Friday, February 10, 2017

Keeping an Eye on Justice Kennedy

Justice Kennedy and the Future of the Supreme Court

U.S. Supreme Court Justice, Anthony M. Kennedy
Original photo credit:

A long time ago, around the time I was contemplating topics for my doctoral dissertation, I was asked by my advisor, “who among the sitting justices do you think will have had the greatest influence on the Court fifteen, twenty years from now?”  It was a potentially thorny question, posed by a man who was himself a leading judicial scholar, and the expert on the career of former Chief Justice Warren E. Burger (1969-1986). He was also known for unexpected and tricky questions, and so my mind raced quickly through the various concepts and measures of judicial influence we had addressed in his seminar. Even though I was sort of sure he wanted me to land on John Paul Stevens, I boldly announced my pick, oblivious to the consequences. “Justice Kennedy,” I said.

The consequences were that after, I had explained why, I would spend a great deal of my time reading every one of Kennedy's written opinions and writing The Constitutional Jurisprudence of Anthony M. Kennedy. By the time I defended the dissertation in 2001, I decided that I had chosen well: Kennedy was emerging a so-called “swing-justice.” He was the “man-in-the-middle” having racked up a tally as the justice most often in the majority of 5-4 rulings and the least likely to author a dissent. Appointed by Ronald Reagan in 1987, Kennedy was a conservative, but he was also within the ideological central of the Burger and Rehnquist Courts. On closely divided issues, more often than not, as Kennedy went, so went the Court. 

Flash forward to 2017. The Supreme Court is ideologically split 4-4 and has been operating one justice down ever since the death of conservative icon, Justice Antonin Scalia, in February of 2016. President Obama’s nominee for the vacancy, Merrick Garland, was successfully blocked by the Senate Republicans who refused give the late-term appointment a hearing. Just two weeks into the job, President Donald Trump has nominated Judge Neil Gorsuch of the 10th Circuit Court of Appeals. Jurisprudentially, Gorsuch’s confirmation would not dramatically shift the ideological center of the Court insofar as it replaces one conservative with another whose jurisprudence is much in the same mold. But the next appointment might, depending on who is the next member of the Court to depart.

Memes have emerged encouraging the oldest member of the Court’s liberal wing, Justice Ruth Bader Ginsburg, to stay healthy, to please “eat more Kale.”  When asked last week which of her colleagues she would encourage do the same, the diminutive jurist did not hesitate: “Justice Kennedy,” she said. 

Justice Ruth Bader Ginsburg, speaking at the Rathburn Lecture on a Meaningful Life, 
Stanford University, February 6, 2017.
Photo credit: The Mercury News (2017). 

Ginsburg did not single Kennedy out because he is a member of the liberal block or because at 80 he is the Court's next oldest member (Ginsburg is 83). Most likely she chose Kennedy because he stands as the member of the conservative block who, given his particular brand of jurisprudence, is most open to persuasion on a number of key issues likely to come before the Court.   

As I have argued elsewhere, Kennedy is not a proponent of a “living constitution,” but his interpretative methodology is sensitive to what I’ve termed “emergent rights” – rights “that while perhaps not yet sufficiently well-grounded in history and tradition as to be considered fundamental have nevertheless emerged from ‘the continuing traditions of our society’ or are so closely connected ‘with interests recognized as private and protected’ as to be entitled to more than minimal review” (Parshall 2006, 268). 

Kennedy was the author of several rulings invalidating the juvenile death penalty, overturning Texas’same-sex-sodomy ban, and authoring the opinion recognizing the Constitutional right for two individuals of the same sex to legally marry – rulings which were influenced by his recognition of changing social views both domestically and abroad and his felicity to the concepts of liberty and equal protection (Parshall 2007).  In each of those rulings, and much to Scalia’s disdain, Kennedy had incorporated standards of international law and practice into his rulings (Hutt and Parshall 2007).   

A pragmatist, Kennedy has a deeply abiding respect for the Supreme Court as an institution and for the rule of law, which includes a commitment to stare decisis.  “Liberty has no refuge in a jurisprudence of doubt,” he wrote, when he voted, as part of a plurality, to uphold the central holding of Roe v. Wade. What he meant was that the public would have no faith in the Court as an institution, or in the security of their fundamental liberties, if the Court were to abandon its fidelity to precedent in the face of political pressure.   

