May 20, 2011
President Expands Order Blocking Property of Syrian Officials
President Obama this week expanded his recent executive order blocking the property of certain Syrian officials responsible for human rights abuses in the recent crackdowns against protestors and political activists. The new EO expands the list of persons whose property is and may be blocked.
The new EO, issued Wednesday, blocks the property of President Al-Assad, VP Al-Shara, PM Safar, the Interior and Defense Ministers, the Head of Syrian Military Intelligence, and the Director of Political Security Directorate. It also authorizes the Treasury Secretary, in consultation with the Secretary of State, to block property of others determined to have assisted in the crackdowns, including any "senior official of the Government of Syria." (The earlier EO blocked property of three lower level officials and two groups, the Syrian General Intelligence Directorate and the Islamic Revolutionary Guard Corps, and included an authorization to block property of a narrower group.)
Banning (Male) Circumcision: San Francisco Ballot Measure
The actual provision, changed by the city attorney to the title of "male circumcision," was entitled "Prohibition of genital cutting of male minors," and provides, that with an exception, "it is unlawful to circumcise, excise, cut, or mutilate the whole or any part of the foreskin, testicles, or penis of another person who has not attained the age of 18 years." The ordinance would make it a criminal misdemeanor.
Interestingly, the exception is limited to circumstances when it is "necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a person licensed in the place of its performance as a medical practitioner." And even more interestingly, the exception to the exception specific excludes religious exemptions: "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."
The analogies to female genital mutilation/ female circumsicion are obvious, including the religious rationales. Yet male circumcision has attracted less scholarly attention. Marie Fox and Michael Thomson, British legal scholars, have written about the practice as a matter of children's rghts in two legal essays: Short Changed?: The Law and Ethics of Male Circumcision, 13 Int'l J. Child. Rts. 157 (2005); Cutting It: Surgical Interventions And The Sexing Of Children, 12 Cardozo J.L. & Gender 81 (2005).
Conceptualized as the child's right to be free from harm, the First Amendment religious freedom arguments become less persuasive. However, in an opinion column, Brad Hirschfield essentially argues that the proposed prohibition is rooted in hostility to religion:
... but the fact that those seeking to ban circumcision don’t also pursue banning other medical procedures which parents elect to have performed because they believe it to be the right thing for their kids, indicates that the whole fight about circumcision is really just an expression of the opponents’ hostility to religion in general, or to the notion that parents have a legitimate right to make decisions which shape their kids’ futures because that too is a part of parenting.
The proposal may be unlikely to pass, but if it does, it is sure to face a constitutional challenge based on the Free Exercise Clause of the First Amendment. The arguments will surely rely on well-known cases involving the parental right to make religious decisions on behalf of their children, although the cases point in different directions. In Prince v. Massachusetts (1942), the Court upheld Prince's conviction of state child labor laws for allowing a child in her care to distribute Jehovah's Witness' literature:
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.
Prince, however, is contrasted with Wisconsin v. Yoder (1972) in which the Court found that the Amish need not comply with complusory education laws given specific Amish beliefs. The uniqueness of the Amish views on compulsory education after the eighth grade is also a contrast with male circumcision; although less popular than it once was, it is still widely practiced by a number of religions including Judaism and Islam, as well as for nonreligious reasons.
Additionally, the challengers will most likely rely upon Church of Lukimi Babalu Aye v. City of Hialeah (1993) to argue that the law is not a neutral law of general applicability, and thus should be subject to the strictest scrutiny as targeting a particular religion as Hialeah, Florida targeted the practice of Santeria. Yet again, the fact that male circumcision is more widely practiced by a number of religions may be a point of distinction.
[image from Leonardo daVinci via]
CFP: Supreme Court Preview by Charleston Law Review
The Charleston Law Review invites submissions for its annual Supreme Court Preview volume.
This year’s Preview will feature a foreword by Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California Irvine School of Law. The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009).
We welcome an article or essay addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court.
