Exam Review Session--Monday December 3

Monday December 3 @ 1:30 PM
in the Courtroom

Next Week--Nov. 26 & 27

For Mon November 26 we will focus primarily on the following cases and pages:

--Washington v. Davis  p. 756-767
--Kahn v. Shevin  p. 777-781
--Hogan p. 782-786

For Tuesday November 27 we will focus primarily on the following cases and pages:

--Grutter v. Bollinger and Gratz v. Bollinger (read only p. 807-822)

Equal Laws, Not Equal Results

In Feeney, the Court said "the Fourteenth Amendment guarantees equal laws, not equal results." (p. 765)

In other words, equal protection scrutiny is triggered only by intentional or purposeful discrimination on the basis of race or gender, not by neutral laws that result in disproportionate impact. Suppose, for example, data showed that the federal income tax imposes a greater burden on some races than on other races. Or that federal welfare laws disproportionately provide benefits to some races rather than others. Are these laws presumptively unconstitutional and subject to strict scrutiny?  

Feeney says the EPC is triggered only if the plaintiff can demonstrate that the law was enacted "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (p. 766) Thus, veterans' preferences for civil service jobs do not trigger gender-based-equal-protection scrutiny, because they are enacted to repay veterans for the sacrifices they have made for their country, not because they disproportionately benefit men over women. Do you agree with Feeney? Why or why not?

Racial Affirmative Action Preferences

Here, I think, is the nub of the debate--one side reasonably believes that the only way to get "beyond race" is to take race into account for a period of time (a generation or two or three); and the other side reasonably believes that the only way to get "beyond race" is to stop using race as a factor in distributing governmental burdens and benefits. There are benefits and costs to both approaches, and perhaps we don't agree on how to weigh the costs and benefits.

Railway Express case: Ms and Ts

Let's practice our Ms and Ts on the Railway Express case on page 641.

Ends =M (mischief): Advertisements on trucks "constitutes a distraction to...drivers and pedestrians"

Means=T (trait or classification drawn): the law prohibited trucks from advertising the products of third persons but not products sold by the owner of the truck

In other words, advertising on A's trucks saying "buy B's widgets" was banned, but A's trucks could contain ads saying "buy My widgets."

Try to draw your M and T diagrams for this scenario.

Ms and Ts

Lets focus on a governmental program intended to provide subsidized housing for economically needy people. The idea is to help only those who need help, so a line will have to be drawn somewhere to decide who gets housing benefits and who does not get housing benefits.

M (Ends or purpose of the law)--To help house needy citizens afford habitable housing

T(Means: the classification made by the law)--To draw a line based upon income (people on one side of the line get benefits, people on the other side of the line do not get benefits)

Obergerfell and the Great Debate

As I said  in class, I want you to read Obergefell not so much for its doctrine concerning same-sex marriage, but rather as the most recent boiling point in the Great Debate between original understanding originalism and the Living Constitution.

Please read the dissenting opinions as carefully as you read the majority opinion, because the dissenting opinions are almost completely focused on the role of the Court in applying vs. making constitutional law.

I will ask a goodly number of you to share your views on Obergefell and whether it is a legitimate judicial application of the Written Constitution.

I want everyone to think through his or her views of whether the definition of marriage is committed by the Written Constitution to the federal judiciary or to democratic self-government by we the people in the several states.

What would have happened with respect to the same-sex marriage issue if the Court had said under the 10th Amendment the states--not the Court-- have the power to define marriage?

Our Focus This Week

Today (Monday Nov 12) we will focus on Roe, Casey and the abortion liberty.

Tomorrow will will focus primarily on Obergefell (SSM case) and I will spend the last half of class introducing you to Equal Protection.

There is no Handout 3

I thought I had deleted Handout 3 from the syllabus. I have now.

There is no handout 3 for you to worry about.

Who is Jane Roe? Who is Mary Doe?

