Constitutional Law Prof Blog

Sotomayor on Berghuis v. Thompkins

Speaking at University of Denver College of Law last week,  Justice Sotomayor responded to a law student's query about the Court's decision this past June in Berghuis v. Thompkins, in which she authored a dissenting opinion, joined by Justices Ginsburg, Stevens, and Breyer.  

Sotomayor answers that she does not believe that the Court is "eroding Miranda," and discusses advice from Justice Souter about interpreting disagreements amongst the Court.

The C-Span video is available here; the question starts at approximately 14:00.

RR 

ACLU, CCR Sue to Stop Administration's Targeted Killings

The ACLU and the Center for Constitutional Rights yesterday filed suit in federal court in the District of Columbia to stop the administration's targeted killing of Anwar al-Aulaqi, a U.S. citizen living in Yemen and allegedly plotting terrorism against the U.S. (we think, although the government hasn't said precisely why he's targeted).  The complaint, brought by al-Aulaqi's father on his behalf, seeks a declaration that the targeting is unconstitutional; it also seeks a permanent injunction prohibiting the government from killing al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety and no lesser force will do.  The groups also filed for a preliminary injunction in which, in their argument on "likelihood of success," they lay out their legal case.  We last posted on the case when the groups received their license to sue from the Treasury Department.

The groups argue that the targeted, extra-judicial killing violates the Fourth and Fifth Amendments, unless the target poses an imminent threat of death or serious physical injury, and unless lethal force is the last resort.  They also argue that the targeted killing violates international customary law and treaty obligations, which carry the same requirements.

The plaintiff's arguments so far hinge on the assumption that the targeted killings are outside the context of an armed conflict--that the targeted killing of a U.S. citizen living in Yemen, a country with which the U.S. is not at war, is not subject to the laws of war.

But as best we can reckon, the government justifies its targeted killing program as part of the conflict with al Qaeda, the Taliban, and associated forces.  Harold Koh, the State Department Legal Adviser, said as much in his speech to the American Society of International Law last spring.  Koh argued that the program is justified as self-defense under the international law of war and Congress's 2001 Authorization for Use of Military Force.  According to Koh, the law of war allows extra-judicial, targeted killings of individuals planning attacks against the U.S. under certain circumstances, and it does not require the U.S. to provide Fourth and Fifth Amendment processes to those belligerents before killing them. We critique Koh's analysis here.

If this turns out to be the government's legal defense, the central first question in the case will be: Is the targeted killing of al-Aulaqi part of the government's conflict with al Qaeda, the Tablian, and associated forces?  The answer to the question will give us an important data point in plotting the parameters of the "war on terror" and the government's authority to prosecute that war.

Koh made another comment in the speech that may give a partial preview of the government's defense in the al-Aulaqi case: He said that he couldn't comment publicly on much of the targeted killing program.  Taken together with the administration's past practice, this statement may suggest a claim, or even an entire defense, based on the State Secrets Privilege--a troubling possibility.

SDS

State Constitutionalism Conference at Penn State

 

Registration and more information here.

RR

Judicial Appointment Process in Kansas Under Fire

A group of Kansans this week challenged the selection and appointment process for Kansas Supreme Court justices under the Fourteenth Amendment Equal Protection Clause.  Plaintiffs argue that the process deprives them of their fundamental right to vote and seek to halt the process for the replacement of Chief Justice Robert Davis, who retired on August 3 and passed away on August 4.  Here's the complaint; here's the motion for a temporary restraining order and preliminary injunction.

The process, set out in Article III, Section 5, of the Kansas Constitution, provides that the governor shall appoint a replacement from among three persons nominated by the nominating commission.  If the governor fails to make the appointment within 60 days of the nomination, the chief justice of the supreme court makes the pick.

Here's the (non-attorney) plaintiffs' problem: the nominating commission consists of nine members, five of whom, including the chief, are elected only by Kansas attorneys.  (Non-attorneys get to elect the other four members.)  Kansas Const., Article III, Section 5(e).

According to the motion, "[a]s a result, Plaintiffs are denied the franchise in the elections for the Commission members and their participation in the selection of state judges is much inferior to that of attorneys."

