Classifications based upon Alienage

We don't have time to discuss this in class (and there is a course that deals specifically with immigration issues), but here is the basic outline:

State Laws

"State and local laws that discriminate on the basis of alienage are...generally deemed to involve a suspect classification and are thus subject to strict scrutiny." Ides and May Book.

However, state laws that discriminate against illegal aliens are generally subject to rational basis review. Id. However, "the Court has been willing to apply a standard of review that is more searching than rational basis review to at least some state laws that discriminate against undocumented alien children." Id.

Federal laws

Because of the constitutional responsibility of Congress to regulate alienage, "federal laws that discriminate against aliens" are generally "reviewed under a rational basis standard." Id.

Q & A Session--Friday, 12-2-10, at 11:50 AM

Tomorrow, immediately following class, we will have a Q & A Session to help you get ready for the final exam.

Final Exam

Here is some information about the final exam.

It is a 3 hour, closed book (Closed Mode) examination.

You are required to take it on your computers (or on one of the law college's lab computers).

You must have the current semester version of Exam 4 already loaded on your computer. If you have any questions about this, please see Vicki in the Dean's Office well before the scheduled date of the exam.

The Exam has two parts--an essay part and a multiple choice/true-false part. The essay questions are in the short to medium range (i.e. from 200 to 500 words in length). Please make sure to observe the word limitations for each question.

You will need a supply of number 2 pencils to mark your answer sheets on the objective part of the exam.

Have a great Thanksgiving break! Family, friends, food and football!

Cheers, Rick Duncan

Supreme Court's Abortion Jurisprudence

Here is an interesting link.

FYI: Supreme Court Oral Arguments in Arizona Tuition Scholarship Tax Credit Case

This is a Con Law II issue, but a very interesting and important one. From the ReligionClause blog:

Supreme Court Hears Arguments In Arizona Tuition Scholarship Tax Credit Case

The U.S. Supreme Court today heard oral arguments (full transcript) in Arizona Christian School Tuition Organization v. Winn along with Garriott v. Winn. At issue is the constitutionality of Arizona's program that gives tax credits for contributions to school tuition organizations that in turn provide scholarships primarily to children attending parochial schools. Scotus Blog has links to all the briefs filed both by the parties and by amici.  In the case, the 9th Circuit held that plaintiffs have taxpayer standing to challenge the state programs and that the programs violate the Establishment Clause. (See prior posting.) Lyle Denniston has a recap of the arguments posted at Scotus Blog. He described it as "a passionate hour spent heavily on the difference between a tax credit and a tax deduction, intertwined with a focus on the arcane subject of "taxpayer standing" to file a lawsuit...."  ABC News also reports on the arguments.

Iowa Supremes Rejected by Voters

From today's Des Moines Register:

Three Iowa Supreme Court justices lost their seats Tuesday in a historic upset fueled by their 2009 decision that allowed same-sex couples to marry.

Vote totals from 96 percent of Iowa's 1,774 precincts showed Chief Justice Marsha Ternus and Justices David Baker and Michael Streit with less than the simple majority needed to stay on the bench.

Their removal marked the first time an Iowa Supreme Court justice has not been retained since 1962, when the merit selection and retention system for judges was adopted.

The decision is expected to echo to courts throughout the country, as conservative activists had hoped.

"It appears we're headed for a resounding victory tonight and a historic moment in the state of Iowa," said Bob Vander Plaats, the Sioux City businessman who led a campaign to remove the justices because of the 2009 gay marriage ruling. "The people of Iowa stood up in record numbers and sent a message ... that it is 'We the people,' not 'We the courts.' "
In a statement issued early today, the three justices said: "We hope Iowans will continue to support Iowa's merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our state's fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people."
Not everyone agreed with Vander Plaats or the majority of voters.

"In the end, the aggressive campaign to misuse the judicial retention vote, funded by out-of-state special interests, has succeeded," Drake University Law School Dean Allan Vestal said. "The loss of these three justices is most unfortunate, and the damage to our judicial system and the merit selection of judges will take much to repair."

Ternus, Streit and Baker will remain on the bench until Dec. 31.
Justices serve staggered, eight-year terms. David Wiggins is up for retention in 2012; Mark Cady, Daryl Hecht and Brent Appel face voters in 2016.

The ouster effort grew out of the April 2009 gay marriage ruling that stunned the nation, outraged social conservatives and turned Iowa into the first Midwestern state to sanction same-sex marriage.

Iowa's seven justices declared that a law barring same-sex marriage violated the constitution's equal-protection rights of gay and lesbian couples who wish to marry.
Groups that wanted the justices ousted poured more than $650,000 into their effort, with heavy support from out-of-state conservative and religious groups. Campaigns that supported the justices and the current state court system spent more than $200,000.

Two Polk County judges who faced retention challenges survived with more than 60 percent of the vote, as did all of their colleagues at Iowa's largest courthouse.

Judge Robert Hanson, who sided with six same-sex couples in the Polk County District Court ruling, was retained with 66 percent support once all precincts were counted. Polk County District Judge Scott Rosenberg, targeted in a last-minute automated phone campaign for signing one gay couple's marriage waiver, kept his seat on the bench with 69 percent.
Hanson said he was elated and grateful for the support of Polk County voters but was disturbed by the loss of the three justices.

"I'm very, very thankful for the support, and for (voters') apparent appreciation of the proper functions of the judiciary," Hanson said.

Ternus, 59, the most senior justice on the seven-member court, was appointed to the bench by then-Gov. Terry Branstad in 1993. She became Iowa's first female justice in 2006.

Baker, 57, the newest justice, was appointed by Gov. Chet Culver in 2008.
Streit, 60, joined the court in 2001. He was appointed to the district court bench by Branstad in 1983.

Iowans interviewed at polling stations based their votes heavily on the gay marriage ruling.

