Zablocki: A Few Comments and Questions

Notice that Zablocki is an Equal Protection case.

And notice that although classifications based upon marital status or non-custodial status are not suspect classifications that trigger strict scrutiny, classifications that touch upon a fundamental right do trigger strict scrutiny. Thus, since marriage is a fundamental right, a law that restricts the right of non-custodial parents to marry must be reviewed under strict scrutiny.

I know that many people don't have much sympathy for "deadbeat dads" whose children are on public assistance. But should restricting their right to marry be used to punish them or as a collection device?

What about "deadbeat moms" whose children are on public assistance?

Suppose a state prohibited custodial parents whose children receive public assistance from marrying? Many people who support laws such as that in Zablocki would be outraged by this second type of law, because it restricts the right of poor women to marry. But didn't the law in Zablocki restrict the right of poor men to marry?

Is this an issue for the Court to decide at the national level? Or for the states to decide at the local level?

Moore v. City of East Cleveland: A Few Comments and Questions

Justice Powell's plurality opinion is a wonderful example of a Justice struggling with the temptation to substitute his personal policy preferences for the rule of law under the Constitution. Take a look at his struggle on page 543:

"Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court."

So what does he decide to do? He says lets go with Substantive Due Process but limit the substantive liberties to those which are "deeply rooted in this Nation's history and tradition."

Would the Lochner Court have disagreed with Justice Powell's analysis of SDP? Or would it have simply argued that freedom of contract is a basic value that is deeply rooted in our Nation's history and traditions?

Indeed, the 5th vote in Moore was Justice Stevens who said the protected liberty was "appellant's right to use her own property as she sees fit." (p.545) Does he really mean this? Are all zoning laws and other laws regulating what property owners may do on their property unconstitutional?

Is the decision in Moore an example of "judicial activism?"

Con Law Seminar Blog

link

Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."

Is this a theory of evolution or a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that constitutional provisions "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

Rumpole and the "Evolving" Constitution

As a follow up to the post about the "Evolving Constitution" as, in reality, a theory of intelligent design (i.e., the Constitution "evolves" only in the sense that new species of Constitutional rights are actually created by judicial decree--"let there be a right to abortion" sayeth the Court), consider a wonderful passage from John Mortimer's Rumpole of the Bailey. In a short story entitled "Rumpole and the Old, Old Story," notice Rumpole's response when Soapy Sam Ballard, Rumpole's "head of chambers," proposes to ban smoking in chambers. Rumpole, who chain smokes small cigars or cheroots, replies that it is illegal to ban smoking under British constitutional law and Magna Carta. Ballard asks Rumpole: "Could you just remind me which clause in Magna Carta deals with smoking?" To which Rumpole answers: "'No freeman shall be taken or imprisoned, or destrained on or exiled or denied the comfort of the occasional cheroot...unless by the lawful judgment of his peers.'" John Mortimer, The Second Rumpole Omnibus, at 491. Later on, Rumpole adds that smoking is also protected under the European Convention on Human Rights, and when asked by Ballard for the exact provision, Rumpole replies: "'No citizen shall be persecuted on the grounds of race, creed or colour or because he lights up occasionally." Id. at 510

Query--as you read Supreme Court decisions interpreting the US Constitution, do you get the impression that the Court is acting a little bit like Horace Rumpole?

Scalia's Legacy

  

When we talk about the passing of a great man we ask what was his legacy, what did he leave behind. In the smash Broadway hip hop musical Hamilton, about the life and death of Alexander Hamilton, after being mortally wounded in a duel with Aaron Burr, Hamilton raps about his legacy:

"Legacy. What is a legacy?

It’s planting seeds in a garden you never get to see.

I wrote some notes at the beginning of a song someone will sing for me.

America, you great unfinished symphony, you sent for me

You let me make a difference

A place where even orphan immigrants

Can leave their fingerprints and rise up"

So, as we think about the legacy of Justice Scalia, what would the song of his legacy, sung by someone else, sound like. Justice Scalia, of course, believed that the Written Constitution should be interpreted based upon the original understanding, the original public meaning, of the ratified text of the Constitution, rather than the living and evolving meaning based upon the moral preferences and reasoned judgment of the “nine unelected lawyers” who happen to serve on the Supreme Court, as he himself often put it.

The Constitution “says what it says, and it doesn’t say what it doesn’t say. ” And like it or not, it means what it says. So if that is Scalia’s song, let’s hear how it might be sung in his absence from this Earth.

 Here is an excerpt from Scalia Dissents, a book about the importance of Justice Scalia’s dissenting opinions, in which the author, Kevin Ring, describes the potential legacy of Justice Scalia by describing what “Scalia’s America” would look like. This is  Scalia’s Song as sung by Kevin Ring.