SDS

Women's Equality Day

A Joint Resolution of Congress in 1971 designated August 26 as Women's Equality Day.  It's the date that the  Nineteenth Amendment, ratified by the requisite number of states on August 18, 1920, became effective.  the Resolution provides:

WHEREAS, the women of the United States have been treated as second-class citizens and have not been entitled the full rights and privileges, public or private, legal or institutional, which are available to male citizens of the United States; and
WHEREAS, the women of the United States have united to assure that these rights and privileges are available to all citizens equally regardless of sex; and
WHEREAS, the women of the United States have designated August 26, the anniversary date of the passage of the Nineteenth Amendment, as symbol of the continued fight for equal rights: and
WHEREAS, the women of United States are to be commended and supported in their organizations and activities,
NOW, THEREFORE, BE IT RESOLVED, the Senate and House of Representatives of the United States of America in Congress assembled, that August 26th of each year is designated as Women’s Equality Day, and the President is authorized and requested to issue a proclamation annually in commemoration of that day in 1920, on which the women of America were first given the right to vote, and that day in 1970, on which a nationwide demonstration for women’s rights took place.

To commemorate the holiday, try this multiple choice question:

In 1971, who said, "The more education a woman has, the wider the gap between men's and women's earnings for the same work."

a.    Ruth Bader Ginsburg

b.    Sandra Day O'Connor

c.    Patsy Mink 

d.    Pat Nixon

The correct answer is here (page 4) or here
(less well sourced but quicker).

[image via]

RR

Constitution and Criminal Justice Conference at FSU

More information and registration information here.

 

RR

It's Final: Jean's Out of Haiti's Presidential Race

An attorney from the Haitian electoral commission's legal department told the BBC that the commission's rejection of Wyclef Jean's candidacy for president is final.  According to the attorney, the country's election law states that commission decisions cannot be appealed.  We posted on Jean's candidacy and the constitutional requirements here and here.

Jean earlier indicated that he would appeal the commission's ruling.  But it was never clear that a rejected candidate could appeal a commission ruling.  And because the commission didn't publish reasons for its decision, any appeal would have been difficult, to say the least.  (Jean submitted papers showing that he met the constitutional five-year residency requirement, but it's not clear that the commission rejected him on this basis.)

The commission also rejected 14 other candidates, including the Haitian ambassador to the U.S.  It certified 19 candidates.

SDS

South Africa's Public Information Bill

President Jacob Zuma and the ruling African National Congress are reportedly pushing a bill designed to classify--and limit access to--certain government, commercial, and personal information.  But opponents of the measure argue that the government could use the bill to crack down on media, with which the government has had increasingly strained relations.  AllAfrica.com reported most recently here and here. 

The measure, called the Protection of Information Bill, provides for classification of information by any "head of an organ of state" and for punishment of individuals who release classified information.  At its most sweeping, the bill provides for classification of "sensitive information"--"information which must be protected from disclosure in order to prevent the national interest of the Republic from being harmed."  Sec. 14. 

And what is the "national interest"?  Among other things, "all matters relating to the advancement of the public good."  Sec. 15(1)(a).

The bill provides for an appeal of a denial of a request for reclassification, but only to the "Minister of the organ of state in question."  Sec. 32.  It also outlines in broad terms the principles to be applied in the classification and declassification processes--for example, to respect the South African constitutional right to access to information.

The bill has come under heavy criticism by media advocates and non-governmental organizations as paving the way for government intimidation and harassment of a South African media that is increasingly critical of excesses and self-dealing by government officials.  The bill provides up to 25 years imprisonment for obtaining or releasing "sensitive information" (as defined above) if the disclosure may "cause serious or irreparable harm to the national interests of the Republic."  Sec. 39(1)(b)(i).  Lesser sentences may be imposed for less serious harms.

The ANC is also considering adding a media tribunal that would regulate print media, although that proposal is not (yet) part of the bill before Parliament.

President Zuma defended the measures in a letter on the ANC on-line newsletter ANC Today.  Zuma turned the focus on the media, asking

[W]hat is the role of the media in the promotion of our country's human rights culture and the Bill of Rights?  Does it have a role in promoting nation building?  Does it have a role to play in the promotion of our country's prosperity, stability and the well-being of its people?  Is it a spectator, or does it have vested interests and an agenda, political and commercial, that it cherishes and promotes?

And: "The media has put itself on the pedestal of being the guardian. . . . [W]ho is guarding the guardian?"

