For Tomorrow's Zoom Session (Wednesday August 26)

 

For our Zoom session this Wednesday on Marbury and McCardle, I would like you to focus on the following blog posts:

Marbury v. Madison: Takeaways

Marbury and the Judiciary Act of 1789

Can the Supreme Court Violate the Constitution?

Ex Parte McCardle

McCardle: A Few Notes

What are some of the issues that you feel strongly about? 

 

If the Court has the power of judicial review, should this be an unchecked power? If not, how does the Constitution protect us from judicial supremacy and government by the judiciary?

I said most of what I want to say in the recorded classes. I want to hear you think?

As they say in Hamilton, "see you on the other side" of the new normal (i.e. on Zoom).

Zoom Zoom Zoom

 Just a reminder:

We will have 3 zoom sessions this week:

1. Tuesday August 25 at 5 to 6 PM (organizational meeting)
2. Wednesday August 26 at 5 to 6 PM (Marbury/McCardle)
3. Thursday August 27 at 5 to 6 PM (Great Debate: Originalism vs The Living Constitution)

Just go to the Canvas Zoom page for this course and join the recurring meeting.

 I sent you an email last week with instructions.

Pro Tip

 Welcome Fall 2020 Con Law I students! If you are looking for something that is supposed to be on this blog, just scroll down until you find it. I have already posted a number of substantive posts for the first week's assigned readings. Just scroll down until you find them!

Assignments for First Week (remotely and asynchronously)

Here are the assignments for the first week of classes from August 17-23 (to be taught remotely and asynchronously):

1. Casebook p. 1-37 (skim p. 1-24 as background reading). 
2. Casebook p. 37-42

The casebook is: Varat & Amar, Constitutional Law (15th Edition)(Foundation Press 2017)

I will also post links to video recordings of my teaching these initial assignments. Once we get into the regular part of the Fall semester (Zoom discussion/Q&A sessions starting the second week of class), we can talk about what we learned during this first week. 

I will be posting a full syllabus soon, but it still needs quite a bit more work.  


 

Con Law I Distance Plan

 
I will be teaching Con Law I remotely during Fall 2020. Here is my plan:

1. I will teach and record the entire class to an empty classroom this summer. The recorded class videos will be linked on this class blog (and probably on Canvas, although I don't use Canvas for much).
   
2. I will have regular zoom discussion sessions and Q & A sessions to supplement the recorded classes. I plan to schedule at least 18 hours (1080 minutes) of Zoom sessions. My plan is to have zoom sessions every week during our scheduled class hours (probably twice a week most weeks for 60 to 75 minutes per session).
3. I will assign a number of oral arguments of landmark SCOTUS cases. This will enable you to listen to excellent lawyers arguing some of the very cases we are reading. You will learn both substantive con law and oral advocacy skills from these oral arguments. Some of our Zoom sessions will focus on a discussion of the oral arguments I have assigned.
4. I have been teaching on line for more than 20 years via this course blogs. It is the primary way I communicate with my students outside of class. I post assignments and announcements here. I post many substantive posts here (several posts for each class) and I also will link to recorded lectures, articles, news reports, and SCOTUS oral arguments. I encourage you to participate by posting comments or questions to the blog posts.
5. I will have telephone office hours and I encourage y'all to call me to discuss con law or to ask questions.
6. I don't use Canvas for very much.  So please consider this blog your primary on line source for information about this course. Check it regularly for new information and substantive posts. Once a day keeps your up to date!

Con Law I--First Recorded Class

I am posting a link below to Recording number 1. It is just my introduction to the course. One thing has changed from what I said there--I have decided not to assign the Barnett & Blackmun supplemental book. It is good, but I don't want to overdue the assigned materials.

Here is the Link:

Class 1

https://unl.box.com/s/2j5dfi39cwlavdc0rs386jk3dqfgukzq

 

Fall 2020 Con Law I Class

Greetings. I just posted a link to this blog on Canvas, so I thought I would welcome you here.

The Fall 2020 Covid-version of Con Law I will be a distance class. I am spending most of the summer teaching the class to an empty classroom in Room 113 in order to record the classes for you to view at home. We will also have zoom discussion sessions. It has been a lot of work, but I have enjoyed it because I love teaching this course.

These video recordings will be posted both here and (I believe) on Canvas during the semester. But not until early August.