Chris Keller, 31, of Waukee voted "yes" to retain the three justices because he disagreed with political attacks based solely on the gay marriage opinion.

"It's not the justices' responsibility to let the people vote," Keller said. "It's the lawmakers' responsibility, and they chose not to do that. Legally, the court's ruling was the right decision."
Bernie Noel of Bloomfield said he had never voted "no" on a justice until Tuesday. The 43-year-old said he opted to retain his local district court judges, who "do a great job, and are good people." But the gay marriage ruling swayed him against the justices.

"I don't think they should have the power to change the constitution and take things into their own hands," Noel said. "It's a hard job to do, but here, in this case, I just really think they overstepped their bounds."
The retention challenge triggered a battle never seen in Iowa's judicial history. Television, radio and Internet ads portrayed the justices as both activists and referees. Robo-calls urged a "no" vote. U.S. Rep. Steve King embarked on a statewide bus tour to rally "no" voters.

Supporters of the justices included former governors Robert Ray, a Republican, and Democrat Tom Vilsack, and other prominent figures in government.

Supporters of the justices considered the attacks an affront to the integrity of Iowa's courts and how justices are selected

What is the lesson of this amazing political outcome? Is it that the voters are wrong to politicize the judiciary? Or that the Court was wrong to politicize the state constitution?

Volokh Blog Post on McDonald and Incorporation of the Second Amendment

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Eugene Volokh • June 28, 2010 5:40 pm

I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?
To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:

1. Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
2. Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
4. Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.

But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.

A. The incorporation precedents under the Due Process Clause generally hold that the Fourteenth Amendment applies against the states those rights that are “fundamental to our scheme of ordered liberty and system of justice.” The plurality held that the Second Amendment is incorporated by concluding that the right is indeed fundamental; and Justice Thomas’s concurrence also referred to the right as fundamental.
Now as it happens there is also talk in the Court’s precedents that restrictions on rights should be evaluated under strict scrutiny if those rights are fundamental. I don’t think that’s quite right (partly for reasons I explain in my article). But the Court has said this, and as a result some lower courts have concluded that restrictions on the right to bear arms should be evaluated only under intermediate scrutiny, because the right isn’t really fundamental. Here, for instance, is a passage on the subject from Heller v. D.C. (II), 2010 WL 1140875 (D.D.C. Mar. 26), which dealt with D.C.‘s new gun control law:

[T]he Heller [(I)] majority suggested that one of the two “traditionally expressed levels” of heightened scrutiny — intermediate scrutiny and strict scrutiny — should be applied to laws implicating the Second Amendment right. Thus, the court turns to an analysis of whether intermediate scrutiny or strict scrutiny is the most appropriate standard to be used to evaluate restrictions on the exercise of the Second Amendment right. As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right, despite the fact that it stated that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects” and noted that Blackstone “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly. The court will not infer such a significant holding based only on the Heller majority’s oblique references to the gun ownership rights of eighteenth-century English subjects.

Partly because of this (though also based on other arguments), the court concluded that “intermediate scrutiny is the most appropriate standard of review to apply to the challenged laws.” See also United States v. Yanez-Vasquez, 2010 WL 411112 (D. Kan. Jan. 28) (“The court declines to apply strict scrutiny, since ... Heller did not expressly find firearm possession to be a fundamental right.”); United States v. Jones, 673 F. Supp. 2d 1347 (N.D. Ga. 2009) (though this involved gun possession by a felon, which, according to Heller, is outside the Second Amendment’s scope); United States v. Miller, 604 F. Supp. 2d 1162 (W.D. Tenn. 2009) (same). McDonald’s conclusion that the right is fundamental might change this, and might lead courts to apply strict scrutiny rather than intermediate scrutiny. I’ve argued in my article that the intermediate/strict scrutiny distinction might be less helpful than might appear (and I’ve more broadly argue that intermediate scrutiny and strict scrutiny themselves don’t provide a terribly helpful way of framing the discussion). But my sense is that judges do care about the distinction; if this is so, then McDonald’s conclusion that the right as fundamental could prove important.
B. The Court also writes, responding to Justice Breyer’s dissent,

Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

If one takes this seriously, then this suggests that the government might not be able to prevail with “reducing danger” arguments at all. Say, for instance, that the government argues that restrictions on handgun possesion by 18-to-20-year-olds are constitutional, based on data about gun crime by people in that age group (an argument that the district court seemed to accept, though in a somewhat procedurally complicated context, in United States v. Bledsoe, 2008 WL 3538717, *4 (W.D. Tex. Aug. 8), citing and reaffirming post–Heller the court’s earlier decision at 2008 WL 3538717, *4 (W.D. Tex. Mar. 20)). Under a standard intermediate or even strict scrutiny framework, this sort of argument might well work, on the theory that the government has shown that the law is substantially related to an important government interest in protecting life and preventing crime, or even that the law is narrowly tailored to a compelling government interest. But if indeed courts have no need “to make difficult empirical judgments” about the “costs and benefits of firearms restrictions,” because the “enumeration of the right takes out of the hands of government ... the power to decide on a case-by-case basis whether the right is really worth insisting upon.” (Compare Craig v. Boren, 424 U.S. 190, 203–04 & 208 n.22 (1976), which seems to largely but not entirely close the door to arguments that sex or race classifications would be constitutional when sex or race is a statistically sound proxy for some bad behavior.)
The same might be true with regard to arguments that bans on gun possession by people who are under domestic restraining orders pass intermediate or strict scrutiny, and so on. Perhaps such bans might still be upheld on the grounds that the historically approved scope of the right is limited to “peaceable citizens,” and excludes not just convicted felons but also people for whom there was a showing, by a preponderance of the evidence, that they had committed a violent misdemeanor (or something like that) and are likely to pose a continuing dangers. Or perhaps there are other reducing-danger arguments that could be approved under intermediate or strict scrutiny but without the use of statistical evidence. But if we take seriously the Court’s assertion that the Second Amendment bars courts from engaging in empirical decisionmaking about the supposed efficacy of gun controls, then it sounds like “reducing danger” arguments for gun controls become much harder to make.
These are just tentative predictions; I may well change my mind after thinking more about the decision, and in any event courts might well not put quite this much stock in the particular McDonald passages that I refer to. Still, I thought I’d flag them in case they’re helpful, interesting, or both.

