Friday, December 28, 2018
In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution." This refers the 2011 year end report by Chief Justice Roberts in which he stated:
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices. As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions.
Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position. And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.
Saturday, August 18, 2018
It is the 98th anniversary of the right to vote for United States women. 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.
As we wrote in 2010, 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.
We asked then whether a robust Nineteenth Amendment jurisprudence might yet be developed; not yet.
Monday, July 9, 2018
The Fourteenth Amendment was ratified on July 9, 1868.
Here's the text:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[images National Archives via]
July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)
Wednesday, July 4, 2018
We've posted several times over the years on the Declaration and its influence on constitutional interpretation; here are a few:
Friday, July 21, 2017
Given recent reporting that raises the specter of a Presidential self-pardon, a few sources are worth considering.
First, there is the Constitutional text itself, which is not surprisingly inconclusive on this issue. Article II §2 begins by declaring that the President "shall be commander in chief of the Army and Navy of the United States" and ends by stating "and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." What's clear is the exclusion of impeachment. What's unclear is whether this power would extend to a self-pardon.
Second, although there has never been a case of Presidential self-pardon in the United States, the possibility was contemplated with regards to President Richard Nixon. An Office of Legal Counsel Opinion, Memorandum Opinion for the Deputy Attorney General, offered a succinct answer to the "question whether the President can pardon himself":
Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.
The Memo does raise several other possibilities, including one under the 25th Amendment involving the Vice-President, as well as the legislative actions. The Memo, by Mary Lawton, was dated August 5, 1974; Nixon resigned a few days later. A month later, President Gerald Ford issued a Proclamation with a full pardon to Nixon.
Third, a 1996 law review note article by now-Professor Brian Kalt of Michigan State University College of Law, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, springboards from the possibility that President George Bush, who had pardoned several people implicated in the Iran-Contra controversy would also pardon himself as he left office. Kalt concludes that "the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."
The bedrock principle that "no one can be a judge in his own case" is the foundation of the Kalt article and its sources as well as the OLC memo, as well as providing a rationale for even the possibility not being excluded in the Constitutional text.
Tuesday, July 4, 2017
While we usually focus on the ideals articulated in the first portion of the Declaration of Independence - - - "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" - - - the bulk of the document is devoted to proving that the "history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States." It continues:
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
Monday, June 26, 2017
SCOTUS in Trinity Lutheran Finds Missouri's Denial of Funding to Church Playground Violates First Amendment
In its opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision, a so-called Blaine Amendment, prohibiting any state funds from being awarded to religious organizations.
Recall that at the oral arguments, most Justices seemed skeptical of Missouri's argument. However, recall that the Eighth Circuit had concluded that Trinity Church sought an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
In the Trinity Lutheran opinion authored by Chief Justice Roberts, the Court characterized the Missouri policy as one that "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." Relying on the Free Exercise precedent it had discussed, it concluded that if such cases "make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." The Court added that "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government program without disavowing its religious character."
Yet the question of subsidy or funding caused some consternation amongst the Justices who joined the Chief Justice's opinion for the Court. Footnote 3, which provides in full "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination" is joined only by a plurality - - - Justices Thomas and Gorsuch explicitly exempted this footnote. In two brief concurring opinions, one by Thomas joined by Gorsuch and one by Gorsuch joined by Thomas, the continued vitality of Locke v. Davey is questioned.
In the Court's opinion, Locke v. Davey is distinguished because "Davey was not denied a state-funded scholarship of who he was but because of what he proposed to do - to use the funds to prepare for the ministry." (emphasis in original). For Gorsuch, this status-use distinction is not sufficient.
Justice Sotomayor's dissenting opinion, joined by Justice Ginsburg, and almost twice as long as the Chief Justice's opinion for the Court, is rich with originalist history as well a discussion of Locke v. Davey and a citation to the 38 state constitutional provisions similar to the Missouri one. For Sotomayor,
Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.
Sotomayor points to the possible ramifications of the opinion, including the troublesome footnote 3:
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.
It dies seem that Trinity Lutheran opens the floodgates for claims by religious entities that they are being "discriminated" against whenever there are secular provisions for funding.
Monday, June 12, 2017
In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.
Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary. In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love." This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:
Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.
And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:
perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.
June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)
Monday, November 28, 2016
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
For example, on the water cannon:
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
Monday, September 19, 2016
The official trailer for the movie, Loving, based on Loving v. Virginia (1967) and due to be released November 4, is available:
The film has already received some positive reviews including from audiences at the Cannes Film Festival.
The case is always a popular read with ConLaw students and the film will certainly only accentuate that interest.
The trailer includes reference to the United States Supreme Court case, but it is best offered to students as a supplement on the course website rather than as precious minutes of class time.
Wednesday, February 24, 2016
On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.
Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.
What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.
Sunday, January 31, 2016
Roosevelt begins by provocatively asking whether we could dare to even "invent" a character like Richard Posner if he did not exist, flatteringly describing Posner as "arguably America’s greatest living judge." (A judgment that many might find more than a bit arguable.)
