The Jennings Blog Has Moved!

As of October 1, 2011 the Jennings Project blog has moved and joined forces with Constitution Daily, the Center’s daily digest of smart conversation on the Constitution. All new posts will be published there, so be sure to subscribe and follow Constitution Daily on Twitter. If you are interested in submitting a post to Constitution Daily, please email Stefan Frank at JenningsProject@constitutioncenter.org.

PJP FELLOW JUSTIN MARTIN SAYS: AN ATTEMPT TO STOP "ANTI-ISRAELI" SPEECH ON CAMPUS IS AN AFFRONT TO THE FIRST AMENDMENT

In an article in the Christian Science Monitor this month, PJP Fellow Justin Martin, who now teaches at the University of Maine, tells of an Israeli legal group's letter to American college and university presidents asking them to be sensitive to expressions of anti-Semitism on American campuses. Martin suggests that the real target was speech that condemned Israeli governmental policy is protected by the First Amendment. He quotes from the letter, authored by the Israel Law Center which says, in part, “[A]lthough academic and political freedom in the United States is a cherished right, there are limits to these rights that students and campus officials must be made aware, especially with regard to anti-Israel activities.." Martin feels that this gets dangerously close to First Amendment protections. He references a story from this summer when British fashion designer John Galliano was overheard making anti-Semitic remarks while at a Parisian bar. Galliano was convicted in a French court this month and fined $8,000 for his remarks, an unthinkable punishment here in America.

THE TOP 2012 PRESIDENTIAL CAMPAIGN THEME? IT'S THE CONSTITUTION, STUPID, THE CONSTITUTION!

In 2008, when Sen. Barack Obama was running for president against Sen. John McCain, there were three formal televised presidential debates. The Constitution was not raised at all in the first debate or the second. In the third, it was raised three times: once when McCain said that as president he would put justices on the Supreme Court who would be in favor of strict adherence to the Constitution; once, when Obama said that he believed that the Constitution contained a right to privacy; and last, when Obama discussed the constitutionality of a ban on late-term abortions. Now compare that to the present environment. At last week's Republican debate in Florida, there were eight references to the Constitution, in either in a question or an answer. At the CNN-Tea Party debate on September 12, the Constitution was raised 13 times. At the Iowa debate in August, 24 times. What is happening here? Driven mostly by Republicans, the Constitution is fast becoming the central subject of the 2012 campaign.

The themes raised repeatedly at the Republican debates are easy to summarize: the Constitution is a document prescribing limited government and yet today our government is anything but limited (all). Social security is unconstitutional (Rick Perry) or maybe not (Perry, again), and "Obamacare" is most assuredly unconstitutional (Michele Bachmann, Mitt Romney, Newt Gingrich and many others). This much should seem familiar to most readers. Yet there are other claims, less familiar: Ron Paul insists that the Federal Reserve Act is facially unconstitutional and would dismantle the central bank. Gingrich, Rick Santorum, Romney and Bachmann all are in favor of a constitutional amendment banning same-sex marriage. And at the American Principles Project Debate on September 5, APP Founder and Princeton Professor Robert George asked the candidates if they would endorse legislation aimed at reading the 14th amendment's protection due process and equal protection provisions as protecting the "unborn," effectively ignoring the Court's 1973 decision on Roe v. Wade and challenging the Court's role as the final arbiter on what is constitutional. Three of the candidates present -- Bachmann, Herman Cain and Gingrich -- agreed that they would. Romney and Paul said they would not.

Jennings Fellow Kay Campbell Receives Award for Commentary

The Religion Newswriters Association of America has awarded Jennings Fellow Kay Campbell its honor for Religion Commentary of the Year. Congratulations to Kay.

THE CONSTITUTION, VERMONT, AND MY INNKEEPER

When Texas governor Rick Perry suggested earlier this year that his state might consider seceding from the Union, it was greeted as the persistent echo of the Southern Confederacy. So I was surprised when, vacationing in Vermont last month, I listened to a local political activist there make his case for the Green Mountain State, of all places, seceding from the Union. As you might expect, the secessionist movement in Vermont, which has a socialist senator (Bernie Sanders) serving in Washington, is from the opposite side of the political spectrum, but as it turns out the passion for secession there is just as fervent as it is in the Lone Star State.

You can go to an interesting website to get acquainted with the cause. It's called "The Second Vermont Republic" and it says on its home page that it is committed to "(1) the peaceful breakup of meganations such as the United States, Russia, and China; (2) the political independence of breakaway states such as Quebec, Scotland, and Vermont; and (3) a strategic alliance with other small, democratic, nonviolent, affluent, socially responsible, cooperative, egalitarian, sustainable, ecofriendly nations such as Austria, Finland, Sweden, and Switzerland which share a high degree of environmental integrity and a strong sense of community."

“I believe that long after people have left my classes and forgotten what I have tried to teach them I want them to have the 14th Amendment floating around in their heads… when people have protested the denial of civil rights and civil liberties and claimed equal protection under the law, it’s the 14th Amendment that they rely on.” University of Iowa professor Linda Kerber, who has her students memorize the first section of the 14th amendment as a class project each year. She was speaking to The Daily Iowan over her concern that Constitution Day -- September 17 -- isn't being taken as seriously at the university as she thinks it should be. The report referred to a local establishent which is using the occasion to produce baked goods in the shape of the Constitution.