When reading Roe v. Wade, take a look at page 271 of the Paulsen book. The authors give you a short biography of Jane Roe (Norma McCorvey) and her incredible journey from pro-abortion activist to pro-life activist.

The Paulsen book does a nice job discussing Roe v. Wade on pages 270 to 278.

Mary Doe (Sandra Cano), the Plaintiff in Doe v. Bolton, decided not to have an abortion "once she felt her baby kick." She communicated this to her lawyer, but since her case was a class action her lawyer went ahead with the case anyway. See Clark Forsythe's book, Abuse of Discretion at p. 94.

Link to Kermit Gosnell Grand Jury report

I am not assigning it, but I wanted to make sure you have a link to the Gosnell Grand Jury Report (cited in my article). It is sad but fascinating reading about late-term abortions in post-Roe America.

Gosnell Grand Jury Report

Class Schedule--Cancellations

Notice this class meets for 85 minutes rather than 75 minutes and this requires us to cancel 3 classes during the semester without the need for a make-up. Plus, we have already done make-ups for two more classes.

Here is a list of our class cancellations so far:

1. Monday September 17 (I am at BYU Law)
2. Tuesday September 18 (I am at Utah Law)
3. Tuesday October 16 (Indiana Law)
4. Monday November 5 (Roll Tide Law)
5. Tuesday November 6 (Faulkner Law)

Judge Lohier Visits Nebraska Law

From my colleague, Professor Wittlin, who clerked for Judge Lohier"

I write to encourage you to attend two events this week. 

Judge Raymond J. Lohier, Jr., of the U.S. Court of Appeals for the Second Circuit, is coming to the Law College as the Cline Williams Jurist in Residence. I clerked for Judge Lohier from 2012-2013. He's a wonderful person and an excellent judge, and I think you'll get a lot out of hearing him speak.

The two events are:

Lunch Talk with Judge Bataillon

Monday, October 29, 12:00 - 1:00, Auditorium

Judge Lohier and Judge Joseph Bataillon (D. Neb.) will discuss the administration of the federal courts.

Cline Williams Jurist-in-Residence Lecture

"The Roles of Judges and Lawyers in Doing Justice: A Conversation"

Tuesday, October 30, 12:00 - 1:00, Auditorium

Judge Lohier and I will discuss the function of appellate courts, the powers of prosecutors, and how courts aim to ensure adequate representation for indigent criminal defendants, among other exciting topics. (I'll ask questions, he'll do most of the talking.)

Some background on Judge Lohier: For ten years, Judge Lohier was an Assistant United States Attorney for the Southern District of New York, where he led both the Narcotics and the Securities and Commodities Fraud units. (He oversaw the prosecutions of Bernie Madoff and Marc Dreier.) He also worked as a trial attorney in the Civil Rights Division of the Department of Justice and litigated in private practice at a large national firm. President Obama nominated him to the Second Circuit (for the seat vacated by Justice Sotomayor's elevation) in 2010. I believe he is the first Haitian-American Article III judge.

I hope you'll consider attending the talks!

Have a good rest of the weekend,

Maggie Wittlin

The Living, "Common Law" Constitution and How it Grows and Grows

In his book, A Matter of Interpretation, Justice Scalia describes the Living Constitution as:

“[A] body of law that…grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and ‘find’ that changing law….Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.” [at p. 38]

 

In other words, the Supreme Court’s Living Constitution is the common law on steroids—the Barry Bonds’ version of the common law, a common law that trumps the laws of all 50 states and even acts of Congress.

Let's trace the "common law" constitutional right of privacy and see how it ended up constitutionalizing abortion on demand throughout the entire 40 weeks of pregnancy and struck down the laws of all 50 states!

Birthright Citizenship and Chirldren Born to Illegal Immigrfants

This is not an area that I have taught or reserached, so I donave an informed opinion about this. But here are some sources:


14th Amendment

Section 1

 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.