The South African Constitution contains capacious rights to expression and information.  Section 16, Freedom of Expression, states:

(1) Everyone has the right to freedom of expression, which includes

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hate that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Section 32, Access to Information, states:

(1) Everyone has the right of access to

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or protection of any right.

(2) National legislation may be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Neither Section 16 nor Section 32 is nonderogable, and both are subject to the limitation-of-rights provision in Section 36 that outlines principles and factors to determine when the government may limit rights.

SDS

Haitian Electoral Commission Rejects Jean, Others

The Haitian electoral commission late Friday rejected Wyclef Jean and 14 other candidates for president in the November election.  Jean said he would appeal the ruling, although it's not clear that the ruling can be appealed.  The Christian Science Monitor reports here; the New York Times reports here.

As we posted just before the commission issued its ruling, Jean's qualifications were in doubt because, according to some, his frequent travels outside Haiti meant that he failed to satisfy the Haitian constitutional requirement that a candidate reside within the country for five consecutive years prior to the election.  Jean argued that he traveled as a goodwill ambassador for Haiti but maintained residence in the country and thus satisfied the five-year residency requirement.

The commission didn't say why it rejected Jean and the 14 others, including Haiti's ambassador to the U.S., Raymond Joseph.

SDS

Australia's Election Inconclusive

Update: September 7, 2010: Gillard forms Government.

Julia Gillard, head of the Australian Labor Party is negotiating with minority parties to form a government, as is Tony Abbott, the leader of the Liberal Party (the right-leaning party).

Gillard (pictured right with the US Ambassador to Australia, Jeff Bleich via) is the current Prime Minister of Australia- - - and first woman PM - - - who assumed power after Kevin Rudd's resignation.   

The election has been inconclusive for either of the major parties, with independents and the Green Party winning seats in Parliament's House of Representatives.  This is not dissimilar to the election in Great Britain last May.

The constitutional process of forming a government, including the Prime Minister, is helpfully explained by the Parliament as follows:

The Prime Minister is appointed by the Governor-General [the Queen's Representative]  who by convention under the Constitution, must appoint the parliamentary leader of the party, or coalition of parties, which has a majority of seats in the House of Representatives. This majority party becomes the government and provides the ministers, all of whom must be members of Parliament.

The Federal Executive Council, referred to in the Constitution, comprises all ministers, with the Governor-General presiding. Its principal functions are to receive ministerial advice and approve the signing of formal documents such as proclamations, regulations, ordinances and statutory appointments.

Australia operates under a Cabinet system of government. The Cabinet, not mentioned in the Constitution, is the key decision-making body of the government and comprises senior Government Ministers. The decisions of Cabinet are given legal effect by their formal ratification by the Federal Executive Council.

Good reporting and updates can be found at the Sydney Morning Herald.

RR

Dr Laura's First Amendment Claim: The Problem of State Action

The United States Constitution protects individuals from government action, and not from private action (with the exception of the Thirteenth Amendment).  It is a concept most ConLawProfs discuss in our courses, focusing on cases such as Shelley v. Kraemer (1948) or the more recent Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001).

It's not a difficult concept, even though the doctrine (like all doctrines) has its obscure moments, which can be explored in a CALI offering available to law school students and professors here.

But the basic concept of the Bill of Rights protecting individuals solely from government action tends to be forgotten in the context of the First Amendment.  On too many occasions, when an argument between two people escalates so that one person over-talks the other, or says "shut up," or even kicks the other person off the show or blog, the "loser" cries a violation of the First Amendment.  Even when the "loser" is someone who would ordinarily decry constitutional "interference" between individuals.

Most recently, Dr. Laura Schlessinger, whose racial epithets on her radio show have caused criticism, has announced her retirement from the show, reportedly claiming that she wants "to regain my First Amendment rights." Sarah Palin also invoked the First Amendment in two tweets:  Dr.Laura:don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”)   Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists. And b thankful 4 her voice,America! 

Ken Paulson of The First Amendment Center has a clear and concise explanation of why this is not a First Amendment issue, including discussing state action, but also additional rejoinders to Dr. Laura Schlessinger's claims of being bullied by the left, as well as the problem of equating the marketplace of ideas with the marketplace. 

RR

Does Wyclef Jean Qualify to Serve as President of Haiti?

