Kenny Xu, an Asian-American civil rights advocate, says this:
"Wokism is basically an attack on Asian American achievement. It says, our hard work, our family values, that make us successful, we should be ashamed of. It’s an attack on our image, and it means Asian Americans don’t get respect in admissions or hiring." --Kenny Xu
Thoughts?
Prof. Kurt Lash has a very important forthcoming article on the State Citizenship Clause. Here is his Introduction:
I. Introduction
The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States and of the State wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.
A close look at the history of the State Citizenship Clause, however, reveals its key purpose in the overall structure of Section One of the Fourteenth Amendment. Although today courts emphasize the “all persons” clauses (due process and equal protection), the majority of Section One addresses the status and rights of citizens. The National citizenship clause echoes the opening sentence of the 1866 Civil Rights Act and formally overrules the Supreme Court’s decision in Dred Scott. The State citizenship clause goes further and addresses a critical omission in the 1866 Civil Rights Act. That Act defined national citizenship but left the status of state citizenship undefined and unprotected. The second citizenship clause remedies this omission and prohibits states from establishing a tiered system of citizenship where black Americans are treated as second class state citizens and denied the same civil rights granted to white state citizens.
Recognizing the role played by the State Citizenship Clause in securing the equal status of state citizens helps resolve a number of textual historical conundrums regarding the full meaning and structure of Section One of the Fourteenth Amendment. For example, recent scholarship suggests that the original understanding of the Equal Protection Clause guaranteed nothing more than the equal application of laws protecting a person’s life, liberty or property. It appears this Clause did not prohibit states from discriminating on the basis of race in regard to the broader category of citizens civil rights. If so, then this means the original scope of the Equal Protection Clause was far narrower than the Supreme Court’s current interpretation and would not support the Court’s ruling in canonical cases like Brown v. Board of Education and Loving v. Virginia. The original understanding of the State Citizenship Clause, on the other hand, prohibits states from establishing a two-tiered system of state citizenship whereby civil rights and benefits are distributed differently on the basis of race.
The history of the State Citizenship Clause also sheds important light on the original understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. The citizenship clauses define the status of national and state citizenship: Any person born in the United States is a citizen of the United States, and any United States citizen residing in a state is also a citizen of that state. The Privileges or Immunities Clause then declares that no state shall abridge the privileges or immunities of these citizens. These privileges include the rights secured by the status of national citizenship (for example, those enumerated in the Bill of Rights) and those rights secured by the status of state citizenship (local civil rights). Although whole forests have been felled in the effort to define the “fundamental” rights protected by the Privileges or Immunities Clause, the meaning of the Clause is both simple and easily enforceable. States cannot deny national citizens those rights secured by national law (including rights listed in the national Constitution) and states must extend local civil rights equally to all its citizens, regardless of race. The latter include all civil rights (not just “fundamental” rights), from the right to educational benefits to the right to skip down a public sidewalk.
This helps clarify a lot of issues we will be discussing.
Professor Phillip Hamburger's analysis concludes perhaps ("If tech execs cooperated with government officials, it might be a conspiracy against civil rights").
Money quotations:
Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights. The current administration won’t entertain such a theory, but a future one might.
Section 241 of Title 18 of the U.S. Code provides: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined under this title or imprisoned not more than ten years, or both.”
Government remains bound by the First Amendment even when it works through private cutouts. There would be no purpose to a Bill of Rights if government could evade it by using private entities to do its dirty work. As the Supreme Court put it in Frost & Frost Trucking Co. v. Railroad Commission (1926), “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”
The First Amendment’s text confirms the unconstitutionality of such workarounds. Any “prohibiting” of the free exercise of religion violates the amendment. In contrast, a mere “abridging” of the freedom of speech is unconstitutional. The government thus violates the latter merely by abridging or reducing it.
The companies and individuals involved in the censorship need to decide where they stand. Perhaps it is time for them to distance themselves from the censorship. Are they comfortable with a conspiracy to violate civil rights? Even if that doesn’t bother them, are they willing to risk prosecution? They may assume, with some justification, that the Justice Department will hesitate to prosecute, even in a future administration. But would you bet the farm on that?
What are your thoughts?
Kenny Xu, an Asian civil rights activist, says this:
"We don’t need more white doctors. We don’t need more black doctors. We don’t even need more Asian doctors. We need the most qualified doctors, period. Even if the result is 'racially inequitable.'"
