Saturday, March 13, 2010

Constitutional Rights for Guantanamo Detainees under the Canadian Charter?

The Canadian Charter of Rights and Freedoms, section 7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
But does “everyone” mean “everyone,” including those Canadians detained at Guantanamo Bay?

As excellent post by Canadian law student Daniel Del Gobbo at "The Court" (a blawg on the Canadian Supreme Court)" reviews the recent Canadian Supreme Court jurisprudence.  As Del Gobbo notes, “everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada, and the plain language of section 7 extends its protection to “everyone”, not just citizens. 

However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

Del Gobbo goes on to discuss the jurisprudence relating to section 7's applicability to Canadians detained at Guantanamo Bay including Canadian Supreme Court's recent denial of leave to appeal in Slahi v. Canada (Justice) and Canada (Prime Minister) v. Khadr.  More on Slahi here; on Khadr here.


March 13, 2010 in Comparative Constitutionalism, International, Interpretation, Recent Cases, Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Quick Quiz: Name the Historical Figure who is NOT a "Founding Father"

Select the person whose writings did NOT inspire the American Revolution:

a.    St. Thomas Aquinas

b.    John Calvin

c.    Thomas Jefferson

d.    William Blackstone


Correct Answer:     C

Explanation:         Thomas Jefferson's notion of "separation of church and state" was rejected by the founding fathers, who established the United States according to Christian principles.  

More Explanation:  Texas has tentatively approved a new educational curriculum which rejects Thomas Jefferson's influence and favors Blackstone, Calvin, and Aquinas.   It is thus possible that this hypothetical question would "correctly" be answered with "Thomas Jefferson."

There are 100 other amendments to the state approved curriculum, including replacing the word “capitalism” with “free-enterprise system” and adding Phyllis Schlafly to the list of important historical figures.

The NYT story is here; NYT blog here; daily blogging by Texas Freedom Network begins here with Jefferson reportage here.

If the curriculum passes, it should make teaching future constitutional law students from Texas quite interesting. 


March 13, 2010 in Current Affairs, Games, History, News, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, March 12, 2010

Granny D, Advocate for Campaign Finance Reform, Obituary

At 100 years of age, Doris Haddock, who walked across the US at age 89 to bring attention to the cause of campaign finance reform, has died.  Her NYT obit quotes her on Citizens United, adding her disapproval:

The Supreme Court representing a radical fringe that does not share the despair of the grand majority of Americans, has today made things considerably worse by undoing the modest reforms I walked for and went to jail for and that tens of thousand of other Americans fought very hard to see enacted. The Supreme Court now opens the floodgates to usher in a new tsunami of corporate money into politics.


March 12, 2010 in Current Affairs, Elections and Voting | Permalink | Comments (0) | TrackBack (0)

Oklahoma Bill: State Law Enforcement Shall Deny Federal Agencies Access to Records

As amended and passed by the Oklahoma Senate SB1965 seeks to "opt-out" of the recently passed federal hate crimes legislation covering sexual minority and gender identity status (see our discussion of the Matthew Shepard Act here).

A portion of the relevant language of SB 1965 provides:

 [state] law enforcement agencies shall deny access to law enforcement records to any federal agency when such request is made relating to a case handled and completed by a law enforcement agency of this state and the purpose is to attempt to investigate or prosecute the individual or individuals pursuant to 18 U.S.C. Section 245, except for records of any individuals convicted pursuant to Section 850 of Title 21 of the Oklahoma Statutes and for those records listed in subsection A of this section.

What does this mean? As succinctly expressed by Ricky Maranon in The Oklahoma Daily: "The bill would prohibit local and state law enforcement agencies from sharing information about hate crimes with federal Oklahoma-map authorities if the state of Oklahoma did not recognize the crime as a hate crime by its own statutes."   This excellent student newspaper article also notes that Oklahoma does not recognize hate crimes on the basis of sexual orientation or gender identity status. 