PJP FELLOW ANNAMARYA SCACCIA EXAMINES NEW HHS HEALTH CARE GUIDELINES AS MANDATED BY OBAMA HEALTH CARE REFORM;

HOW CAN WE SQUARE THE OPTION FOR "RELIGIOUS EXEMPTIONS" WITH THE FIRST AMENDMENT?

Last month, the US Department of Health and Human Services (HHS) issued new Affordable Care Act guidelines requiring health insurance carriers to provide free access to birth control and women’s preventive services without cost-sharing beginning August 1, 2012. Adopted from recommendations made by the Institute of Medicine, these regulations mandate that new insurance policies must include annual gynecological and well-woman visits, breast-feeding support and counseling, STI counseling and domestic violence screening free of co-pay, co-insurance or deductible, while covering the costs of contraceptives and contraceptive counseling, HPV, HIV and gestational diabetes screenings, and DNA testing for women age 30 and older.

In addition to the guidelines, HHS also released an interim religious exemption amendment that would give religious employers the choice to not provide contraception services in their group health plans or coverage connected to such plans (the administration is welcoming comment on this rule until Friday, September 30).This First Amendment-friendly clause, based on established “conscience protections” available in most states already requiring contraception coverage, delineates a religious employer as one that:

1. has the inculcation of religious values as its purpose;
2. primarily employs persons who share its religious tenets;
3. primarily serves persons who share its religious tenets; and
4. is a non-profit organization.

SAVING "FACE" OR SILENCING PROTEST?:

PJP FELLOW CARRIE JOHNSON REPORTS ON RAMPED-UP ENFORCEMENT OF A STATUTE RESTRICTING SPEECH IN PROXIMITY TO ABORTION CLINICS

FACE, or the Freedom of Access to Clinic Entrances act, was signed into law by President Bill Clinton in 1994. It prohibits protesters at abortion clinics from blocking access to clinics or threatening those who work at the clinic or seek to use its services. The law was written in response to a rash of violent incidents at clinics, including the attempted murder of Kansas abortion doctor George Tiller (though he survived the 1993 attack, Tiller was murdered in 2009 by another anti-abortion activist). The Clinton administration justice department enforced the act fairly vigorously, but, claims PJP Fellow Carrie Johnson on NPR, the George W. Bush administration did not. Now, the Obama justice department has reinvigorated prosecution.

Since the act prohibits a form of peaceful protest, there are First Amendment issues to address. But it has been upheld in federal court on a number occasions, most recently in Ashcroft v. Norton, where the court asserted that the act actually limits conduct, not content, an important distinction for First Amendment doctrine. You can read Carrie's piece here and the court's opinion in Ashcroft here.

LISTENING FOR THE CONSTITUTION: THREE MORE LEADS

1) “Do the world a favor and go kill yourself. P.S. Have a nice day.” That is just one of 8,000 Twitter messages sent anonymously by William Lawrence Cassidy to Alyce Zeoli, a Buddhist leader based in Maryland. Cassidy is being prosecuted in federal court for cyberstalking, based on the federal cyberstalking statute, which you can read here. The First Amendment distinction that a Maryland federal court must now decide is the following: is posting a public message on Twitter akin to speaking from an old-fashioned soapbox, or can it also be regarded as a means of direct personal communication, like a threatening letter or phone call?

2) "[We are just trying to ensure]...that taxpayer money isn't subsidizing somebody's drug habit." The words of a spokesman for Florida Governor Rick Scott on a state law requiring drug testing for welfare recipients. The ACLU has challenged the law, arguing it constitutes an unconstitutional use of search and seizure. Courts addressing this issue in the past have agreed with the ACLU's argument. Back in 1999, Michigan had a random drug testing policy for those applying for welfare, but it was ruled unconstitutional in a federal appeals court.

THE FEDERAL COURT NOMINATIONS BATTLES: HAVE WE CONSIDERED THE CONSEQUENCES?

by Judge Timothy K. Lewis

Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.

Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.

IS EUROPE HAVING AN AMERICAN HISTORICAL MOMENT?

European leaders, concerned about the growing fiscal crisis on that continent are examining the structure of the European Union, specifically the constitutional provision requiring decisions on many issues of importance to be determined by a unanimous vote of the member nations. That repeats the mistake of America’s first governing document, the Articles of Confederation, that was eventually abandoned for the Constitution. According to a story in the New York Times, when a European central bank official recently met with a financial official in Washington, “his host brandished the Articles of Confederation, the 1781 precursor to the United States Constitution, to use as an example of why stronger unions become necessary. The story of America’s failed early effort to operate as a loose confederation of 13 states is looking increasingly relevant for many European officials. The lack of strong central coordination of the euro zone’s debt and spending policies is a crucial reason Europe has been unable to resolve its financial crisis despite more than 18 months of effort.”

THE CONSTITUTION IN OUR MIDST: A SAMPLE OF STORIES FROM JUST THE PAST FEW DAYS

To our Fellows, and all other interested journalists, I suggest that you do what I did a few hours ago. I examined the news from the past week or so and came up with dozens of stories that have constitutional implications. Take a look at five of them...

1) "This is all about safety, not about religion." That is a quote from Peter Tartaglia, deputy commissioner of the Westchester County (New York) Parks Department, reacting to an incident at the Playland amusement park where a group of Muslims objected when told that women would have to remove their hajibs, the traditional Muslim head scarves, or they would not be allowed on certain rides. A brawl broke out leading to the arrest of fifteen people. You can read about this here.