New Tenth Amendment Case

From the New York Times (Link):

A 10th Amendment Drama Fit for Daytime TV

By ADAM LIPTAK

WASHINGTON
The Tea Party’s favorite part of the Constitution — the 10th Amendment, which limits federal power — arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.
The amendment has played a starring role in challenges to the recent federal health care legislation. But the justices have not made the task of divining their own views particularly easy.
Their most recent consideration of where Congress’s constitutional power ends came in a case involving the civil commitment of sex offenders.
Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.
The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond’s mood darkened, though, when it emerged that her husband was the father. “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.
Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.
Ms. Haynes, who managed to escape serious injury, complained to the local police. They did not respond with particular vigor. After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.
Federal postal inspectors were more helpful. They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.
When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.
Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.
Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.
She relied on the 10th Amendment, the one so beloved by Tea Party activists. It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
A unanimous three-judge panel of the federal appeals court in Philadelphia said Ms. Bond’s argument was a serious one of “first impression.” Then the court ducked answering the question by saying Ms. Bond was not entitled to raise it. Only states, it said, can mount 10th Amendment challenges.
Paul D. Clement, a solicitor general in the administration of President George W. Bush, now represents Ms. Bond. He called the idea that Ms. Bond lacks standing to challenge the law under which she was imprisoned “startling” and “absurd.”
More broadly, Mr. Clement wrote, the Bond case is an instance of an issue that has lately united conservatives, libertarians and liberals. They say there are too many federal crimes, that they are often simultaneously vague and harsh, and that they undermine state authority to maintain public safety.
Mr. Clement said his client’s poisonous rampage was not “successful or particularly sophisticated.”
“Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities,” Mr. Clement wrote. “Ms. Bond’s assault against her husband’s paramour did not involve stockpiling chemical weapons, engaging in chemical warfare” and the like, he added.
In the appeals court, federal prosecutors had embraced the idea that Ms. Bond was powerless to attack her conviction on 10th Amendment grounds. But the federal government reversed course in the Supreme Court.
“A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress’s Article I authority to enact,” Acting Solicitor General Neal K. Katyal told the justices.
Ms. Bond has been in prison for more than three years. Given that two sides agree her case was mishandled, the Supreme Court might have summarily reversed the appeals court’s decision. Instead, it will hear arguments in the case in the next few months and probably issue a decision by June.
That means the case of the poisoned paramour, known formally as Bond v. United States, No. 09-1227, will among the more closely watched this term.

Contemporary View of National Power

Here is a discussion of a recent Gallup Poll (Link):

"Americans' Image of "Federal Government" Mostly Negative

More than 7 in 10 describe government in negative terms

by Jeffrey M. Jones

PRINCETON, NJ -- More than 7 in 10 Americans use a word or phrase that is clearly negative when providing a top-of-mind reaction to the federal government.
A Sept. 20-21 USA Today/Gallup poll asked respondents what they would say "if someone asked you to describe the federal government in one word or phrase." The accompanying chart shows the results in graphic form, with the words or phrases displayed according to how frequently they are mentioned.
Additionally, the complete list of verbatim responses to the question, along with basic demographic information on respondents, is available here.

Overall, 72% of responses about the federal government are negative, touching on its inefficiency, size, corruption, and general incompetence, with the most common specific descriptions being "too big," "confused," and "corrupt."
Ten percent of responses are clearly positive, using words such as "good," while the remaining 18% are neutral or mixed.
The generally negative top-of-mind images of the federal government are consistent with the poor ratings the government receives in Gallup's annual update on the images of business and industry sectors. In the most recent update, from August, 58% rated the federal government negatively and 26% positively.
Gallup and USA Today will explore Americans' views of the role of the federal government further in a summit to be held at Gallup world headquarters in Washington, D.C., on Oct. 13, 2010. The event will offer polling and political experts' takes on what's behind the negative image of the federal government, and analysis of what the American people want -- and don't want -- their government to do for them. Learn more or register."

Maybe this explains at least some of the recent interest in the 10th Amendment.

Funeral Picketing Case Argued

This is a Con Law II issue, so this post is just for your information.

From How Appealing:

"Justices struggle with free speech, funeral protests": Joan Biskupic of USA Today has this news update.
Jess Bravin of The Wall Street Journal has a news update headlined "High Court Hears Free-Speech Case."
The Topeka Capital-Journal has a news update headlined "Justices question picket practices."
James Vicini of Reuters reports that "Court considers anti-gay protests at funerals."
Greg Stohr of Bloomberg News reports that "Church's Funeral Protest Tests Free-Speech Limits at U.S. Supreme Court."
At "SCOTUSblog," Lyle Denniston has a post titled "Argument recap: Does emotion win?"
And The Washington Post has a news update headlined "Westboro Baptist Church case draws protesters at Supreme Court."

You can access the transcript of today's U.S. Supreme Court oral argument in Snyder v. Phelps, No. 09-751, by clicking here.

No Class on Friday October 22

We will need to schedule a make-up.

I am teaching a CLE session at the Nebraska State Bar Meeting on Friday October 22 in LaVista.

On The Road Again--No Class Thursday September 30

                                 Brooklyn Bridge, NYC, August 2010


I will be speaking at UNLV Law next Monday and Tulsa Law Wednesday night. Driving home from Tulsa on Thursday September 30--listening to JJ Cale on cd and Fox News on XM radio!