Additionally, it seems that SB 1965 was drastically amended to include this language - - -compare the previous version of SB 1965; it concerned open meetings laws.

The bill was sponsored by State Sen. Steve Russell, R-Oklahoma City.  Last November, Russell was quoted in The Oklahoma Daily here as expressing concern about the Matthew Shepard Act: “Sexual orientation is a very vague word that could be extended to extremes like necrophilia.” 

Russell also declared that Oklahoma could opt out of the Matthew Shepard Act on the basis of the Tenth Amendment.   With the approval of SB 1965, the Oklahoma  Senate joins the continuing controversy about the ability of states to opt-out or "nullify" federal law, often concerning possible Congressional health care reform as we most recently discussed here.


March 12, 2010 in Congressional Authority, Current Affairs, Equal Protection, Federalism, Sexual Orientation, Sexuality | Permalink | Comments (2) | TrackBack (0)

Thursday, March 11, 2010

Abortion as a Constitutional Right: The Billboard and Health Care Exceptions?

Thoughtful column from Professor of Sociology Carole Joffe (pictured left) author of Dispatches from the Abortion Wars: The Costs of Fanaticism to Doctors, Patients, and the Rest of Us.++atfield++portrait-mini

Joffe, writing from a pro-reproductive rights position, discusses the Atlanta billboard controversy, noting:

Loretta Ross, the executive director of the Sistersong Women of Color Reproductive Health Collective in Atlanta, has forcefully responded to the charges of racism that are frequently made by antiabortion forces against Margaret Sanger, the foremother of Planned Parenthood. As she recently told the New York Times, “The reason we have so many Planned Parenthoods in the black community is because leaders in the black community in the ‘20s and ‘30s went to Margaret Sanger and asked for them.” “Controlling our fertility was part of our uplift out of poverty strategy, and it still works.”

Joffe comments that "abortion still has the capacity to derail Congressional passage of a health reform bill."

Teaching (and learning) abortion cases in Constitutional Law has never been easy, but it has become more and more complex. 


March 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 9, 2010

A Suspect Class?: Law Profs, Attorneys, Judges . . . or People in Poverty?

Law professors are not exactly popular.  In the oral argument of McDonald v. City of Chicago, the incorporation of the Second Amendment case previously discussed here, Justice Scalia implicitly dismissed  the privileges or immunities claim by characterizing it as "the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence," (Tr at 7).  This low opinion of law professors seems to be shared by Chief Justice Roberts, as Professor Robert Batey has wittily demonstrated in his essay in The Crit.  Batey argues that Roberts has chosen law professors as his "scapegoat," setting them [us?] as "objects of scorn and ridicule," both in his public statements and in Rumsfeld v. FAIR.  And then, of course, who could forget former Vice-Presidential candidate Sarah Palin deriding President Obama because he had once taught constitutional law:  "we need a commander in chief, not a professor of law."

Perhaps law professors are unpopular because we are (usually) lawyers and teach other people to become lawyers.  And lawyers have seemingly never been popular.  Two Editorials from the NYT may not be as direct as the well-known Shakespearean bit of dialogue ("The first thing we do, let's kill all the lawyers"), but are nevertheless illustrative.  On March 7, the Editorial was entitled "Are You or Have You Ever Been a Lawyer?" and began:

In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within.

On February 24, 2010, the Editorial was entitled "The Torture Lawyers" and began:

Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?

Nevertheless, unpopularity - - - even if on the right and on the left - - - does not a suspect class make.  As the famous footnote four of Carolene Products implies, this prejudice must be accompanied by status as a discrete and insular minority, and the underlying rationale is some lack of access to the political processes which would repeal the challenged legislation. 

Certainly law professors and lawyers would fail to satisfy those requirements.  But how about judges?