2) “This was a very dark chapter in the history of medical research sponsored by the U.S. government.” So said Amy Guttman, president of the University of Pennsylvania and the chair of the Presidential Commission for the Study of Bioethical Issues. She was referring to the Commission’s investigation of a 1940s era experiment run by the Public Health Service in which more than 5000 Guatemalan prisoners, soldiers and mental patients were purposely infected with syphilis, gonorrhea, and other venereal diseases in order to explore whether pencillin could be effective after exposure. The study was in response to the high number of American GIs who contracted venereal diseases during World War II. Read about it here.

WHY DON’T THEY JUST COME OUT AND SAY IT? TEA PARTIERS ARE RUNNING AGAINST ABRAHAM LINCOLN

“History is bunk,” pronounced Henry Ford in an expression that was widely appreciated in his era and in eras since. So you have to admire the members of the Tea Party, if only for their earnest attempts to reverse Americans' aversion to the past by injecting “history” into the public dialogue. This is a movement that positively thrives on historical references, many of them relating to the Constitution. Glenn Beck’s radio listeners, for instance, are regularly treated to a diatribe against the Progressive movement and its leaders, Teddy Roosevelt and Woodrow Wilson. With his high praise, Beck has made a best-seller out of Friedrich Hayek’s "The Road to Serfdom," a 1944 book that laid out the argument for classical, small-government libertarianism. Earlier this year Beck emerged with his latest book, a reworking of the 18th century American classic “The Federalist Papers” by James Madison, Alexander Hamilton, and John Jay. Beck's tome is called “The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century.” One has to wonder why, if he is an originalist, Beck must show us how to “adapt” the language of the Federalists to the 21st century (isn’t adaptation the definition of the “living Constitution” he and others so abhor?) but that is not the point. Right-wing talk show hosts like Beck, Mark Levin, Rush Limbaugh, Michael Savage and now the Tea Party-leaning presidential candidates repeatedly look to history lessons, however unorthodox, to justify their positions.

IS THE CELL PHONE THE MODERN DAY EQUIVALENT OF A BULL HORN?

PJP FELLOW CARRIE JOHNSON REPORTS ON THE DECISION TO SHUT DOWN MOBILE SERVICE ON SAN FRANCISCO'S SUBWAY SYSTEM:

Jennings Fellow and NPR Correspondent Carrie Johnson reported last week on the decision by officials of the Bay Area Rapid Transit System (BART) to temporarily shut down cell service in some of its stations. The decision was made to frustrate organization of a protest of the shooting death of a BART system rider by BART police. Johnson quotes a BART spokesperson as saying that there is "a constitutional right to safety" and that the protest threatened to put riders at risk of injury. The Supreme Court has determined that subway stations are not a public forum, and therefore not subject to the kind of protection for public expression that might operate in a park or other above-ground venue. But Gene Policinski of the First Amendment Center tells her that BART's action raises questions "about government interfering with the ability of you and I to talk to each other." He describes the cell phone as the modern day equivalent of a bull horn, which was commonly used for organizing protesters in the 1960s.

WILL THE COURT SOON HAVE TO RECONSIDER ITS DECISION IN CITIZENS UNITED?

Benjamin Bluman is a Canadian citizen who lives in the US legally on a temporary work visa. A recent graduate of Harvard Law, he practices in the New York City office of Sidley Austin, a prestigious Chicago firm. Dr. Asenath Steiman claims dual citizenship in both Canada and Israel, but she is now completing her medical residency at Beth Israel Hospital in Manhattan. Both Bluman and Steiman are politically active and would like to put money forward to advance their interests. For Steiman, that means contributing funds toward the election campaign of Sen. Tom Coburn of Oklahoma, a Republican, since he has been a vocal opponent of President Barack Obama's health care reform law. Bluman's politics fall on the opposite side of the aisle. He would like to support Diane Savino, a Democratic state senator in New York who has been a strong advocate for same-sex marriage, as well as the Obama re-eelction campaign. He would also like to print leaflets encouraging Obama's re-election and pass them out in Central Park.

THE TALK IN TENNESSEE IS ABOUT THE CONSTITUTION

At breakfast in Washington last week with Tom Ingram, the former chief of staff to Tennesseee Senator Lamar Alexander, I asked what the hot political talk was in Tennessee these days. It turns out that there is a lot of discussion around getting square with the constitution -- the 1870 Tennessee state constitution, that is. That constitution, banning slavery, was ratified as a requirement for re-admission of the former Confederate state back into the Union. But the discussion today has nothing, of course, to do with human bondage. In fact, it has to do with a holdover amendment from the 1853 Tennessee state constitution, requiring the election of judges.

That provision was dutifully followed with elections in the general sense of that term until the 1970s when, in order to buffer the judiciary from the political process, the state, through a legislative statute, adopted the "Tennessee Plan." Under the plan, trial judges are still subject to popular election, but appellate judges -- and since, 1994, the Supreme Court justices -- are chosen by the governor from a list of acceptable candidates, as determined by a state commission. Those judges and justices are then subject to a "yes/no" retention vote in the next general election. But is this really an "election" in the sense that Tennessee's framers imagined?

Eight years after the Court’s Landmark Rulings in Grutter and Graz, Affirmative Action is on its Way Back to the Docket

Two appeals court decisions announced this summer promise a return of affirmative action to the Supreme Court. In one, the full Fifth Circuit voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. In the other, issued last month, the Sixth Circuit invalidated Michigan’s voter initiative that had resulted in the state constitution banning the use of affirmative action in government hiring and admissions to public education. A challenge to a similar ban in California is on appeal to the Ninth Circuit.