The Supreme Court Preview is published to coincide with the opening of the October 2011 Term. We therefore ask that work be submitted no later than August 1, 2011. Submissions will be reviewed on a rolling basis beginning June 1, 2011. Please direct submissions and any questions about our Supreme Court Preview to Mollie Brunworth, Editor in Chief, via email at mgbrunworth [at] charlestonlaw.edu.
There are some notable criminal procedure cases scheduled for the October term, as well as a standing/retroactivity issue under SORA (Reynolds v. US), the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, regarding Congressional copyright power (Golan v. Holder), and the political question issue regarding whether a birthplace of "Jerusalem" entitles the person to list "Israel" as place of birth (MBZ v. Clinton).
May 19, 2011
Who is Buried in the Congressional Cemetery?
What do Belva Ann Lockwood, G. Edgar Hoover, and Leonard Matlovich have in common?
In "A Walk Through Congressional Cemetery," Josh Swiller examines the final resting places of these Constitutional Law characters and others, including some who have grave markers but were apparently not buried there.
Swiller's article in The Washingtonian also considers another cemetery inhabitant:
There’s a man named Stephen Pleasonton, buried near the main entrance, who rescued the Constitution and the Declaration of Independence from being captured and burned by the British in the War of 1812. He crammed the documents into coarse bags, commandeered a few rickety carts amid the general panic, and took off for Georgetown with minutes to spare.
Swiller makes the place seem almost as historically important as the much more famous Arlington National Cemetery, but certainly more quirky. It may be worth a trip during the 2012 AALS Convention. Meanwhile, it's suitable reading for ConLawProfs looking for a diversion from exams.
May 18, 2011
Justice Thomas on Civility in the Court
According to Adam Folk in the Augusta Chronicle, Justice Clarence Thomas thinks the United States Supreme Court Justices are much more capable of civil discourse than society as a whole:
As he shifted from outtakes of his youth in rural Georgia to his early days practicing law, Thomas reserved much of his roughly 30-minute speech at the Augusta Bar Association's Law Day Banquet to draw a distinction between commentators and "cynics" who demonize those with opposite opinions with a Supreme Court that has not "disintegrated into the unfathomable conduct that we see in public discourse."
Folk provides a few quotes from Thomas' speech, including this one:
"In that room, when we discuss First Amendment, abortion, Second Amendment, death penalty, pre-emption, commerce clause, the cases of great consequence -- Bush v. Gore -- I still have yet to hear the first unkind word."
Civility is not a new topic for Justice Thomas. His address at New England School of Law, Speech: Civility and Public Discourse, is available at 31 New Eng. L. Rev. 515 (1997).
[image: Justice Clarence Thomas via]
May 17, 2011
Federal Bank Act, Regs Preempt State Par Value Statute
A three-judge panel of the Eleventh Circuit ruled last week in Baptista v. JP Morgan Chase Bank, N.A. that Office of the Comptroller of the Currency regulations promulgated under the National Bank Act preempted Florida's "par value" statute.
Florida's statute, Fla. Stat. Sec. 655.85, specifically prohibits a bank from "settl[ing] any check drawn on it otherwise than at par." Thus when Baptista (who had no account at Chase) was charged a $6.00 fee when she sought to cash a check drawn on a Chase account, she sued, arguing that Chase's check-cashing service fee violated Florida law.
But OCC regulations allow a national bank to "charge its customers non-interest charges and fees, including deposit account service charges." 12 C.F.R. Sec. 7.4002(a). OCC interpretive letters define "customer" to include "any person who presents a check for payment."
The court ruled that the OCC regs conflict with, and thus preempt, Florida's par value statute, applying the preemption standard from Section 5136(b)(1)(B) of the new Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010:
State consumer financial laws are preempted, only if . . . in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al. . . . the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers . . . .
12 U.S.C. Sec. 25b(b)(1).
The Eleventh Circuit is apparently only the second federal appeals court to rule on preemption of state par value laws. The Fifth Circuit was the first, in Wells Fargo Bank of Texas NA v. James, a 2003 case also ruling that OCC regs and the NBA preempt. (The Fifth Circuit applied the Barnett Bank preemption standard as part of its analysis. The case obviously predated the preemption provision in the Dodd-Frank Act.)