A Haitian election official said this week that hip-hop star Wyclef Jean does not qualify to serve as president of Haiti, according to the Guardian.  (The New York Times reports here.)  Jean, who announced his candidacy earlier this month and has been considered a favorite, may not meet the Haitian Constitution's requirement that its president "[h]ave resided in the country for five (5) consecutive years before the date of the elections."  Jean argues that he splits his time between the U.S. and Haiti and that he is a goodwill ambassador for the country who is supposed to roam.  (Jean meets the other requirements for the office.)  The electoral commission should issue its ruling any day now.

Here's the Haitian Constitution section on election and qualifications of the president.  (Article 135(e) is relevant to Jean's candidacy.)

Section A: The President of the Republic

Article 134.  The President of the Republic is elected in direct universal suffrage by an absolute majority of votes.  If that majority is not obtained in the first election, a second election is held.

Only the two (2) candidates who, if such be the case, after the withdrawal of more favored candidates, have received the largest number of votes in the first election may run in the second election.

Article 134-1.  The term of the President is five (5) years.  This term begins and ends on the February 7 following the date of the elections.

Article 134-2.  Presidential elections shall take place the last Sunday of November in the fifth year of the President's terms.

Article 134-3.  The President of the Republic may not be re-elected.  He may serve an additional term only after an interval of five (5) years.  He may in no case run for a third term.

Article 135.  To be elected president of the Republic of Haiti, a candidate must:

a) Be a native-born Haitian and never have renounced Haitian nationality;

b) Have attained thirty-five (35) years of age by the election day;

c) Enjoy civil and political rights and never have been sentenced to death, personal restraint or penal servitude or the loss of civil rights for a crime of ordinary law;

d) Be the owner in Haiti of at least one real property and have his habitual residence in the country;

e) Have resided in the country for five (5) consecutive years before the date of the elections;

f) Have been relieved of his responsibilities if he has been handling public funds.

Article 135-1.  Before taking office, the President of the Republic shall take the following oath before the National Assembly:

"I swear before God and the Nation faithfully to observe and enforce the Constitution and the laws of the Republic, to respect and cause to be respected the rights of the Haitian people, to work for the greatness of the country, and to maintain the nation's independence and the integrity of its territory."

SDS

State Police Cross Memorials Violate Establishment Clause

A three-judge panel of the Tenth Circuit ruled on Wednesday that 12-foot high crosses erected on public land to memorialize fallen Utah Highway Patrol (UHP) officers by the the Utah Highway Patrol Association (UHPA), with permission of state authorities, violated the Establishment Clause.

The crosses include a fallen trooper's name, rank, and badge number and the UHP's official symbol along with the words "Utah Highway Patrol."  Most of the crosses sit on public land alongside state roads, but two of the crosses are located immediately outside the UHP offices.  UHPA erected the crosses with the permission of the fallen officers' families and the state.  The UHPA retained ownership of the crosses, and the state on at least one occasion noted that it "neither approves [n]or disapproves the memorial marker."

The court ruled that the crosses violated the second part of the Lemon test--that their "principal or primary effect must be one that neither advances nor inhibits religion."  The court:

the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity.  This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP--both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.  The reasonable observer's fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles.

Op. at 27-28.

The court rejected the defendant's argument that the crosses were a generic symbol of death; rather, "it is a Christian symbol of death that signifies or memorializes the death of a Christian."  Op. at 29 (emphasis in original).

The court also rejected the defendant's argument that the crosses were private speech and that therefore the Speech Clause, not the Establishment Clause, should govern.  The court held that the crosses were similar to the monuments in Pleasant Grove City v. Summum, the Supreme Court's 2009 case holding that monuments donated to the city by a private organization and displayed by the government on public property constitute government speech not subject to Speech Clause constraints (but still subject to the Establishment Clause).

SDS

Justice Souter's New Opinion on Free Speech, Schools, and the Armenian Genocide

 

While there has been some discussion of having retired Supreme Court Justices sit by designation on the United States Supreme Court, Souter is sitting by designation on the First Circuit.    The rather brief - - - at least by Supreme Court standards - - - fifteen page opinion rules on the constitutionality of a Massachusetts "curriculum guide" challenged on the basis of its treatment of the Armenian "genocide." 

The political heart of the case is the contentious issue of whether an Armenian genocide occurred, with the Republic of Turkey (as successor to the Ottoman Empire) vigorously arguing against such an interpretation of the post World War I events.  Several months ago, a Congressional committee condemned the genocide, causing a swift reaction by Turkey.