               [In Scalia’s America]:

All fundamental freedoms would be guaranteed by a vibrant federal government whose power was divided and balanced among three distinct branches. The judiciary would seek to interpret the law, not create it. Congress would make laws, but leave the executive free to enforce it. In following the structure set forth in the Constitution, power would be divided so that no future President, Congress, or Supreme Court could amass sufficient power to dominate the others, usurp another’s authority, and deprive cherished individual liberties.

Democracy also would prosper in Scalia’s America. If the Constitution is silent on an issue, that issue will be returned to the people to make democratic choices for themselves and their communities. Majority votes by citizens, rather than by nine Supreme Court justices, would determine most social policies.

The product of enhanced freedom and revitalized democracy would be greater diversity. In Scalia’s America, the diversity of the different regions of the nation would be evident as each enacted laws reflecting its values. Some states would ban homosexual marriage; others might enshrine the right to same-sex marriage in their state constitutions. Some states would impose capital punishment against all murderers; others might eliminate the death penalty altogether. The states would be free to choose, reflecting the desires of the people. This democratic policymaking and diversity of practice would stand in sharp contrast to today’s Supreme-Court-prescribed, one-size-fits-all standard of deciding issues.

In Scalia’s America, these expansions of freedom, democracy, and diversity would be ably protected by, among other institutions, courts that respect the rule of law. Judges charged with interpreting laws would give words their ordinary meaning. They would moor their solutions of constitutional disputes to the text of the charter and the meaning of its Framers. America would be reborn as a nation of laws and not of men.

Whether Scalia’s America will ever come into being is unknowable at this point. It likely will not occur during his lifetime. However, throughout the Supreme Court’s history, it sometimes happens that views—coherent, textually based, and well argued—once found in the minority, become the basis of future majority opinions. Ultimately, this result is not Scalia’s to achieve; he is not likely to have a role in nominating or confirming future justices to the Supreme Court. But if future Court majorities seek to re-establish a jurisprudence that hews closer to the proper meaning of the Constitution, they will have, in Justice Scalia’s opinions, an enormous intellectual foundation on which to build.

This book was written in 2004, and it is eerie how it foreshadows the precise moment at which we are standing here today. I hope my children and grandchildren get to live someday in Scalia’s America. I doubt if I will, but as long as I live, I will try to sing Scalia’s Song. Heck, maybe I will even rap it.

Scalia's Absence This Term

Here is Josh Blackman's blog post of this:

 

The Impact of Justice Scalia’s Absence on Pending Cases

My LexPredict colleagues–Mike Bommarito and Dan Katz–developed a post based on FantasySCOTUS data about how Scalia’s absence affects pending cases. For cases that have been argued, and voted on in conference,  but not yet decided publicly, Justice Scalia’s votes are voided. If Justice Scalia’s vote was not the deciding vote, then the case can be decided as usual. However for cases where Justice Scalia’s vote was the deciding vote, the Court can either affirm by an equally divided Court, or schedule the case for reargument next term.
FantasySCOTUS identified four cases, already argued, where Scalia was likely to be in a majority opinion in a 5-4 case:

• Bernard v. MN: FantasySCOTUS 5-4 Reverse (Scalia in majority at 63%), Marshall+ 9-0 Affirm
• Friedrichs v. CA Teach’rs Assoc.: FantasySCOTUS 5-4 Reverse (Scalia in majority at 90%), Marshall+ 6-3 Reverse
• Spokeo v. Robins: FantasySCOTUS 5-4 Reverse (Scalia in majority at 92%), Marshall+ 9-0 Reverse
• Franchise Tax Brd of CA v. Hyatt: FantasySCOTUS 5-4 Reverse (Scalia in majority at 72%), Marshall+ 8-1 Affirm

