Constitutional Law Prof Blog

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then. 

Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

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Bradley Manning's Statement

Developments in the Bradley Manning case include the news that Manning has pleaded guilty to some charges - - - but not to the charge of aiding the enemy - - - as reported by the NY Times. 

While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.

Of particular interest are Manning's statements undermining his intent to aid the enemy and supporting his claim of whistle-blowing, including his choice of recipients for his information.

At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.

Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.

I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.

Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971).   Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.

But Bradley Manning's case is proving unique.

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Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act

Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.  

Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder .  The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.

 

"President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King and others look on"

Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy.  Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle."  Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute.  Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."

Cohen concludes that the stakes in Shelby are very high:

If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.

Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.

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Can a Legislature Criminalize Legislation?

A bill introduced in the Missouri legislature would criminalize the introduction of other legislation.  HB 633 would amend the state statutes to provide:

Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.

The bill is likely unconstitutional under its state constitution. 

The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:

Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.

The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches.  Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.

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Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

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Daily Read: Academic Freedom and Controversial Programs

ConLawProfs often appear on controversial panels and law schools often present controversial programming.  Are there limits?

Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late.  As Professor Currah writes in The Chronicle of Higher Education:

Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.

The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding.  The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:

The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.

For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise.  For everyone involved in the academic enterprise, Currah's piece is an important read.

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Daily Read: Grand Central Station and The Takings Clause

As Grand Central Station celebrates its centennial today, there are many celebrations and discussions, including this excellent one from "Transportation Nation" being aired on some NPR stations, including NYC:

 

News130131_grand_central_ogrady

The case to which the report refers is Penn Central Transportation Co. v. New York City (1978), a staple of modern takings clause doctrine and theory.   The owner of Grand Central - - - confusingly it was Penn Central - - - wanted relief from the NYC landmarks law which prevented the building of a large office building over Grand Central because it would destroy the historic and aesthetic features of the Grand Central.  The United States Supreme Court rejected the takings argument.  Writing for the Court, Justice Brennan noted that "the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable."   The opinion continued:

"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.

Of course, the Court would vacillate from between this whole vs. fractional approach in subsequent cases, but the most recent takings cases seem to confirm Brennan's view.

For a trenchant discussion of the current state of "air rights" and takings doctrine, take a look at LawProf Troy Rule's Airspace and the Takings Clause, forthcoming in Washington University Law Review, and available in draft on ssrn.

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Daily Read: Obama's Second Inaugural Address

President Obama delivered his inaugural adddress on January 21; the White House official transcript is here.

The official video, starting with CJ Roberts administering the oath of office (as on Sunday, no mistakes), shows the entire speech.

 

Whether one lauds it apropos of the Court's coming foray into the same-sex marriage debate, or interprets it as putting climate change center stange, or as lacking in specifics, or as requiring comparison to every other Presidential inaugural speech, it is certainly worth a listen.

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Carol Anne Bond Going Back to the Supreme Court

The Court granted certiorari Friday in Bond v. United States - - - again.

Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons.  Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."

It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement. 

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Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

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Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

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Where Are the Guns? Constitutional Considerations of Publication of Mapped Information

An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar.  The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."

The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership.  However, the disclosure of information using google maps is not new.  Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage.  (Recall Prop 8 is now before the United States Supreme Court.)

While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant.  In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state.  Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous.  The names were thus disclosed.

State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records.  The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.

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Daily Read: Winkler on the Black Panthers and the Second Amendment

ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.

One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation. 

Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.

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Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

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Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

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Daily Read: William S. Burroughs and the Second Amendment

"Beat Generation" afficionados and American Literature majors know William S. Burroughs' Naked Lunch; ConLawProfs may recall the First Amendment implications including the eventual decree by Massachusetts' highest court that the book was not obscene, Attorney General v. A Book Named “Naked Lunch,” 218 N.E.2d 571 (Mass. 1965).

