Con Law II Spring 2023: Assignment for Fourth Class

Casebook p. 499-521; 574-575

Video: Link

P&I Clause and Resident Tuition

Harvey Grutz III (known in the family as "Harvey three sticks") is a 29 year old married father of 3. He graduated from the University of South Dakota and spent 8 years teaching in the South Dakota public schools. He recently decided to go back to school and was accepted at UNL College of Law.

He moved to Nebraska with his wife, a stay-at-home mom, and his children. He bought a house in Lincoln, acquired a Nebraska driver's license, enrolled his children in Lincoln public schools, became a member of Berean Church in Lincoln, registered to vote and voted in the November general election in Nebraska, got a part-time job in Nebraska, and pays taxes in Nebraska using the "Resident" tax form.

He sounds a lot like some of you. No?

He filed a request at UNL to be classified as a Nebraska resident for purposes of paying tuition, but his request was denied because he is a full time student who moved to Nebraska to attend law school.

At the same time, the state allows undocumented aliens, who although unlawfully in the country nevertheless graduated from a Nebraska High School, to pay in-state tuition

Does this treatment violate Harvey three sticks' rights under the P&I Clause of the 14th Amendment?

Be prepared to argue both sides of this case  in class.

Here is a link to the current UNL policy.

Slaughterhouse and the P & I Clause of the 14th Amenment

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The Court interprets this clause very narrowly in some respects--see p. 450-452--protection when on the high seas, writ of heaeas corpus, right to use navigable waters of the United States.  

But importantly, the right of a citizen of the United States "of his own volition" to "become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State."

This, of course, was aimed directly at the Dred Scott decision--all persons, including the former slaves, if born in America, are not only citizens of the United States, but they also have the right to become an equal citizen of any state of their choosing. Citizens choose states, states don't choose citizens.

This is an extremely important privilege of United States citizens that no state may abridge.

Privileges and/or Immunities

1. Art. 4, section 2: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

2. 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Con Law II Spring 2023: Assignment for Third Class

  Casebook p. 458-497[In class, we will focus on McDonald (p. 474-493]

Video: Link

Justice Scalia's Stamp

 

                                         Photo by Chris Scalia, Nino's Son

14th Amendment

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.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

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

Justice Thomas on Incorporation via the P or I Clause

It is not at all clear that incorporation of the Bill of Rights against the States is proper under the Fourteenth Amendment. But the Court has incorporated most of the provisions of the Bill of Rights over a period of the last century or so, and so nearly total incorporation is a fait accompli  and it is not going to be undone.

McDonald is an interesting case because it deals with whether the Second Amendment and the individual right to keep and bear arms applies against state and local laws that prohibit private ownership of guns.

One issue that was discussed at some length in McDonald is which provision of the Fourteenth Amendment is the proper portal of incorporation--the Privileges or Immunities Clause ot the Due Process Clause.

Justice Thomas believes that the P or I Clause is the proper vehicle Casebook page 482-483:

Applying what is now a well-settled test, the plurality opinion concludes that the
right to keep and bear arms applies to the States through the Fourteenth Amendment’s
Due Process Clause because it is “fundamental” to the American “scheme of
ordered liberty,” . . . and “ ‘deeply rooted in this Nation’s history and tradition,’ ” . . . I
agree with that description of the right. But I cannot agree that it is enforceable
against the States through a clause that speaks only to “process.” Instead, the right to
keep and bear arms is a privilege of American citizenship that applies to the States
through the Fourteenth Amendment’s Privileges or Immunities Clause.
I
. . .
. . . The one theme that links the Court’s substantive due process precedents together
is their lack of a guiding principle to distinguish “fundamental” rights that
warrant protection from nonfundamental rights that do not. . . .
. . .
. . . I believe . . . that a return to [the original meaning of the Fourteenth Amendment]
would allow this Court to enforce the rights the Fourteenth Amendment is designed
to protect with greater clarity and predictability than the substantive due process
framework has so far managed.
. . .
[T]he objective . . . is to discern what “ordinary citizens” at the time of ratification
would have understood the Privileges or Immunities Clause to mean. . . .
. . .
[Justice Thomas canvassed early legal documents that spoke of “privileges” and
“immunities,” which he viewed as indicators that those terms were synonymous with
“rights”; evidence “from the political branches in the years leading to the Fourteenth
Amendment’s adoption”; and statements of its sponsors and opponents, including
“well-circulated speeches.” To Justice Thomas, “[t]his evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.”]