Frankly, a 4-4 decision in these four cases, or a decision to reargue it next year, would not be that big of a deal. These are all issues that are capable of repetition, and would not evade review.
For cases that have not yet been argued, there are big question marks.
First, the contraceptive mandate cases are in a bizarre posture. The seven granted petitions were all appealed from judgments for the government by the lower court. However, one decision from the 8th Circuit–which caused the Circuit Split–would remain. In theory at least, the Court could reargue the seven petitions next year, or reargue the case. However, the intervening election may moot the issue. A Republican president could expand the scope of the religious employer exemption (as opposed to the accommodation) fairly easily, and get rid of the entire issue. (What executive action giveth, executive action taketh away).
Second, United States v. Texas is in an interesting posture. Remember how the SG urged the Court to resolve the case this year before the election? This case can’t be kicked over for reargument. It has to be decided now, because the next President very well may rescind it.
Third, Whole Woman’s Health v. Cole–the Texas abortion case–is not essential to decide this term. In some respects, a 4-4 affirmance may save the Court from having to set any bad abortion precedent with a short bench. This issue will percolate back up, as many other states have implemented similar abortion laws.
Fourth, the never-ending case of Abigail Fisher, may not be resolved again! We started with 8 Justices, because Kagan was recused. Now we are down to 7. This case could actually go 4-3, if you can imagine. In the period before Powell and Rehnquist were confirmed, there were only 7 Justices. It was unclear what the weight of a 4-3 decision even was! Hopefully, we get something with at least five Justices in the majority
So in summary, the only case where a 4-4 decision would be a really, really big deal would be U.S. v. Texas. The others, frankly, can sort themselves out later.
Three other quick points.
First beyond the cases already granted, the absence of Scalia will be felt in conference, as it will be harder to garner a fourth vote for certiorari, and a fifth vote for a stay. The Clean Power Plan order last week was impossible to grant without Scalia. And no, the SG will not ask for reconsideration, as you need five votes for that, which he won’t get.
Second, for cases that were already assigned to Scalia, authorship will have to be reassigned. This will make predicting authorship impossible, among other things.
Third, I suspect the Court will severely dial back on the number of petitions granted for next term, as there is so much uncertainty about what happens. If there was any hope to get four votes for certiorari in the Second Amendment case from Maryland, it just got less likely.

For Thursday's Discussion of Obergefell

Here below is a link to the opinion.  I will pay special attention to Chief Justice Robert's dissent, which I believe is one of the great opinions ever written in SCOTUS cases. Do you agree with Roberts when he basically accuses the majority of ignoring the Rule of Law and ruling a free people from the Bench?


Obergefell v Hodges (2015)

Obergefell--A Few Thoughts and Questions

1. What is Substantive Due Process?

Amendment XIV

Section 1.

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

Does the Due Process Clause protect liberty by requiring procedural safeguards (by requiring process that is due before a state deprives someone of liberty), or does it protect certain liberties substantively?

If the latter, which liberties are protected? All liberties? Certain liberties? Which ones? Fundamental liberties? Which liberties are fundamental? And where does the Constitution provide a list of fundamental liberties?

Is Obergefell an example of Judicial Activism? Or is it an example of the Court faithfully applying the protections of the Written Constitution?

2. Chief Justice Roberts suggests that "those who believe in a government of laws, not of men" should be disheartened by the Majority's decision to redefine marriage in all 50 states. (p.2; 12;22).  What does he mean by this? What is the Rule of Law?

3. Roberts talks about "the precious right" to democratic self-government. And Bork quotes Chesterton:"What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." See also Scalia at p. 2: The Court's decision in Obergefell "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."

What do you think Roberts & Scalia meant by all this?

4. Does Obergefell advance any liberty interest? Or does it deprive Americans of liberties explicitly protected by the Constitution?

5. How secure is religious liberty in the wake of Obergefell? Is absolute sexual autonomy and recognition a more fundamental liberty that religious liberty?

Con Law Seminar Spring 2016

Welcome to the Constitutional Law Seminar! I am excited about this year’s seminar because there are so many recent and important issues to discuss and debate.

The purpose of this short memo is to discuss the requirements for the course and to explain how your grade will be calculated.

The requirements for each student are:

1. Participate in our class discussions;

2. Do a class presentation of your research paper; and

3. Write a 30-45 page research paper (similar to a short law review article or student note) on a constitutional law topic of your choosing. Your paper may focus on any issue normally covered in our Constitutional Law I and II courses, but may not focus on issues of criminal procedure. You should discuss your topic with me at your earliest convenience. You must get approval of your topic from me.

Your grade for the course will be based 100% on the grade you receive on your paper, however, your grade may be increased by one full point for exceptionally good class participation (including an excellent presentation of your paper).

OFFICE, EMAIL, and COURSE BLOG

Professor Duncan’s office is in Room 220. Please feel welcome to stop by any time.

Professor Duncan’s email: rduncan2@unl.edu

Please check the course blog regularly for class announcements and substantive content. I will assume you have notice of anything posted on the course blog.

Hobby Lobby Rounds 1 & 2

Here are some cases I would like you to read for our discussion of religious liberty and the contraceptive mandate (RFRA & RLUIPA):

--RFRA & Hobby Lobby: RFRA text (link); Hobby Lobby (Link); RLUIPA:  Holt v. Hobbs (link) (Sup Ct opinion)

See Gedicks on Substantial Burden issue


See also this post from Religion Clause Blog:

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage.  In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016),  Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal.  The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)

For Thursday's Class and Friday's Class

Please read Grutter (p. 783 -795). We will discuss Grutter in tandem with United States v. Virginia (the VMI case).