Hate Song Update from South Africa
The newest development from South Africa in the controversial "hate song" which roughly translates as "kill the Boer" which we discussed here, is a an opinion denying the ANC leave to appeal and holding that the song is "unconstitutional." In fact, the court finds that the phrase "prima facie satisfies the crime of incitement to murder."
As South African constitutional scholar Pierre deVos explains, the issue is more properly expressed as whether or not the song can be criminalized as violative of the national Equality Act in a manner that is consistent with South Africa's Constitution section 16 regarding free speech.
The newest judgment arises from the April Equality Court case of Julius Malema in the South Gauteng High Court, which "has seen hundreds of Malema supporters camped outside the court singing and dancing, with a remixed version of the controversial song containing the lyrics “dubul' ibhunu”, or “shoot the boer.”"
[image from Mail and Guardian slide show]
May 16, 2011
Texas House Moves Bill to Ban Federal Pat-Downs
The Texas House of Representatives this week passed legislation that would ban TSA pat-down searches, among other actions by state and federal officers.
The legislation, H.B. 1937, states that any "public servant" commits an offense when
while acting under color of the person's office of employment without probable cause to believe the other person committed an offense:
(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and
(B) intentionally, knowingly, or recklessly:
(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or
(ii) touches the other person in a manner that would be offensive to a reasonable person.
The legislation also more generally bans any intentional denial or impediment by a "public servant" of "any right, privilege, power, or immunity, knowing the actor's conduct is unlawful."
The legislation defines "public servant" to include an "officer, employee, or agent of the United States."
The bill (if it were to become law)--obviously preempted by federal law creating and empowering the TSA, among other federal "public servants"--is best understood as yet another political statement by a State objecting to federal policy. (This appears to be the first state bill passed by any house in any state legislature that would ban TSA pat-downs.)
CFP: New Voices in Gender Studies for AALS
The AALS Section on Women in Legal Education announces a paper competition with the topic “New Voices in Gender Studies” for the 2012 AALS Annual Meeting, January 4-8, 2012, Washington, D.C. The deadline is August 15, 2011.
This is a great opportunity for new faculty writing about constitutional gender/sexuality issues. Here is the anouncement:
The AALS Section on Women in Legal Education will hold a program during the AALS 2012 Annual Meeting in Washington, D.C., with paper presentations by the winners of the 2012 New Voices in Gender Studies paper competition.
Submissions should be of scholarship relating to (1) women in legal education, (2) any aspect of women’s or men’s relationship to the law, or (3) gender, sexuality and the law. There is a maximum 30,000 word limit (inclusive of footnotes) for the submission. Since this is a paper presentation opportunity, and not one for publication, submitted papers can be committed for publication prior to their submission, but cannot be actually in print prior to their submission. Each professor may submit only one paper for consideration.
Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. The immediate past winners of the prior year’s competition are ineligible to participate this year. In the event of a tie, one consideration for the reviewing panel will be whether any of the submitting authors have the opportunity to present the submitted article during another presentation at the conference.
To be considered, papers must be submitted electronically to Professor Linda Jellum, Mercer University School of Law, email@example.com. The deadline for submission is Monday, August 15, 2011. Authors of accepted papers will be notified by October 3, 2011. Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member and fee-paid law schools, who have been teaching for five or fewer years as of August 16, 2011, are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.
Papers will be selected after review by an ad hoc committee composed of officers, executive committee members, and the winners of the 2011 competition.
Any inquiries about the Call for Papers should be submitted to: Professor Linda Jellum, Mercer University School of Law, firstname.lastname@example.org, (478) 301-5689.
May 15, 2011
American Constitution Society National Convention
Registration is open for the American Constitution Society 10th Anniversary National Convention, Constitution at the Crossroads: Progress Imperiled?