It has been fifty years since President John F. Kennedy issued Executive Order 10925, which included the first reference to the phrase “affirmative action.” The order was in the interest of establishing the Equal Opportunity Committee (later re-named the Equal Employment Opportunity Commission), and it read, in part, this way…

TWENTY-FIVE YEARS AGO, THE NOMINATION OF ROBERT BORK TO THE SUPREME COURT SPLIT WASHINGTON;

NOW THE CONTROVERSIAL JUDGE HAS BECOME A TRUSTED ROMNEY ADVISER

Yesterday, the Mitt Romney campaign released the names of the members of a "Justice Advisory Committee" that will counsel the Republican presidential hopeful "on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” The committee consists of 60 lawyers, most of them Washington insiders, but for those with a knowledge of judicial and, in particular, Supreme Court history, it is the leadership of the committee that will raise some eyebrows. Romney announced three co-chairs: Harvard Law professor Mary Ann Glendon, former head of the Federal Communications Commission Richard Wiley, and -- here is the headliner -- former DC Circuit Court judge Robert Bork.

Glendon, who is a forceful pro-life advocate, shores up Romney's position with social conservatives (he switched from pro-choice to pro-life in 2005) and Wiley is a savvy Washington communications lawyer. But Bork is the most divisive choice, a figure of considerable controversy whose nomination to the Supreme Court went down to defeat in 1987, thanks to a vigorous campaign against him by Democrats, particularly the late Senator Ted Kennedy. That campaign led to an unusual "achievement" for the now 84 year old former judge: his name became a verb. In fact, you can look it up. According to the Oxford English Dictionary, "bork" is an American slang term describing efforts "to defame or vilify" someone "with the aim of preventing his or her appointment to public office..."

WHEN THE COURTROOM BECOMES A SOAPBOX: ANDERS BREIVIK AND THE RIGHT TO A PUBLIC TRIAL

When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media. The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe’s decline into “Islamification” and the coming of a new Caliphate.

Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.

To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?

...and if Obama ignored the Congress and simply raised the debt ceiling on his own?

PJP Faculty Member Jeffrey Rosen speculates how the Supreme Court might decide

Last week, President Obama decided not to pursue the option of raising the debt ceiling without Congressional approval. That idea (see earlier post below) had been raised by proponents of a strict reading of the Fourteenth Amendment, which says, in part, that "the validity of the public debt of the United States, authorized by law, … shall not be questioned.” Like so much of the Constitution, the original history is instructive. As PJP Faculty Member Jeff Rosen points out today in The New Republic Daily, the phrase was written to counter the efforts of former Southern rebels who had been newly elected to Congress and had plans to overthrow the government by repudiating the Union debt and assuming the Confederate debt. Yet in 1935, the Supreme Court ruled that this language could be read to apply to any government obligation. So, let's say that Obama stopped waiting for Congress and simply raised the debt ceiling on his own. If he was then sued, and the issue went to the Supreme Court, says Rosen, the four so-called "liberal" justices -- Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer -- would go with Obama. The five conservatives, however, might not vote as a bloc. Chief Justice John Roberts, Antonin Scalia and Samuel Alito, if they remain true to their judicial philosophies, would have to weigh their judgement according to a well-defined history of defending a broad vision of executive power. Rosen sees them going for Obama, resulting in a 7-2 victory for the president. But he also concedes that the three conservatives justices might ignore their own philosophies meaning that the decision would end up following party lines against him, 5-4.

"Watching the Cars Crash": the Constitution's Place in this Summer's Debt Limit Discussions

What role has the Constitution played in the persistent argument over raising the debt ceiling? There is the Republican push for a constitutional amendment requiring a balanced budget (which I will address in a later post) and the Democratic argument, now abandoned, that the Fourteenth amendment makes it unnecessary for the President to get Congressional approval on raising the debt ceiling since, as section four of that amendment reads, "the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for service in suppressing insurrection or rebellion shall not be questioned."

This Democratic position created one of the more theatrical moments of the months-long debate when, at a Politico breakfast attended by dozens of reporters earlier in the summer, Treasury Secretary Timothy Geithner waved a copy of the Constitution and asked, rhetorically, of the president's Republican opponents: "Have you read the Fourteenth Amendment?" The statement surprised many in the audience since it was thought that any attempt to shut Congress out of the process would be politically disastrous, and, indeed, despite former President Bill Clinton chiming in to support the position, last Friday President Obama took it off the table. “I have talked to my lawyers,” said Obama, of the Fourteenth Amendment reasoning. “They are not persuaded that that is a winning argument.”

Out of the 77,000 National Rifle Association (NRA) certified firearms trainers only 1,700 are women...

2011 PJP Fellow Angela McKenzie found one proud Second Amendment advocate in Poughkeepsie, N.Y.'s JACKIE EMSLIE.

You can hear her profile of Emslie here.

2011 PJP Fellow Andrew Hedlund asks: Does the mere imposition of a debt ceiling violate the 14th Amendment?

Section Four of the Fourteenth Amendment asserts that "the validity of the public debt of the United States, authorized by law...shall not be questioned." So, does President Obama really need to get Congressional approval to raise the debt ceiling? Andrew Hedlund, a 2009 PJP Fellow and a student at Arizona State University, published this discussion on the issue in the Tempe, Arizona East Valley Tribune.

