Saturday, September 18, 2010
Editorializing about the "war on drugs" as a war not on the "drug lords and violent cartels" but a war " that disproportionately impacts young men and women and is the latest tool for imposing Jim Crow on poor African Americans," Alice Huffman, president of the California NAACP, supports California's Proposition 19 in the San Francisco Chronicle here.
Huffman has joined other voices in favor of legalizing marijuana, including arguments regarding an extension of Lawrence v. Texas to include marijuana legalization, which we discussed here.
Marijuana legalization by California (or any state) raises a potential federalism or Tenth Amendment issue since marijuana remains a controlled substance under federal law.
Friday, September 17, 2010
September 17 is Constitution Day - - - or Constitution and Citizenship Day - - - as declared by Congress. The day commemorates the signing of the Constitution in 1787.
However, this is no mere resolution. The law, codified at 36 U.S.C. § 106, includes a provision that:
Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.
So, here's the question: What is your institution doing - - - and are you taking part in it? If you are, what are you doing? Focusing on the signers of the Constitution? Discussing the amendments to the Constitution, including the Fourteenth? Including "Citizenship"? Linking the commemoration of the Constitution to current controversies?
Thursday, September 16, 2010
Judge Bates of the Federal District Court for the District of Columbia today ruled that a facial challenge to the Voting Rights Act may be decided on the pleadings and ordered the government to respond to the plaintiff's motion for summary judgment.
The case, Shelby County v. Holder involves a facial challenge to Sections 4(b) and 5 (preclearance) of the VRA. Soon after filing the complaint, Shelby County moved for summary judgment. The government asked the court to deny the motion as premature or to order discovery. Judge Bates declined and ordered the government instead to respond to Shelby County's motion.
In so ruling, Judges Bates concluded that the only relevant evidence in the case is the 2006 legislative record--the actual evidence of contemporary discrimination in voting that Congress considered when it reauthorized Section 5 preclearance for another 25 years. Judge Bates:
[A]t oral argument, the Court asked if any counsel--who collectively have a very broad experience--could identify a case in which the Supreme Court decided the facial constitutionality of an act of Congress based on facts unique to the specific plaintiff bringing the lawsuit. None could. Yet that is the discovery the government and defendant-intervenors seek here. . . . [T]he constitutionality of the VRA must rise or fall on the record that Congress created when it extended that act in 2006.
The government had argued that it needed discovery to determine whether to challenge the plaintiff's standing, whether the plaintiff might bail out of the Section 5 preclearance requirement, and whether the VRA was unconstitutional. Judge Bates ruled that none of these reasons required discovery.
Shelby County is one of the facial challenges to VRA preclearance in the wake of the Supreme Court's 2009 ruling in Northwest Austin Municipal Utility District v. Holder. In that case, the Court declined to reach the constitutional question (although it was quite skeptical of that current conditions could justify preclearance); instead it ruled that the District qualified for bailout under the VRA.
Judge Bates ordered the government to file its response to Shelby County's motion for summary judgment by November 15.
September 16, 2010 in Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 15, 2010
Joshua Civin and Debo Adegbile of the NAACP Legal Defense & Educational Fund just published Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation, an American Constitution Society Issue Brief on Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal that walks readers through the impact of these cases in plain language and explores congressional responses. From the Brief:
The names Yick Wo, Heman Sweatt, Pete Hernandez, Clarence Gideon, Annie Harper, Mildred and Richard Loving, and Willie Griggs are barely known to the American public, but the nation they helped forge is their lasting legacy. These individuals went to court, and their ability to do so literally changed our understanding of citizenship, access to education, jury service, the right to counsel, access to the voting booth, marriage, and equal employment opportunity. Indeed, much of our nation's progress toward the Constitutional aspiration of a "more perfect Union" occurred because these and other ordinary people have had ready access to litigate meritorious but often novel or difficult-to-prove cases in our courts.
. . .
Recently, however, in a pair of decisions, the Supreme Court skewed the balance away from access to courts by elevating the threshold standard that all plaintiffs must meet to pursue legal claims. In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Court suddenly and without clear necessity overturned well-settled law and imposed a more stringent standard for federal cases to survive. These decisions, by dramatically frontloading litigation and inviting judges to substitute their threshold personal judgments in place of evidence, go far beyond the familiar "verdict first, trial second" problem of which high-profile defendants complain. Instead, under Twombly and Iqbal, we now risk a world in which meritorious claims face "dismissal first, trial never."
