Monday December 4 Q & A Session

I will be in Room 113 on Monday December 4 at 3 PM for a Q & A Session prior to the exam on Tuesday.

Barnette vs Amar 2017 Debate on Lochner

Not assigning this, just for your information. I think the debate starts around the 20 minute mark.

Justice Scalia's Rubber Stamp

Scalia's son, Christopher Scalia, tweeted this picture of his Dad's stamp:

And here is my stamp of the same type:

After Lawrence

Are all classes of consensual sexual conduct protected under Lawrence?

Is prostitution between consenting adults constitutionally protected? Or does exchanging something of value for sex somehow lessen the interest of the consenting adult partners? Notice that the right to use contraceptives includes the right to purchase contraceptives, and the right to abortion includes the right to purchase abortion services.

Should two consenting adults have a constitutional right to exchange sexual intimacy for cash?

About about incest between consenting adults, say between a mother and her adult son? 

Rule of Law vs Rule of Man

Wikipedia defines Rule of Law:

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.^[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.^[3] The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".^[4]

Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

For Our Next Class Wednesday Nov. 8

On Wednesday Nov. 8 we will discuss Gonzales v. Carhart, Whole Women's Health, Lawrence & Glucksberg.

We will revisit Obergefell briefly on Thursday and then begin our discussion of the Equal Protection Clause.

Prof. Amar's Lecture--Friday Oct. 20

This Friday (October 20) Professor Akhil Amar from Yale Law School will be delivering the Lane Lecture at noon in the auditorium.  Professor Amar, who is Sterling Professor of Law and Political Science at Yale University, is one of the leading constitutional scholars in the country.   

His talk is entitled “The Constitution Today.”  Here is a brief summary:

For the first time in our lifetime—and for one of the few times in modern history—all four major federal institutions of power were in play in the last election.   When the two national conventions met in 2016, Democrats had a real chance to win control of the House, Senate, Presidency, and Supreme Court.  Instead, the Republicans swept the field and now control all four institutions, even though Donald Trump lost the (legally irrelevant) national popular presidential vote.  In this Lane Lecture, based in part on his recently released book, The Constitution Today, Yale Law Professor Akhil Reed Amar will discuss the constitutional significance of all this and will touch upon a wide range of modern cases and controversies—from gun control to gay rights, from the electoral college to campaign finance to filibuster reform. Come prepared to ask any question you like about America’s constitutional system—past, present, and future.

  

I would like you all to attend this Lecture. Prof. Amar is a giant in the field, and you will learn a lot.

SDP and Temptation

Consider this gem from Judge Bork:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

How does it apply to the Substantive Due Process cases we are reading this week?

Legal Twitter Compares This Cartoon To Living Constitution

Originalism vs. The Living Constitution: Suppose Both Are Right?

I. Art. V as it reads today:

 The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

II.  Judge Robert Bork on the "temptation" of the judiciary:

 In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

III. Madison in Federalist 45

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

IV. My Proposed Amended Version of Art. V:

 1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.

[Note: I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

2.  Whenever a majority of either House of Congress shall deem it necessary, such House shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.

3. Whenever the Legislatures of any five of the several States shall deem it necessary, such Legislatures shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, when ratified by the Legislatures of three-fourths of the several States.

4. Congress, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.

5. Anything to the contrary herein notwithstanding, no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Bill Brennan Says

Here are some passages from Justice Brennan's contribution to the "great debate:"

1. "Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the constitutional text has been, in many senses, my life's work."

2. "We Justices are certainly aware that we are not final because we are infallible; we know that we are infallible only because we are final."

3. "When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predelictions."

4. Which "community" supplies the interpretation Justice Brennan then adopts as law? He tells us more when discussing his view that capital punishment is "under all circumstances" unconstitutional:

"This is an interpretation to which a majority of my fellow Justices--not to mention, it would seem, a majority of my fellow countryman--does not subscribe...I mentioned earlier the judge's role in seeking out the community's interpretation of the Constitutional text. Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived."

When a Justice seeks to embody the values of a future, ideal community, whose values does he look to in defining what kind of future community is the ideal?