"Which pledge is most important... the pledge to uphold your oath to the Constitution of the United States or a pledge from a special interest group who claims to speak for all American conservatives when, in fact, they really don't? The fact is we have enormous urgent problems in front of us that have to be addressed and have to be addressed in a way that will get 60 votes in the Senate... and something that the president will sign... Where's the compromise that will save our country?"


Senator Tom Coburn, Oklahoma (R), speaking back in April on the debate over raising the debt limit. Ever since, Coburn has been chastised by editorial writers back in his home state who point to his signature on the "Taxpayer Protection Pledge," the work of a conservative activist organization (Americans for Tax Reform). The Pledge commits signers to opposing "any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” It has been joined by 236 Congressmen (all but two of them Republicans) and 41 senators (all, except Sen. Ben Nelson of Colorado, Republican).

Did the Court's 2003 Ruling in Lawrence v. Texas inevitably lead to this?

Of Reality Shows, Polygamy, Sodomy and the Constitution

When, in 2003, the Supreme Court ruled that intimate, consensual sexual activities were protected by the the due process clause of the 14th amendment, invalidating a Texas law prohibiting sodomy, Justice Antonin Scalia, in dissent, wrote that if legislatures were now to be banned from enacting laws that made moral choices, then why stop with sodomy? Shouldn't the Court also invalidate laws against bigamy, adult incest, prostitution, bestiality?

Well, here we go. In a case made for the 21st century, reality TV star Kody Brown and his four wives, Janelle, Christine, Meri, and Robyn, are challenging the state of Utah's ban on polygamy by arguing that, much like Texas's now invalid law against sodomy, the Utah law prosecutes them for their intimate, consensual relations. Brown, who appears with his four partners in the TLC reality program "Sister Wives," is being represented by Jonathan Turley, a professor at the Georgetown Law Center. In his complaint, Turley actually makes seven claims for relief: due process, equal protection, free exercise of religion, freedom of speech, freedom of association, and the ban on the establishment of state religion (the family claims polygamy as a religious practice). The Browns' appearance on TLC led Utah authorities to begin a criminal investigation. The "plural family," as they prefer to be known, has since fled to nearby Nevada.

Turley insists that the suit is in the spirit of the great justice Louis Brandeis who argued that one of the defining principles of America is "the right to be left alone." You can read the complaint on Turley's blog and search through dozens of posts on other laws he argues should be invalidated by the Court's ruling in Lawrence.

THE WORD "GOD" NEVER APPEARS IN THE CONSTITUTION AND ARTICLE VI DECLARES THAT THERE SHALL BE "NO RELIGIOUS TEST" FOR PUBLIC OFFICE, SO WHY ARE SO MANY AMERICANS WORRIED ABOUT THE PROSPECT FOR A MORMON PRESIDENT? PJP PARTICIPANT JEFF GREENFIELD SPECULATES

Two of the prominent Republican candidates for president are Mormons: former Utah governor John Huntsman and former Massachusetts governor Mitt Romney. Should their religion give voters pause? Despite the Constitution's ban on a "religious test" for office, many remain concerned. Here Jeff Greenfield discusses why.

2010 PJP FELLOW JESSICA YELLIN NAMED CNN CHIEF WHITE HOUSE CORRESPONDENT

Yellin, who also worked for ABC News, described her new position as a "dream job." You can read of her appointment here.

2010 PJP FELLOW CHANEL LEE EXPLAINS THE COURT'S DECISION ON THE SALE OF VIOLENT VIDEO GAMES TO MINORS

In a post at the website howstuffworks.com, where she is an editor, Chanel Lee writes: "Although the Court focused on the obscenity portion of the case during oral arguments, the decision itself largely left that question alone, saying only that the California law is too vague and broadly drawn to pass the Miller test necessary to meet the obscenity standard. Then again, Associate Justice Antonin J. Scalia, who wrote the majority opinion, seems to have had it up to here with those who want to define obscenity as anything they don’t like: 'The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.' "


You can read her entire post here.

How Results-Oriented Reporting Distorts Readers' Understanding of the Court and the Constitution

by Todd Brewster

Here is the headline from Tuesday morning's New York Times: "Minors Can Buy Violent Video Games, Justices Decide." Okay, that is sort of true. It relates to the Court's decision to overturn a California law that regulated the sale of certain violent video games to minors. California had fashioned the law in such a way that it would mimic laws limiting the sale of pornographic literature to children, hoping that the Court would carve out a new class of exceptions to First Amendment protection around violent expression much as it has regarding obscenity. Instead, the Court demurred, determining, 7-2, that the Constitution protects the sale of even offensively violent "speech" to minors. Two justices dissented.

The Constitution in Your Medicine Cabinet

This is one insidious way in which the law penetrates your everyday life. Last week, the Supreme Court ruled unconstitutional a Vermont law that limited the access of pharmaceutical companies to data on which doctors prescribed which medications. The companies sought such information in order to target their marketing towards specific doctors, a multi-million dollar practice that presumably affects which medicines your doctor prescribes to you.