We posted most recently on the cases here.
Tuesday, September 14, 2010
Much of the discussion seems to be lifted directly from
Breyer's new book, Making Our Democracy Work, released today.
An exception is a discussion about the recent threatened Quran burning.
TERRY GROSS: The Florida preacher who threatened to burn the Quran, some people said well, that's his free speech right and then, but what about the rights of Muslims who would be offended to the core, outraged by that act? As a Supreme Court justice, I wonder how you looked at - if you're willing to talk about it - how you looked at that event and if there's the possibility that burning a sacred text of any religion would be considered a hate crime. Like, how do you balance all of the rights and positions involved in a situation like that?
Justice BREYER: Well, I don't look at those things that - issues and so forth -that might come up in the future, because if they do come up in the future, I'll have the issue in front of me and it will be very, very well briefed. They'll be lots written about it and I'll be able to form a more intelligent opinion. I would say that where you're talking about the freedom of speech and something like this preacher or anything like that, I would keep two cases in mind.
One is years ago, Justice Holmes said you cannot shout fire in a crowded theater because that could kill people. Very well. That sets limits to the freedom of speech. But the court also said where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view. So, we probably, were we to have such a case, we'd have to have a law in front of us, see what it says, see what the actions are. But I've given you an outline, which sort of sets boundaries.
Breyer makes a good interview subject, speaking in an accessible manner. Students will especially enjoy the interview.
The John Marshall Law School (Chicago) is soliciting applications for a new visiting chair in Constitutional Law.
The Chair honors Edward T. Lee and his son, Noble W. Lee, for their many years of service to the law school, their contributions to legal education, and their shared passion for constitutional law. From the announcement:
Pioneers in American legal education, Edward T. and Noble W. Lee held strongly to the belief that it is critical to the health of our democratic society that the study of law be open to all segments of society, irrespective of race, religion, sex, national origin, or economic status. As a consequence, from its earliest years, the principles of access and opportunity in legal education have been deeply ingrained in the school's culture and mission.
The Chair appointment begins in August 2011 and runs for up to two years. The incumbent will write, teach, and speak; details are negotiable.
Applications are due November 1. Click here for more information.
Monday, September 13, 2010
Turkish voters yesterday approved a series of constitutional amendments by a 58-42 margin, with 78% voter turnout. The amendments, widely seen as a vote of confidence in Premier Erdogan, will help put the Turkish Constitution in line with requirements for EU membership.
Among the notable changes:
- Individual Rights: Equality, Protection, Privacy, Petition, Unions. Article 10 now allows the government to take affirmative measures for children, the elderly, the disabled, widows, orphans of martyrs, and veterans without violating the equality provision. Article 41 provides for rights of children to "adequate protection and care" and to maintain a relationship with parents. It also requires the State to "take measures for the protection of the child against any kind of abuse and violence." Article 20 provides for a right "to demand the protection of his or her personal information" and requires that "[p]rinciples and procedures on the protection of personal information shall be regulated by law." Article 74 creates a new office of the Ombudsman, designed to accept citizen complaints. A series of articles remove restrictions on union membership and right to strike.
- Separation of Powers. Article 125 creates judicial review of decisions of the Supreme Military Council for regular military discharges. But it also adds language limiting jurisdiction over administrative matters: "Judicial power shall be limited to control of the lawfulness of administrative actions and shall under no circumstances be used as the control of expediency." Article 129 removes exceptions to judicial review of disciplinary decisions against civil servants.
- Parliament. Article 84 ends the compelled expulsion of members whose actions were cited by the courts as grounds to ban a political party.
- Constitutional Court. Article 148 provides for the right to individual application to the Constitutional Court for fundamental rights in the Constitution and the European Convention on Human Rights. A series of articles increase the membership, change the method of election, and change its structure.
- Judiciary. Article 159 changes the composition of the Supreme Council of Judges and Public Prosecutors and charges the body with a wide array of oversight and regulation of the judiciary. Under the amendments, the Council is comprised of 22 members, including 4 appointed by the President and others appointed by various other bodies. Article 144 charges the Council with the supervision of judges and prosecutors, including inquiry and investigations concerning them.
- Military Jurisdiction. Articles 145 and 156 limit military court jurisdiction to the trial of military offenses. They specifically provide that offenses against state security, constitutional order, and state functioning shall be dealt with by courts of justice, and that civilians shall not be tried by military courts except in time of war.