Calvin R Massey

October Term 2050

Calvin R. Massey — Fri, 27 Aug 2010 14:03:52 PDT

In the style of Lon Fuller’s The Case of the Speluncean Explorers this article explores the issues that might be faced by the United States Supreme Court in its October Term of 2050. Four imaginary cases that present very real issues are the vehicle for considering the constitutional issues of four decades hence. Two of these cases deal with internal movement controls enacted to conserve resources in the face of global warming and climate change. One case raises the question of the validity of a mandatory one-child policy enacted to ensure compliance with an international treaty limiting reproduction rates. The final case involves a state law requiring enforcement of religious law in marital disputes when the parties have elected to displace secular law with religious law. Whether or not these imaginary laws and disputes become real, these cases invite sober reflection upon the nature of constitutional interpretation and the meaning of our fundamental law.

Church Schisms, Church Property, and Civil Authority

Calvin R. Massey — Mon, 16 Mar 2009 08:03:00 PDT

This article addresses a major problem that the United States Supreme Court created in Jones v. Wolf and iatenand has permitted to exist thereafter. The Court allowed civil courts to use any one of three different methods to adjudicate church property disputes: 1) Neutral and secular principles of property and trust law, 2) Deference to the internal governance rules of churches, and 3) State statutes that address resolution of these disputes in a manner that avoids doctrinal decisions. The problem that has resulted is that use of the second and third methods clashes at times with both the establishment and free exercise clauses. The article reveals the problem and proposes a solution, modeled after a Virginia statute that is presently at issue in Virginia litigation concerning ownership of Episcopal church property. Some of the flaws of the third approach are revealed through examination of a California statute at issue in pending litigation concerning Episcopal church property in California. This article is particularly pertinent, given the incipient fracture of the Episcopal Church, USA, and the litigation that will erupt nationwide in the wake of that schism.

Of Sovereignty, States, and Standing

Calvin R. Massey — Mon, 03 Mar 2008 14:26:35 PST

Massachusetts v. EPA, the global warming case, created two tiers of an Article III case or controversy for purposes of ascertaining standing to sue in federal court. The constitutional core of standing requires a litigant to have an actual or immediately threatened injury in fact that is caused by the defendant’s actions and susceptible to judicial redress. In EPA the Court held that when Congress has created a procedural right a state may bring suit, as parens patriae, to vindicate a federal right that implicates the health or well being of the state’s citizens without the quantum of proof of injury in fact, causation, or redressability that would be necessary were an individual the plaintiff. While that sounds very technical and limited, the principles endorsed stretch far beyond the holding.

Massachusetts v. EPA substantially broadens the scope of state standing. States may assert sovereign, proprietary, or quasi-sovereign interests. After EPA, a state’s quasi-sovereign interests extend to protection of the undifferentiated public rights of its citizens. Although prior parens patriae doctrine limited such claims to those involving either the health and well being of a state’s citizens or vindication of the benefits of federal union, EPA’s rationale confers upon states the power to assert almost any undifferentiated public right possessed by its citizens.

This article describes how EPA produces this effect, whether or not intended by the Court, assesses the scope of this increase in state standing, and offers several justifications for two tiers of an Article III case or controversy. These justifications are rooted in principles of federalism, separation of powers, and optimal accountability of our governmental agents.