5. Justice Brennan reads the Constitution's majestic generalities and ennobling pronouncements as "a sublime oration on the dignity of man," and as therefore somehow creating a right to human dignity.

Is it possible for the Court to apply a "right to human dignity." For example, in the context of capital punishment does "a constitutional vision of human dignity" require capital punishment in order to reflect the human dignity of the victim of the heinous crime, or prohibit capital punishment in order to reflect the human dignity of the convicted killer? Does the vision of human dignity require government to prohibit abortion to reflect the human dignity of human life in the womb, or does it protect the right of women to choose to terminate a pregnancy as a reflection of the human dignity and autonomy of women (and what of the human dignity of the father of the child in the womb, whose views about this matter of life or death are contrary to those of the mother)?

Bob Bork Says

Here are some interesting passages from Bob Bork's contribution to the "great deabte:"

1. "The hard fact is, however, that there are no guidelines outside the Constitution that can control a judge once he abandons the lawyer's task of interpretation. There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case....The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."

2. "Noninterpretivism--activism--is said to be the means by which courts add to constitutional freedom and never subtract from it. That is wrong. Among our constitutional freedoms or rights, clearly given in the text, is the power to govern ourselves democratically....G.K. Chesterton might have been addressing this very controversy when he wrote: 'What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people.'"

3. "If noninterpretivism is to be respectable...when [scholars and Justices] address the public, they should say, frankly, 'No, that decision does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you.'"

4. "In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strogly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."

First 10 Minutes of Class

For today's  "first ten"let's talk about the blog post on Free Exercise Issues to Think About below.  

We have a seminar-sized class this semester. So let's try something a little different.

I would like to spend the first 10 minutes of class most days talking about what is on your minds.

So, as you prepare for class each day, think about something from the readings (or something concerning religious liberty and free speech in the news) that you want to discuss. Then raise it at the start of class and we will talk about it a little.

Whether it is Christian wedding photographers who wish to exercise discretion concerning the gigs they book, or campus speech codes, or the latest attempt to cleanse religious displays from public parks and public buildings, if you raise it,  we will discuss it.

Hill v. Colorado: Content-neutral or Viewpoint-based?

Suppose in 1950 Alabama passed a law creating an 8-foot floating buffer zone restricting oral protests, education or counseling within 100 feet of any segregated restaurant or commercial establishment?

Or in 1970, after complaints about anti-war protests directed at Dow Chemical for supplying napalm to the US military, Congress passes a law prohibiting "picketed focused at the place of business of any business engaged in supplying chemicals to the United States Armed Forces?"

Is this law, which restricts speech on public sidewalks and streets, constitutional? Is it content-neutral? Is it viewpoint-based?

Would it forbid someone from approaching a person on the sidewalk in front of a diner and saying: "I am here to praise Alabama's mandatory segregation laws"? Does it matter that the restriction singles out certain places--segregated restaurants and commercial establishments--for the speech restriction?

What about a law that restricted speech on the sidewalk "within 100 feet of any business that is the subject of a labor dispute"?

Or a law creating a bubble zone within 100 feet of "any business engaged in the sale or manufacture of military weapons and national defense materials"?

Free Exercise: Prof. Linder's Questions

Let's talk about some of the questions posed by Prof. Linder:

"4. After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor. Is such a prosecution likely to occur? Why not? Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?

5. What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)? Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?

6. Lukumi Babalu Aye holds that government may not target a religious practice for prosecution. Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services. How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?

7. What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause? How would you resolve the tension between the Free Exercise Clause and Establishment Clause?

11. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing? "

Substantial Burden

Let's look at some of the cases we have encountered with a view to deciding whether the government has imposed a "substantial burden" on the free exercise of religion:

--Yoder: The law makes it a crime for Amish parents to home school their children in Amish vocational skills? Yes!

--Sherbert: The law denies unemployment benefits to a worker whose faith requires her to turn down employment that requires working on the Sabbath? Yes!

--Hypo: A person seeks to require City government to remove a "Gay Pride" display from a public park because it offends his religious sensibilities about sexual morality? No! Having to avert his eye or walk a few steps out of his way to avoid the religiously-offensive display does not impose a substantial burden on his religious liberty.