  Lindsey Graham‏Verified account @LindseyGrahamSC

In addition, I plan to introduce legislation along the same lines as the proposed executive order from President @realDonaldTrump.

 Ben Shapiro Article


See also Slaughterhouse at p. 417: "The phrase, 'subject to its jurisdiction' was in tended to exclude from its operation chiuldren of ministers, consuls, and citizens or subjects of foreign States born within the United States."


And here is a post from Jack Balkins blog:

Birthright Citizenship and the 14th Amendment

Gerard N. Magliocca

Michael Anton is a former official in the Trump Administration. He is best known for writing (under the pseudonym Publius Decius Mus)  the "Flight 93" essay during the 2016 presidential campaign, in which he slandered the memories of the passengers of that doomed flight on September 11th, 2001 by comparing their courage to people who should vote for Donald Trump.

In today's Washington Post, Anton celebrates the 150th anniversary of the Fourteenth Amendment by distorting its first sentence. In "Citizenship Shouldn't Be A Birthright," Anton argues that the original understanding of that text excludes people born here to illegal immigrant parents from citizenship. Section One of the Fourteenth Amendment provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States thereof . . ." Anton says that "subject to the jurisdiction" means "not owing allegiance to another country," which would thus exclude children born here to illegal immigrant parents. (Why children born here owe their allegiance to another country is not explained, but that's just one of the many problems with Anton's article.)

I wrote a law review article ten years ago explaining why Anton's argument is wrong. You can read that paper here. "Subject to the jurisdiction," means exactly what you would think from reading that phrase--"subject to American law." Illegal immigrants are, of course, subject to American law. That is why they can be deported. And why their children born here are citizens.

Suppose you are not convinced by my article. After all, I don't support President Trump. So I give you Judge James Ho, named by the President to the Fifth Circuit last year. Judge Ho has impeccable originalist credentials, as a law clerk to Justice Thomas, the Solicitor General of Texas, and a leading private practitioner before he took the bench. When he was in practice, Judge Ho demolished the Anton argument is a couple of published articles (such as here and here). Look at a key passage:

Proponents of ending birthright citizenship claim that aliens--lawful and unlawful--are not "subject to the jurisdiction" of the U.S. because they swear no allegiance to the United States. But neither the text nor the history of the 14th Amendment supports this conclusion. 

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine. 

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship --but no one disputed the amendment's meaning. Opponents conceded--indeed, warned -- that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

Thus, Anton's claim that "judges faithful to their oaths will have no choice but to agree" that birthright citizenship does not extend to the children born here to illegal immigrant parents is preposterous. Mr. Anton is free, like anyone else, to support for a constitutional amendment that restricts birthright citizenship. He cannot, though, escape the truth that the Constitution as written rejects his view.

Conservative Living Constitutionalism

As we conclude our discussion of the Lochner era, let me ask you to think about this.

If proponents of a "common law," judge-made, Living Constitution are correct, what would you think about a 6 to 3 conservative Court practicing living constitutionalism?

Which conservative policy positions might be constitutionalized and imposed on Congress and on all 50 states by an activist Court interpreting the Constitution based upon what conservatives think it ought to be? Economic policies, tax policies, immigration policies, environmental policies?

McDonald v. City of Chicago Oral Argument

Link to Oral Argument at Oyez

Facts of the case

Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.

Question

Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?

Conclusion

The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.

Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the Fourteenth Amendment.

