November 24, 2011
The First President's Thanksgiving Proclamation
Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.
Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for his kind care and protection of the People of this Country previous to their becoming a Nation--for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war--for the great degree of tranquility, union, and plenty, which we have since enjoyed--for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted--for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually--to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed--to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.
Given under my hand at the City of New York the third day of October in the year of our Lord 1789.
While the holiday did not become an official part of the United States legal and cultural history until much later, Washington's proclamation is important for constitutional law professors and historians considering the holiday in the context of the Establishment Clause of the First Amendment.
November 23, 2011
The Balanced Budget Amendment's Attack on the Constitution
Neil Kinkopf (Georgia State) recently posted an American Constitution Society Issue Brief that challenges the Balanced Budget Amendment as an unenforceable, symbolic gesture that is, at best, dangerous to our constitutional order. (We posted on most recently on the proposed Amendment here.)
Kinkopf argues in The Balanced Budget Amendment: A Threat to the Constitutional Order that the Balanced Budget Amendment contains no enforcement mechanism: it's not enforceable by Congress; judicial enforcement is beyond the expertise of the court and would raise all kinds of practical problems; executive enforcement would give too much power to the President, with none of the transparency that the Constitution envisions; and independent enforcement would bring all the problems of executive enforcement and then some.
Kinkopf concludes that all that's left is an empty symbol. But there's a problem with that, too: its inevitable and repeated violations would undermine the constancy of other clauses in the Constitution that are not merely aspirational or symbolic. In other words, any way you cut it, the Balanced Budget Amendment undermines our constitutional order.
November 22, 2011
LOC Posts "Father Chief Justice," a Constitutional Play
Actor, playwright, and Con Law Prof Paul Baier (LSU) staged his play "Father Chief Justice" Edward Douglass White and the Constitution last spring at the Library of Congress. The LOC has now posted the play on its web-site and on YouTube; we embedded it here:
The cast is very impressive:
Charles J. Cooper as Chief Justice White
Ronald S. Flagg as Justice Harlan
Tom Goldstein as Justice Brandeis
Donald A. Hoffman as Justice Holmes
Roberta I. Shaffer as Fanny Holmes
Jacob A. Stein as Justice Holmes
Paul Baier as Professor Richard Henry Jesse
Check it out.
November 21, 2011
No First Amendment Right to Disrupt Senior Center
A three-judge panel of the Seventh Circuit on Monday rejected the free speech claim of a disruptive visitor to a local senior citizens centers. The case, Milestone v. City of Monroe, grew out of Edith Milestone's ban from the center for violating its Code of Conduct. Milestone lodged a Section 1983 claim against the City. The court rejected Milestone's vicarious liability claims under Monell v. Department of Social Services, but it reached the merits on her claims premised on the Code itself--which the court ruled to be city policy for the purpose of municipal liability under Section 1983.
The relevant sections of the Code read as follows:
- When in the Behring Senior Center of Monroe, all will be treated with respect and courtesy regardless of age, race or gender.
- Use of abusive, vulgar, or demeaning language is prohibited.
- Members of the Behring Senior Center staff, outside instructors and Green County personnel will be treated in a respectful manner.
Milestone engaged in a string of disruptive and verbally abusive tirades over time. The Center staff eventually banned her. She argued that the Code constituted unconstitutional viewpoint discrimination, that it was overbroad, and that it was unconstitutionally vague.
The court rejected her claims. It ruled that the Code was a content-neutral, time-place-manner regulation narrowly tailored to achieve the significant governmental interest of protecting the patrons of the center from vulgar and abusive language and disrespectful or demeaning treatment; and that it left open ample opportunities for speech. It also ruled that the Code was not overbroad (mostly because it was content- and viewpoint-neutral and because it satisfied strict scrutiny) and that it was not unconstitutionally vague.
Occupy: Wrongful Arrest and Police Brutality Lawsuits Begin
Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.
The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force.
The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City. Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests. The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building. However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing. (The charges were dropped).
The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.
The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability. For example, paragraph 87 alleges:
Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.