On questions of executive authority, Kennedy has been deferential but has displayed a resolute commitment to the role of an independent judiciary.  When the Bush Administration sought to foreclose federal judicial review of habeas petitions bought by foreign detainees held as part of the War on Terror, Kennedy kept the door of jurisdiction open.  The “laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law” he wrote. In our system of separate powers, executive powers are strengthened not weakened by careful judicial review. 

There has been some speculation that it is Kennedy’s seat which Trump and congressional Republicans most covet (and that may be true).  Gorsuch’s nomination, some argue, may be an effort to convince Kennedy that it is time (and safe) to step down – Gorsuch is a former Kennedy clerk.  But that presumes that Kennedy is ready to go.  As long-time judicial observer, Dahlia Lithwick and her co-author, Neil Siegal note, Kennedy is “not stupid” and it is not likely Gorsuch would rule similarly in the cases which comprise Kennedy’s legacy.  With 28 years of service, Kennedy is the Court’s most senior justice (after the chief justice, who regardless his length of service, is automatically granted senior ranking as primus inter pares, “the first among equals.”  

Of the Court’s conservative members, Kennedy is the justice that President Trump would probably be rightly advised to most fear as least likely to be counted upon for support when it comes to several issues of likely importance to the administration (based upon policy directions the administration has already signaled). Justices Clarence Thomas and Samuel Alito are reliably conservative votes, adhering to an originalist interpretation and advocating for the strict construction of the Constitution.  Both have endorsed strong executive powers, have repudiated the incorporation of international jurisprudence and tend to favor governmental authority over claims of individual rights and liberties.  Chief Justice Roberts’ conservative voting record and affinity for judicial minimalism (a restriction of the judicial role) suggest that he would not be disposed to aggressively use judicial authority as counter-balance to executive authority – although Roberts does bear watching on some issues. When the institutional authority and independence of the federal judiciary is threatened, the modern Supreme Court has not hesitated to push back. Kennedy holds the view that judicial vigilance is an indispensable feature of our constitutional design and is necessary to the preservation of liberty.  

Original Photo credit:
Kennedy stands apart from his conservative colleagues, not just on the basis of his voting record, but because his rulings have reinforced the legitimacy, autonomy, and jurisdiction of the Court. In challenges to executive authority, in questions involving separation of powers and the division of power between the federal government and the states, on any issue likely to produce an ideological divide, litigants and their lawyers would be wise always to pitch their legal arguments in order to appeal to the “man in the middle.”  

John Roberts may be the Chief Justice – but it is Kennedy’s Court.  And it has been for awhile. 

David Hutt and Lisa K. Parshall, Divergent Views on the Use of International and Foreign Law: Congress and the Executive versus the Court, Ohio Northern University Law Review Volume 33(1):113-152 (2007).

Lisa K. Parshall, Redefining Due Process Analysis: Justice Anthony M. Kennedy and the Concept of Emergent Rights, Albany Law Review, 2006, Volume 69(1):237-298.  

Lisa K. Parshall, Embracing the Living Constitution: Justice Anthony M. Kennedy’s Move Away from a Conservative Methodology of Constitutional Interpretation, accepted for publication by North Carolina Central University Law Journal, 2007, Volume 30(1): 25-74.  

Wednesday, February 8, 2017

The New York State Constitutional Convention Question

New York State’s Constitutional History

                Although this document has been amended (more than 200 times since 1895), New York state is governed by a constitution which was adopted in 1894. 

On November 7, 2017, the citizens of New York will have the opportunity to vote on the question of whether to call a state constitutional convention for the purposes of proposing constitutional change and reform.  The state constitution itself mandates that this question be placed before the voters every twenty years (N.Y. Const., Art XIX, Sec 2).  In 1977 and 1997 (the last two mandatory votes), the voters turned the question down at the polls. 