What do you think about Justice Thomas' view?

Dred Scott and the Masks of the Law

Here is something I have been working on concerning the way the law uses legal masks to conceal persons:

One of the great constitutional law scholars of the past fifty years, Judge John T. Noonan, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those who the law affects harshly.”  

He calls this process of dehumanization the “masks of the law.” 

What Noonan meant by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way:

“By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.” 

The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.” The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly. 

For example, as a judge in the state of Virginia, George Wythe, a signer of the Declaration of Independence and its embrace of all men being created equal, was able to preside over the sale and inheritance of slaves and to declare in one case that “The property of slaves, whatever be their number, may be transferred with as little judicial ceremony as a single quadruped or article of house or kitchen furniture.” 

As Noonan observes, Wyeth “could not have compassion for each of them as a person and still be a judge….  At the critical moment, the masks of the law covered the faces of the slaves.”

Montesquieu, with biting irony, explained even more clearly the need for the masks of the law in an age of slavery:

‘It is impossible,” said Montesquieu, “that we should suppose those people to be men, because if we should suppose them to be men, we would begin to believe that we ourselves are not Christians.”  

This mask of the law has a dual function—it hides the humanity of the slaves, so judges and the law can treat them like an animal or an inanimate chair, and it allows the white ruling classes to think well of themselves by masking the tyranny of the system they enforce. 

“We are not evil men! We are good men, lovers of liberty and equality, and protectors of private property and the pursuit of happiness!”

Do you see this point about the masks of the law, and how they permit good men to commit grave injustices while still feeling good about themselves?

Always try to peek behind the masks of the law and see clearly whatever or whoever is concealed by these masks.

The Rule of Law and SDP

We hear a lot about the Rule of Law these days. But this is a term many in the legal profession use without first clearly defining it.

What is the Rule of Law? What is the difference between Lex Rex and Rex Lex? [The law is king vs. the king is law--the Rule of Law vs. the Law of Rulers or the Rule of Man]

Is the Supreme Court bound by the Rule of Law? Or is the Court, literally, "the law" no matter what it rules?

 Lex Rex or SCOTUS Lex?

Was the Court's SDP decree in Dred Scott a part of the legitimate the Rule of Law?  What was President Lincoln's view about Dred Scott as legitimate law?

What about Lochner? Griswold? Roe v. Wade? Obergefell?

What are your thoughts about whether the Rule of Law is binding on SCOTUS? Or is SCOTUS the law?

Con Law II Spring 2023: Assignment for First Class

 Here is the assignment for our First Class:

Originalism vs The Living Constitution: Strauss article (link);Sollum Article (link); Duncan Video (from Con Law class): https://use.vg/pWJhoE

I would like each of you to prepare to discuss your personal version of judicial interpretation of the text of the Constitution--originalism or common law living constitutionalism. Maybe write a a paragraph or two explaining which view you prefer and (importantly) why you believe that view interpreting the Constitution is to be preferred. I will go around the room and ask each of you to share.

Con Law II Spring 2023: Assignment for Second Class

 

 2. Casebook p. 437-458; p.1034-1044; video 1: link ; video 2: link2

Hot Seminar Paper Topic: B.P.J. v. West Virginia State Board of Education

Link to Opinion

Here is how ADF (who defended the law) describes the case in its press release:

 CHARLESTON, W.V. – A federal district court issued a decision [recently] that upholds West Virginia’s Save Women’s Sports Act, H.B. 3293, rejecting a legal challenge to the law that would have undermined women’s sports in the state by allowing males who identify as female to compete with females in girls’ and women’s sports.

Alliance Defending Freedom attorneys represent Lainey Armistead, a former West Virginia State University soccer player who intervened in the lawsuit, B.P.J. v. West Virginia State Board of Education, to defend the law. West Virginia enacted the law to ensure equal opportunities for women in sports.