Why? What could the Constitution have to say about something so personal and private? Read the First Amendment, or, more precisely, read it the way that six justices read it. The Vermont law restricted a practice called "detailing" where drug companies buy prescription information showing them which doctors most prescribe which kinds of medicine. This information, gathered by data mining companies who pay the pharmacies for access to their records, could still be sold or otherwise made available to journalists and insurance companies, just not drug companies. So, argued Justice Anthony Kennedy, the law was in fact restricting the use of truthful information based upon the identity of the speaker (a drug company) and the contents of its speech (pharmaceutical records) and that, to Justices Kennedy, Sotomayor, Thomas, Alito, Scalia and Chief Justice John Roberts was enough to overturn the law. “If pharmaceutical marketing affects treatment decisions,” Kennedy wrote, “it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it.”

"DEAR VANCOUVER, I APOLOGIZE…"

WATCHING OUR ALL-TOO PUBLIC MEDIA HELP IDENTIFY THOSE WHO PARTICIPATED IN THE ALCOHOL-INDUCED RIOTS IN VANCOUVER, YOU HAD TO WONDER, IS THIS "ANOTHER FORM OF MOBBING"?

First, there was “Internet bullying.” Now, increasingly, we are facing "Internet mobbing." After the riots that followed the Vancouver Canucks defeat in the Stanley Cup hockey finals, a plethora of still pictures, home movies and cell phone snapshots posted on the Internet gave everyone the opportunity to be a detective. Who did it? Look, I know him! He's the water polo guy! And look over there, she's my office mate from work!

There is no denying that the rise of cell phone cameras, Tweets on Twitter and Facebook postings has given law enforcement new and invaluable tools for discovery and tabloid newspapers an unending source of material (just ask the disgraced Anthony Wiener), but you have to ask yourself, are we witnessing the return of a primitive, even barbaric, form of justice, one that provides plenty of satisfaction to those who enjoy watching public humiliations but which feels more like an electronic version of an Iranian town square stoning in the way that it skirts the principles of fairness and decency?

IGNORING THE WAR POWERS ACT? PJP PARTICIPANT BRUCE ACKERMAN SAYS OBAMA, WHO CRITICIZED BUSH, IS SETTING A WORSE PRECEDENT FOR ARBITRARY EXECUTIVE POWER THAN HIS PREDECESSOR

In an interesting Op-ed in the New York Times, Yale Law professor and PJP participant Bruce Ackerman argues that President Obama's decision to join in the NATO air strikes on Libya has been unfaithful to the War Powers Act of 1973 -- in particular, the part of that Act which requires the president to get Congressional approval of military actions within 60 days of Congressional notice (more than 90 days have already passed). Ackerman points the finger at White House counsel Robert Bauer whose office rejected the arguments of the Justice Department's Office of Legal Counsel after it declared that Obama needed to adhere to the Act's reporting and approval procedures. Obama, he asserts, is following a dangerous precedent established by his predecessor, President George W. Bush, whose White House counsel, Alberto Gonzales, led an "ad hoc war council' that put pressure on the Office of Legal Counsel to approve the "torture" of terrorism suspects: when the OLC doesn't give you the interpretation you want, the president simply declares his own interpretation of the law, an abuse of executive power.

Hitchens v. Mamet

The book is called "The Secret Wisdom" and, well, it's provocative. Here are some of the claims made by its author, the enormously successful playwright and essayist, David Mamet...

“America is a Christian country. Its Constitution is the distillation of the wisdom and experience of Christian men, in a tradition whose codification is the Bible.”

“the Israelis would like to live in peace within their borders; the Arabs would like to kill them all…”

“The federal government is merely the zoning board writ large…”

Affirmative Action is “as injust as chattel slavery,” comparable to Japanese internment and the Dred Scot decision


And here are a few reactions from a New York Times review by Vanity Fair contributing editor Christopher Hitchens:
"This is an extraordinarily irritating book, written by one of those people who smugly believe that, having lost their faith, they must ipso facto have found their reason."

"…you will not be surprised to know that Mamet regards global warming as a false alarm, and demands to be told “by what magical process” bumper stickers can “save whales, and free Tibet.” This again is not uncharacteristic of his pointlessly aggressive style: who on earth maintains that they can? If I were as prone to sloganizing as Mamet, I’d keep clear of bumper-sticker comparisons altogether."

"Mr. Beck is among those thanked in Mamet’s acknowledgments for helping free him from “the bemused and sad paternalism” of the liberal airwaves. Would that this were the only sign of the deep confusion that is all that alleviates Mamet’s commitment to the one-dimensional or the flat-out partisan."

"This is my dad's church!" exclaimed the eight-year old daughter of an evangelical minister as she walked through the hallways of a public school in New York City...

Responding to the Appeals Court decision referenced in the June 4 post by Jordan Lorence below, author Katherine Stewart's Op-ed in last Sunday's New York Times describes the situation at her own child's New York City school. Stewart writes that her child's school is just one of 60 in New York that are used for worship services, free of rent, in an attempt to not discriminate student "clubs" for their religious beliefs. She describes the plethora of New York public school church worship meetings as "the work of national 'church-planing' organizations attracted to New York by the combination of cheap space and the opportunity to save the city from its apparent godlessness." The recent decision by the Second Circuit Court of Appeals disallows such meetings as a violation of the religious establishment clause of the First Amendment. Stewart is the author of the forthcoming book, “The Good News Club: The Christian Right’s Stealth Assault on America’s Children.”

