "one of the greats," "great," "legal giant." (again), "legal titan," and "deeply principled."  

Those who are familiar with Justice Scalia's life and work are not surprised by these encomiums. The Justice was deeply and fiercely committed to the Rule of Law.  He knew that departure from the original meaning of the Constitution or ordinary legislation gave judges and others a license to exercise arbitrary and illegitimate authority over their fellow citizens. Through sheer force of intellect, profound learning, wit and powerful expression, he changed the way that lawyers and judges interpret and thus apply legal texts in our constitutional republic.  As a Judge and then a Justice he worked tirelessly to discern and apply the meaning of statutes and constitutional provisions that governed the cases before him, rendering great service to our constitutional republic in the process. He did all of this with an abiding faith in the American People and their ability to govern themselves through law, both ordinary and constitutional, that compels officials, including judges, to heed the People’s will.  His work and personal example inspired countless individuals to defend the Constitution and the Rule of Law.  His death leaves an enormous void in our Republic and in the lives of so many individuals who loved and admired him.  

Saturday, February 6, 2016

Tribe Chalks Up 17th Win in Williamsburg


Comfortable Margin

Powerful Three Point Duo

William and Mary continued its march to a third straight 20 win season today, handily defeating the University of Delaware 90-64 before 6,028 fans --- the most this year --- in Williamsburg.  The Tribe sank thirteen three point shots, including two each by Terry Tarpey (pictured above on the left) and Omar Prewitt (pictured above on the right).  Prewitt scored 21 points, leading a balanced scoring attack that left five Tribe players in double figures.  Tarpey also snagged 11 rebounds, and Sean Sheldon added 8.  (Go here for the game's box score.)

The Tribe now sits in sole possession of second place in the CAA, with a 17-6 record (9-3 in conference play), just one game behind the UNCW Seahawks.  Even before today's win, William and Mary stood 34th in the RPI power rankings, ahead of Arizona, Michigan and Indiana, for instance.   With six games left in the regular season, three potential games in the CAA tournament, and a possible bid to the NCAA tournament beyond that, the Tribe seems poised to match or exceed the 24 wins it earned in the 1948-49 season, when the team finished second in the Southern Conference, behind North Carolina State..  (That season's schedule included games against the Norfolk Naval Air Station, Quantico Marines, Langley Field, and the Little Creek Amphibious Base.)

The Tribe takes on Hofstra at William and Mary Hall this Thursday, February 11 at 7:00 PM.   Go Tribe!


Friday, February 5, 2016

William and Mary BOV Announces Charter Day Extension of President Reveley's Appointment

Reason to Celebrate!

Today William and Mary celebrates the 323rd anniversary of its Royal Charter, issued by King William and Queen Mary in 1693. The charter provides that the College shall consist of "one President, six Masters or Professors, and an hundred scholars [students] more or less."  The Charter named James Blair, selected by the General Assembly of Virginia, as the College's first President, "during his natural life." Bishop James Madison, for whom this blog is named, served as President of the College from 1776-1812.  

Blair and Madison are tough acts to follow, but W. Taylor Reveley III has proved himself a worthy successor to these leaders. Earlier today Todd Stottlemyer, '85 and Rector of the College and William and Mary, announced that the College's Board of Visitors has unanimously extended the appointment of Taylor Reveley as President of William and Mary until June, 2018.  Here is the complete announcement.

Rector Stottlemyer's announcement rightly notes that President Reveley's leadership "has been crucial to the University's sustained excellence."    He took the helm in early 2008 and has presided during a time of great financial challenge to higher education in general and William and Mary in particular. Along with Rector Stottlemeyer, former Rector Trammel, and others, President Reveley helped conceive, develop and execute a new financial model for the College, in the form of the William and Mary Promise.  Recently extended by the Board of Visitors, the Promise helped ensure that entering students would experience predictable tuition bills while simultaneously enhancing affordability for low and middle income families and generating stable revenue necessary for important investments in academic excellence.  As a result, the College continues to provide an excellent and accessible education.   At the same time, President Reveley and others conceived and launched the College's most ambitious fundraising campaign, For The Bold, with a goal of raising $1 billion, about a third of which will be devoted to scholarships.  He also established a strategic planning process, under the auspices of the University's Planning Steering Committee, to ensure a more transparent assessment of the College's objectives and a more rational allocation of resources between such objectives.  In short, the College is fortunate that he has agreed to extend his service as President.

This blogger would be remiss if he did not mention one more notable achievement, namely, the designation of the College's current mascot.  After a grueling process that produced five finalists, President Reveley chose the Griffin, as recounted in this video.  No wonder the mythical creature is clapping!