Nebraska Residency For In-state Tuition

You will be classified as a non-resident if:

• You are not attending a Nebraska high school
• Or, you are not a graduate of an accredited Nebraska high school

---

Qualifying for Residency Status For The Purpose of In-State Tuition

• Persons of legal age (19 or older) or emancipated minors who:
  1. have established a home in Nebraska for at least 12 months.*
  2. AND can verify by documentation that he/she intends to make Nebraska their permanent residence.
• Dependent students whose parent/guardian has established a home in Nebraska.
• Persons who are married to Nebraska residents who had established a home in Nebraska prior to the marriage.
• Permanent resident aliens or individuals who have been granted asylum or refugee status and who have established a home in Nebraska for at least 12 months.
• Dependents or spouses of permanent university, state college, or community college employees in the State of Nebraska who have at least part-time (.5 FTE) employment status.
• Active duty military personnel and their dependents whose permanent duty station or home of record is in Nebraska.
• Persons who graduated from an accredited high school in Nebraska and were legal residents of Nebraska at the time of graduation.
• Individuals who previously attended the University of Nebraska or one of the Nebraska state colleges as a resident within the last two years.
• Individuals, and their spouses and dependents, who were recruited for full-time employment to the state of Nebraska because of their special talents or skills.
• Members of tribes who live outside the state of Nebraska qualify for in-state tuition rates upon providing documentation of membership.
• You need to apply for residency classification in order to determine if you qualify for in-state tuition.

NOTE: *Individuals who move to Nebraska primarily to enroll in a post-secondary institution in Nebraska will be considered a non-resident for tuition purposes for the duration of his/her attendance.

Tenth Amendment--One of the Bill of Rights

Amendment X

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.

Today Wednesday Oct. 3

Who: Federalist Society 

What: Can A Dead Constitution Bind the Living 

When: Tomorrow at Noon

Where: Room 113

Catering: Bahnwich 

Additional Info: 

Join us for a conversation with Ilan Wurman, fellow and lecturer-in-law at the Sandra Day O’Connor College of Law at Arizona State University and author of A Debt Against the Living: An Introduction to Originalism, on whether the Constitution should be Interpreted as a living breathing document or as a debt against the living that cannot be easily discharged. Commentary will be provided by Professor Eric Berger and lunch will be provided

Broccoli tax

Could Congress pass a tax on the failure to purchase at least 2 pounds of broccoli per week? Suppose your income tax liability will be increased by $2000 unless you can produce receipts showing the purchase of at least 100 pounds of broccoli during the relevant tax year. Constitutional?

Notice that "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States."

Kavanaugh and 17th Amendment

I wonder  if a Senate selected by state legislators instead of by direct election would be as likely to politicize SCOTUS nominations? Playing to your political base in divisive times might lead to vicious battles over SCOTUS seats. Just a thought.

Berger vs. Duncan on Trump SCOTUS & Kennedy's Legacy

This Wednesday at Noon in the Auditorium Prof. Berger and I will discuss the Trump SCOTUS & Kennedy's Legacy.

This is optional, but I will count it toward a make-up if we need a make-up.

These little debates between Eric and me are always fun, both for us and for the students who attend. And we will be discussing lots of Con Law.

September 24 Class

                                       On the Road Again (Bob Seger or my secret identity)

For our first class back after my road trip, be sure to be ready to assemble in convention for the Constitutional Convention of 2018 (link). Remember to role play what would be acceptable to small, medium, and large population states with respect to selecting national office holders such as Congress, the President, and judges. 

After perhaps 30-40 minutes talking about what it would take to get all 50 states to ratify a new Constitution, we will move on to discuss Assignment 6.

My View of the Living Constitution

For me personally, the greatest defect of the Living Constitution (even a conservative living constitution striking down minimum wage laws, and other laws restricting freedom of contract and economic liberty) is this:

The Living Constitution is based upon the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time. Thus, it is inconsistent with the Rule of Law, the very principle that legitimizes judicial review. As Judge Bork once said. "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." It is the Rule of Elite Men & Women, not the Rule of Law.

What is your strongest reason for supporting either Originalism or the common law Living Constitution?

Originalism vs. The Living Constitution: Questions for Discussion

When thinking about interpretation of a Written Constitution, if we are faithful to the rule of law we must engage in exegesis not eisegesis. Exegesis is the process of interpreting the text in a manner that seeks the meaning of what it actually says. Eisegesis is a process of reading into a written text what we would like it to say.

