Constitutional Law Prof Blog

Daily Read: Clay v. United States (1971)

Professor Ruthann Robson, City University of New York (CUNY) School of Law

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. 

In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces." 

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg via

The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

However, the Department of Justice abandoned that argument before the United States Supreme Court:

In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger,  ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief].  This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.

[citations and footnote omitted]

A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).

Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."

Muhammad Ali's Greatest Fight: Cassius Clay vs. the United States of America, the 2000 book by Howard Bingham and Max Wallace and subsequent 2013 HBO televised drama center on the litigation.

 

 

Constitutional Liability for Penn State?

The doctrine of DeShaney v. Winnebago is a harsh one.  As the Fifth Circuit recently noted: "The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its students. Absent a special relationship, any analysis of the defendant’s conduct as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant." 

Yet today's Freeh Group Report may test the limits of DeShaney.  The just released report, available on Larry Cata' Backer's Penn State Faculty Senate Blog, details the events at Penn State that eventually led to the arrest and convicton of coach Jerry Sandusky for sexual abuse of ten children.  The focus would not necessarily be on the university officials "failure to report" but on the "special relationship" that university officials fostered.

RR
[image: Penn State Nittany Lion mascot via]

Federal Cockfighting Prohibition Survives Commerce Clause and Equal Protection Challenge

In two opinions issued today - - - United States v. Lawson and United States v. Gilbert  - - - the Fourth Circuit has upheld the federal prohibition against animal fighting, 7 USC §2156.

The animal fighting statute provides  "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as

any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .

The defendants/appellants argued that the statute exceeded Congressional power under the Commerce Clause. 

The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute."   Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce,"  unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000).  Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."  

Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.

In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.

The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson. 

In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component.  The focus was on the varying scienter requirements depending upon state law.  Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce.  In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.

In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose.  Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico.  The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest." 

Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial.  The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions. 

These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis.  They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected. 

RR
[image: "Cock-fighting Match" by John Kay, circa 1826, via]

Footnote of the Day: Baseball Poem

In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.

Footnote 4:

Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:

I knew a cove who'd never heard of Washington and Lee,

Of Caesar and Napoleon from the ancient jamboree,

But, bli'me, there are queerer things than anything like that,

For here's a cove who never heard of ‘Casey at the Bat’!

‘Ten million never heard of Keats, or Shelley, Burns or Poe;

But they know ‘the air was shattered by the force of Casey's blow’;

They never heard of Shakespeare, nor of Dickens, like as not,

But they know the somber drama from old Mudville's haunted lot.

‘He never heard of Casey! Am I dreaming? Is it true?

Is fame but windblown ashes when the summer day is through?

Does greatness fade so quickly and is grandeur doomed to die

That bloomed in early morning, ere the dusk rides down the sky

‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

Footnote 5:

‘These are the saddest of possible words,

‘Tinker to Evers to Chance.’

Trio of bear cubs, and fleeter than birds,

‘Tinker to Evers to Chance.’

Ruthlessly pricking our gonfalon bubble,

Making a Giant hit into a double-

Words that are weighty with nothing but trouble:

‘Tinker to Evers to Chance.“

Franklin Pierce Adams, Baseball's Sad Lexicon.

The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball.  Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this,"  it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."   

There are footnotes for "hockey" and "golf" but they contain case citations, not poems.

RR

with J. Zak Ritchie

[image: statute of Casey at the Bat, via]

 

Footnote of the Day: Co-Ed Sports and VMI

Should there be co-ed football?  Must there be?

Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule.   In footnote 8, he explained:

In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.

 

 

This would be a great class exercise for law schools at public universities with a large proportion of football devotees.  For baseball afficiandos, there will be a footnote later this week.

RR

Suggested by Professor Jessica Silbey

[Image from the Cleveland Plain Dealer, May 1, 2009 via]

The World Cup and Term Limits for High Court Justices

ConLawProf Mark Kende may be watching The World Cup, but he's thinking about comparative constitutional law, and more specifically, the appointment of high court justices. 

In his Op-Ed in the Christian Science Monitor, Kende argues:

In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.

Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.

If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.

Interestingly, South African ConLawProf Pierre de Vos, commenting on The World Cup closer at hand, has recently noted that there is some talk that the South African Constitutional Court Justices might move to a mandatory retirement age of 70 for justices.  This would be more like the life-tenure American model, and quite like the Australian mandatory retirement age of 70 model. 

RR