THE SUPREME COURT’S UNANIMOUS VERDICT IN AL-KIDD SAYS IT ALL: THE VICTIMS OF POST 9/11 SUSPICION STILL CAN’T GET THEIR DAY IN COURT

by Joe Pace, Featured Guest Blogger

If you told a lay person, unburdened by a law degree, that government officials could—without fear of legal consequence—scoop a law-abiding citizen off the streets without an iota of suspicion that they committed a crime, toss them into a high-security cell for two weeks, and subject them to daily humiliations like shackling and body-cavity searches, I suspect most people would be shocked. So the Supreme Court’s decision last week in Ashcroft v. al-Kidd—which held that former Attorney General John Ashcroft (pictured below) could not be sued for doing precisely that—makes for an edifying read.

"It’s very sad when government officials misinterpret the Constitution and attempt to kick such groups out...That is clearly not at all what the authors of the Constitution intended.”

Jordan Lorence, attorney for the Alliance Defense Fund, which represented the Bronx Household of Faith in a case heard before the Second Circuit Court of Appeals this term. The case was brought by the New York City Department of Education which sought to ban the church from holding "regular worship services" on public school property. Yesterday, the Second Circuit ruled against the church, arguing that while religious groups cannot be banned from meeting on school property, neither can they be allowed to conduct religious services there. Judge Pierre N. Leval, part of a three-judge panel, wrote that when services are conducted on school property “the place has, at least for a time, become the church,” adding that the city’s policy against services in the schools imposed “no restraint on the free expression of any point of view.” Rather, it applied only to “a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.” Judge John Walker dissented, arguing that the ban violated the free exercise clause of the First Amendment.

DID YOU KNOW?: RUSSIANS UNIMPRESSED BY DEMOCRACY

In a recent survey conducted by WorldPublicOpinion.org, only 16 percent of Russians said it was "important to live in a country governed by a democracy." By contrast, 72 percent of Americans, 70 percent of the Chinese, and 91 percent in Argentina agreed with the same statement. You can read more of their study here.

ACCEPTANCE OF ABORTION GROWS SLIGHTLY IN NEW GALLUP POLL, BUT IS STILL SHORT OF MAJORITY

In its annual poll of Americans' attitudes towards morally-charged subjects, the Gallup organization found that abortion rose in acceptance for the second year in a row (after hitting an all-time low in 2009.) The percentage of those who found abortion morally acceptable is now at 39 percent, still well below a majority. Among other constitutionally relevant issues that appeared on the poll, doctor-assisted suicide was the most divisive, with 45 percent finding it acceptable and 49 percent unacceptable. A full 62 percent were comfortable with stem cell research while only 12 percent found the cloning of a human being acceptable. You can view a summary of the findings here.

HERE'S ANOTHER TAKE ON THE IMPORTANCE OF DIVERSITY: DOES THE SUPREME COURT NEED A MILITARY VETERAN?

Until Justice Sandra Day O'Connor was nominated by President Ronald Reagan in 1981,no woman had served on the Supreme Court. Today, there are three women -- Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor (who is also the Court's first Latino justice) and Justice Elena Kagan. The first Jewish Justice was Louis Brandeis, nominated by President Woodrow Wilson in 1918, and today the Court has three Jewish justices -- Kagan, Ginsburg and Stephen Breyer -- as well as six Catholics (Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia, Justice Anthony Kennedy, and Sotomayor). Of course, Justice Thurgood Marshall became the first African-American on the Court, nominated by President Lyndon Johnson in 1967 and there has been one other African-American, Justice Thomas. But when Justice John Paul Stevens retired last year, the Court lost its only Protestant (in a majority Protestant nation) and its only military veteran.

SHOULD CHANGING CULTURAL STANDARDS ALSO CHANGE THE WAY THAT WE EXAMINE OBSCENITY AND THE FIRST AMENDMENT?

By Annamarya Scaccia, 2011 Jennings Fellow

In early April, 42 senators from both Republican & Democratic parties sent a letter to Attorney General Eric Holder calling for amped-up efforts in the federal prosecution of hardcore adult pornography. This comes on the heels of the dissolution of the Obscenity Prosecution Task Force—a second Bush-era group formed to appease conservative cries over sexually-explicit obscenity (in other words: hardcore pornography)—into the Child Exploitation and Obscenity Section.

"The need for consistent and vigorous enforcement is even greater today because both obscene pornography and evidence of its harms have multiplied since then," they wrote. "Simply put, we know more than ever illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse."

NEW GALLUP POLL SHOWS A MAJORITY OF AMERICANS NOW FAVOR LEGALIZING GAY MARRIAGE

For the first time since it began tracking the issue, the Gallup Poll has found that a majority (53%) of Americans now support same sex marriage. The poll shows a dramatic shift from fifteen years ago, when two-thirds were in opposition. The change, which demonstrated a nine percent gain in support over last year, was, Gallup said, largely attributable to shifts among Democratic and Independent voters. Republican support remained the same as last year.

"We are presented here with the question of what happens when the political branches fail to act in a manner that is consistent with the Constitution. The Constitution affirms that the People have rights that are enforceable against the government. One such right is to be free from unjustified governmental deprivation of property "including the health care and benefits that our laws guarantee veterans upon completion of their service. Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their constitutional rights. Wars, including wars of choice, have many costs. Affording our veterans their constitutional rights is a primary one.”

Judge Stephen Reinhardt, Ninth Circuit Court of Appeals, writing the majority opinion in Veterans for Common Sense v Shinseki, a case brought to challenge the quality of care being afforded veterans, specifically in the area of mental health. The opinion cited grim statistics showing that eighteen veterans commit suicide each day and one thousand attempt suicide each month due largely to untreated or undertreated Post Traumatic Stress Disorder.