   Given such debates, it is not surprising that a state "curriculum guide" addressing the subject would also be contentious.  The legal issue before the First Circuit, as stated by Justice Souter, was "whether a decision by the Commissioner of Elementary and Secondary Education of Massachusetts to revise an advisory “curriculum guide” (by deleting his own earlier revision) in response to political pressure violated the First Amendment."   The court affirmed the district judge's holding that there was no First Amendment violation.

While disputes about the Armenian genocide may be the political heart of the case, the doctrinal core is the equally fraught status of the "curriculum guide."   Souter writes:

The briefing and argument have urged two competing metaphors upon us, with contrasting constitutional implications: that the Guide is a virtual school library established for the benefit of students as well as teachers; and its contrary, that the Guide is an element of the curriculum itself.

(Opinion at 7).  The library "metaphor" would subject the "decision to remove the references to contra-genocide material to First Amendment review" under the 1982 plurality decision of Pico.  Souter's opinion distinguishes Pico on several grounds, including the more correct categorization of the "curriculum guide" as curriculum rather than a library book. The opinion also reasons that even if the guide were considered more library book than not, the "missing step is the decisive act by a superior official overruling the authority that determines content in the normal course (in this case, the Board)."  In other words, the challenged revisions to the "curriculum guide" omitting the "contra-genocide" references were made by the same authority that had included the references in the first place.  (Opinion at 10).  

Souter's opinion concludes that "the revisions to the Guide after its submission to legislative officials, even if made in response to political pressure, did not implicate the First Amendment." (Opinion at 15). 

RR

Victor Goode on Birthright Citizenship and the Fourteenth Amendment

Explaining the birthright citizenship debate in constitutional and political terms clearly and without rancor is no small feat.  Victor Goode's commentary for Colorlines argues

the tension between America’s democratic ideals and its long history of racism on  the question of citizenship lurks behind any discussion of the 14th Amendment. Until its ratification, immigration and naturalization were limited to white persons. Even after its passage, Native American children, though subject to U.S. jurisdiction, were typically declared members of a separate racial and national group and therefore not eligible for citizenship. Asians were for years denied the opportunity to seek citizenship and for a period were barred from even entering the country. Although African Americans gained citizenship through the 14th Amendment, the same Supreme Court that decided Wong Kim Ark limited their rights with the “separate but equal” doctrine of Plessy v Ferguson.

Goode discusses the roots of the Fourteenth Amendment citizenship clause in the common law principle of jus soli as well as the subsequent birthright citizenship discussions in the Civil Rights Act.

This is an article worth reading, even if you think you understand the debate, and even if you think you don't.

RR

Civil Rights Chief: State Courts Must Provide Access

Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.

The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]."  The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.

Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).

Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition).  Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary.  (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.")  As a conditional spending requirement, there is no Tenth Amendment problem.  See South Dakota v. Dole (stating the requirements for federal conditional spending programs).

But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority.  The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.

SDS

Federal Judges' Treatment of Coerced Statements in Gitmo Cases

Federal district court judges have ruled against the government in 8 of 15 Guantanamo detainees' habeas cases because of interrogations of detainees and witnesses under "questionable circumstances," ProPublica reports in its latest installment in its ongoing investigation of detention at Guantanamo Bay, The Detention Dilemma.

ProPublica reviewed 31 published decisions involving 52 detainees who claimed they were wrongfully detained.  Fifteen of those involved detainee claims that they or witnesses were "forcibly interrogated." 

Judges rejected government evidence because of interrogation tactics ranging from verbal abuse threats to physical abuse they called torture.  Even in the seven cases the government won, the judges didn't endorse aggressive methods.  In six, they decided the detainees' stories of abuse simply weren't credible or were irrelevant to the outcome.  In one, the prisoner had repeated self-incriminating statements in military hearings, which the judge viewed as less intimidating than the interrogations he found unacceptable.

And the "clean evidence" strategy doesn't seem to be working:

In most of the cases the government lost, the judges rejected statements even from the "clean" sessions that the Bush administration began administering in 2002 to collect evidence to use in court.  The fear prisoners experienced during improper interrogations bled over to corrupt those statements too, the judges said.

The government has now lost 37 of the 53 habeas cases decided.  Fifty more cases are pending.  And the Obama administration has designated at least 48 of the remaining 176 prisoners at Guantanamo Bay for indefinite detention "because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. . . .  [C]oercion tainted evidence is one obstacle," according to the report.