--Lyng: Government's use of National Forest will seriously interfere with a portion of the land considered sacred by three American Indian tribes? No! Why not? "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens?" (p.2) Hmmm. Suppose a devout Catholic Pl argues that government hospitals should not be used for abortions because abortion violates the Pl's religious beliefs? Same case?

--What about a law that requires all businesses to close on Sundays. Pl, a person whose religion requires him to close on Saturday, sues under the Free Exercise Clause claiming that the Sunday Closing Law imposes a substantial burden on his free exercise of religion because it means that he must close his store on both weekend days. Do you agree? See Braunfeld v. Brown, 366 U.S. 599 (1961).

Locke & Cutter & "play in the joints"

Consider this observation of Prof. Rick Garnett:

For starters, Cutter highlights the flip-side of the “play in the joints” argument on which the Court had relied in last year’s marquee religion-clause case, Locke v. Davey. In that case, the Court ruled (incorrectly, in my judgment) that the State of Washington’s decision to deny scholarship benefits to an otherwise eligible college student, merely because the student elected to major in theology, did not violate the Free Exercise Clause. The majority in that (non-unanimous) case recognized that the Establishment Clause would permit Washington to provide the scholarship, but insisted that the Constitution did not require equal treatment in this situation. There is, the Court stated, some “play in the joints” between what the Establishment Clause permits and what the Free Exercise Clause requires. In Cutter, the justices acknowledged that this argument cuts both ways: There is also “play in the joints” between what the Free Exercise Clause requires and what the Establishment Clause forbids.

What are your thoughts? Do you understand how the concept of "play in the joints" works? How it allows for legislation neither required by the Free Exercise Clause nor forbidden by the EC?

Justice Thomas and "Partial Incorporation" of the EC

Supreme Court's Doctrine of Incorporation


By early in the twentieth century the Supreme Court found a way to “incorporate” certain provisions of the Bill of Rights against the states as “part of the liberty protected from state interference by the due process clause of the Fourteenth Amendment.” Under this concept of “selective incorporation,” a particular provision of the Bill of Rights “is made applicable to the states if the Justices are of the opinion that it was meant to protect a ‘fundamental’ aspect of liberty.” In other words, only individual liberties that are deemed to be “implicit in the concept of ordered liberty” or “fundamental to the American scheme of Justice” are incorporated against the states by the liberty clause of the Fourteenth Amendment. As Justice John Paul Stevens has put it so eloquently, “the idea of liberty” is the source of the incorporation doctrine.

Moreover, under the doctrine of incorporation these fundamental individual liberties are protected only against “deprivations” by the states. Individuals do not have a right to strike down laws that merely offend their sensibilities, because only laws that deprive them of protected liberty – i.e., laws which impose substantial burdens, undue burdens, or extreme restrictions on their individual liberty– constitute unconstitutional deprivations of liberty under the Fourteenth Amendment. Thus, the incorporated liberty of free exercise of religion is protected (if at all) only against laws that impose “substantial burdens” on an individual’s religious exercise; freedom of speech protects an individual’s right to say what he wishes to say and to refrain from being compelled to speak, not the right to censor the state’s message or to silence willing messengers of the government’s speech; the right to just compensation for regulatory takings is protected only against “extreme” regulations that deprive an owner of “economically viable use” of her property; and even a woman’s “fundamental liberty” to choose to terminate an unwanted pregnancy is protected only against laws that unduly burden her liberty to choose, not against laws that reasonably regulate her access to abortion or which merely seek to persuade her to give life to the child she is carrying.

Justice Thomas on Incorporation

A. Justice Thomas in Newdow (the Pledge case):

Justice Thomas observed that the best scholarship on the original understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision... [which] protects state establishments from federal interference but does not protect any individual right.” Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what [it] was intended to protect – state establishments of religion.”

B. Justice Thomas in Zelman (the case upholding school choice):

It is unlikely that Justice Thomas will ever convince a Supreme Court majority to reject more than sixty years of precedent by deciding to “unincorporate” the Establishment Clause. However, his second position on incorporation – what I call “partial incorporation” – merely asks the Court to take its own theory of incorporation seriously by recognizing that “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.” In other words, the Establishment Clause may mean one thing when applied as a structural limitation on the power of the federal government, and something else when applied only to protect individual liberty against state action.

