Cyber-Bullying Laws and First Amendment

From Volokh blog:

 

First Amendment and Proposed Restrictions on Bullying (and Cyber-Bullying) of K-12 Students

Eugene Volokh • May 17, 2011 4:04 pm

The U.S. Commission on Civil Rights held a briefing last Friday on bullying (and cyber-bullying) of K-12 students; there were many people speaking about various aspects of this question, and in particular about whether and to what extent the federal government should get involved. I spoke about the First Amendment issues created by broad “anti-bullying” or “anti-harassment” policies, whether imposed by the federal government or by state or local governments.
If you’re interested in this subject, you might check out the videos of the various panels here (see the main item, and the first three related items). My own brief presentation starts at about 20:23, with follow-up questions and answers at 57:35, 1:01:00, and 1:13:58. You can also look at the Department of Education Office for Civil Rights Dear Colleague letter to which I refer, and see my written testimony.

Snyder v. Phelps--"Lesson Plan"

The Harlan Institute has a great "lesson plan" on the Phelps "funeral picketing" case. Here.

EC Standing Decision

From ReligionClause blog:

Friday, April 15, 2011

7th Circuit: No Standing To Challenge National Day of Prayer

In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.

As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers."  The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.

Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted.  Williams wrote:

The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs..... 

In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.

Taxpayer Standing Under EC--This Term's Blockbuster

From the Con Law Prof blog:

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.
In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated.
The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious.
Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State."
Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast."
Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."
Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.

 RR

This Term's Major Religious Liberty Case

The WSJ has an interesting preview by Prof. David Skeel (here).

And here is the text of the piece:

While much of the nation was digesting the implications of the election Wednesday morning, the Supreme Court heard arguments in a long simmering dispute over the constitutionality of tax credits for religious and other private schools. For those who read Supreme Court tea leaves, Arizona Christian School Tuition Organization v. Winn is the church-state case to watch.
In 1997, Arizona passed a statute permitting residents to contribute up to $500 ($1,000 for married couples) that they would otherwise pay in taxes to a nonprofit "school tuition organization" of their choice. STOs are charitable groups that give scholarships to students in private schools.
Because many STOs provide their scholarships to religious schools, a group of citizens sued, challenging the program as an unconstitutional establishment of religion and asking the courts to kill it. Last year the Ninth Circuit Court of Appeals agreed and struck it down.
I expect the Supreme Court to reverse that decision; but the grounds on which it chooses to reverse may be just as important as the outcome of the case itself.
In the 2002 case Zelman v. Simmons-Harris, a divided court (5-4) upheld a Cleveland school voucher program, reasoning that parents, not the state, decided how to use the vouchers. So even though 96% of parents used their vouchers for Catholic private schools, the state didn't violate the separation of church and state by issuing the vouchers in the first place.
In Arizona, similarly, it is citizens—not the state—who decide whether to use their tax credit for a religious STO or a nonreligious one. The pending Supreme Court case, therefore, seems to fit comfortably within the Zelman precedent.
Still, the outcome is no sure thing. Justice Anthony Kennedy is often the court's swing vote, especially in church-state decisions, and he is never predictable. And the most revealing vote might be cast by Justice Elena Kagan, the court's newest member.
Justice Kagan was appointed to the court after the retirement of Justice John Paul Stevens, who had served since 1975. On matters of church and state, Justice Stevens generally adopted a stance of strict separation. He tartly demurred from the court's endorsement of vouchers in Zelman, dismissing the decision as "profoundly misguided."
It was "quite irrelevant," he argued, that parents rather than the government were the ones deciding whether to use their vouchers for a religious or non-religious school. Anything that might "remove a brick from the wall that was designed to separate religion and government," he said, must be prohibited.
Though Justice Stevens was arguably the staunchest advocate of separation, his view in Zelman reflected that of the court's liberal wing, which now includes Justice Kagan (and Justice Sonia Sotomayor).
Yet the Arizona case is the kind of issue on which Justice Kagan, who is likely to be reliably liberal on many issues, could part ways with her liberal colleagues. As dean of Harvard Law School, Ms. Kagan was widely praised for fostering political and religious diversity, creating a welcoming attitude toward conservative and evangelical professors and students. Whatever her vote in the Arizona case, her background suggests she'll be less averse than her predecessor to accommodating religion in public life.
The other reason to watch this case closely is that the outcome may turn on "standing." To challenge a government program, a plaintiff must show that he or she has been injured by it. Accordingly, several justices asked on Wednesday whether the Arizona program puts any of the plaintiffs' money at stake. Arizona argues that it doesn't, as the program merely gives residents tax credits (as opposed to taxpayer-funded vouchers). If the court agrees, then the plaintiffs may not have standing to sue.
The Supreme Court has long interpreted "injury" leniently in church-state cases, treating them as exceptions to the rules of standing. Were it to conclude that the Arizona taxpayers don't have standing to sue, the court would reverse past practice—and could greatly reduce the number of possible future challenges to state programs that implicate religion in some way.
That would leave more of the decisions about programs that benefit religious schools to state and local lawmakers—and fewer of them to unelected judges.

Mr. Skeel is a law professor at the University of Pennsylvania and co-author of the blog "Less Than the Least."

Classifications based upon Alienage

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

State Laws

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

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

Federal laws

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

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

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

Final Exam

Here is some information about the final exam.

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

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

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

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

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

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

Cheers, Rick Duncan

Supreme Court's Abortion Jurisprudence

Here is an interesting link.

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

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

Supreme Court Hears Arguments In Arizona Tuition Scholarship Tax Credit Case

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

Iowa Supremes Rejected by Voters

From today's Des Moines Register:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Volokh Blog Post on McDonald and Incorporation of the Second Amendment

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

Eugene Volokh • June 28, 2010 5:40 pm

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

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

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

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

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

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

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

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

New Tenth Amendment Case

From the New York Times (Link):

A 10th Amendment Drama Fit for Daytime TV

By ADAM LIPTAK

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

Contemporary View of National Power

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

"Americans' Image of "Federal Government" Mostly Negative

More than 7 in 10 describe government in negative terms

by Jeffrey M. Jones

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

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

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

Funeral Picketing Case Argued

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

From How Appealing:

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

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

No Class on Friday October 22

We will need to schedule a make-up.

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

On The Road Again--No Class Thursday September 30

                                 Brooklyn Bridge, NYC, August 2010


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

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

See you next Friday.

What Is Judicial Activism?

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

Link Here is a major excerpt:

Roger Clegg: A Brief Dialogue on Judicial Activism

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

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

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

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

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

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

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

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

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

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

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

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

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

Proposed Federalism Amendment

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

The Case for a Federalism Amendment

How the Tea Partiers can make Washington pay attention.

By RANDY E. BARNETT

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

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

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

End of term Blockbusters

From How Appealing blog (June 28, 2010):

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

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

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

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

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