This problem explains in part why the government isn't pursuing these cases in criminal courts: "The rules for excluding tainted evidence are stricter in [both civilian and military criminal courts], yet the government's need to marshal evidence is greater."

ProPublica's The Detention Dilemma project includes dozens of other outstanding reports--essential reading for anyone teaching or studying Guantanamo detention.  We've posted most recently on detainee habeas cases here and here.

SDS

The Nineteenth Amendment: Tennessee's Ratification Ninety Years Ago Today

Tennessee became the necessary 36th state to ratify the Nineteenth Amendment on August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The Amendment was made necessary by the Court's 1874 decision in Minor v. Happersett concluding that the Fourteenth Amendment did not extend citizenship rights to women.

The Amendment was first introduced in Congress in 1878, but the amendment eventually ratified by the required three-fourths of the states was introduced in 1919, with quick ratification by Illinois, Michigan, Kansas, New York and Ohio.

[image: Suffrage Parade, New York City, ca. 1912, via]

While the Nineteenth Amendment has not engendered much constitutional jurisprudence, ConLawProf Reva Siegel has argued that the Amendment could be the basis for Congressional power to address sex discrimination.  Her 2002 article, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, available on ssrn, argues:

The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government.

Perhaps a robust Nineteenth Amendment jurisprudence is yet to come?

RR

Stolen Valor Act Unconstitutional: Ninth Circuit's Opinion in Alvarez

[UPDATE here]

In an lengthy opinion, over an equally lengthy dissent by Judge Jay Bybee, a panel of the Ninth Circuit has held the Stolen Valor Act unconstitutional. 

The Act, codified at 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."  

In Alvarez, there seems to be no doubt that the statute was violated.  As the Ninth Circuit recited:

Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his self-introduction was nothing but a series of bizarre lies.

The Ninth Circuit analyzed the Stolen Valor Act under the First Amendment: it is clearly regulating "only words."  The majority also reasoned that the "Act targets words about a specific subject: military honors," and is thus a content-based regulation subject to strict scrutiny.   The Ninth Circuit panel rejected the argument that the falsity of the statements remove the issue from constitutional protection or scrutiny.  To adopt such a view (articulated by the dissent) would be "turning customary First Amendment analysis on its head."  The panel then discussed several of the categorical exclusions urged by the government, perhaps most interestingly an analogy to defamation: 

even if it were justifiable to presume that harm to the meaning and reputation of military decorations occurs whenever a false claim concerning their receipt or possession is made, the government may not restrict speech as a means of self-preservation. The right against defamation belongs to natural persons, not to governmental institutions or symbols.

The damage to the "reputation and meaning" of military and Congressional decorations and medals resurfaces in the analysis of the government's interest weighed in the strict scrutiny test.  The panel reasoned that Congress has "an interest, even a compelling interest, in preserving the integrity of its system of honoring our military men and women for their service and, at times, their sacrifice."  Yet the panel quickly concludes that the Stolen Valor Act is narrowly tailored to achieving that "noble interest."

The Ninth Circuit stated that "criminally-punishing lies" is not the best way to achieve the purpose:  "it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves."

Bybee's dissent stressed the falsity of Alvarez' statements, a stress that some will certainly find noteworthy given allegations regarding Bybee's own truthfulness in his judicial confirmation hearings regarding his role in the Bush "torture" policy. The transcript of the May 26, 2010 House Judiciary Committee interview of Bybee regarding his role regarding the approval of torture in the Bush Office of Legal Counsel  is available here.

[image: Space Medal of Honor via] [see comments]

RR

Ninth Circuit Stays Perry v. Schwarzenegger, Proposition 8's Unconstitutionality

A panel of the Ninth Circuit. has stayed Judge Walker's decision finding Proposition 8 unconstitutional, thus vacating Walker's decision lifting the district judge's own stay.  In other words, Proposition 8, prohibiting same-sex marriages, is again the law of California.

The very brief opinion states in full:

Appellants’ motion for a stay of the district court’s order of August 4, 2010
pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of
Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not
apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010.The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.

Recall that the district judge raised the issue of lack of standing by the "proponents."  The Ninth Circuit panel seems to be taking the issue of standing - - - or lack thereof - - - quite seriously. 

RR