“Today’s decision is a win for reality. The truth matters, and it is crucial that our laws and policies recognize that the physical differences between men and women matter, especially in a context like sports,” said ADF Senior Counsel Christiana Kiefer. “Female athletes deserve to compete on a level playing field. Allowing males to compete in girls’ sports destroys fair competition, safety on the field, and women’s athletic opportunities. Female athletes across the country are losing medals, podium spots, public recognition, and opportunities to compete because of males competing in women’s sports. The court was right to affirm that West Virginia’s law is not only constitutional, but consistent with Title IX.”

“While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes,” the court wrote in its decision. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes. Given [the challenger]’s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females.”

“I believe that protecting fairness in women’s sports is a women’s rights issue,” said Armistead. “This isn’t just about fair play for me: It’s about protecting fairness and safety for female athletes across West Virginia. It’s about ensuring that future generations of female athletes are not discriminated against but have access to the same equal athletic opportunities that shaped my life. Being an athlete in college has made me even more passionate about the sport that I play. I want fairness, equality, and safety in sports. And I want to ensure those standards are protected for other girls, too.”

It is only a district court decision, so it will likely move through the appeals process. But it is a very important 14th Amendment issue and would make a great paper topic.

Students Who Signed Up For Seminar Option: List of Topics

 I strongly recommend you pick a topic on a recent SCOTUS case, one which will allow you to focus clearly on real constitutional issues recently decided by (or currently before) SCOTUS.

 Here are a few ideas that work for this course. Please choose one of these:

1. Stare Decisis and Constitutional Law (after Dobbs, are other substantive due process cases likely to be overruled? Which ones? How would both sides argue the issues?)

2. Beyond Dobbs (overruling Roe)

3. Fulton and the future of Free Exercise

4. New York State Rifle & Pistol Association Inc. v. Bruen (Second Amendment right to carry)

5. 303 Creative LL.C v. Elenis (Masterpiece Cakeshop 2.0 currently on cert docket of SCOTUS)

6. 14A Privileges or Immunities Clause and Original Understanding (which rights are fundamental?)

7. Carson v. Makin and religious discrimination in educational vouchers

8. Mahanoy and off campus student speech 

9. Kennedy v. Bremerton School District (public school coach has right to pray on field after games)

10.Students for Fair Admissions Inc (race-based preferences in higher ed admissions; currently before the Court)

 

"Bake the cake. Wear the jersey. Bend the knee"

 The Jack Phillip's--bake the cake--brand of the cancel culture comes to the NHL--WSJ: Ivan Provorov Went to a Hockey Game, and a Culture War Broke Out

Here is a money quote: 

 American pluralism is a glorious thing. Dedication to shared ideals and the commitment to living peacefully among compatriots of all colors and creeds can bring out the best in us. It unites people of all religions, national origins and other historical sources of division in defending our aspirations to life, liberty and the pursuit of happiness.

Yet that pluralism is in peril today, compelling me, an American Orthodox Jew, to defend Ivan Provorov, a Russian Orthodox Christian and professional hockey player. Mr. Provorov, a defenseman for the Philadelphia Flyers, has come under fire for refusing to wear a “Pride Night” jersey bearing the rainbow flag or use a rainbow-taped hockey stick during warm-ups before the team’s game on Tuesday.

Mr. Provorov told reporters he declined to participate “to stay true to myself and my religion.” He added, “I respect everyone. I respect everybody’s choices.”

 The compelled speech issue is currently before the Court in the 303 Creative case, a case we will cover this semester. This article is an excellent account of how the hockey media is trying to drive Provorov out of hockey (and even out of the country!). Exclusion in the name of inclusion strikes again.

Kenny Xu on Asian-Americans and Meritocracy

Kenny Xu, an Asian-American civil rights advocate, says this:

 "Wokism is basically an attack on Asian American achievement. It says, our hard work, our family values, that make us successful, we should be ashamed of. It’s an attack on our image, and it means Asian Americans don’t get respect in admissions or hiring." --Kenny Xu

Thoughts?

The State Citizenship Clause

Prof. Kurt Lash has a very important forthcoming article on the State Citizenship Clause. Here is his Introduction:

I. Introduction

The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States and of the State wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.

