Exam Review Session--Monday December 3

Monday December 3 @ 1:30 PM
in the Courtroom

Next Week--Nov. 26 & 27

For Mon November 26 we will focus primarily on the following cases and pages:

--Washington v. Davis  p. 756-767
--Kahn v. Shevin  p. 777-781
--Hogan p. 782-786

For Tuesday November 27 we will focus primarily on the following cases and pages:

--Grutter v. Bollinger and Gratz v. Bollinger (read only p. 807-822)

Equal Laws, Not Equal Results

In Feeney, the Court said "the Fourteenth Amendment guarantees equal laws, not equal results." (p. 765)

In other words, equal protection scrutiny is triggered only by intentional or purposeful discrimination on the basis of race or gender, not by neutral laws that result in disproportionate impact. Suppose, for example, data showed that the federal income tax imposes a greater burden on some races than on other races. Or that federal welfare laws disproportionately provide benefits to some races rather than others. Are these laws presumptively unconstitutional and subject to strict scrutiny?  

Feeney says the EPC is triggered only if the plaintiff can demonstrate that the law was enacted "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (p. 766) Thus, veterans' preferences for civil service jobs do not trigger gender-based-equal-protection scrutiny, because they are enacted to repay veterans for the sacrifices they have made for their country, not because they disproportionately benefit men over women. Do you agree with Feeney? Why or why not?

Racial Affirmative Action Preferences

Here, I think, is the nub of the debate--one side reasonably believes that the only way to get "beyond race" is to take race into account for a period of time (a generation or two or three); and the other side reasonably believes that the only way to get "beyond race" is to stop using race as a factor in distributing governmental burdens and benefits. There are benefits and costs to both approaches, and perhaps we don't agree on how to weigh the costs and benefits.

Railway Express case: Ms and Ts

Let's practice our Ms and Ts on the Railway Express case on page 641.

Ends =M (mischief): Advertisements on trucks "constitutes a distraction to...drivers and pedestrians"

Means=T (trait or classification drawn): the law prohibited trucks from advertising the products of third persons but not products sold by the owner of the truck

In other words, advertising on A's trucks saying "buy B's widgets" was banned, but A's trucks could contain ads saying "buy My widgets."

Try to draw your M and T diagrams for this scenario.

Ms and Ts

Lets focus on a governmental program intended to provide subsidized housing for economically needy people. The idea is to help only those who need help, so a line will have to be drawn somewhere to decide who gets housing benefits and who does not get housing benefits.

M (Ends or purpose of the law)--To help house needy citizens afford habitable housing

T(Means: the classification made by the law)--To draw a line based upon income (people on one side of the line get benefits, people on the other side of the line do not get benefits)

Obergerfell and the Great Debate

As I said  in class, I want you to read Obergefell not so much for its doctrine concerning same-sex marriage, but rather as the most recent boiling point in the Great Debate between original understanding originalism and the Living Constitution.

Please read the dissenting opinions as carefully as you read the majority opinion, because the dissenting opinions are almost completely focused on the role of the Court in applying vs. making constitutional law.

I will ask a goodly number of you to share your views on Obergefell and whether it is a legitimate judicial application of the Written Constitution.

I want everyone to think through his or her views of whether the definition of marriage is committed by the Written Constitution to the federal judiciary or to democratic self-government by we the people in the several states.

What would have happened with respect to the same-sex marriage issue if the Court had said under the 10th Amendment the states--not the Court-- have the power to define marriage?

Our Focus This Week

Today (Monday Nov 12) we will focus on Roe, Casey and the abortion liberty.

Tomorrow will will focus primarily on Obergefell (SSM case) and I will spend the last half of class introducing you to Equal Protection.

There is no Handout 3

I thought I had deleted Handout 3 from the syllabus. I have now.

There is no handout 3 for you to worry about.

Who is Jane Roe? Who is Mary Doe?

When reading Roe v. Wade, take a look at page 271 of the Paulsen book. The authors give you a short biography of Jane Roe (Norma McCorvey) and her incredible journey from pro-abortion activist to pro-life activist.

The Paulsen book does a nice job discussing Roe v. Wade on pages 270 to 278.

Mary Doe (Sandra Cano), the Plaintiff in Doe v. Bolton, decided not to have an abortion "once she felt her baby kick." She communicated this to her lawyer, but since her case was a class action her lawyer went ahead with the case anyway. See Clark Forsythe's book, Abuse of Discretion at p. 94.

