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.
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:
This syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica
convenience stores in Minnesota grabbed a robber whom the employee believed was
attacking the cashier. SA fired him because his actions in fighting off the
robber violated SA's policies. These situations do arise from time to time and
they are difficult for students to understand. Under the
"at-will-employment doctrine," employers may fire employees for
cause, or for no reason at all, or even for a reason that most people would
consider to be a bad reason. Many states have carved out narrow "public
policy" exceptions to this rule to protect employees who are engaging in
conduct that should be encouraged, rather than discouraged, by society.
I don't have any idea where this employee's claim will end
up under Minnesota state law. However, one thing is clear. In order to get the
justice that this employee deserves, he will need to get the assistance of a
trial lawyer. The cartoon above erroneously attributes the effects of the
at-will-employment doctrine to the work of trial lawyers. In fact, trial
lawyers would be the ones representing fired employees who are making claims of
wrongful discharge against employers who fire them for bad reasons. The effects
of the at-will-employment doctrine are the result of corporate lawyers
representing large corporations and wealthy employers who prefer to be free
from any obligations to employees. At-will-employment promotes reliance on
free-market forces in the labor market - forces which result in periodic
injustices. It is the trial lawyers who seek justice for the fired employees.
This cartoon suffers from a common disability: the "knee-jerk reactionary,
blame the trial lawyers for everything" syndrome. I guess it is an example
of just one more "error of law" about which students will have to be
educated.
The US Law Essentials YouTube channel has been uploading a new set of animated videos. They are generally short enough to show in a class lecture if desired. Check out the video below on court systems as an example:
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":
The old People's Court with Judge Wapner featured commentator Doug Llewelyn coining a phrase that became iconic in American legal culture: "If you're involved in a dispute such as this with another party and you just can't seem to work it out, don't take the law into your own hands - you take 'em to court."
See video below at :30:
When an African-American man sued Airbnb over racial discrimination, he discovered that he can't "take 'em to court." His Airbnb account contract included an enforceable mandatory arbitration clause. So instead of presenting his evidence to an impartial, competent judge or jury, he will have the opportunity to present his case to non-judicial decision-maker who makes a living out of deciding cases for Airbnb and similar parties. Could such a decision-maker likely have some innate partiality toward a business or industry that provides his/her livelihood?
Last Wednesday morning, millions of young people arose from
bed in a new America that targets them for harm. In New America, they will be subjected to increased overt ridicule and violence because of their color, or their
parentage, or their gender, or how they worship, or who they love. Emboldened by the overt racism
and sexism expressed by the leader of New America, the worst forms of
schoolyard bullying have been implicitly encouraged. Formal government policy
will soon threaten the very hearths and homes of families who do not match the narrow
white, rural, christian mold of New America.
For those young people who are our students in colleges
across New America, their concerns about whether they will be able to turn in a
quality term paper by the due date must now give way to present and tangible
fears that their parents will be deported, their scholarships will be revoked, they
will be sexually assaulted with impunity or they will be physically beaten
because of who they are.
College educators across New America have begun to make conspicuous
pronouncements that the values of diversity and inclusiveness will not be compromised
in their domains. Hopefully, college and
university administrators will soon follow suit. But each of us must not
hesitate to act individually to maintain a culture of safety and inclusion for
the emotional and educational well-being of the young people who look to us for
guidance.
The Brexit vote in Great Britain created similar dangers for
immigrants in the UK. To send a message of support for those who had been
suddenly further marginalized, some Britons took to wearing safety pins to
express their support. The pin says to those
who now must fear attack from all quarters, “You are safe with me. I will support you.” The movement has begun here as well.
Wearing the pin is not about making ourselves feel better. It is integral to the fulfillment of our obligation as educators and nurturers. We must allay the anxieties of our students who are fearful and threatened and wondering if they will ever again be safe.
Wearing a pin is no substitute for the advocacy, vigilance,
awareness, agitation, and determination that must support any social movement. It is a gesture of trifling effort providing potentially
life-saving comfort to those whose lives have been thrust into turmoil. Wear
your pin with commitment to the values of equality and inclusion that were among Old America’s
greatest aspirations . . . and share this with a friend.