Be aware that I don't use Canvas for very much. I believe Con Law can't be learned with modules, flash cards, and little exercises and quizzes. It requires deep and thoughtful analysis of Supreme Court opinions dealing with complex issues.

I use this blog to communicate with students enrolled in this course. Please check the Con Law course blog regularly (a quick check once a day will keep you up to date).

Announcements will be posted here. My syllabus will be here. Links to oral arguments we will be listening to will be here. And many helpful substantive posts about cases we are reading and issues we are analyzing will be here.

I miss the in-person classroom with everybody in one place learning about our Constitution. I am trying to come as close to that experience for you with recorded classes and zoom discussions.

We will learn a lot about our great Written Constitution this year. And I can't wait to get going!

Cheers,

Rick Duncan

Fall 2020 Con Law I--Book to Read This Summer

If you want to get a nice head start on Con Law I, now is a good time to read a book I am requiring as an excellent introduction to the Constitution. The book is Paulsen & Paulsen, The Constitution: An Introduction.
It is short and you should read the entire book ( roughly 300 pages) for a wonderful introduction to our Written Constitution. You can pick up a used copy on Amazon for under $10 (I recommend a used copy of the hardcover). Here is a link to Amazon.

FYI Con Law II in Spring 2021

Although Con Law II had not originally been scheduled for this academic year, I have decided to teach it in Spring 2021. Con Law II is a First Amendment course, and the First Amendment (speech/religious liberty) has been red hot in SCOTUS litigation lately.

So, if you want more Con Law, think about taking my Con Law II class this coming Spring.

Same casebook as for Con Law I, so no new book purchases! $$$$$$$

Something to Brighten Your Day

Librarians Rock!

Remarkable Free Exercise/Pandemic Opinion

I am not assigning this case. Just sharing it with you because it is the most remarkable religious liberty opinion I have ever read. I would gladly join in this opinion.

In this case, a local church was forbidden by the mayor of Louisville, Kentucky from attending Sunday services "even if they remained in their cars--and even though it's Easter." Although the city ordered the church not to have a drive-in service (where people remain in their cars in the church parking lot), it allowed drive-through shopping at liquor stores and restaurants. An interesting Lukumi fact pattern.

Federal District Judge Justin Walker issued a TRO enjoining Louisville from enforcing "any prohibition on drive-in church services at On Fire." The opinion explaining the injunction is remarkable. Some will hate it; some will love it. It is the strongest judicial defense of religious liberty as a fundamental human right I have ever read. I wish I had written it!

Here is a link: On Fire Christian Center v. Fischer

I love so much of this opinion, but especially this line, as Judge Walker explains the spirit of the Pilgrims: "The Pilgrims understood at least this much: No place, not even the unknown, is worse than any place whose state forbids the exercise of your sincerely held religious beliefs."

Fourth Tranche of Blog Posts: Expressive Association and the Right Not To Speak

The fourth tranche of extended blog posts for our on line classes has been uploaded just below.

Please comment on at least a few of these posts.

They are lighter than some of the previous posts, because you have extensive coverage of the right not to speak (the no-compelled-speech doctrine) in my law review article that was part of this assignment. Read that article carefully; it will give you a clear understanding of the doctrine and its justification.

Telescope Media Oral Argument

Here is the next oral argument we will be listening to. This one is of Telescope Media Group v. Lucero, what is know the leading federal decision on free speech and expressive wedding vendors. case. Here is the link

 Telescope Media Group v. Lucero


You should probably read the opinion I assigned before listening to the oral argument. Anytime by the middle of next week is fine. 

Although I haven't assigned my forthcoming Nebraska Law Review article on the decision, if you want to read it here is a link:

Duncan Article


Please comment below on the oral argument after you have had an opportunity to listen to it. It is very good.

Third Tranche of Blog Posts: O'Brien, Johnson, and Symbolic Speech

The third tranche of extended blog posts for our on line classes has been uploaded just below.

Please comment on at least a few of these posts

Texas v. Johnson: Oral Argument

Here is the next oral argument we will be listening to. This one is of Texas v. Johnson, the flag burning case. Here is the link:

                                      Texas v. Johnson




Here is the brief from Oyez:

                            

Facts of the case

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Please try to post a comment below by April 10.