Many also know the broad outlines of William Burrough's life, including his drug addiction and his fatal shooting of his wife.  For those less well-acquainted, Ted Morgan's biography, Literary Outlaw: The Life and Times of William S. Burroughs is an interesting read.  Morgan discusses the various versions of Burroughs' killing of his wife in Mexico by shooting her in the head.  The usual version (and Burroughs' own) features a small social gathering, drinking alcohol, and Burroughs' suggestion that his wife put a glass on her head and he shoot it off "William Tell" style.  He missed and she was dead.  He eventually fled back to the United States and was convicted in Mexico in absentia.  Morgan quotes Burroughs as haunted by the killing and "often" saying his life was an "evil river" and that he was possessed by an "evil spirit."

Given his biography, Burroughs makes a rather odd spokesperson for Second Amendment rights.  Yet, as both Dan Filler over at Faculty Lounge and Brian Leiter quoting Jason Walta note, a December 14 op-ed in USA Today in favor of expansive Second Amendment rights begins with a quote from William S. Burroughs: " "After a shooting spree," author William Burroughs once said, "they always want to take the guns away from the people who didn't do it." "

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Daily Read: Greenhouse on Standing in the Same-Sex Marriage Cases

The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.

The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011). 

The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."

Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."

But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.

Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.

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Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

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This is definitey worth a listen!

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Constitutional Law Exam: 2012 Possibilities

For ConLawProfs, it's time to draft the Constitutional Law final exam.  And it's time for ConLaw students to study and master the materials, arguments, and theoretical perspectives in preparation for any (all?) possible hypotheticals. 

We've previously discussed some best practices regarding final exams, and noted the time-honored strategy of using current controversies to frame the exam. 

The caveat is that the exam question must include all the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

While some ideas from last year remain viable, there are some new exciting possibilities for the Constitutional Law exam.

Equal protection is a definite star this semester.  Shining brightest is the affirmative action case of Fisher v. University of Texas, argued before the United States Supreme Court in October, focuses on the continued validity of Grutter and perhaps affirmative action itself.  A well wrought exam question would provide students with opportunities to grapple with doctrine and theory, and it seems many ConLawProfs spent some time on Fisher (as I did, including having students read the excellent briefs).  

Only slightly less bright, but certainly much less focused, is equal protection in the same sex marriage cases still pending before the Court of petitions for certiorari.  The complexity of the DOMA and Prop 8 petitions can be easily distilled, however, with the Second Circuit case of Windsor providing an excellent template.  DOMA, as a federal statute, could also implicate the notion of federalism, especially as the First Circuit decided.  DOMA might also be "tweaked" to provide the basis for a Congressional powers issue. For those wishing a less complex same-sex marriage equal protection hypothetical than DOMA or Prop 8, the recent Nevada decision provides a good basis. 

The Court has also accepted certiorari on the constitutionality of the Voting Rights Act, implicating equal protection, but focusing on Congressional power under the Fourteenth and Fifteenth Amendments, as well as the doctrine under the Tenth Amendment.  

The Second Amendment has less vitality now than in the past few years, but the basis of a good issue (or sub issue) could be found in any number of recent gun regulations that have been upheld, including from the Second Circuit and the Fifth Circuit.

Want a takings clause issue?  Think raisins. Or temporary planned flooding.

For preemption, Arizona is a solid bet, with the newest issue to go before the Court mixing citizenship and voting). 

First Amendment issues abound, often subtly or not so subtly intertwining both speech and religion clauses.  There are anti-Islam subway/bus advertisements, the challenges to the ACA contraception requirements,(including by private companies),  prohibitions of recording of law enforcement officers, compelled disclosures regarding suicide risk in abortions, and prohibitions of sexual conversion therapy on minors. 

For those who like to draw on the popular culture zeitgeist, the Petraeus scandal could be a good springboard, spawning issues surrounding the constitutional status of adultery and perhaps state secrets and surveillance or the rights of public employees (consider a mandatory drug test?).

Good luck to professors and students alike!

RR
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In Memoriam: Arthur Chaskalson

Known as a generous and humble person, as well as an outstanding jurist, Arthur Chaskalson was a framer of the South Africa Constitution and presiding justice of the nation's inaugural Constitutional Court.

 

The NYT obituary is here; he will be accorded a state funeral in South Africa.   We previously highlighted one of his speeches here.

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