Link to Kermit Gosnell Grand Jury report

I am not assigning it, but I wanted to make sure you have a link to the Gosnell Grand Jury Report (cited in my article). It is sad but fascinating reading about late-term abortions in post-Roe America.

Gosnell Grand Jury Report

Class Schedule--Cancellations

Notice this class meets for 85 minutes rather than 75 minutes and this requires us to cancel 3 classes during the semester without the need for a make-up. Plus, we have already done make-ups for two more classes.

Here is a list of our class cancellations so far:

1. Monday September 17 (I am at BYU Law)
2. Tuesday September 18 (I am at Utah Law)
3. Tuesday October 16 (Indiana Law)
4. Monday November 5 (Roll Tide Law)
5. Tuesday November 6 (Faulkner Law)

Judge Lohier Visits Nebraska Law

From my colleague, Professor Wittlin, who clerked for Judge Lohier"

I write to encourage you to attend two events this week. 

Judge Raymond J. Lohier, Jr., of the U.S. Court of Appeals for the Second Circuit, is coming to the Law College as the Cline Williams Jurist in Residence. I clerked for Judge Lohier from 2012-2013. He's a wonderful person and an excellent judge, and I think you'll get a lot out of hearing him speak.

The two events are:

Lunch Talk with Judge Bataillon

Monday, October 29, 12:00 - 1:00, Auditorium

Judge Lohier and Judge Joseph Bataillon (D. Neb.) will discuss the administration of the federal courts.

Cline Williams Jurist-in-Residence Lecture

"The Roles of Judges and Lawyers in Doing Justice: A Conversation"

Tuesday, October 30, 12:00 - 1:00, Auditorium

Judge Lohier and I will discuss the function of appellate courts, the powers of prosecutors, and how courts aim to ensure adequate representation for indigent criminal defendants, among other exciting topics. (I'll ask questions, he'll do most of the talking.)

Some background on Judge Lohier: For ten years, Judge Lohier was an Assistant United States Attorney for the Southern District of New York, where he led both the Narcotics and the Securities and Commodities Fraud units. (He oversaw the prosecutions of Bernie Madoff and Marc Dreier.) He also worked as a trial attorney in the Civil Rights Division of the Department of Justice and litigated in private practice at a large national firm. President Obama nominated him to the Second Circuit (for the seat vacated by Justice Sotomayor's elevation) in 2010. I believe he is the first Haitian-American Article III judge.

I hope you'll consider attending the talks!

Have a good rest of the weekend,

Maggie Wittlin

The Living, "Common Law" Constitution and How it Grows and Grows

In his book, A Matter of Interpretation, Justice Scalia describes the Living Constitution as:

“[A] body of law that…grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and ‘find’ that changing law….Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.” [at p. 38]

 

In other words, the Supreme Court’s Living Constitution is the common law on steroids—the Barry Bonds’ version of the common law, a common law that trumps the laws of all 50 states and even acts of Congress.

Let's trace the "common law" constitutional right of privacy and see how it ended up constitutionalizing abortion on demand throughout the entire 40 weeks of pregnancy and struck down the laws of all 50 states!

Birthright Citizenship and Chirldren Born to Illegal Immigrfants

This is not an area that I have taught or reserached, so I donave an informed opinion about this. But here are some sources:


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.

Section 5.

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




  Lindsey Graham‏Verified account @LindseyGrahamSC

In addition, I plan to introduce legislation along the same lines as the proposed executive order from President @realDonaldTrump.

 Ben Shapiro Article


See also Slaughterhouse at p. 417: "The phrase, 'subject to its jurisdiction' was in tended to exclude from its operation chiuldren of ministers, consuls, and citizens or subjects of foreign States born within the United States."


And here is a post from Jack Balkins blog:

Birthright Citizenship and the 14th Amendment

Gerard N. Magliocca

Michael Anton is a former official in the Trump Administration. He is best known for writing (under the pseudonym Publius Decius Mus)  the "Flight 93" essay during the 2016 presidential campaign, in which he slandered the memories of the passengers of that doomed flight on September 11th, 2001 by comparing their courage to people who should vote for Donald Trump.

In today's Washington Post, Anton celebrates the 150th anniversary of the Fourteenth Amendment by distorting its first sentence. In "Citizenship Shouldn't Be A Birthright," Anton argues that the original understanding of that text excludes people born here to illegal immigrant parents from citizenship. Section One of the Fourteenth Amendment provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States thereof . . ." Anton says that "subject to the jurisdiction" means "not owing allegiance to another country," which would thus exclude children born here to illegal immigrant parents. (Why children born here owe their allegiance to another country is not explained, but that's just one of the many problems with Anton's article.)