1. What is original meaning originalism? What is The Living Constitution?

2. Justice Scalia says that originalism is the lesser of two evils, the librarian who speaks too softly rather than the librarian who speaks too loudly. He argues that the greatest defect of the Living Constitution—its total reliance on the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time—is its incompatibility with the Rule of Law, “the very principle that legitimizes judicial review of constitutionality.”

What do you think he means by this? What is the Rule of Law and how does it differ from the Rule of Man?

3. Defenders of the Living Constitution sometimes try to argue that the Living Constitution is consistent with the Rule of Law because it has developed as a kind of common law system under which the "content" of constitutional law "is determined by the evolutionary process that produced it."  It is evolution, not creation, and therefore the Supreme Court does not act as a Creator, or Ruler, but merely as a body of judges presiding over this "evolutionary process through the development of a body of precedents."

4. Proponents of the Living Constitution say that this approach is necessary because it is too difficult to amend the Constitution under Art. V, and thus common law evolution is necessary to provide the flexibility that is necessary in order for the law to keep up with the changing needs of contemporary society.

Which constitution is more flexible? The original Written Constitution? Or the living, evolving, common law constitution?

5. When the Court comes up with a novel new doctrine, ask yourself this question: Was there ever a time in American history when this new doctrine could possibly have been ratified by three-fourths of the states (38 states today)? In 1789? In 1868 when the 14^th Amendment was ratified? In 2018? Ever? If your answer to this question is "no"--a doctrine like this could never have been ratified by we the people in the states (whose act of ratification is what gives legitimacy to the Constitution)--what does this tell you about the legitimacy of the Court's new doctrine?

 

6. "In a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it." --Prof. John McGinnis Do you agree or disagree? Why?

Con Law Make-up Session--Link to Recording

https://unl.box.com/s/1hzmamra8d0eetd1d215vl3sh0lz6m6r

Judge Kavanaugh Confirmation

Please watch at least 2 hours of Judge Kavanaugh's testimony at his confirmation hearings that begin Tuesday Sept, 4.

You should be able to find this streaming on the internet or on CSPAN.

Try this link

And here is a link to a primer on SCOTUS nominations/confirmations.

This will also count toward making up the class we will be canceling in November. This plus our Thursday session on the practice exam question should be more than adequate.

Raines v. Byrd

Art. I, sect. 7:

 All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Practice Exam Discussion Session--Thursday September 6 an 12:10 PM

We will meet in Room 113 at 12:10 PM on Thursday September 6 to discuss the practice exam problem.This session (and your work on the practice exam problem) will constitute a make-up for the class in November I will need to cancel.

Link

Standing In Newdow

In the recent Pledge of Allegiance case, Michael A. Newdow, "an atheist whose daughter" attends a school in which the Pledge is recited each day, filed a lawsuit in federal court arguing that "under God" in the Pledge made the daily exercise a religious endorsement in violation of the Establishment Clause of the First Amendment.

Although Newdow shared physical custody of his daughter with the child's mother, the mother, who does not object to the Pledge, was granted (by the family court order concerning custody matters) the right to "exercise legal control" over important decisions concerning the upbringing of the child.

Nevertheless, Mr. Newdow claimed that he was harmed by the Pledge in his own right. Here is how he described his injury in his oral argument in the case (he is a lawyer who represented himself):

"I am an atheist. I don't believe in God. And every 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? Has Mr. Newdow shown a sufficient concrete injury-in-fact to justify his standing to litigate this Establishment Clause case in federal court?

In Newdow, the Supreme Court distinguished between "Article III standing, which enforces the Constitution's case-or-controversy requirement...and prudential standing, which embodies 'judicially self-imposed limits on the exercise of federal jurisdiction.'" 542 U.S. at 11.