Thus, class is canceled on Thursday. We will make it up by going over 5-7 minutes each class for awhile.

See you next Friday.

What Is Judicial Activism?

As we study the concept of judicial review and the great power the Supreme Court of the United States has decreed for itself, the question of "judicial activism" arises. What is judicial activism? Is it nothing more than a label used by legal commentators to describe decisions they disagree with? Or is it a real threat to democratic self-government and the rule of law? Consider the following dialogue by Roger Clegg on this issue. What are your thoughts?

Link Here is a major excerpt:

Roger Clegg: A Brief Dialogue on Judicial Activism

Central to the judicial nominations debate is the question of judicial activism. Through a series of questions and answers written for the Committee for Justice, Roger Clegg explains what types of decisions constitute judicial activism and why Americans from across the political spectrum should oppose it. Clegg is president of the Center for Equal Opportunity, a former high-ranking Justice Department official, and one of the nation's leading experts on civil rights law.

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

A. Judicial activism is when a judge ignores what the text of the Constitution or some other law says and substitutes instead his own preference for what it ought to say. It can involve putting something into the text that isn't there, or taking out something that is there.

Q. Is it activism whenever a court strikes down a statute as unconstitutional?

A. Of course not. If a statute violates the Constitution, it would be judicial activism not to strike it down. Striking down a statute is judicial activism only if the statute really isn't inconsistent with the Constitution.

Q. Is it activism whenever a court overrules one of its own precedents?

A. Again, of course not. The principle of stare decisis - Latin for "Let the decision stand" - is a venerable one, and there are good reasons for courts not lightly to ignore their past rulings. But from time to time they do so, and it really doesn't make sense to call it judicial activism when they do. After all, how can overruling a decision that was itself activist be properly labeled activist?

Q. But don't liberals complain that the current Supreme Court is activist because it has struck down some federal statutes, and mightn't they complain that overruling a decision like Roe v. Wade is activist?

A. They have and they might, but in their heart they know this is a bogus claim.

Q. Okay, so judicial activism is just a court ignoring the text of a law and substituting its own policy preferences. But why is this a left-versus-right argument?

A. It shouldn't be. And, indeed, sometimes judicial activism has led to results that liberals would presumably dislike. Exhibit A is, of course, the infamous Dred Scott decision, where Chief Justice Taney made up a constitutional prohibition against Congress limiting the spread of slavery. At the present time, judicial activism is being used by the left in the culture wars, but it has not always been so, nor will it always be so.

Q. So, probably there are instances where conservatives would like for judges to bend the Constitution's text one way, and liberals would like to bend the text the other way. But why shouldn't this be part of what judges do? Put bluntly: What's wrong with judicial activism?

A. What you're asking is, "What's wrong with judges ignoring the Constitution?" and the answer is the same as the answer to "What's wrong with the President (or Congress) ignoring the Constitution?" Sure, in the short term the Constitution may thwart policies or outcomes that this group or that group might prefer. But in the long run the Constitution protects us all, and it is perilous to urge any of the three branches of government to ignore it.

Proposed Federalism Amendment

Randy Barnett, a prominent libertarian constitutional scholar, has written an essay proposing a fascinating constitutional amendment. Here is Barnett's proposal:

The Case for a Federalism Amendment

How the Tea Partiers can make Washington pay attention.

By RANDY E. BARNETT

In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?
One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.
Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.
Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.
Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.
Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.
Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.
Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.
Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.
Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.
Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.
Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.
Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).

Here is a response to Barnett's proposal.
What are your thoughts?

End of term Blockbusters

From How Appealing blog (June 28, 2010):

Access online today's rulings in argued cases and Order List of the U.S. Supreme Court: The Court has announced rulings [in two important Bill of Rights cases]:

1. Justice Samuel A. Alito, Jr. announced the judgment of the Court in McDonald v. Chicago, No. 08-1521. You can access the ruling at this link and the oral argument transcript at this link.

2. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, No. 08-1371. You can access the ruling at this link and the oral argument transcript at this link.

And here is an interesting article (mentioned in How Appealing, June 30) on Justice Thomas' views on guns and race:

"In Clarence Thomas's gun rights opinion, race plays a major role": In today's edition of The Washington Post, metro columnist Courtland Milloy has an essay that begins, "He hardly ever speaks during oral arguments, often appearing asleep on the bench. But in his written opinion Monday supporting the right to bear arms, Supreme Court Justice Clarence Thomas roared to life."

Red State Blue State Map: 2004 Election

IS THIS WHY POLITICAL ELITES FEAR A CONSTITUTIONAL CONVENTION?

Christian Legal Society v. Martinez (Hastings Law School case)

This case is currently before the Supreme Court and the decision should be out soon.

Here is a summary of the case prepared by the CLS:

Recent Developments
Oral Argument April 19, 2010: Find the transcript archived here. Christian Legal Society filed its Reply Brief on April 2, 2010. Appendices to the brief are also available: Appendix A and Appendix B. On February 4, 2010, numerous Amici Curiae filed briefs in the U.S. Supreme Court in support of CLS. These briefs are available here. The Brief for Petitoner was filed in the U.S. Supreme Court on January 28, 2010. Click here to download the brief. On December 7, 2009, the U.S. Supreme Court granted CLS's petition for certiorari. Click here for Press Release and quotes.
Summary of Case
The Christian Legal Society (CLS) chapter at the University of California - Hastings College of the Law filed a lawsuit on October 22, 2004, against school officials who denied recognition to the group because the chapter requires its officers and voting members to adhere to the CLS Statement of Faith. This was not the first time a state university had discriminated against CLS (for other examples of this discrimination, click here).
The CLS chapter asked school officials in early September 2004 to exempt the group and other religious student organizations from the religion and sexual orientation portions of the university's nondiscrimination policy. As applied to CLS, this nondiscrimination policy would force the chapter to allow persons who hold beliefs and engage in conduct contrary to the CLS Statement of Faith, which includes a prohibition on extramarital sex, to join as voting members and to run for officer positions. School officials denied this request and stripped the chapter of recognition and the benefits of recognition, including student activity fee funding.
In its lawsuit CLS alleges that UC Hastings' exclusion of its chapter violates, among other constitutional rights, CLS' right of expressive association and CLS' right to be free from viewpoint discrimination.
CLS argues that is a violation of the right of expressive association to force a religious student organization to accept officers and voting members who hold beliefs and engage in conduct in opposition to the group's shared viewpoints, thereby inhibiting the group's ability to define and express its message.
CLS also argues that it is a violation of the right to be free from viewpoint discrimination to impose the above requirement on a religious student organization while permitting every other recognized student organization on campus to limit its officers and voting membership to persons who agree with the group's shared viewpoints.
On cross motions for summary judgment, the district court ruled in favor of defendants, including school officials and Hastings Outlaw, a recognized student organization, on April 2006. CLS appealed this ruling. A panel of the Ninth Circuit Court of Appeals heard oral argument in this case on March 10, 2009. The panel consisted of Chief Judge Alex Kozinski, Judge Proctor Hug, Jr., and Judge Carlos T. Bea. The panel affirmed the district court's opinion, ruling against CLS in an unpublished disposition on March 17, 2009.
On May 5, 2009, CLS filed a petition for writ of certiorari in the Supreme Court, seeking a reversal of the Ninth Circuit's decision against CLS.
The Christian Legal Society's Center for Law & Religious Freedom and the Alliance Defense Fund represent the CLS chapter, and attorneys Timothy Smith and Stephen Burlingham are serving as local counsel.

And here is a great post from ReligionVlause on the case:

Advocacy Groups React To CLS v. Martinez

Many advocacy groups and interested parties have issued statements on yesterday's Supreme Court decision in Christian Legal Society v. Martinez. Here is a sampling:

• ACLU
• Alliance Defense Fund
• American Center for Law & Justice
• American Jewish Committee
• Americans United for Separation of Church and State
• Baptist Joint Committee
• Becket Fund for Religious Liberty
• Christian Legal Society
• Foundation for Individual Rights in Education
• Hastings College of Law
• Interfaith Alliance
• Union of Orthodox Jewish Congregations

Citizens Link suggests that the decision may have limited impact because few if any other schools have an "all-comers" rule for student groups. Most have a rule that bars discrimination on specified grounds, such as race, religion, gender and sexual orientation. The majority avoided passing on the constitutionality of this sort of rule. The Chronicle of Higher Education also reviews reactions to the decision.

And here is an article: Toni M. Massaro, Christian Legal Society v. Martinez: Six Frames, (Arizona Legal Studies Discussion Paper No. 10-27, Aug. 12, 2010).

Garcetti Hypos

Consider two hypos involving Assistant Dean Mary Smith, the Admissions Director at a state university.

Case One

Assistant Dean Smith is asked by Dean Tom Jones to write a description of the school's "diversity policy" for inclusion in the minority admission packet sent to minority students the school wishes to attract. Dean Smith describes the schools commitment to diversity accurately, but proceeds to criticize the policy as amounting to unfair discrimination against non-minority applicants. The packet is sent to prospective minority students, many of whom are offended by Dean Smith's criticism of the program.

Case Two

Dean Smith writes a letter to the editor of the state's largest newspaper accurately describing the school's diversity program and criticizing it as amounting to unfair discrimination against non-minority students. Many readers respond to this article, some of them are upset by the policy's unfair reverse discrimination, some of them critical of Dean Smith for having aired her concerns in a public forum.

In both cases Dean Smith is fired or demoted for expressing her criticism of the school's diversity policy.

Apply the First Amendment.

Interesting Employee Speech Case

From the ReligionClause blog:

The Toledo Blade reports that on Monday a federal lawsuit was filed against the University of Toledo by its former Associate Vice-President for Human Resources, Crystal Dixon. Dixon was fired after she wrote a column for a local newspaper arguing that gays and lesbians are not "civil rights victims." (See prior posting.) The complaint (full text) alleges that "Plaintiff, an African-American woman and sincere practicing Christian, believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic...."

The lawsuit alleges that Dixon's column expressed her personal views, and that her firing infringes her 1st Amendment free speech rights. The complaint also claims equal protection violations, arguing that others University personnel have been permitted to speak out on political and social issues without consequences. Richard Thompson of the Thomas More Law Center who represents Dixon said that homosexuals have an "inordinate amount of influence" over University president Lloyd Jacobs. The University claims that Dixon's human resources position was one of special sensitivity, and that her ability to perform that job was undermined by her statements.

Interesting Case Concerning Religious Liberty in Public Schools Settles

Here is a Liberty Counsel press release concerning the settlement of a very interesting case:

"January 29, 2008

School Board Settles Lawsuit By Amending Policy and Accepting Student’s Community Service Hours at Church

Long Beach, CA – The Long Beach District School Board has approved a settlement agreement with Christopher Rand, a high school student who was denied credit for community service hours he completed at his church. Chris has now received full credit for the hours. The district administration also rewrote its community service learning policy to allow students to complete mandatory community service hours at either secular or religious organizations, including churches, on the same terms.

In October 2007, Liberty Counsel filed a lawsuit against the district because Chris’s school refused to grant credit for more than 70 hours of community service, solely because it was performed at Long Beach Alliance Church. He interacted with the children in the church’s programs, answered questions, assisted with crafts and art projects, supervised activity time to help ensure safety, and performed other duties.

After Chris submitted the required documentation regarding his volunteer service, he was denied credit because the district’s prior community service learning policy stated, “Service to your religious community does not count.” If Christopher had given the same service in a secular school or in a nonreligious childcare program, his service would have been credited. Shortly after Liberty Counsel filed suit, the district agreed to award Chris credit for the full 72.5 hours that had previously been rejected.