For example, in Zelman a neutral voucher program that provided tuition aid to economically disadvantaged Cleveland schoolchildren to attend a private religious or nonreligious school chosen by their parents was attacked as a law that unconstitutionally advanced religion under the Establishment Clause. Although the Court upheld the law because it viewed the voucher scheme as consistent with its Establishment Clause test, Justice Thomas concurred and reasoned that the Fourteenth Amendment could not be employed to invalidate a neutral school choice program by incorporating a structural component of the Establishment Clause. As he put it so well: “There would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.” The incorporated Establishment Clause does not give A a constitutional right to restrict the liberty of B, nor does it forbid the states from giving parents a greater choice “as to where and in what manner to educate their children.”

C. Justice Thomas in Van Orden (the Texas Ten Commandmets Case):

"There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause."

This post is based upon my Regent Law Review article on "Justice Thomas and Partial Incorporation of the Establishment Clause." I have omitted footnotes and citations for purposes of brevity.

Newdow's Standing Plus Some Comments

As the Court pointed out, Mr. Newdow based his standing not as the legal representative of his daughter, but as "a noncustodial parent" who believed that daily recitation of the Pledge in his daughter's school imposed a concrete injury-in-fact on Mr. Newdow as a parent. In oral argument, here is how Mr. Newdow, who represented himself, explained his personal injury:

I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.

What do you think? Is this a concrete injury for purposes of Art. III standing?

Suppose the Pledge said "one Nation, which does not recognize the existence of God or any other myth"--would a noncustodial parent who is a devout Christian or Jew have standing to challenge daily recitation of this atheistic pledge?

Why do you think the liberals on the Court, who usually have a liberal view of standing, took such a narrow view in this case?

Justice Scalia had recused himself from this case. What would have been the effect of a 4-4 vote on the merits? When was this case decided?

Now some questions and comments:

1. Notice that Justice O'Connor recognizes some kind of "ceremonial deism" that somehow passes muster under the endorsement test. Do you agree? What might an atheist like Mr. Newdow argue in reply?

2. Notice also Justice Thomas' discussion of two different types of coercion under the "coercion test": (1) real or actual coercion--coercion "accomplished by force of law and threat of penalty;" and (2) soft or constructive coercion, as in Lee v. Weisman, amounting to peer pressure or psychological pressure to conform ("Roberta Flack killing me softly" non-coercive coercion). If the former is the real coercion test, is the latter nothing more than the endorsement test adorned with a fig leaf?

3. Again, notice Justice Thomas discussion of incorporation and his call to "consider more fully the difficult questions whether and how the Establishment Clause applies against the States."

What is Viewpoint Discrimination?

How is viewpoint discrimination different from content discrimination?

Is the subject or topic the speaker wishes to address permitted? If so, is the speaker being excluded from the forum only because of the viewpoint or ideological perspective from which he or she wishes to address the subject?

Here is a great quote from Prof. Michael McConnell on viewpoint discrimination:

"In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot."

Are Reasonable Observers Unreasonably Reasonable

I like to refer to the "Reasonable Person" in tort law as the "Unreasonably Reasonable Reasonable Person," because no one I have ever met is as careful and prudent and reasonable as the Reasonable Person (thus, he/she is "unreasonably reasonable" the kind of person who sets the alarm for 3 am to get up and shovel the snow off the sidewalk to protect pedestrians against foreseeable risk of harm).

Is Justice O'Connor's reasonable observer "reasonable" or "unreasonably reasonable." Is it reasonable to perceive a Nativity display in a public park during the Christmas season as an attack on non-Christians? Does anyone really think that the city government is saying "non-Christians are second class citizens" when it puts up a Nativity display or a Ten Commandments display in the public square? Why not view the Court's cleansing of religion from the public square (a public square that includes all sorts of secular holiday displays) as an endorsement by the Court of the message of hostility that religious subgroups are not full members of the political community?

Does the endorsement test as applied by the Court violate itself?