The Court seemed to accept that Mr. Newdow had alleged an actual, concret injury-in-fact, but nevertheless held that he lacked "prudential standing" because of the Court's reluctance "to intervene...[in] the realm of domestic relations."

Of course, the cases are legion in which the Supreme Court has chosen to intervene in the realm of domestic relations. Indeed, we will read many of these "domestic relations" cases later in the semester.

By the way, exactly what is "prudential standing?"

Power: Who Decides, Who Rules?

I know some of you are struggling with these early cases in Con Law.

They appear to be about nothing--Marbury's dinky little appointment, an academic debate about originalism vs. the living constitution, the exceptions clause to the Supreme Court's appellate jurisdiction (yawn), who owns Blackacre (Martin v. Hunter's Lessee).

These early materials are all about power--who decides what our laws and fundamental rights should be: the federal courts, Congress, state legislatures and state courts,the People? Where does power lie and how is it checked lest it become absolute?

I really like a hockey metaphor when thinking about checks and balances.

Congress has the puck and is checked by the Court, the Court has the puck and is checked by Congress, the Feds have the puck and are checked by the states, the powers that be make a mess of things and the People call a Constitutional Convention to press the restart button on some issues and try things a different way.

These cases are hard to read and the facts of the cases are difficult to get excited about, but the issues are huge. Are we serfs? Or free men and women? Do we govern ourselves through the democratic process? Or are we governed by an unelected tribunal? Or maybe a little of each?

Who sez? Who decides?

Great stuff once you get into the battle!

Prof. Randy Barnett on Originalism

I am assigning this talk on originalism by Randy Barnett, one of the leading originalists scholars. This is a talk I thought about listening to together in class, but it is a wonderful way to keep the learning going on line. Here is the link (and please try to write at least 1 comment after you view it):

 Prof. Randy Barnett on Originalism

Symbolic Conduct: The O'Brien Test

Be sure to distinguish between symbolic speech (a black armband, a pride flag t-shirt), and symbolic conduct (burning a flag or a draft card). The former is pure speech; the latter is the subject of the watered down, O'Brien Test.

Once we are dealing with symbolic acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech element sufficiently justifies the regulation of expressive conduct:

The government regulation of expressive conduct is valid if:

1) it is within the Constitutional power of government [raising an army]

2) furthers an important or substantial interest [preventing harm to the smooth and efficient functioning of the Selective Service System]

3) if the governmental interest is unrelated to the suppression of free expression; and

4) if the incidental restriction on free expression is no greater than is essential to the furtherance of that interest.

By the way, notice how the Court totally rejects a "purpose" test under the Free Speech Clause. The Court's objections here (p.1586) are basically the same as Justice Scalia's objections to a "purpose" test under the Establishment Clause. Notice that, somehow, the EC seems to be an exception to every normal rule the Court applies to every other constitutional claim--standing, incorporation, purpose, government speech, etc. Where in the text of the Constitution is this special status for the EC?

Sherbert as an Individualized Exemptions Decision

Here is how an AmJur annotation explains this rule:

The second exception is the "individualized exemption" exception: where a state's facially neutral rule contains a system of individualized exemptions, a state may not refuse to extend that system to cases of religious hardship without a compelling reason. The Free Exercise Clause's mandate of neutrality toward religion prohibits the government from deciding that secular motivations are more important than religious motivations. Accordingly, in situations where government officials exercise discretion in applying a facially neutral law so that whether they enforce the law depends on their evaluation of the reasons underlying a violator's conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.

And here are some excerpts from my article on this issue:

1. "As I read Smith and Lukumi, the individualized-assessment rule is best understood as a subset of the rule that applies rigorous strict scrutiny to nonneutral or nongenerally applicable laws. I believe that it is a categorical rule that classifies individualized exemption processes marked by discretionary decisionmaking as per se not neutral and not of general application."