In addition to giving Chris credit for his community service, the district accepted input from Liberty Counsel in revising its policy to comply with the First Amendment. Under the new policy, religious organizations will receive the same treatment as other nonprofit organizations in terms of the types of community service work that is permitted. Students are expressly allowed to supervise and assist with leading organized children’s activities, such as those performed by Chris. The district also agreed to pay attorney’s fees and costs to Liberty Counsel.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “When community service is a graduation requirement, schools cannot limit service to secular venues. Discrimination against performing community service for religious organizations violates the First Amendment and offends the rich religious heritage that made this country great.”"

Liberty Counsel, by the way is one of the leading public interest law firms in the area of religious liberty and free speech.

For Tomorrow Wednesday June 2

Read through assignment III. 5:

4. Casebook p. 279-298 (Re-read Locke v. Davey Handout 7)

5. Casebook p. 299-306

Harry Potter and Free Exercise of Religion

From the Religion Clause blog, a report of a recent case with interesting facts:

"In Cape Girardeau, Missouri yesterday, the ACLU filed suit on behalf of library-assistant Deborah Smith who was suspended for ten days without pay after she refused to work at an event that she said violated her religious beliefs. After she returned, her duties were made more labor intensive. This led her to resign for medical reasons. St. Louis Today reports that Smith refused to take part in a July 2007 event at the Poplar Bluff Public Library that was held to mark the release of the book "Harry Potter and the Deathly Hallows." Library employees were expected to dress as witches and wizards at the event. Smith, a Southern Baptist, believes that the Harry Potter books popularize witchcraft and practice of the occult. Smith's federal lawsuit-- filed after the EEOC and the Missouri Commission on Human Rights upheld her right to sue-- claims that the library's action against her violated her right to the free exercise of religion."

Speaking of Harry Potter, here is something I posted a little while ago.

Room 113 Fixed!!!

Class today--Tuesday--will be held in Room 113.

For Tuesday May 25, 2010

1. Please read the first two assignments in the Free Exercise unit plus Smith case (casebook p. 567-578)

2. Class will be in Room 113!

Pharmacists Sue

From the Religion Clause blog:

In Washington state on Wednesday, two pharmacists and the owner of a supermarket that contains a pharmacy, sued to challenge the state's new rule that requires pharmacies to fill orders for emergency contraceptives. (See prior posting.) The so-called Plan B morning-after pill is now available over-the-counter to adults. Individual pharmacists with religious or moral objections can refuse to supply a customer with the contraceptives only if they can find a co-worker at the same pharmacy to fill the order. The lawsuit filed in federal court in Seattle claims that the new rules violate pharmacists' constitutional rights by requiring them to choose between "their livelihoods and their deeply held religious and moral beliefs." The Associated Press reports on the case. [Thanks to Melissa Rogers for the lead.]

UPDATE:

Here is a copy of the complaint and the motion for a preliminary injunction. The case is Storman's v. Selecky. More on the case is at Constitutionally Correct and in this release from the Alliance Defense Fund which is representing the plaintiffs.

Which Test Do You Prefer?

If you don't like the endorsement test, which test do you like?

The coercion test?

Here is the tough case under the coercion test--what do you do if a particular state puts up displays in all public buildings stating that "Jesus is the Lord and Savior of the World." No one is required to affirm their belief in the statement, no one is required to bow down before it, but it is there in public announcing that the state endorses the religious doctrine that Jesus is Lord and Savior.

If you don't have a problem with that one, what about a state putting up displays in all public buildings stating that "Wicca is the true religion" or that "Jesus was a fraud who has deceived millions of gullible fools."

The coercion test won't prohibit these displays, unless we use a watered-down "Kennedyed" version of the coercion test.

Of course, nothing as extreme as this will happen in the real world, will it? Why not?

Mojave Cross Memorial Case Decided

Over at Scotsblog Lyle Denniston provides a nice summary of the Court's many opinions and factions:

Much ado about a little cross
Salazar v. Buono, 08-472, Opinion recap

Lyle Denniston | Wednesday, April 28th, 2010 1:44 pm

Analysis

A spectator in the Supreme Court chamber Wednesday morning could well have understood that the Justices had just made a major new pronouncement on the constitutionality of placing religious monuments on government property. Justice Anthony M. Kennedy, announcing his opinion and the Court’s ruling in Salazar, et al., v. Buono, spoke with obvious approval of erecting such monuments as tributes to those who died in military combat, and of the overall civic virtue in having religious symbols displayed on government grounds.

Kennedy was paraphrasing an opinion that said “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm….The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” The problem, though, is that those expressions had only three votes, and thus did not speak for the Court. A tangled case, which had been through four separate stages in court and had led to a new law passed by Congress, ended in a tangled set of six opinions from the Supreme Court, not one representing a majority. The ruling, though, can be sorted out, and, in the end, it does not reach any final outcome.

First, the votes can be counted up:

** There are seven votes for the notion that a retired National Park Service employee had a legal right to take to court his complaint about a small Christian cross standing in a remote spot in a massive piece of federal property, the Mojave National Preserve in California. Two Justices dissented explicitly on that point. Another citizen troubled about such displays, however, could not read the Court’s conclusion on the right to sue in this case as necessarily clearing the way for a challenge in another case with a different history.

** There are five votes for the conclusion that a federal judge was wrong in barring a congressionally-ordered transfer of the plot of ground on which the cross stands to private ownership, although that result came from two different kinds of reasoning: three Justices said it was wrong as a legal proposition, while two said the Park Service employee should never have been allowed to pursue his complaint. Four other Justices would have upheld the judge’s order (for two different reasons).