And it begins: Click here to see confederate flags at a California Veteran's day parade. And here to read about the overt incidents of hate, racism and intolerance spreading across the nation like blood draining from its veins.
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.
It has
often been said that a trial is a search for truth. However, is there only one
truth in a complex dispute? In 1995, former NFL starO.J. Simpson went on trial for the murderof his
ex-wife and her friend. The criminal trial was broadcast on TV from the
courtroom and captivated the nation’s interest. The “search for truth” was
placed front and center in the American conscience. Harvard law professor Alan
Dershowitz describes the scene in his article,Is
a Criminal Trial a Search For Truth?:
A review of the trial transcript reveals that this phrase was
used more than seventy times. The prosecutors claimed that they were searching
for truth and that the defense was deliberately obscuring it. . . . The defense
also claimed the mantle of truth and accused the prosecution of placing
barriers in its path. And throughout the trial, the pundits observed that
neither side was really interested in truth, only in winning. They were right –
and wrong.
Simpson
was acquitted of the criminal charges against him by the jury. The victims’
families also filed a civil lawsuit against Simpson for wrongful death of their
loved ones. In the civil trial that took place immediately following the
criminal trial, the jury found Simpson liable for the deaths. One incident, two
trials, and two different “truths.”
Click here to read the Boston Globe report headlined, "Never come between an 81-year-old and her marijuana plant." The Amherst, Mass. resident whose plant was confiscated was incensed that the police used a helicopter to locate her backyard plant. "Plain view" includes "plane view."
In the words of President Gerald Ford after he pardoned Richard Nixon: “My fellow Americans, our long national nightmare is over.”
And in the words of another Republican President: "I believe the mood and the time is now right for all Americans . . . to join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength."
Industrial workers may be at risk for serious health injuries due to long term exposure to dangerous chemicals. The workers know this inherently, yet need to make a living. What is the social response through law?
I recently came across an article at Think Progress describing an employment discrimination case pending before the Seventh Circuit . Click here for: The Most Important Gay Rights Case Since Marriage Equality Was Won.I found it to be a very readable description of the state of the law on employment discrimination based on sexual orientation that our students may be able to digest.
I find students to be quite interested in this topic. When I do an exercise asking them to write a modern Bill of Rights, protection against discrimination in all forms based on sexual orientation or gender identity usually appear in their list of most cherished liberties. But getting into the details of the law in this area often involves peeling back more layers of the onion than would be prudent or understandable in a basic legal Environment course. This article linked above can help.
Some people, events and sources seemingly never cease to provide teaching opportunities and materials for our courses on law and ethics. I have previously credited Lindsay Lohan for the treasure trove of litigation that her travails have provided. But I think that Donald Trump has, and will for many years, provide us with a wealth of teachable moments.
Today's example comes from his comments in the presidential debate. First, when challenged by Secretary Clinton over his failure to pay income taxes, Mr. Trump responded as indicated in the video clip below from the second debate:
In the first :50 of the clip below from the first debate, Mr. Trump gave his view on business regulations:
So, placing Mr.Trump's positions side by side, we hear:
"Don't rely on business people to do the right thing on their own. Socially responsible conduct must be enforced by law. But laws that seek to enforce socially responsible conduct are bad for business and government should reduce or eliminate them."
Is this just another iteration of the narrative of: "Regulations that protect me from that other guy are good, but regulations that protect the other guy from me are oppressive."?
Regardless of what happens in the election, Donald Trump has now become the most visible example of American business culture and conduct. Students may see a failure to counter these examples in a business ethics course as affirmation of their value. Is this the business culture that we seek to foster in our students?
Peter Thiel, the billionaire founder of Pay Pal who famously financed Hulk Hogan's invasion of privacy lawsuit against the sleazy Gawker website that resulted in a $130 M verdict, recently explained his support for Donald Trump by detailing the great economic inequities constituting our national crisis:
“If you’re a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system.” - Peter Thiel addressing the National Press Club 10/31/16
How many times have we told our students that the civil justice system was the great social leveler? Any "regular Joe" could find justice against powerful wrongdoers simply by accessing the court system. Right? Is this still true, or has it become one of those quaint civics class myths like "the law is insulated from the influence of politics."