2. "[W]hen the transfigured Sherbert applies, there is no need to establish that the law is underinclusive to a substantial degree. Instead, strict scrutiny will apply if the religious-liberty claimant establishes two things: (1) that the State has in place an individualized and discretionary process for allocating governmental benefits or burdens and (2) that his or her religious-liberty claim has been rejected under the ad hoc assessment system. In other words, Sherbert imposes a categorical rule that treats the individualized procedure as per se not neutral and not generally applicable. When this occurs, the case is taken out of Smith, and the governmental decision to reject the religious-liberty claim is reviewed under strict scrutiny and the compelling interest test."

3. "A system of individualized application of governmental benefits or burdens may arise in many situations. In general, such a system exists whenever there is a process of standardless or discretionary review. This process may be created by a legislature when it enacts a restriction and then explicitly creates an individualized and discretionary exemption process. Thus, in Sherbert v. Verner, the legislature denied unemployment benefits to otherwise eligible claimants who were found to have failed without “good cause” to accept “suitable work.” Similarly, a governmental institution, such as a public school, a state university, or a regulatory agency, may adopt policies that expressly create an ad hoc process for “hardship” or “good cause” exemptions.

Moreover, even if a rule or policy does not expressly create a process for individualized exemptions, institutional rules may be (and often are) waived by the government officials who made the rule. School rules may be waived by the principal, or the faculty, or the administrator into whose bailiwick the rule falls. In government employment, workplace rules may be waived by supervisors, department heads, or other senior officials. Zoning laws, landmarking laws, and similar land use regulations are almost always subject to individualized procedures, such as special use permits and variances, for determining which parcels of land are restricted and which are unrestricted.

The categorical rule should trigger strict scrutiny under the transfigured Sherbert whenever the government has in place a system of individualized assessments to allocate some benefit or burden and then rejects a claim for religious accommodation under that system. Lawyers representing religious-liberty claimants need to be aware that the existence of such an ad hoc system may not be obvious upon initial assessment of a case. It may well appear at first glance that the policy restricting the client is a neutral and generally applicable one that applies across the board to all similarly situated persons.

For example, a state university academic policy on its face may purport to require all students to enroll as “full-time” students, or a public school may require all students to attend a “mandatory assembly” on safe-sex education. But on closer inspection in the course of discovery and investigation, the attorney may learn that the defendant has implemented either a formal or an informal procedure for granting individualized exemptions from the otherwise generally applicable policy. For example, the attorney may learn that students who wish to attend college on a part-time basis may petition a university official such as a dean or department chair for an ad hoc waiver of a “full-time” enrollment rule. Or she may learn that students are routinely excused by school authorities from mandatory assemblies for various reasons including illness, personal conflicts, or family priorities such as weddings or funerals. The importance of ferreting out individualized exemptions and waivers cannot be overemphasized, because such evidence should take the case out of Smith and place it squarely under Sherbert and the compelling interest test.

At least in theory, the mere existence of an ad hoc “system” or process for evaluating exemption and waiver claims--either by written policy or by the actual practice of the defendant--should be sufficient to trigger strict scrutiny when a religious claimant's petition for accommodation is denied. However, in practice there will usually be evidence of at least a few, and often many, persons who have been granted discretionary exemptions under the ad hoc system. For example, if the attorney checks school attendance records going back a few years for occasions when “mandatory assemblies” were scheduled, she will likely find that a number of students were absent on those days due to illness, weddings, funerals or other family or personal commitments, and for a variety of other perfectly appropriate reasons. The existence of these excused absences from the relevant school days (and thus from the “mandatory” assemblies conducted on those days) is strong (perhaps conclusive) evidence that the “mandatory assembly” policy is subject to an individualized exemption system. Therefore, when the school rejects a request by, say, a Catholic student to be excused for religious reasons from the mandatory safe-sex assembly, strict scrutiny applies and the student's free exercise claim should prevail under Sherbert and the categorical rule."