** Despite the conclusion that the federal judge was wrong on that point, the Court voted 4-4 to send the case back to that judge to take another look, more closely, at Congress’ action. The four votes in favor of sending the case back were supported by two different rationales. Four other Justices opposed the remand, but that, too, resulted from two different approaches. With the Court split evenly on that issue, though, the case definitely will go back because that is the formal “judgment” of the Court, which had five votes behind it (based on three different rationales).

** There were three votes for the notion that the Court should not even have decided this case: two Justices said so because of their view that the cross’s challenger had no right to be in court, and one said so because there was “no federal question of general significance in this case.” Those views did not prevail.

Perhaps the most decisive thing the Court had to say was this comment in the lead opinion, by Justice Kennedy: “To date, this Court’s jurisprudence in this area has refrained from making sweeping pronouncements, and this case is ill suited for announcing categorical rules.”

Second, some impressions come from reading between the lines. Based on what was actually said, and from the known positions of some Justices on the issue of religious monuments on government property, this conclusion can be advanced tentatively: the little cross standing atop Sunrise Rock in the Mojave is likely to win out in the end, if the Veterans of Foreign Wars wants to remove the present plywood cover that obscures it from view, and put up a sign claiming the cross to be a tribute to war dead, rather than to the Christian faith. And Congress might well draw the conclusion that, at some point, five of the present Justices may well allow the lawmakers to keep a religious monument on government property by transferring the plot of ground on which it stands to private ownership. The latter, if it does occur at some point, would be a new constitutional declaration, perhaps coming close to being a “categorical rule.”

Justice Kennedy’s favorable comments about religious displays “in the public realm” were supported by Chief Justice John G. Roberts, Jr., and by Justice Samuel A. Alito, Jr. (who expressed even more favorable comments in his separate opinion). To those three probably could be added, in what Justice Antonin Scalia said would have to be “a proper case” in the future, the votes of Justices Scalia and Clarence Thomas, because in prior disputes they have supported such displays.

On the other side, three Justices — Ruth Bader Ginsburg and Sonia Sotomayor, plus the soon-to-retire John Paul Stevens — made it clear on Wednesday that they remain quite firmly opposed to such displays. And Justice Stephen G. Breyer, who has been on both sides of the issue in the past, this time voted to uphold the court order against the display in the Mojave even while saying that the Court should not have taken on the dispute in the first place.

The Court obviously labored over the ruling; it was the earliest argued case this Term still awaiting a decision, and the crafting of six opinions no doubt took up the time since it was heard on the third day of the Term.

And here are some more links from How Appealing:

Access online today's ruling of the U.S. Supreme Court in an argued case: The Court today issued its ruling in Salazar v. Buono, No. 08-472, the case involving the Mojave cross.

You can access the Court's ruling at this link and the oral argument transcript at this link.

For Today Thursday May 20

I would like to discuss whether the Lincoln Ordinance on picketing violates the Establishment Clause.

Read the Ordinance thinking about EC issues.

See y'all in class.

Rick Duncan

Prof. Jim Lindgren on "Separation of Church and State"

Over at the Volokh blog:

How Separation of Church and State Was Read Into the Constitution (Hint: the KKK got its way)

Jim Lindgren • October 20, 2010 3:38 pm

The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.
On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

"Separation of Church and State"

Please read these two links about separation of church and state and the Constitution:

1. Dreisbach

2. Lindgren

The Bible and the New York Times

Cal Thomas likes to quip that there are two things he reads each day--the Bible and the New York Times, because he likes "to keep up with what both sides have to say." There is a very good essay in the Times by Prof. Stanley Fish, a piece called God Talk.

I am not assigning it, but it is worth reading at the start of a course on Religion and the Constitution.

Update: Part Two of Fish's article appears in the NYT here: God Talk Part 2

NY Times; Corporate Speech Bad, Animal Cruelty Speech Good

Here is the editorial:

Editorial
The Court and Free Speech

When the Supreme Court ruled 8-to-1 this week that a federal law banning the sale of animal-cruelty videos violates the First Amendment, it reaffirmed the right to engage in even highly unpopular speech. And it wisely declined to create another category of expression outside of the First Amendment’s protection.

With this case and the court’s earlier Citizens United decision on corporate speech and political campaign contributions, this could be one of the most important terms in years for defining the constitutional scope of freedom of expression — for better or for worse.

Taken together, the rulings give freedom of speech a wide berth in two directions. The animal-cruelty ruling takes a strong and welcome stand that there should be only very narrow exceptions to the general rule that almost all content of speech is protected. That view is broadly accepted by most judges and constitutional scholars, and was reflected in the fact that eight justices from across the political spectrum joined the majority.

The campaign finance ruling, regrettably, gave a particular kind of speaker — corporations — a more expansive free speech right to spend than the court has ever acknowledged. The break there with the nation’s legal traditions was sharp, and opened the floodgates for big business and special-interest dollars to overwhelm American politics. That was delivered by a bitterly divided 5-to-4 court.

The animal-cruelty case involved Robert Stevens, who ran a business that sold disturbing, even disgusting, videos of pit bulls fighting and attacking other animals. Mr. Stevens was convicted under a federal law that criminalizes the sale of depictions of animal cruelty if the acts are illegal in the state where the depiction is sold.

The Supreme Court ruled, in United States v. Stevens, that Mr. Stevens’s conviction violated the First Amendment. It declined to add animal cruelty to the short list of forms of expression — including obscenity, incitement and defamation — that are not protected by the Constitution.

It then went on to rule that the federal law was overly broad, since it swept within its coverage many sorts of images that should be considered core protected speech. For example, hunting is illegal in the District of Columbia, and under the law, selling hunting magazines there would also be illegal.

The majority opinion, by Chief Justice John Roberts Jr., was a strong affirmation of the importance of freedom of expression, even in the face of substantial societal condemnation of the horrific nature of some of the speech involved. It was gratifying that the court recognized that the right way to protect animals from abuse is through laws aimed at the abuse itself, not at free expression.