Do you agree or disagree? Why? What does inequitable mean in the quotation above?
When speaking of criminal law and the presumption of innocence, we often say it is better that 99 guilty people go free than for one innocent person to be wrongfully convicted.
To me, this is also true of free speech versus censorship. If the effort to censor "misinformation" casts some factual truths or political viewpoints into the censorship dragnet, that cost is too high.If you are interested in racial classifications and equality, consider reading Prof. David Bernstein's new book, Classified; The Untold Story of Racial Classification in America: link
Be sure to purchase the 16th edition, not one of the earlier editions:
Varat, Amar & Caminker, Constitutional Law: Cases and Materials (Foundation Press 16th edition 2021) (ISBN: 978-1-64708-361-8)
“It is widely accepted among lawyers that law is higher than morality - law is something which is worked out and developed, whereas morality is something inchoate and amorphous. That isn't the case. The opposite is rather true!” --Aleksandr Solzhenitsyn
Should law reflect morality? Or should morality reflect law?
If You Are Censored or Cancelled: One of my obligations to my students is to make sure their First Amendment rights are respected and protected here in the Law College. If you are the victim of censorship, whether based upon something you said on campus or off campus, I am always available to talk with you about it. You have strong First Amendment rights. And the Law College has made a commitment to diversity, inclusion, free speech, and community which should transcend ideological differences.
Pro tip: if you are ever called into an administrator's office based upon something you said, make sure to record the meeting to ensure that you have an accurate account of what you supposedly said, what the complaint against you is, and why the administrator believes your speech needs correction. Be polite, but also be courageous. Ask the Administrator about the Free Speech Clause and how it applies to state universities. Students have powerful free speech rights, and an accurate record may prove to be of critical importance to protecting your constitutional rights.
“When people get used to preferential treatment, equal treatment seems like discrimination.” - Thomas Sowell
"The more you say I can't say something, the more urgent it is for me to say it....It has everything to do with my right, my freedom of artistic expression."
The best way to read SCOTUS cases in constitutional law is to ask what question is the Court trying to answer? Is the Court trying to answer the question "what does the Written Constitution say about this issue?" Or "what should a hypothetical constitution say about this issue?"
The former is the proper work of the judiciary. The latter is the work of the People via the amendment process.
Ryan T. Anderson and Alexandra DeSanctis, Tearing Us Apart: How Abortion Harms Everything and Solves Nothing.
This book has my highest rating! Here is a link to Amazon.
Here is the link to Ms. Bachiochi's article. And here is a money quotation:
Dobbs v. Jackson has returned the issue of abortion to legislatures. There, pro-lifers will work to ensure that unborn children in every jurisdiction are protected by law. Though individual states can (and already have) sought to protect the most vulnerable human beings through ordinary legislation, constitutional protection of unborn children as equal “persons” under the law remains the movement’s ultimate — if elusive — goal.
Making this constitutional case will require rejecting the concept that a rights-bearing person is fundamentally self-owning and autonomous. Indeed, it is precisely the unborn child’s state of existential dependence upon its mother, not its autonomy, that makes it especially entitled to care, nurture and legal protection too. To exclude some human beings from the law’s protection because of their size, location and state of dependency (and post Roe, whichever jurisdiction their mother happens to be in) seems to pro-lifers an egregious human rights violation, just the kind we believe the 14th Amendment was meant to prevent.
If you are interested in where we might be going in a post-Roe world, read her entire article in the Times.
Another important case decided today.
The Supreme Court sharply limited the power of the EPA to enact regulations without Congressional authority under the major questions doctrine. This decision returns power to Congress and limits the power of unelected bureaucrats in federal agencies to make laws on major issues without clear congressional authority. The Constitution assigns the power to make laws to the Legislative Branch, not the Executive Branch.
From SCOTUSblog:
Here is the opinion from John Roberts in West Virginia v. EPA: supremecourt.gov/opinions/21pdf. The three liberal justices dissent.
"Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision."
Dobbs overrules Roe and Casey ("Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.")
Here's the link: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Legal Scholar Prof. Phillip Hamburger writes "Is the Public School System Constitutional?" in the Wall Street Journal. Here is the link:
And here is a money quote:
The public school system weighs on parents. It burdens them not simply with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?....