Great Political Comic on "Hate Speech"

Link

Third Grade Speech Case

From the Religion Clause blog:

3rd Circuit Says School Can Bar Bible Reading At Kindergarten "Show and Tell"

In Busch v. Marple Newton School District, (3d Cir., June 1, 2009), the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. The teacher assigned each student an "All About Me" week, part of which involved a parent visiting the class and leading students in an activity or story. Donna Busch wanted to read from the Bible because it was her son Wesley's favorite book. Donna claimed that the school's refusal violated her free speech and equal protection rights, as well as the establishment clauses, under both the U.S. and state constitutions. The majority said in part:

Restrictions on speech during a school's organized, curricular activities are within the school's legitimate area of control because they help create the structured environment in which the school imparts basic social, behavioral, and academic lessons.... Principal Cook disallowed a reading from holy scripture because he believed it proselytized a specific religious point of view.

Judge Barry wrote a concurrence, saying:

children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion.

Judge Hardiman dissented as to plaintiff's free speech claim, arguing that the school had engaged in unconstitutional viewpoint discrimination:

Clearly, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."... It does not follow, however, that the state may regulate one's viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is
personal to the student and/or his parent rather than the school's speech. The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the
government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.

Yesterday's San Jose (CA) Mercury News reported on the decision. (See prior related posting.)

Hypo

Okay, now change the facts and ask yourself whether this changes your mind about the proper outcome of the Free Speech issue in the case above.

Now the student is Mary and she is the child of a same-sex couple, Alice and Sally. On "all about me" day Mary's mom, Alice, wishes to read from Mary's favorite children's book, Heather Has Two Mommies, a book about a same-sex family. The teacher forbids Alice to read from this book, because some parents don't want their young children exposed to issues about sexual orientation and same-sex relationships.

How would you rule on Mary and Alice's free speech claim?


I think the dissent got it right in the Busch case, but this is, after all, a curriculum speech case (i.e. Hazelwood not Tinker). The irony is that this was an "all about me" day, designed to promote self-esteem for each child. As it turns out, it is--for religious children--an "all about me except the most important thing about me" day, a program that a reasonable observer might well perceive as endorsing a message of disapproval concerning the religious "me" of children of faith.

If neutrality is the goal of the First Amendment, it would be better not to have this kind of "all about me" day at all, rather than to have it and then force religious children to create a false "me" because their authentic "me" is religious and thus unacceptable.

And again, this is why I believe we need school choice for all families with children. Not everyone's favorite book is a secular one.

I hope this case reaches the Supreme Court.

Tinker: Some Questions

Prof. Linder poses several good questions(link) for you to ponder:

1. Do the speech rights of students increase as they get older? Do high school students have the right to speak in ways that elementary school students do not? To university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
2. Would Mary Beth Tinker have a First Amendment right to wear a bright pink armband, just because she thought it was fashionable--or could school administrators in that case enforce a "no armbands" policy? What does a bright pink armband say?
3. Would Tinker have a right to wear a black armband in protest of the Viet Nam War even if no one understood the message she was attempting to communicate?
4. Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class? Fights to break out in the hall?
5. In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons. Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?
6. Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology? Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?

Town of Gilbert--Content-based Restrictions and Strict Scrutiny

The Town of Gilbert has three categories of “outdoor signs” that are allowed to be displayed without a permit. See p. 2.

Ideological signs (“Abortion is a Woman’s Right” or “Abortion Takes an Innocent Life”) are most favorably treated.

Political Signs (“Vote for Grutz”) are treated somewhat less favorably.

“Temporary Directional Signs Relating to a Qualifying Event” (“Good News Church Services 10 PM Sunday June 4 at Lincoln Southwest High School”) are treated much less favorably than the other two categories.

Issue: Is this regulation of speech content-based or content-neutral?

Notice also a nice discussion of strict scrutiny on p. 14-15.