Question in which of these cases did the Court actually apply Strict Scrutiny and in which Intermediate Scrutiny?

For our last class on Friday, just be sure you have read through these assignments:

22 Casebook p. 691-730
23 Casebook p. 730-742

Hope you had a great Thanksgiving and remembered your.....

Thanksgiving BYC: Practice your digestive and carving skills.

SCOTUS Deference to Michigan Law vs. VMI

Why did the Court defer to the curricular expertise of the Michigan Law faculty under strict scrutiny, but not to the curricular expertise of the VMI faculty under intermediate scrutiny?

I wonder if Bobby Braddock has an insight on this issue in his song about cultural differences between the "jet set" and the "Chevro-let set":

No, We're not the jet set
We're the old Chevro-let set
Our steak and martinis
Is draft beer with weenies
Our Bach and Tchaikovsky
Is Haggard and Husky
No, we're not the jet set
We're the old Chevro-let set
But ain't we got love

Did the Court defer to fellow academic "jet setters" at Michigan Law while refusing to defer to "Chevro-let setters" on the VMI faculty?

Does cultural power, as opposed to the rule of law, explain at least some of the Court's SDP and Equal Protection decisions?

SCOTUSblog Post today on Roe v. Wade

FYI:

Link

For Thursdays Class: Saenz v. Roe

I will ask you all to apply Saenz v. Roe (p. 924) and the P&I Clause of the 14th to non-resident tuition at state universities. Suppose, for example, a student, (let's call him Jack Bauer) moves to Nebraska from, say, California, to attend law school. The student wishes to become a citizen of Nebraska, and in furtherance of this wish, he registers his car in Nebraska, enrolls his children in the Lincoln public schools, registers to vote in Nebraska, joins a church in Nebraska, purchases a home (and pays property taxes on his home) in Nebraska, and pays "resident" income taxes to Nebraska. Yet, despite all this, UNL insists that he is a nonresident and charges him nonresident tuition (while allowing "resident" illegal aliens to pay in-state tuition). What are Jack's rights under the P&I Clause and Saenz v. Roe?

C-Span Landmark case Video of Slaughter Cases

Here is a link if you would like still more information about the Slaughterhouse Cases:

Link

Historic Disagreement Over the Size and Purpose of Government

As we work through these cases concerning Obamacare and the relative power of Congress vs. the states, we should realize that we are in the middle of an historic debate about how then we should live and how are we to be governed. Here is a excerpt from a recent Wall Street Journal article that I think captures the struggle of our times well:

America's two major political parties have arrived at a point where they hold vastly different views on levels of public spending, the entitlement state and the purpose and structure of the country's tax system. This is not some routine spat over a few line items in the budget. It is an historic disagreement over the role of government.

I would add that there is also an historic disagreement among us over the social issues, over the meaning and purpose of marriage and family, and over which level of government should decide these foundational issues.

It is a privilege to live in interesting times!

RLUIPA and Commerce Clause

Does Congress have power under the Commerce Clause to enact RLUIPA?(link)

Class Schedule--UPDATE

I will be speaking at Detroit Mercy Law School on Thursday Sept. 24 and conducting a CLE at the Nebraska Bar Annual Meeting on Friday October 9. So we will not be having class on those dates.

I plan to make up one of the classes by going 5 minutes over every class (i.e. until 11:50).

Update: In lieu of a physical make-up class for the second class cancellation, I would like you all to view Prof. Todd Zywicki's talk on "Should We Repeal the 17th Amendment." Here is a link to the YouTube video.

We will discuss the 17th Amendment and the Senate next Friday (Sept. 25) so please view this video before then.

For This Thursday's Class--Something More to read

For our discussion on the second assignment about the "Great Debate" (Handout No. 2) regarding original understanding vs. the "Living Constitution," I would also like you to read the Sup Ct's recent same-sex marriage decision. Here is a link:

Obergefell v Hodges (2015)
 

For now, I would like you to focus on the question whether Obergefell is a legitimate interpretation of the Written Constitution or whether it is an exercise of raw judicial power. Are you convinced that the Constitution was written to provide a redefinition of marriage? Is this an issue committed to the federal judiciary by the written Constitution? Or is it an issue that should be decided by the process of democratic self-government in the states?

In other words, let's use Obergefell as a case study of the Great Debate over how the Constitution should be read.

So, to be clear, for Thursday's class the Assignment is Handout No. 2 (on the Great Debate) plus Obergefell.