Deliciously Unrealistic Due Process Violation

 - but people think this kind of stuff is true.

50th anniversary of Loving v. Virginia

There are too many resources available on this landmark case and precursor to Obergefell v. Hodges to list here.  A YouTube search reveals any of a number of documentaries of varying lengths.  here are some musical resources:

Focus on the Constitution: "We the People"

This one literally gives me goosebumps. Well done, Ms. Wilbur, and the young Americans you teach.

Focus on the Constitution: "Let's Amend the Constitution"

Focus on the Constitution: First Amendment - "Bill-of-Rights-elluiah!"

Focus on the Constitution: The Preamble Song

Focus on the Constitution: Captain Kirk and the Constitution

Two options, in case one is removed:   

President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.

Sad.

Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

14 Ways to Interpret the Constitution

Well, it isn't exactly "50 Ways to Leave Your Lover," but this Huffington Post piece does give a nice concise explanation of the breadth of Constitutional interpretation.  In my Legal Environment class, I think it is important for students to understand that there is no one, single, right way to interpret the Constitution (despite the statements in the judicial election ad below).  However, I don't have a lot of class time to devote to the details.  It is always a question of how many layers of the onion should be peeled back to explore a legal principle in a survey law course. This article gives the opportunity to expose students to the concept - Constitutional interpretation is broad, complex, nuanced and uncertain - without overburdening them with details and without taking up other valuable class time.

"Commitment to properly interpreting the Constitution":

Veteran's Day! Revolutionary War Veterans Gave us More Than Independence

Excerpted from "The Legal and Ethical Environment of Business" by DeAngelis, M; Great River Learning (2016):

The gravel crunched beneath their feet punctuating the rhythmic tramp of their gait as the grim band sturdily marched through the Western Massachusetts countryside. Hundreds of men, their numbers swelling as they passed through each village and crossroads. Most were former soldiers, veterans of the fight for American freedom from the tyranny of Great Britain. All were friends, neighbors, farmers and tradesmen, unafraid of hard work but brought low by hard times.  While they patriotically fought for their new nation, their families secured credit from the local merchants in order to sustain. The merchants in turn borrowed from European lenders to maintain their businesses. When the soldiers returned home from the war, their pockets were full of nothing but paper promises from the government that they would be paid someday when the government could get the states to cough up their shares of the war debt. The merchants’ European creditors were less patient than the American veterans and with the end of the war called in their notes of debt. The American merchants followed suit and called in the debts owed by the hapless farmers and rural tradesmen to whom credit had been extended.  Hopelessly unable to pay, these veterans watched helplessly as the merchants obtained judgments against them in the state courts and their farms and homes and property were sold out from under them to satisfy the court orders.

But they would stand by helplessly no longer. They marched now with their well-worn flintlock muskets on their shoulders and their cartridge boxes on their hips. These weapons had already been leveled in deadly measure against the forces of foreign tyranny. What difference now that tyranny’s treachery was cast upon them by their own judges and statesmen? They were determined to shut down the courts at Springfield by force if necessary to end the foreclosures. They gave little thought to their actions as treason. After all, they were patriots, sorely used and discarded by the country in whose favor they suffered years of privation, hardship and the fear of death.

As the rutted wagon paths of the countryside gave way to the manure-fouled city streets they closed ranks and assumed the best military airs of their training. Ahead, within sight now, surrounding the courthouse stood a merchant’s militia of mercenaries, paid with the very money the loathsome creditors had eked from the land and homes stolen from their neighbors. As the rebels marched past they saw former comrades-in-arms and neighbors standing among the mercenaries, some of whom blanched and to the chagrin of their well-paid officers, defiantly bolted and swelled the ranks of the army of the disgruntled. 

A show of force and determination coupled with demonstrated military tactics and training from maneuvers throughout the day were sufficient to convince the court to adjourn without conducting any business.  No shots were fired that day in 1786. No more farms were lost. But the fate of the nation had been thrown into uncertainty. Americans marched in armed rebellion against Americans. Something had to be done.

The scene described above was part of an incident that has come to be known as Shays’ Rebellion, named after former colonial militia captain, Daniel Shays. Shays had been among the grim band that closed the court in Springfield and he would march with them five months later in an assault on the federal armory that resulted in rebel fatalities. Shays’ rebellion subsequently dissolved, but without decisive action, the issues that it illuminated would not. . . .

While Shays’ rebellion . . .  served notice that the Articles of Confederation were unworkable, the events also illuminated a conundrum facing those who sought to craft a workable governing structure. A strong national government was necessary to pull the states together financially but a strong national government if controlled by persons of like mind, could wield tyrannical power. In order for the US to survive, let alone thrive, the country’s commercial classes and practitioners could not be placed in danger from marauding rebels and small-minded legislatures, alike. The repulsive tyranny of the British monarch must not be replaced with the specter of a tyranny of a rabble-rousing majority. The educated class, the merchants, the men of commerce, the statesmen, who knew the economic matters necessary to build a strong national economy were a decided numerical minority. These elite thinkers surmised that if “the people,” that is the farmers who owned land but knew little about how to run a country or an economy, elect themselves into the legislature, as in Rhode Island, then they could make laws that would suppress the good works of the merchants that were necessary for national success. 