Some judges in New York have recently argued that judges indeed constitute a suspect class, at least for purposes of the ongoing dispute regarding judicial compensation.  As one brief argues:

It is also clear that, by refusing to adjust Judicial compensation, the Respondents are depriving the Judges in New York State of the Equal Protection of the Law. . . .  The Respondents have argued that the Judicial Branch is powerless to review the constitutional functioning of the other branches in regard to Judicial compensation. Thus, although the Courts, and its constituent Judges, are allegedly a co-equal branch of the Government, they are entirely dependent upon the other branches. Federalist No. 78 [citation omitted].

As has been pointed out in the Appellant's main brief, the other branches of the Government have the power to increase their compensation, and have made sure that there have been increases to their benefits, if not to their salary. Indeed, Legislators are free to obtain outside income. Beyond teaching and writing, Judges are not. It ill-behooves the Respondents to point to the recent increase in expense allowances for Judges, which has done nothing to alleviate the inflationary effect on their salaries since 1999. This allowance constitutes a belated and hollow attempt to address the Legislature's and Executive's abject abdication of their Constitutional duties. It does not restore the rightful constitutional place of the Judiciary. Their treatment by the Legislature and Governor has deprived the Judiciary of equal protection.

Because the Judiciary is a Suspect Class, the Court should review the actions of the Legislature and Governor under the strict scrutiny standard.

Brief of Appellant, Maron v. Silver, 14-15, 2009 WL 5852305 (N.Y.).

New York's highest court, the Court of Appeals, was not impressed:

Nor can it be said that the Judiciary bears any of the traditional indicia of a suspect class-as constitutional officers granted unique salary protection, judges are not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” (San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 [1973] ).

Maron v. Silver, --- N.E.2d ----, 2010 WL 605279 (N.Y., February 23, 2010).  

San Antonio Ind. School District is the most frequent citation for the legal conclusion that "the poor" are not a suspect class, but  Henry Rose (a law professor, as it happens) argues it is not so simple.  His essay, available on ssrn here, is entitled "The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question."  

Rose's brief essay is definitely worth a read before teaching (or using) San Antonio Ind. School District.  And perhaps a hypothetical about law professors, lawyers, judges - - - or law students - - - could be used to enliven the discussion about suspect class analysis.


March 9, 2010 in Cases and Case Materials, Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, State Constitutional Law, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, March 7, 2010

Torture Case Against Rumsfeld to go Forward

Judge Wayne R. Anderson of the Federal District Court for the Northern District of Illinois on Friday denied former Defense Secretary Donald Rumsfeld's motion to dismiss and allowed the case for authorizing cruel and inhuman treatment to go forward.

The case, Vance v. Rumsfeld, involves two American employees of a private Iraqi security firm who alleged that they were wrongly held and mistreated by the U.S. military for revealing questionable payments and purchases by their firm.  Judge Anderson ruled that the plaintiffs sufficiently plead their case against Rumsfeld to overcome the pleading standards set in Twombly and Iqbal:

According to plaintiffs' allegations in their second amended complaint, Rumsfeld was personally involved in their unconstitutional treatment by his decision to approve the adoption of harsh treatment methods that were utilized at Camp Cropper during plaintiffs' confinement.

The ruling goes on to recount those allegations in some detail.  (Pages 9 through 12.)  (We've posted quite a bit on Twombly and Iqbal, most recently here.)

Judge Anderson wrote that "[t]wo federal courts forced to address similar issues share our conclusion": the courts in al-Kidd v. Ashcroft (9th Cir.) and Padilla v. Yoo (N.D. Cal.) both denied motions to dismiss based on Iqbal.

Judge Anderson also ruled against Rumsfeld on his qualified immunity defense (page 15) and argument that there was no Bivens remedy for the plaintiffs (page 26).  On the latter issue, Judge Anderson rejected Rumsfeld's argument that separation-of-powers provided a "special factor" counseling against a Bivens remedy.

Judge Anderson, citing Hamdi, dismissed the plaintiffs' procedural due process claim.  He also dismissed their access-to-courts claim, writing that the period of detention--six weeks for one plaintiff, three months for the other--were unreasonable amounts of time to make status determinations in Iraq.


March 7, 2010 in Due Process (Substantive), Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, Procedural Due Process, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)