The court has two more important free speech cases coming up. One raises the question of whether people have a right to keep their identities secret if they signed a petition to put a referendum against same-sex marriage on the ballot. Putting an initiative on the ballot is an important governmental act, and we hope the court does not decide that there is a right to do so anonymously.

The court has already heard arguments in a challenge to a federal law barring material support to terrorists, which prohibits some kinds of speech in support of controversial causes. We hope it narrows the statute’s scope, carefully sorting through what kinds of assistance are protected speech, and what are the sorts of aid the government can properly prohibit.

That respectful treatment of the First Amendment, also reflected in the Stevens case, is what the nation needs from this court — not the recklessness of the ruling in the Citizens United case.

Link

My own view is that political speech is at the very core of the First Amendment (regardless of who is speaking) and that animal cruelty porn, although protected, is at the outer edge of the First Amendment.

More on CLS Case

From WSJ (link):

Sameness and 'Diversity' on Campus

Why a California dean would force a black group to admit white supremacists.

If ever you wonder why those thumping loudest for tolerance and diversity produce so much sameness, look no further than this little exchange on public television about an important case now before the Supreme Court. The dean is Leo Martinez of the University of California Hastings College of the Law. Here he is defending the school policy at issue, which requires the Christian Legal Society (CLS) to admit non-Christians and gays if it wants to be an official student group:

Question: "Would a student chapter of, say, B'nai B'rith, a Jewish Anti-Defamation League, have to admit Muslims?"

Mr. Martinez: "The short answer is 'yes.'"

Question: "A black group would have to admit white supremacists?"

Mr. Martinez: "It would."

Question: "Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?"

Mr. Martinez: "Yes."

Question: "You can see where that might cause some consternation?"

Certainly there was some consternation yesterday at the Supreme Court. Justice Antonin Scalia found the idea of forcing a campus Republican club to admit Democrats "weird." Meanwhile, Justice Sonia Sotomayor worried whether allowing CLS to set its own rules would mean more discrimination against women and minorities.

But let's give Dean Martinez credit: He does not shy away from the logic of where his school's policy leads. His remarks help explain two facts. The first is why a Christian student organization has found strong allies among other faith groups. These include everyone from Agudath Israel of America and the American Islamic Congress to the Catholic bishops and the Sikh American Legal Defense and Education Fund.

The larger fact is the way that Hastings-style "tolerance" and "diversity" are actually making our campuses less tolerant and less diverse. Dean Martinez helps us see why. If every college group must admit even those who are hostile to its mission and beliefs, the result is nonsense and conformity.

At first blush, Hastings looks to be another example of the "culture wars," and where you stand on this case depends on what you believe about Christianity or traditional Christian teaching about homosexuality. Certainly Hastings tells us something about our culture wars. What it shows is how these kind of cultural skirmishes escalate into full-fledged wars when state approval or state money is involved.

Were Hastings a private institution, the same right of association now claimed by the Christian Legal Society would give the law school broader rights to set more narrow rules for students and faculty. When a handful of Orthodox Jews sued Yale in the late 1990s over the university's insistence that they live in co-ed dormitories, for example, Yale prevailed—largely because Yale is a private university. And there was no larger religious war.

Even those of us who believe a university that prides itself on its tolerance could have shown a little more accommodation toward those Jewish students do not question Yale's right to set rules that define the Yale experience. When government is involved, however, the stakes become higher and passions more excited. When a public university makes a decision, it's not simply a policy dispute. It's a public institution using your tax dollars to put a state imprimatur about who is and who is not fit for the public square.

That's a much more serious proposition than a simple disagreement with some private organization. That public/private distinction helps explain why CLS has also found allies in the libertarian Cato Institute and Gays & Lesbians for Individual Liberty. In their own brief, this latter group stresses that it was the ability of gay Americans to form gay associations—whose membership rules they defined for themselves—that gave them a collective voice in the face of an often hostile majority.

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez's logic is taking us.

"[U]nder Hastings' forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings' forum," argues their brief. "That is a patently unreasonable way to 'promote a diversity of viewpoints.'"

Exactly. Traditionally the American contribution to diversity has been the encouragement of thriving—and competing—private institutions and associations. Unfortunately, on American campuses today we see the opposite: an expanding government role in everything from research to how schools are accredited and how student loans are administered. One unintended consequence is that our culture wars are going to escalate as our courts are forced to take up a great many more cases like Hastings.

It may end up, of course, that Dean Martinez prevails, and we get more of his idea of tolerance and diversity. Let's not pretend to be surprised, however, when it all comes out looking the same.

Christian Legal Society Oral Argument Link

From How Appealing:

Access online the transcripts of today's U.S. Supreme Court oral arguments: You can access the argument transcript in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, No. 08-1371, at this link.

And ReligionClause blog has this post:

Supreme Court Hears Arguments In Christian Legal Society's Clash With Hastings' Discrimination Rules -- [Updated With Link To Transcript]

The U.S. Supreme Court this morning heard oral arguments in Christian Legal Society v. Martinez. In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) AP reports that the Justices seemed sharply split:

Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

Scotus Blog last week had an excellent background article on the case. Scotus Wiki has links to all the briefs and much more background. An editorial titled The End of Religious Freedom? in Christianity Today outlines the arguments of Christian religious groups who hope that the 9th circuit will be reversed; while an editorial in today's New York Times titled A Case of Discrimination urges the Court to support the University's position.

The full transcript of the arguments are available online. Scotus Blog also has podcasts of the oral arguments of counsel for both sides, recorded before the actual argument. Last week, the Court turned down media requests for same-day release of the audio tapes of oral arguments in the case. According to the National Law Journal, this is the seventh time this term that such requests have been rejected.

Stanley Fish on Citizens United and Free Speech

one

two

Proposed Nebraska Student Speech Law

LB 898