If a majority of New Yorkers do vote yes on the 2017 ballot question, delegates (to be elected in 2018) would convene in 2019 with purpose of revising and amending the State’s constitution.  Whatever proposals the convention produces would not go into effect before being ratified (approved by the voters in a yes or no vote), whether individually or as a single-package.  There have been only 3 post-1894 constitutional conventions: in 1915, 1938 and 1967 (a convention called by the state legislature and approved by the voters). Only 1 of these (1938) resulted in significant revision; the proposals of the 1915 and 1967 conventions were rejected by voters when submitted for ratification. In 1967, voters were presented with ratification as a single package -- meaning that their ballot choice was to accept all of the proposed changes or none at all.  The rejection of the convention's work after a time-consuming and expensive process discouraged some voters from supporting a convention in 1997.  

Why It Matters

                The 2017 vote is a historic opportunity for New York's citizens to demand constitutional reforms and to directly participate in the governance of their state.  The potential topics for consideration include: strengthening state ethics and public-corruption laws, state legislative redistricting and reforms, campaign finance reform, the redefinition of gubernatorial powers and implementation of clear succession rules, state court and judicial selection reform, taxation, and state and local government financing reform.  Among the many policy issues for potential consideration would be state gaming laws, environmental protections, reproductive rights, protections for minorities, immigrants, and refugees, and state educational standards. On a daily basis, we are each of us, impacted directly by the functioning (or lack thereof) of our state and local governments.  The decisions made in Albany have significant repercussions for all New Yorkers both upstate and down. A lot has changed since 1894, and many of the issues about which we care deeply are shaped by state constitutional provisions

The New York State Legislature: Photo credit, Lisa Parshall

In the current divide over the executive actions and policies of the newly elected Trump Administration, the role of state and local government is on display as never before. Citizens who are dissatisfied with national policy trends have always turned to their state governments to protect and preserve their interest. In the United States Constitutional system, federalism (and the sovereign role of the states) is one of the great checks and balances, ensuring the comity of local and national interests.  Citizens look to and use their state government to impact and to respond to policy changes at the national level. There is perhaps no greater moment for achieving reform than through the state constitutional convention.   
How to Learn More    

              Sienna College's statewide polling has found that, although 69% of New York voters support calling a convention, more than two-thirds of them have not seen or read information on the upcoming vote.  The League of Women Voters and the Rockefeller Institute of Government are two good places to start if you want to learn more.  On these sites you will find details on the history and work of New York's past constitutional conventions, as well as links to editorials and news coverage of the upcoming “Con-Con” vote. 

                On April 22, 2017, the State and Local Politics Section of the New York State Political Science Association (NYPSA), will be holding a keynote roundtable event featuring a panel of leading experts on the history and politics of the New York State Constitutional Convention.. Daemen students and faculty are encouraged to attend.

For more information on this event, please contact, Dr. Lisa Parshall, Chair, State and Local Politics Section of the NYSPSA: ( 

                In Fall 2017, the History & Political Science Department will be offering PSC 114, State and Local Politics, a course dedicated to promoting civic literacy and an understanding of the critical role played by state and local governments.  A number of our majors have conducted senior thesis projects on issues of state and local importance, including state senate redistricting (Altman-Cosgrove, 2012), ethics and corruption reforms (Fripp, 2016) and state constitutional conventions (Maulucci, 2016). 

Cartoon, "It Shouldn't Happen Here," by Jerry Costello, May 2, 1938, Knickerbocker News, Archival Image from
the New York State Archives collected by Dr. Lisa Parshall in her research on state constitutional history.
Opponents of state constitutional conventions express skepticism regarding the ability of the convention to implement reform in the voters' interest. The argument is that the delegate selection process favors the selection of elected leaders and party officials -- insiders with vested interests and the capacity to block significant reform.  
Cartoon, "What the People Expect," by Jerry Costello, April 18, 1938, Knickerbocker News, Archival Image from  
the New York State Archives collected by Dr. Lisa Parshall in her research on state constitutional history.  
This image highlights the high expectations the public has for "statesmanlike leadership" in the solemn task of  state constitutional reform and lurking danger when partisan bickering and politics infiltrates the convention process.  The constitution directs the delegate selection process -- the reform of which is itself a potential target for revision by the convention. 

Friday, December 23, 2016

Civics Education in the spotlight


Civics education--or perhaps more accurately, the harmful consequences resulting from the erosion of civics education--has become a hot topic in education circles. 