[Earlier in the text] we discussed the countermajoritarian difficulty and exposed the need, in a democracy, for protection of minority rights even while respecting the will of the majority. Thomas Jefferson said, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.” James Madison wrote of his similar concern, “Wherever the real power in a Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” The minority that our thoughtful, educated forefathers sought to protect from the tyranny of the majority were not the same minorities that we, today, see as vulnerable. Madison and his like-minded contemporaries wanted to protect the businessmen of the day from oppression by the numerically superior farmers and tradesmen. Our Constitution in great part was written to protect the liberty of businessmen from the tyranny of government.

"Our Rights Come From God . . . As Determined by Law-Makers."

According to Senator Ted Cruz's message for Constitutions Day 2016, one of the two transformative premises set out by the US Constitution is that, "Our rights come from God."



I didn't recall that part of the Constitution, but Ted is a Harvard Law School grad, so I thought maybe I missed something.  So I googled up a transcript of the Constitution at the National Archives site. Then I executed "find" functions for "God," "Creator," and "supreme being." I didn't get any hits. I didn't think I would.

At least one authoritative legal scholar says that the determination of what rights God has given us is a decision that is made by people.  So if people are deciding what rights come from God, then don't our rights ultimately come from people?




And when some people say that their God-given rights to refrain from assisting in the marriage of two women allow them to ignore the God-given human dignity of the wedding couple to be free from unwarranted discrimination, won't people (judges) have to make a decision based on what makes for a civil and orderly society? These seem much more like earthly matters than heavenly ones.

This all seems a bit more complex and nuanced than simply stating that "our rights come from God."

History, Law and Originalism

It seems appropriate to follow up the day after the 150th anniversary of the end of the Civil War with a story about South Carolina.

History and the advancement of thought can be difficult concepts for the proponents of originalist interpretation of the Constitution.  Legal instructors have regularly shared with their students the fact that the same Congress who passed the 14th Amendment demanding "equal protection of the laws" also segregated the Washington DC schools on the basis of race.  These kinds of dichotomies in judicial interpretation and modern social thought are fascinating.  The blog post linked below does more than ample justice to its provocative title.  I would not attempt to summarize it or otherwise diminish its concise and powerful message on history, law and originalism.  I hope you enjoy:

South Carolina to SCOTUS: We Can Dsicriminate Against Women, So Why Not Gays?

Click here to read the South Carolina brief for yourself.

Click here to read a related post where Justice Scalia, orginalist-in-chief, confirms that the 14th Amendment should not prevent discrimination against women.

Appointed Forever

"I'm a federal judge and I'm smarter than you  - for all my life. . . "

Miranda Basics

First Amendment Jingle

Property Seized, But No Culpability Proven

Apparently it is legal for law enforcement officers to seize cash from suspected drug deals and then refuse to return it, even if no charges are brought against the parties.  Apparently, it is also legal for law enforcement to execute a civil seizure of a parent's home if a kid has been involved in drug violations in the house.  The parent's knowledge or culpability is irrelevant.

Aren't there Due Process issues here - substantive and procedural?

First Amendment in Song

Lyrics by the U.S. Congress (1789).

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Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

Lopez:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas

4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

Raich:

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas

6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules? 

Question of Law or Fact?

Here is an interesting juxtaposition of articles.  In a trial in Michigan challenging the constitutionality of Michigan's state constitutional amendment barring same sex marriage, expert testimony has been elicited that same sex couples can be competent parents:

David Brodzinsky, an expert in adoption and foster care and a former Rutgers University professor, said there are no "discernible differences" in children who are raised by same-sex couples and youth raised by heterosexuals.

"It's not the gender of the parents that's the key. It's the quality of the parenting," said Brodzinsky, based in Oakland,Calif.

At about the same time, in a brief filed in the 10th Circuit Court of Appeals in a case where a US District Court judge struck down Oklahoma's same sex marriage ban, a legal argument was advanced claiming that same sex marriage is bad for children. 

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years beforeOklahoma's statehood — Alliance said marriage "is the foundation of thefamily and of society, without which there would be neither civilization norprogress," and cited a 1978 ruling that said traditional marriage was"fundamental to the very existence and survival of the (human) race."

So, is the effect of same sex marriage on children a question of fact or of law? 

Michigan case:

Oklahoma case:

Flash! Flash! Speed Trap Ahead!

A federal judge has ruled that a driver's act of flashing lights at oncoming drivers is protected free speech and may not be punished by government. The case comes from the US District Court in Missouri.

Jonathan Turley, a criminal attorney and a professor at George Washington University Law School, said courts across the country are dealing with the same issue. In virtually every case except those still being decided, the person cited has prevailed, Turley said.

While flashing lights might be legal, is it ethical? Who is being helped? What public purpose does it serve? Shouldn't speeders be caught and punished?  If ethics is the communal sense of right and wrong, does it matter if you are a member of the community of drivers or the greater community of citizens of the area - including children, elderly, disabled and non-drivers who are at risk from speeders?  How many times has an innocent driver been injured or even killed because a speeding driver lost control and crossed the center line? You might think that you are helping out a fellow driver, but are you really part of the problem?

Just thinking...