House votes to protect Pledge

Link

Excerpt:

The House yesterday voted to protect the "under God" phrase of the Pledge of Allegiance from judges who might declare it unconstitutional, the measure being another element of the Republican-pushed values agenda in the lead-up to the fall elections.

Supporters said the Pledge Protection Act, which passed on a 260-167 vote, was necessary because of court decisions such as a 2002 ruling in California from the 9th U.S. Circuit Court of Appeals. The court ruled it an unconstitutional "endorsement of religion" to require public-school students to recite the Pledge in its current form. In 1954, Congress added the words "under God" to demonstrate opposition to atheistic communism.

The Pledge Protection Act was backed by 221 Republicans and 39 Democrats, with eight Republicans, 158 Democrats and the chamber's only independent opposed.

"Judges should not be able to rewrite the Pledge," said Majority Whip Roy Blunt, Missouri Republican.

The measure denies federal courts the jurisdiction to rule on interpretation of the Pledge and forbids the Supreme Court from ruling on Pledge appeals. State courts would be free to decide the matter as a state issue.

"We must step in," said Rep. Todd Akin, the Missouri Republican who sponsored the bill. He called it Congress' responsibility to "stand up to the court when they are misusing the Constitution."

Alito Article

From How Appealing (link):

"Alito: The life and times of a justice in the making." Because The Newark (N.J.) Star-Ledger is a newspaper whose articles do not remain online for long, I'm going to break with my usual vacation-week practice to note that today's edition of that newspaper contains an article headlined "Alito: The life and times of a justice in the making."

The article explains, "With the court in summer recess, Sam Alito and his wife, Martha-Ann, agreed earlier this month to their first interviews since he was confirmed. They talked about the Senate hearings, about her tearful breakdown during a now famous session. He also spoke about the inner workings of one of the most closely watched courts in the nation's history."

President Refusing to Enforce Laws He Deems Unconstitutional

Suppose the Supreme Court decides a case, as it did in Plessy v. Ferguson, that reverses Brown v. Board and holds that racially segregated public institutions are not unconstitutional. Now suppose further that Congress passes a law (over the President's veto) that requires public buildings and public facilities to be segregated by race.

The President issues a statement declaring that he disagrees with the Supreme Court's interpretation of the Equal Protection Clause and declares that he will not enforce the segregation law because he believes it is unconstitutional.

Is it proper for the President to follow his interpretation (as opposed to the Court's interpretation) of the Constitution when carrying out his power to "take care that the Laws be faithfully executed" and his oath to "preserve, protect and defend the Constitution of the United States."

The Great Debate

Here are a couple of questions I submit to you all for comment.

1. There seems to be a consensus that judicial restraint is good and judicial activism is bad. But not everyone agrees what these terms mean. What do you think? What is judicial activism and why is it bad? When should courts exercise restraint?

2. Justice Brennan reads the Constitution as protecting liberty by means of "majestic generalities" such as the "ideal of human dignity." Assuming human dignity is a constitutional ideal, is it one capable of application? How does a Court know what human dignity means in the context of constitutional litigation? Is this any different from reading the Constitution as a general directive to judges to decide all important public policy issues based upon their own subjective preferences (their own view of what "human dignity" means)? Is this consistent with the Constitution's explicit recognition of the most important freedom of all, the freedom of a people to participate in democratic self-government through law?

UT Link

link

Now imagine that UNL had an official website that gave some advice about "Spirituality and Fears About the After Life" that included some advice:

James Smith, who was raised in a liberal Unitarian church, suffered from his fear that a truly Holy God could not possibly ignore the reality of sin.

" I was raised in a church that teaches that salvation is universal and is earned, regardless of what you believe, by living a good life. But I know that I am not good, at least not in the eyes of a holy and righteous God. I realized that trusting Jesus and the blood He shed for me on the cross was the only way for me to get past my guilt and my sins. The God I really believed in was a God who was both Holy and Merciful. His holiness demanded that He hate my sin, but in His mercy and His love he sent his Son to die for those who trust in Him."

This is an experience many people go through. Faced with a conflict between their religion and their concept of what God must really be like, they come to realize that a truly righteous God can not grade on the curve and that a truly merciful God would create one path--the way of the Cross--to save those who accept His mercy."

Would this statement of spiritual counseling from UNL officials violate the EC?

Poway Editorial in Wash Post

Link

Link Fixed: Christian Legal Society v. Walker

I fixed the link in the syllabus for this case. Here it is as well. This time I mean it!!!

Poway Hypos

Was the problem for the court in Poway that the banned t-shirt used the word "shameful?" Suppose instead pro-family students wore t-shirts on National Day of Truth proclaiming:

"THE TRUTH SHALL NOT BE SILENCED"

"ONE MAN ONE WOMAN ONE FAMILY"

Would a t-shirt such as this have passed muster under the 9th Circuit's reading of Tinker?

Suppose in, say, Kansas a public school student is disciplined for wearing a t-shirt on the National Day of Silence proclaiming:

"HOMOPHOBIA IS SHAMEFUL"

Could this shirt be banned under Poway due to disruptions that occurred at last year's Day of Silence? Would it matter if the school banned the anti-homophobia t-shirts while permitting students to wear pro-family t-shirts such as the one in the first hypo above?

Let's talk about these issues in today's class!

The Right Not to Read a Book With Whores In It

What I would like you all to do is post a comment sharing your views about Hentoff's great chapter on the "right not to read" a book contrary to one's conscience.

Please. Everyone. Speak up! Fill cyberspace with your intelligence!

Nat Hentoff is an old style ACLUer, one who believes that free speech and freedom of thought are at the very core of liberty. He is a friend (well, a friendly acquaintance) of mine and I always enjoy reading his columns. He brings the eye of a journalist--an eye for facts and human details--to his analysis of legal issues.

Mt. Soledad Cross Litigation

Link

Excerpt:

"Seventeen years of legal wrangling later, the 29-foot monument still crowns a hill over the Pacific – defended by city ballot measures, federal legislation and even one congressman's appeal for presidential intervention.

Now the Supreme Court has weighed in, and the case of the Mount Soledad cross may set a precedent on whether the government can let religious symbols be maintained in public places.

State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. Earlier this month, the Supreme Court halted an order that the city take it down by Aug. 1, giving state and federal courts time to hear appeals this fall."

UPDATE (from How Appealing blog):

"Senate approves transfer of cross; Passage unanimous; Bush expected to sign": The San Diego Union-Tribune today contains an article that begins, "The U.S. Senate approved a plan yesterday to transfer land beneath the Mount Soledad cross to the federal government, bolstering supporters who have been fending off efforts to remove the monument for nearly two decades."
And The Los Angeles Times reports today that "U.S. Senate Votes to Acquire Site of Cross."