Statue of Liberty, photo by David Restivo, National Park Service

By Penny Messinger

In response to the impact of a "fake news" epidemic and widespread discussion of ignorance of how the government works, educators are rediscovering the importance of the disciplines of History and Political Science. Not only is the knowledge of History and Political Science essential for the education of citizens, but they also play a crucial role in creating a base of factual knowledge that helps people to evaluate the information they encounter.

As it turns out, that there is great importance in learning how to "think like an historian" and to evaluate sources for reliability, accuracy, and perspective. Framed as "media literacy," the fundamental toolkit of the historian is important for everyone. An article from the December 21, 2016, issue of Slate magazine entitled "Media literacy courses help high school students spot fake news" emphasizes the importance and effectiveness of the historian's toolkit by detailing a pilot effort by Standford History Education Group to address the epidemic of fake news. As the article explains,
"The news literacy initiative is based in the Stanford History Education Group that [education professor Sam] Wineburg founded in 2002 to train teachers how to use primary sources and help students critically evaluate historical claims. The group also created a free digital curriculum called “Reading Like a Historian” that’s been downloaded more than 3 million times, according to Wineburg."

Link to Stanford History Education Group's curriculum

The media literacy initiative is a response to widespread evidence of the power of fake news in shaping Americans' perceptions of politics. Fake news has been identified as an important factor in shaping voters' decision-making in the 2016 presidential election, a problem that was heightened by the echo chamber of social media outlets like Facebook and Twitter. (See, for example, Vox's Nov. 16 story, "Facebook's Fake News Problem, Explained")

Image from's "Field Guide to Fake News Sites & Hoax Purveyors"

A November 30, 2016, story published in The Heckinger Report revealed that a substantial majority of high school and college students were not able to distinguish fake news from real news:
"Among the hair-raising findings: 93 percent of college students tested were unable to flag a lobbyist’s website as a biased source of information. Younger students fared poorly, too. Fewer than 20 percent of high school students knew that simply looking at one photo online is not enough research to gauge if something is really happening. And among middle school students, 80 percent did not understand that “sponsored content” on a news organization’s website is paid advertising."
How can we evaluate the validity of online sources? As it turns out, the same approach that historians use for evaluating primary sources can be used to teach media literacy. As Slate author Chris Berdik notes:

Even before a deluge of fibs and fakery swamped our recent election cycle, [education professor Sam] Wineburg and company realized that readers of online news need many of the same skills used by a good historian, such as identifying the sources of claims and asking questions about their evidence. After all, what shows up in your Twitter or Facebook feed can come from anywhere, and a post-election BuzzFeed analysis suggested the fake stuff spreads faster than real news, thanks to hyper-partisan readers blindly sharing sensational headlines.
What does it mean to "read like an historian"? As the Stanford History Education Group's website explains, "This curriculum teaches students how to investigate historical questions by employing reading strategies such as sourcing, contextualizing, corroborating, and close reading. Instead of memorizing historical facts, students evaluate the trustworthiness of multiple perspectives on historical issues. They learn to make historical claims backed by documentary evidence."

Check out the online history curriculum developed by the Stanford Education Group, available here. Or, better yet, enroll in a history class at Daemen where you can apply these approaches yourself.

*         *         *

The erosion of civics education is also to blame for the lack of basic knowledge of how the political system functions. Some states are re-examining the curricula used in K-12 classrooms and calling for revisions. A December 23, 2016, story from Education Week magazine, entitled "Civics Tests as a Graduation Requirement: Coming Soon to a State Near You?", provides a good overview of the state-level effort to mandate a civics tests for high school seniors.

Immigrants becoming citizens in Atlanta naturalization ceremony, 2012 (CNN)

While all states have some version of a civics education requirement for high school students, the adequacy and effectiveness of these requirements are being questioned. In response, some states have adopted laws requiring high school students to pass a test similar to the National Citizenship Test that is a part of the naturalization test for immigrants seeking to become American citizens. 
Could you pass the National Citizenship Test? Check out the list of the 100 questions included on the test, at this link.  When immigrants seek to become naturalized citizens, they are given a test consisting of 10 questions from the list of 100 questions, and must correctly answer 6 of the 10 questions to pass the test. You can find more information about this test at the US Citizenship and Immigration Services website.