As to the book, Roosevelt has a few criticisms. Although it is "a valuable contribution to debates over the future of federal courts and law schools alike," its "list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions." Moreover, some of the criticisms are "overstated." As to legal scholarship, Roosevelt takes Posner to task for his judgment about the correctness of the now-reviled decision in Korematsu v. United States, upholding a Japanese internment conviction during World War II, and notes that legal scholarship has shown that the government not only over-reacted but was less than candid with the Court.
While Roosevelt has high praise for the book, it does not seem like a must-read. Instead, read Roosevelt's review.
Tuesday, December 15, 2015
In his Presidential proclamation this year, President Obama articulates a living constitutionalism perspective:
Today, we stand on the shoulders of those who dedicated their lives to upholding the meaning of our founding documents throughout changing times -- a mission made possible by the fundamental liberties secured in the Bill of Rights. As we reflect on the strides we have made to lift up an engaged citizenry, we pay tribute to the extraordinary foresight of our Founders who granted the protections that enable us to bring about the change we seek. Let us recommit to continuing our legacy as a Nation that rejects complacency, empowers its citizens to recognize and redress its imperfections, and embraces the struggle of improving our democracy so that all our people are able to make of their lives what they will.
For more on the "holiday," my piece from last year is reprinted here.
Tuesday, December 8, 2015
The Amicus Brief of the United States in Fisher v. University of Texas - - - Fisher II - - - to be argued December 9, begins its argument with an interesting evocation of the governmental interest in diversity:
Over two hundred years ago, George Washington recognized the importance to the Nation of a university education that would “qualify our citizens for the exigencies of public, as well as private life *** by assembling the youth from the different parts of this rising republic, contributing from their intercourse, and interchange of information, to the removal of prejudices which might perhaps, sometimes arise, from local circumstances.” Letter from President George Washington to the Commissioners of the District of Columbia (Jan. 28, 1795), in 34 The Writings of George Washington 106-107 (John C. Fitzpatrick ed., 1940).
[Ellipses in original].
Monday, October 12, 2015
The 2015 Presidential Proclamation for Columbus Day includes an acknowledgement that the celebration of Columbus is controversial among many:
Though these early travels expanded the realm of European exploration, to many they also marked a time that forever changed the world for the indigenous peoples of North America. Previously unseen disease, devastation, and violence were introduced to their lives -- and as we pay tribute to the ways in which Columbus pursued ambitious goals -- we also recognize the suffering inflicted upon Native Americans and we recommit to strengthening tribal sovereignty and maintaining our strong ties.
As the Washington Post reports, many cities are replacing Columbus Day with Indigenous Peoples Day, including Seattle. The state of South Dakota legislated the day as "Native American Day" in 1990 - - - although no other state seems to have followed suit. The day remains a federal holiday.
A lively commentary by James Nevius over at The Guardian calls Christopher Columbus a "lost sadist," but also interestingly argues that the holiday's "sentiments are superfluous," given the United States' development. In a more scholarly vein, Kevin Bruyneel has argued that the holiday serves as a consolidation of white settler identity; his article, The Trouble with Amnesia: Collective Memory and Colonial Injustice in the United States, takes calendar holidays as its theme and is worth a read over at ssrn.
Friday, September 18, 2015
The question of whether the institution of chattel slavery is inherent in the Constitution is being debated in the popular press.
In an op-ed in the New York Times, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past." He concludes
Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
Over at the New Republic, Lawrence Goldstone argues Wilentz is absolutely wrong. Sure, the Constitution's framers avoided the word "slavery" in the document itself, just as in the debates they "almost always employed euphemisms such as 'this unique species of property, 'this unhappy class,' or 'such other persons.' " Goldstone concludes that perhaps it may be correct to say that "the Constitution didn’t specifically anoint slavery as a national institution," but nevertheless "in clause after clause it tried to make certain that slavery would endure as one."
To see such matters debated in the popular press, even in such abbreviated form, has been stimulating to many ConLaw students studying the issue in class.
Wednesday, July 1, 2015
Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.
However, South Carolina, like many states, has an anti-masking statute, S.C. 16-7-110, which provides:
No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.
As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.
For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission. In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself. In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK. In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004). The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members. Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.
Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces, the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play.
July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)
Monday, June 15, 2015
According to the usual history, "On June 15, 1215, in a field at Runnymede, King John affixed his seal to Magna Carta. Confronted by 40 rebellious barons, he consented to their demands in order to avert civil war." The civil war was not successfully averted, but the document has come to symbolize principles of liberties and rights, including as a precursor to the United States Constitution.
The document itself, with its specific items regarding freemen, property, writs, and the memorable "No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband."
A good overview is from the BBC magazine, which points outs that most of its provisions applied only to ""Free men" who in 1215 accounted for less than half the population; the rest were serfs, to whom the charter did not apply, as well as women and children.
ConLawProf Tom Ginsburg's Op-Ed in the New York Times entitled "Stop Revering Magna Carta," in which he argues that the Magna Carta's current status rests on a series of misunderstandings.
The current celebrations and controversies in "England" including not only commemoration by Queen Elizabeth, but statements by Prime Minister Cameron that Great Britain must "restore" its dedication to "human rights" as evinced in Magna Carta by secession from the European Court of Human Rights and Human Rights Act.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015] 149 [updated] LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.
76 77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)
Sunday, March 8, 2015
Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.
Krotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."
He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones." He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.
Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech, "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy."