No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

For next Thursday's class, lets be prepared to discuss two short assignments--Nos. 9 & 10.

The Tea Party's Constitution

I. Article V and My Proposed Amended Art. V

                                    Art. V

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

                             My Proposed Amended Art. V

1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations. [I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

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

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

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

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

II. Constitutional Convention ("Con Con")

The second method created by Article V for amending the Constitution provides that Congress “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Again, any amendments proposed by the Constitutional Convention will become law only “when ratified by the legislatures of three fourths of the several states.” So, to be clear, under this second method, four separate actions are required in order to amend the Constitution:

First, two-thirds of the states must apply to Congress for a constitutional convention.

Second, Congress, at least in theory, must—shall—call a constitutional convention.

Third, the constitutional convention must then propose certain constitutional amendments.

And, fourth, the proposed amendments must then be ratified “by the legislatures of three fourths of the several states.”

 III. Some Tea Party Proposals

Prof. Barnett's proposed federalism amendments include:

--a proposal to replace the income, gift and estate taxes with a uniform “fair” tax on consumption; 

--a proposal to restrict the commerce and spending powers of Congress in order to restore them to what Randy believes is their original understanding; 

--a balanced budget amendment with a Presidential line item veto; 

--a term limits amendment for Congress

--repeal of Seventeenth Amendment, which provides for the direct election of United States Senators instead of, as before the Seventeenth, appointment by state legislatures

IV. The "Repeal Amendment"

My primary focus: Prof. Barnett’s “Repeal Amendment,” which I believe may well be able to get political traction. After a series of meetings between Prof. Barnett and Tea Party activists, they decided to go forward with the following proposed amendment:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose and that particularly describe the same provision or provisions of law or regulation to be repealed.

V. Madison and Federalist No. 45

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

VI.  Commerce Clause and tenth Amendment

Art. I Section 8.

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

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.

The Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

GOP's Pledge To America

Consider this pledge for Congress: "Require every bill to be certified as constitutional before it is voted on."

And now consider this "analysis" from the MSN web site:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary. 

Is it an "encroachment on the judiciary" for Congress to consider, for example, whether proposed legislation exceeds its own power under the Commerce Clause? Even if Congress takes a more narrow view of its own power?

Class Cancelled

We will not have class next Wednesday Sept. 21, 2011.

This is the second of our seven required class cancellations.

"Get-it-rightism"

I hope you enjoyed getting an opportunity to talk with Justice Thomas.

It was one of the highlights of my 32 years here.

My take away from his noon chat was the label he uses to describe his search for the textual meaning of the Constitution--"get-it-rightism!"

I love that phrase.

Next Week

No Class on Wed (Sept. 14) and Thursday (Sept. 15).

However, we will meet with Justice Thomas and Prof. Berger's class at 10:30-11:30 am on Thursday Sept. 15 in the Auditorium. Please be thinking of some questions you would like to ask Justice Thomas.

Justice Thomas Article

Here is a great recent article about Justice Thomas from the New Yorker.

He will be meeting with our class soon, and this article is worth a quick read.

U.S. Const. Art. V

Article V

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

Government Disapproval of Religion

Jay Wexler's article available here.

Stanley Fish on "What Does the First Amendment Protect"

From NYT (link)

Here is the article:

July 4, 2011, 8:30 pm

What Does the First Amendment Protect?

By STANLEY FISH

Stanley Fish on education, law and society.

In the two First Amendment cases handed down last week — one about limiting sales of violent video games to children, the other about Arizona’s attempt to make public financing more attractive to candidates — the dissenting justices contend that the protection of speech is not really the issue at all.
In his dissent to Brown v. Entertainment Merchants, Justice Stephen Breyer declares that this is not a case, as the majority claims, about “depictions of violence”; rather it is a case about “protection of children.” What Breyer is doing (or attempting to do) is shift the category under which the matter of dispute is to be considered. According to Justice Antonin Scalia, writing for the majority, depictions of violence merit First Amendment protection because they are speech, not acts. Breyer replies that the video games in question are in fact acts, although they are, he acknowledges, acts “containing an expressive component.” That component, he argues, does not outweigh or render irrelevant the “significant amount of physical activity” involved in playing these games, activity in the course of which players do not merely see violent things but do violent things.
The danger Breyer wants to protect children from is not the danger of being exposed to violence, but the danger of being initiated into violence. This happens (or can happen) when game-players are required not merely to view violent acts passively, but to perform them by making a succession of choices (with a button or joystick) that decide the fate of the characters they have created.

Justice Samuel Alito, who concurs in the result because he believes the law to have been poorly drafted but disagrees with the majority’s reasoning, provides an example. Compare, he says, the reader of a novel depicting violence with a video-game player “who creates an avatar that bears his own image; who sees a realistic image of the victim … in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.” Are these experiences the same?, Alito asks, and answers no. The difference, which Scalia labors to deny (“Certainly the books we give to children … contain no shortage of gore”), is sufficient, Alito thinks, to justify the state’s interest in regulation, even though he finds the present attempt at regulation flawed.
Breyer frames the issue precisely when he declares, “This case is ultimately less about censorship than it is about education.” Education is important in a democracy, he explains, because it gives us a means of raising “future generations committed cooperatively to making our system of government work.” The implication is that a generation immersed in violent video-games will be committed not to cooperation but to actions less helpful to the flourishing of the country.
Justice Clarence Thomas, writing another dissent disguised as a concurrence, shares Breyer’s concern that children be protected from influences that might turn them into damaged citizens. He reminds us of Noah Webster’s admonition that children’s minds be “untainted till their reasoning faculties have acquired strength and the good principles which may be planted … have taken deep root”; and he cites a 1979 opinion in which Justice Lewis F. Powell declares that “the State is entitled to adjust its legal system to account for children’s vulnerability.” Children are vulnerable, according to this theory, because they have not yet developed the ability to distance themselves from what is put before them. Interactive video games increase this vulnerability and lead not merely to the consuming of bad images, but to the possibility of becoming a bad person. This is the corruption that will follow, Alito fears, from allowing “troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.”
Breyer drives the point home: “…extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.” Violent video games, in short, are not representations that deserve First Amendment protection; they are acts with harmful consequences and children deserve to be protected from them.
Although its subject matter could not be more different, Arizona Free Enterprise v. Bennett, displays the same opposition between a libertarian concern for freedom and a consequentialist concern for the corruption that attends unregulated activity. In this case it is not a child but the political system that is in danger of corruption, and the source of corruption is not a violent game but the desire of private individuals to purchase the votes of office-holders.
That at least is the view of Justice Elena Kagan, writing in dissent: “Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system.” In Kagan’s formulation, “private money” equals “special interests,” whereas those who “rely on public, rather than private moneys, are ‘beholden [to] no person.’” Therefore by “supplanting private cash, public financing eliminates the source of political corruption.”
No says Chief Justice John G. Roberts, writing for the majority. Arizona’s public financing scheme, he contends, is an unconstitutional restriction on free speech because it penalizes privately financed candidates for being successful. Expenditures by privately financed candidates and the groups supporting them trigger the awarding of matching funds to candidates who have accepted the limits that come along with public funding. Roberts concludes that “any increase in speech is of one kind … that of publicly financed candidates.” So even if “the matching funds provision did result in more speech … in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates.”
But that parentheses — “and thus reducing” — is a little too fast. How exactly does the fact that in response to your expenditures an opponent with fewer resources will be given additional funds reduce your speech? You can still get to spend as much as you want and to say as much as you want. What you don’t get to do is overwhelm the voices of less affluent candidates and their supporters. As Kagan points out, “what petitioners demand is essentially a right to quash others’ speech … they would prefer the field to themselves, so that they can speak free from response.” The Arizona law, she adds, can hardly be characterized as a restriction on speech..
It follows, Kagan asserts, that “public financing furthers a compelling interest” — the prevention of corruption — and does so without diminishing anyone’s speech rights. The conclusion, she believes, is inescapable “[e]xcept in this Court,” where the majority declares that the state interest in leveling the playing field “cannot justify undue burdens on political speech.” But, to make the point again, there is no burden unless being prevented from being the only speaker with a megaphone is a burden, and it is not. In the majority decision, a compelling state interest is set aside because of a restriction on speech that has not occurred.
In some exasperation, Kagan remarks, “Only one thing is missing from the Court’s response: any reasoning to support [its] conclusion.” That’s not quite right. The reasoning is contained in an assumption that is the reverse of Kagan’s: private money, rather than being the vehicle of corruption, is the vehicle of speech, and therefore you can’t have too much of it, no matter what its effects. The First Amendment, says Roberts, “embodies our choice as a Nation that, when it comes to … speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”
Roberts does not have to reply to Kagan’s points — he can even concede them — because in his view they are irrelevant. “When it comes to protected speech, the speaker is sovereign.” Other considerations (like corruption and fairness) may be in play, but the rights of the speaker — in this case the rights of the spender — are paramount. They are what the First Amendment protects. Kagan disagrees: “The First Amendment’s core purpose is to foster a healthy vibrant political system full of robust discussion and debate,” and the Arizona law, with its mechanism for increasing participation is, she maintains, true to that purpose.
And there you have it: a clash between the worship of freedom of speech and a concern for the quality of public life in relation to which free speech may sometimes be asked to take a back seat. It is the same clash that pits the freedom to play video games against society’s interest in fostering a generation of young adults responsive to its ideals and aspirations. We have seen this before — in the pornography cases, in the crush-video case, in the case upholding the right of an anti-gay ministry to picket the funerals of soldiers — and we shall certainly see it again.

FYI: Washington Post Article on This Term and Next Term

link

Court Decides Two Free Speech Cases

From How Appealing blog:

"Freedom of Speech Is Buttressed as U.S. Supreme Court Caps Nine-Month Term": Greg Stohr of Bloomberg News has this report. And in today's edition of The Wall Street Journal, Jess Bravin reports that "Court Conservatives Prevail; Videogame, Campaign-Finance Rulings Cap Term That Broadened Free Speech."

Today's Endorsement Controversy

From ReligionClause blog:

Wednesday, June 22, 2011

Atheists Complain Over Renaming of Brooklyn Street As "Seven In Heaven"

Monday's Brooklyn Paper reports that American Atheists has complained over the renaming of a portion of a Brooklyn, New York street to honor seven firefighters who were among those killed at the Twin Towers on 9-11.  The new street sign in honor of the men reads "Seven In Heaven Way." American Atheist spokesman David Silverman said: "It’s improper for the city to endorse the view that heaven exists. It links Christianity and heroism." Community Board 6 member Tom Miskel responded: "Almost every religion has some form of heaven. It’s not just specific to Christianity."

Why Would NBC Even Think To Do This?

BETHESDA, Md. -- NBC issued an on-air apology Sunday for omitting the words "under God" from the Pledge of Allegiance during its coverage of golf's U.S. Open.

The words were edited out of a clip of children reciting the oath -- a move immediately noted by viewers, who took to Twitter and various blogs to voice their anger, the Huffington Post reported.

In a statement during the broadcast, NBC commentator Dan Hicks said, "We began our coverage of this final round just about three hours ago and when we did it was our intent to begin the coverage of this U.S. Open Championship with a feature that captured the patriotism of our national championship being held in our nation's capital for the third time.

"Regrettably, a portion of the Pledge of Allegiance that was in that feature was edited out. It was not done to upset anyone and we'd like to apologize to those of you who were offended by it."

Read more: http://www.foxnews.com/politics/2011/06/19/nbc-apologizes-for-omitting-under-god-from-pledge-during-us-open-broadcast/#ixzz1PuqT3lY0

Both Fridays (the 24 and the 1st)?

Someone suggested in the comments that we take both Fridays off (both the 24th and the 1st) and make up the 100 minutes by starting a little early and ending a little late.

I have already gone over about 20 minutes (I love talking about the First Amendment and sometimes its hard to stop--sorry)!

So, I figure if we start 10 minutes early (i.e. at 11:20) and end 10 minutes late (i.e. 1:20) Monday through Thursday next week we will have out 80 minutes made up.

It is up to you all. I can go either way.

Let me know what you all think tomorrow first thing.

Rick Duncan

No Class Friday June 17

As I announced in class, one of our two scedulaed class cancellations will be this Friday, June 17.

I have not decided on the second Friday off. Should it be June 24? Or July 1?

Help me out.

For Thursday June 9

Read assignment three plus read the Allegheny County case linked as part of Assignment 4.

Cheers, Rick Duncan

For Our First Class--Please Comment on This Hypo

Assume that a local public high school puts up a large "gay pride--stop homophobia" poster on the wall in the front hallway in order to celebrate Gay Pride Month.

A few conservative religious students and their parents, offended by this poster and its ideological message, complain to the school district's superintendent, who orders the school's principal to take down the display.

How should the Constitution handle a case like this?

Should students and parents offended by the poster have a right to demand it be removed from the public schools? Suppose they claim that it makes them feel like outsiders in the school, because the school's poster amounts to a public endorsement of the idea that the dissenters' religious views about human sexuality and marriage are wrong and perhaps even immoral?

Or should the law tell the dissenters "if you don't like the poster, then avert your eye and don't look at it."

Should GLBT students and allies who want to be able to view this poster have a free speech right, as a willing audience for the poster, to demand that the poster not be removed under fire to appease dissenters who are offended by the poster?

Or should the federal courts stay out of this matter and allow the political process to decide which posters may be displayed and which may be removed at the behest of those who are offended?

Who are the heroes of this hypothetical and who are the villains? Explain your conclusions.

Please feel free to write your answers as comments right here on the blog.

Anonymous comments are fine; just be civil and respectful of others.

New Free Speech Case

From Yahoo news:

Jilted ex-boyfriend puts up abortion billboard

 

 

ALAMOGORDO, N.M. – A New Mexico man's decision to lash out with a billboard ad saying his ex-girlfriend had an abortion against his wishes has touched off a legal debate over free speech and privacy rights.
The sign on Alamogordo's main thoroughfare shows 35-year-old Greg Fultz holding the outline of an infant. The text reads, "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child!"

Fultz's ex-girlfriend has taken him to court for harassment and violation of privacy. A domestic court official has recommended the billboard be removed.

But Fultz's attorney argues the order violates his client's free speech rights.

"As distasteful and offensive as the sign may be to some, for over 200 years in this country the First Amendment protects distasteful and offensive speech," Todd Holmes said.

The woman's friends say she had a miscarriage, not an abortion, according to a report in the Albuquerque Journal.

Holmes disputes that, saying his case is based on the accuracy of his client's statement.

"My argument is: What Fultz said is the truth," Holmes said.

The woman's lawyer said she had not discussed the pregnancy with her client. But for Ellen Jessen, whether her client had a miscarriage or an abortion is not the point. The central issue is her client's privacy and the fact that the billboard has caused severe emotional distress, Jessen said.

"Her private life is not a matter of public interest," she told the Alamogordo Daily News.

Jessen says her client's ex-boyfriend has crossed the line.

"Nobody is stopping him from talking about father's rights. ... but a person can't invade someone's private life."

For his part, Holmes invoked the U.S. Supreme Court decision from earlier this year concerning the Westboro Baptist Church, which is known for its anti-gay protests at military funerals and other high-profile events. He believes the high court's decision to allow the protests, as hurtful as they are, is grounds for his client to put up the abortion billboard.

"Very unpopular offensive speech," he told the Alamogordo Daily News. "The Supreme Court, in an 8 to 1 decision, said that is protected speech."

Holmes says he is going to fight the order to remove the billboard through a District Court appeal.