Friday, October 14, 2016

Today is the last day to register to vote for the November 8 presidential election!

Still haven't registered to vote?  It's not too late - here are your three options:

A. Register Online through the DMV:
1. Create an account at with your New York driver’s license, permit, or non-driver ID, 2. Sign in, select “Register to Vote”, and fill out the form. The DMV will automatically forward your completed form to your county board of elections for approval and processing.

B. Register by Mail:
1. Download and print the New York state voter registration form. 2. Fill out the form.
3. Mail the form - MUST BE POSTMARKED BY TODAY (OCTOBER 14) and received by your county Board of Elections no later than October 19. The mailing address for your county board of elections can be found on the back of the form or her. Erie County residents send to: Erie County Board of Elections, 134 W Eagle Street, Buffalo, NY. Blank Forms are also available for pickup in DS 139 - History & Political Science Department.

C. Register in Person: ​
You may also register in person at the DMV or the Erie County Board of Elections which is also open tomorrow, October 15. Please notethat due to a recent fire, in person voter registration has been temporarily moved from the Board of Elections on W Eagle Street to the Rath Building, 95 Franklin Street, Buffalo, NY, Room 230. To register in person please go to Room 230 of the Rath building.

You may check on your voter registration status here.

Still Waiting on your Voter Registration Card?

If you recently registered, your county board of elections will be sending your voter registration card in the mail. This may take several weeks. You do not physically need this card in order to vote on November 8. So, even if you haven't yet received your card in the mail, you should go to your polling place on November 8 -- your name will be in the voter registration rolls. If you do not know where your polling place is, you can check with your county board of elections. Erie County residents can look up their polling place by their street address here. You do not need ID, but it does not hurt to have some form of identification with you when you go to the polls.

The History and Government Club and Pre Law Student Association will be hosting a debate watching party on October 19 at 9:00 pm in the Wick Center (Den). Feel free to join us or stop by to share the debate experience. Light refreshments will be provided.
Image result for Election 2016

Wednesday, October 5, 2016

Dr. Elizabeth Campbell Joins the History & Political Science Department

Dr. Elizabeth Campbell

By Elizabeth Campbell

I am happy to be a new member of the Department of History and Political Science.

I am originally from San Diego, California, and went to UC Berkeley as an undergraduate. I completed my PhD at the University of Washington in Seattle and was a post-doctoral associate at the University of Pittsburgh in the World History Center. During my PhD research I lived in Tunis, Damascus and Beirut.

I moved to Buffalo from the Kurdish region of northern Iraq, where I taught at the American University of Iraq, Sulaimani for the past four years. The school was founded about ten years ago in order to bring American-style education to the region and instruction is in English. Students come from the Kurdish and Arab areas of Iraq. I taught world history, the history of the Middle East and history research methods. I hope to find ways to connect students at Daemen and AUIS, through joint online classes or research projects.

I am working on a Digital History project with students in Iraq and the library at UCLA that I will continue at Daemen. War and instability in the area have forced many people to leave their homes and the records of the ancient and recent history are in danger of being lost. In this project we collect documents and materials that people have in their homes, such as letters, diaries, pictures, maps, and records, and digitize them to preserve them and make them available to people in the region and to scholars.

My research focuses on the transition from the late antique to the early Islamic period in the Middle East. I am studying Christian monasteries and their role in the countryside of Iraq and Syria in this period using Arabic books about monasteries that describe their popularity as places to visit, enjoy their gardens, drink wine and sing poetry.

This semester I am teaching HST 105: Ancient World History and HST 225: The Indian Ocean in World History, which covers the connections and interactions between different peoples across the Indian Ocean world.

In the future I plan to teach classes on Digital History and Humanities that introduce ways of using digital resources for the study of history, mapping and visualizing information and creating local history projects, classes on the history of the Middle East, the Silk Road, the Mediterranean World, ancient Mesopotamia, Greece and Rome. I worked for two years helping refugees from Iraq settle in California, and I hope to offer a service learning course working with refugees in Buffalo.

I look forward to meeting everyone this semester.