Was there any exchange that you thought was particularly interesting or particularly good? Any questions from the Bench that you found interesting.

One good thing about listening to oral arguments as part of our on line learning is that you get to see great lawyers in action on a case that we are reading and studying. Is there anything you learned about oral advocacy from this oral argument?

My Comments 

1. Texas argued that it wished to protect the "physical integrity" of the flag. That preventing a citizen from burning the flag to express dissent was somehow not restricting speech, but only physical conduct. But when you dig down into the argument, the concern is not about a physical shortage of flags, but rather protecting the symbol of the flag from desecration. That is a viewpoint-based concern, not one limited to "physical integrity."
2. Texas also seemed to view the symbolism of the flag as some kind of "national property" that calls for an ad hoc exception to the Free Speech Clause. Plus for the 50 state flags!
3. O'Connor asks whether a state could ban the burning of a copy of the US Constitution or of a state constitution. Great question! Then Scalia--being Scalia!--asks whether Texas could protect the state flower from symbolic desecration. [I miss him more every day!]
4. Justice Blackmun: the remedy for offensive speech is not censorship, but counter-speech: "Isn't the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?
5. Notice also that Texas argues for a hecklers' veto; that there is a compelling interest in protecting against a breach of the peace when offended observers react violently to flag burning.
6. I loved that Johnson's lawyer ended with this quotation from: "J. Anthony Lukas, a very excellent former reporter for the New York Times, [who] said,  'Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.'" I agree!

Second Tranche of Blog Posts-Rust and Rosenberger Revisited

The second tranche of extended blog posts for our on line classes has been uploaded just below. These posts all deal with Rust and Rosenberger and how to distinguish them.

Please comment on at least a few of these posts

Deletion from Assignments

I have deleted one thing from free speech assignment #4. It now is: 4. Casebook p. 1468-1479. No need to re-read Locke v Davey. We will not be revisiting Davey, because it was not decided under the Free Speech Clause.

First Tranche of Blog Posts-Student Speech in Public Schools

The first tranche of extended blog posts for our on line classes has been upoaded just below. These posts all deal with free speech for students in thye public schools.

Please comment on at least a few of these posts.

"Be happy Not Gay" Slogan on Student Clothing Protected by 7th Circuit

From ReligionClause blog:

 

7th Circuit Upholds Injunction Permitting "Be Happy, Not Gay" Slogan on Student Clothing

In Zamecnik v. Indian Prairie School District #204, (7th Cir., March 1, 2011), the U.S. 7th Circuit Court of Appeals upheld a trial court's entry of a permanent injunction permitting any student at a Naperville, Illinois high school  to display on clothing or personal items the slogan "Be Happy, Not Gay."  It also affirmed the trial court's award of damages of $25. The school had attempted to ban students from wearing the slogan on T-shirts under a rule that barred derogatory comments that relate to race, ethnicity, religion, gender or sexual orientation or disability.  The 7th Circuit had previously ordered the district court to enter a somewhat narrower preliminary injunction. (See prior posting.) The school now argued that it should have been entitled to a hearing to show that it had a reasonable belief it faced a threat of substantial disruption before a permanent injunction was entered. The 7th Circuit disagreed. The court relied in part on the "heckler's veto" doctrine-- that speech cannot be suppressed merely because those who disagree with it engage in threats or violence. Alliance Defense Fund yesterday issued a release discussing the decision.

Is this case consistent with Dariano (the US flag shirt case)? Why or why not?

Dariano v. Morgan Hill

Let's have a discussion in the comments about this case.

Here is what I would like you to think about--suppose you were a school board lawyer consulted by the Principal before making a decision about the flag tee shirts. What would your advice be?

Would you go ahead with the Cinco de Mayo celebration, allow students to bring Mexican flags, but prohibit students from displaying the American flag? Would this result in viewpoint discrimination?

Would you cancel plans to celebrate Cinco de Mayo?

Would you ban all national flags?

What would you advise?

Now, consider the Ninth Circuit's opinion.

Do you agree that the censorship of the American flag was permissible under Tinker because the school had a reasonable concern that the American flag shirts might result in violence and disption of school activities?

Does this result in permitting a hecklers' veto, in which one group of students, by threatening violence, can silence another group of students who wish to engage in silent political expression?

But again, what should school officials do when dealing with problems such as this?