A close look at the history of the State Citizenship Clause, however, reveals its key purpose in the overall structure of Section One of the Fourteenth Amendment. Although today courts emphasize the “all persons” clauses (due process and equal protection), the majority of Section One addresses the status and rights of citizens. The National citizenship clause echoes the opening sentence of the 1866 Civil Rights Act and formally overrules the Supreme Court’s decision in Dred Scott. The State citizenship clause goes further and addresses a critical omission in the 1866 Civil Rights Act. That Act defined national citizenship but left the status of state citizenship undefined and unprotected. The second citizenship clause remedies this omission and prohibits states from establishing a tiered system of citizenship where black Americans are treated as second class state citizens and denied the same civil rights granted to white state citizens.

Recognizing the role played by the State Citizenship Clause in securing the equal status of state citizens helps resolve a number of textual historical conundrums regarding the full meaning and structure of Section One of the Fourteenth Amendment. For example, recent scholarship suggests that the original understanding of the Equal Protection Clause guaranteed nothing more than the equal application of laws protecting a person’s life, liberty or property. It appears this Clause did not prohibit states from discriminating on the basis of race in regard to the broader category of citizens civil rights. If so, then this means the original scope of the Equal Protection Clause was far narrower than the Supreme Court’s current interpretation and would not support the Court’s ruling in canonical cases like Brown v. Board of Education and Loving v. Virginia. The original understanding of the State Citizenship Clause, on the other hand, prohibits states from establishing a two-tiered system of state citizenship whereby civil rights and benefits are distributed differently on the basis of race.

The history of the State Citizenship Clause also sheds important light on the original understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. The citizenship clauses define the status of national and state citizenship: Any person born in the United States is a citizen of the United States, and any United States citizen residing in a state is also a citizen of that state. The Privileges or Immunities Clause then declares that no state shall abridge the privileges or immunities of these citizens. These privileges include the rights secured by the status of national citizenship (for example, those enumerated in the Bill of Rights) and those rights secured by the status of state citizenship (local civil rights). Although whole forests have been felled in the effort to define the “fundamental” rights protected by the Privileges or Immunities Clause, the meaning of the Clause is both simple and easily enforceable. States cannot deny national citizens those rights secured by national law (including rights listed in the national Constitution) and states must extend local civil rights equally to all its citizens, regardless of race. The latter include all civil rights (not just “fundamental” rights), from the right to educational benefits to the right to skip down a public sidewalk.

 

This helps clarify a lot of issues we will be discussing.

Is Social-Media Censorship a Crime?

 Professor Phillip Hamburger's analysis concludes perhaps ("If tech execs cooperated with government officials, it might be a conspiracy against civil rights").

 

See WSJ link

 

Money quotations:

Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights. The current administration won’t entertain such a theory, but a future one might.

Section 241 of Title 18 of the U.S. Code provides: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined under this title or imprisoned not more than ten years, or both.”

 

Government remains bound by the First Amendment even when it works through private cutouts. There would be no purpose to a Bill of Rights if government could evade it by using private entities to do its dirty work. As the Supreme Court put it in Frost & Frost Trucking Co. v. Railroad Commission (1926), “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”

The First Amendment’s text confirms the unconstitutionality of such workarounds. Any “prohibiting” of the free exercise of religion violates the amendment. In contrast, a mere “abridging” of the freedom of speech is unconstitutional. The government thus violates the latter merely by abridging or reducing it.

 

The companies and individuals involved in the censorship need to decide where they stand. Perhaps it is time for them to distance themselves from the censorship. Are they comfortable with a conspiracy to violate civil rights? Even if that doesn’t bother them, are they willing to risk prosecution? They may assume, with some justification, that the Justice Department will hesitate to prosecute, even in a future administration. But would you bet the farm on that?

 What are your thoughts?

Merit vs. Racial Preferences: What do you think?

 Kenny Xu, an Asian civil rights activist, says this:

"We don’t need more white doctors. We don’t need more black doctors. We don’t even need more Asian doctors. We need the most qualified doctors, period. Even if the result is 'racially inequitable.'"

Do you agree or disagree? Why? What does inequitable mean in the quotation above?

Censorship and the Presumption of Innocence

When speaking of criminal law and the presumption of innocence, we often say it is better that 99 guilty people go free than for one innocent person to be wrongfully convicted.

To me, this is also true of free speech versus censorship. If the effort to censor "misinformation" casts some factual truths or political viewpoints into the censorship dragnet, that cost is too high.