I wrote a law review article ten years ago explaining why Anton's argument is wrong. You can read that paper here. "Subject to the jurisdiction," means exactly what you would think from reading that phrase--"subject to American law." Illegal immigrants are, of course, subject to American law. That is why they can be deported. And why their children born here are citizens.

Suppose you are not convinced by my article. After all, I don't support President Trump. So I give you Judge James Ho, named by the President to the Fifth Circuit last year. Judge Ho has impeccable originalist credentials, as a law clerk to Justice Thomas, the Solicitor General of Texas, and a leading private practitioner before he took the bench. When he was in practice, Judge Ho demolished the Anton argument is a couple of published articles (such as here and here). Look at a key passage:

Proponents of ending birthright citizenship claim that aliens--lawful and unlawful--are not "subject to the jurisdiction" of the U.S. because they swear no allegiance to the United States. But neither the text nor the history of the 14th Amendment supports this conclusion. 

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine. 

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship --but no one disputed the amendment's meaning. Opponents conceded--indeed, warned -- that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

Thus, Anton's claim that "judges faithful to their oaths will have no choice but to agree" that birthright citizenship does not extend to the children born here to illegal immigrant parents is preposterous. Mr. Anton is free, like anyone else, to support for a constitutional amendment that restricts birthright citizenship. He cannot, though, escape the truth that the Constitution as written rejects his view.

Conservative Living Constitutionalism

As we conclude our discussion of the Lochner era, let me ask you to think about this.

If proponents of a "common law," judge-made, Living Constitution are correct, what would you think about a 6 to 3 conservative Court practicing living constitutionalism?

Which conservative policy positions might be constitutionalized and imposed on Congress and on all 50 states by an activist Court interpreting the Constitution based upon what conservatives think it ought to be? Economic policies, tax policies, immigration policies, environmental policies?

McDonald v. City of Chicago Oral Argument

Link to Oral Argument at Oyez

Facts of the case

Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.

Question

Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?

Conclusion

The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.

Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the Fourteenth Amendment.

Nebraska Residency For In-state Tuition

You will be classified as a non-resident if:

• You are not attending a Nebraska high school
• Or, you are not a graduate of an accredited Nebraska high school

---

Qualifying for Residency Status For The Purpose of In-State Tuition

• Persons of legal age (19 or older) or emancipated minors who:
  1. have established a home in Nebraska for at least 12 months.*
  2. AND can verify by documentation that he/she intends to make Nebraska their permanent residence.
• Dependent students whose parent/guardian has established a home in Nebraska.
• Persons who are married to Nebraska residents who had established a home in Nebraska prior to the marriage.
• Permanent resident aliens or individuals who have been granted asylum or refugee status and who have established a home in Nebraska for at least 12 months.
• Dependents or spouses of permanent university, state college, or community college employees in the State of Nebraska who have at least part-time (.5 FTE) employment status.
• Active duty military personnel and their dependents whose permanent duty station or home of record is in Nebraska.
• Persons who graduated from an accredited high school in Nebraska and were legal residents of Nebraska at the time of graduation.
• Individuals who previously attended the University of Nebraska or one of the Nebraska state colleges as a resident within the last two years.
• Individuals, and their spouses and dependents, who were recruited for full-time employment to the state of Nebraska because of their special talents or skills.
• Members of tribes who live outside the state of Nebraska qualify for in-state tuition rates upon providing documentation of membership.
• You need to apply for residency classification in order to determine if you qualify for in-state tuition.

NOTE: *Individuals who move to Nebraska primarily to enroll in a post-secondary institution in Nebraska will be considered a non-resident for tuition purposes for the duration of his/her attendance.

Tenth Amendment--One of the Bill of Rights

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.

Today Wednesday Oct. 3

Who: Federalist Society 

What: Can A Dead Constitution Bind the Living 

When: Tomorrow at Noon

Where: Room 113

Catering: Bahnwich 

Additional Info: 

Join us for a conversation with Ilan Wurman, fellow and lecturer-in-law at the Sandra Day O’Connor College of Law at Arizona State University and author of A Debt Against the Living: An Introduction to Originalism, on whether the Constitution should be Interpreted as a living breathing document or as a debt against the living that cannot be easily discharged. Commentary will be provided by Professor Eric Berger and lunch will be provided