Education consists mostly in speech to and with children. Parents enjoy freedom of speech in educating their children, whether at home or through private schooling. That is the principle underlying Pierce, and it illuminates our current conundrum.
The public school system, by design, pressures parents to substitute government educational speech for their own. Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.
What are your thoughts? Should government be allowed to effectively coerce children to be taught only what the government thinks they ought to be taught? Is this consistent with freedom of thought, belief, and religion?
Here is Prof. Hamburger's conclusion:
The public school system therefore is unconstitutional, at least as applied to parents who are pressured to abandon their own educational speech choices and instead adopt the government’s.
Parents should begin by asking judges to recognize—at least in declaratory judgments—that the current system is profoundly unconstitutional. Once that is clear, states will be obliged to figure out solutions. Some may choose to offer tax exemptions for dissenting parents; others may provide vouchers. Either way, states cannot deprive parents of their right to educational speech by pushing children into government schools.
From SCOTUSblog:
The Supreme Court STRIKES DOWN a Maine education program that provides tuition assistance for students to attend some private schools but excludes schools that provide religious instruction. SCOTUS says the exclusion of religious schools is unconstitutional.
Here's the opinion from John Roberts in Carson v. Makin: supremecourt.gov/opinions/21pdf. The vote is 6-3 along ideological lines, with Breyer, Sotomayor, and Kagan in dissent.
"Here's an idea. Let's debate issues and stop trying to punish wrong thinking." --Prager U
There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.
These
masks of the law are used to conceal the humanity of those the law
wishes to treat harshly. Slaves were masked as "property" to conceal
their humanity. Unborn babies are masked as "potential lives" by Roe v
Wade and the abortion liberty. Masks--whether physical or legal--conceal
the face (and thus the humanity and individual personhood) of the person behind the mask.
Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:
In this video, I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons.
Or, is it just the opposite?
By overruling Roe, the abortion issue will be returned to Congress and the states; and thus for the first time in almost 50 years, we the people will be able to exercise our right of democratic self-government by voting on the issue.
Here is an article by Prof. Josh Blackman
And here are some excerpts:
Chief Justice Roberts explored this concept in his Obergefell dissent:
Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.
Justice Scalia made this point more forcefully in his Obergefell dissent:
Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Justice Alito's draft opinion explains that there are many conceptions of liberty, quoting Lincoln and Berlin:
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had catalogued more than 200 different senses in which the terms had been used.
It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.
I would add that overruling Roe restores multiple rights:
1. As Prof. Blackman says, the right of the people to govern themselves though the democratic process
2. The federalism right to be governed locally in the states rather than centrally by unelected judges
3. The right of the unborn child to be recognized as a person, a living human being, whose life matters
Here is an interesting take on how the Court should write an opinion overruling Roe.
And here is a key excerpt:
When all is said and done, then, there is one and only one pro-life argument: that abortion kills a separate, living human being. That argument is premised on a simple proposition of biology, not one of theology: the human organism—the entity that is first a zygote, then an embryo, fetus, newborn, toddler, teenager, and adult—is the same human biological organism, merely at different stages of his or her life cycle. (If you had killed me at any of those stages, you would have killed me.)
Is there really any room for doubt about this, as a factual proposition? If not, shouldn’t that be the key point in any debate over abortion, and the response to any red-herring argument about women’s rights, social policy, sexual ethics, or men’s behavior? If the unborn child is a human being, does that not profoundly limit the scope of morally allowable arguments that might be made to justify killing him or her? Doesn’t it essentially eliminate all such arguments (except self-defense—where killing the fetus is a tragic necessity to preserve the life of the mother)?
So, what do you know (not feel--know) about the reality of life in the womb? Is the unborn child a living human being? Is he or she alive? Is he or she human?
For me, the answer to those questions is why I am 100% sure that Roe v Wade is wrong because abortion is the violent taking of the life of a living human being.
And here is a short article on the science of life in the womb:
Abortion, Science Unique from Day One: Pro-Life Is Pro-Science
You will be able to check out your First Amendment exam answers (with my comments) from my faculty assistant, Sarah Walla (South Side Faculty Suite) beginning January 24. I will also make available a model student answer for comparison.
If Sarah is not at her desk when you stop by, she would like you to email her to set up a time for you to come by: swalla2@unl.edu