PJP FELLOW RELEASED FROM CUSTODY

The Daily Beast is reporting this morning that Dorothy Parvaz, the Al Jazeera English reporter and 2009 PJP Fellow who was seized by Syrian authorities 19 days ago, has been released by Iran, where she had been sent by the Syrians after they claimed she was traveling on an expired Iranian passport. Parvaz, who used to report for the Seattle Post Intelligencer and was a Nieman Fellow at Harvard, is an American citizen, who was born in Iran. In addition to an American passport and an Iranian passport, she also carries a Canadian passport, having grown up, partly, in Canada.

"The Court receives higher confidence ratings in public opinion polls than the president or Congress, and it faces no challenges to its independence. A public that knew more than it does about the Supreme Court might wonder why this group of people is empowered to make decisions that (when they are based, however tenuously, on the Constitution) other branches of government cannot veto. That was the constitutional plan, but it was controversial from the first—and not surprisingly: Congress and the president can plausibly pretend that their actions are in the interest of the nation as a whole, but a judicial decision always has a loser. For this reason, the Supreme Court decisions in cases that engage the public’s attention will often stir a polemical response."

Seventh Circuit Federal Appeals Judge Richard Posner, writing in The New Republic this week in a review of Justices and Journalists: The U.S. Supreme Court and the Media By Richard Davis. You can read the review here.

GRASPING FOR STRAWS: WHY THE RIGHT'S CLAIM THAT “TORTURE GOT US BIN LADEN” IS DISINGENUOUS AND UNDERMINES OUR SECURITY

by Joe Pace

There is something surreal about the way some conservatives have seized on the death of Osama bin Laden as evidence that “torture works.” The claim rests on the assumption (for which evidence is ambiguous, at best) that, sometime circa 2004, detainees were water-boarded – tortured -- into giving up the nickname of Osama bin Laden’s most trusted courier. Then the nickname, plus innumerable other leads were placed into the intelligence cycle, which churned for some seven years before Osama bin Laden was found and felled.

OF PHOTOJOURNALISM, BIN LADEN, AND THE "RIGHT TO SEE”

A few days ago, the journalist Sebastian Junger visited West Point, where I am on the history faculty. He was there to show Restrepo, his documentary film about a U.S. Army combat team deployed on a dangerous assignment in the Korengal Valley of Afghanistan, and then do an on-stage interview with me in front of an audience of cadets and members of the general public. When it was planned many months ago, Junger was to have been joined by Tim Hetherington, a photojournalist who was Junger’s equal partner in the making of this film (they were co-directors), but two weeks before their appointed visit to West Point this month, Hetherington was killed by a mortar while covering the Libyan civil war near the city of Misrata. He was one of two cameramen who died in the attack. The other was Chris Hondros of Getty Images. Junger came to West Point anyway, and among the reasons he cited for not cancelling was the feeling that an audience composed of soldiers and would-be soldiers was precisely the kind of place where he should be as he coped with his grief.

PJP PARTICIPANT JEFF GREENFIELD IMAGINES: WHAT IF WE HAD CAPTURED -- NOT KILLED -- OSAMA BIN LADEN AND THEN TRIED HIM IN THE FEDERAL COURTS?

In a fanciful, but compelling, column for the Washington Post, PJP Participant Jeff Greenfield, a former network news correspondent for CBS and ABC, fantasies over what could have transpired if the Navy SEALS had captured the al Qaeda leader. His discussion touches on a lot of tantalizing topics. For instance, if bin Laden had surrendered to the SEALS, wouldn't the rules of engagement have forced them to take him live? If he was then brought to the US for trial in a federal court, would his prosecution be hampered by the inadmissibility of evidence achieved through so-called "enhanced interrogation techniques"? What if his capture and trial led to a rash of terrorist acts, including the taking of hostages, held on the demand that he be freed? In short, Greenfield seems almost to suggest that the SEALS and the Obama Administration were lucky that bin Laden resisted -- assuming that this detail is true -- and was then killed for the capture and trial could have triggered a disastrous series of events that might have strengthened, not diminished, bin Laden's appeal as a heroic figure among radical Muslims.

SYRIAN GOVERNMENT ADMITS HOLDING PJP FELLOW DOROTHY PARVAZ

2009 PJP Fellow Dorothoy Parvaz, who has been missing since she arrived in Damascus, Syria, on April 29 is being held by the Syrian government. Parvaz, who works for Al Jazeera English was there to report on the government protests. An update about her situation can be read here and here. For immediate updates on the situation, visit the "Free Dorothy Parvaz" Facebook page.

PJP Board Member David Westin, Former President of ABC News, Speaks to Stanford Law About the Future of the News Media

David Westin, who is a member of the PJP Board of Advisors and was president of ABC News through 2010, speaks here at the Toni Rembe Rock Center for Corporate Governance at Stanford Law School. Addressing the subject, “Saving the Media from Itself” Westin analyzes the state of the news business as it shifts from traditional media like newspapers and large commercial network news divisions to cable, Internet, and mobile.

THE MAN WHO DESIGNED AND SUPERVISED THE BIN LADEN RAID

The operation that killed Osama Bin Laden was carried out by an elite unit of the Navy SEALs and it is highly unlikely that we will ever learn the names of those who entered the compound, much less the SEAL who pulled the trigger twice to shoot Bin Laden dead. But we do know quite a bit about the man who designed and supervised the operation, Vice Admiral William H. McRaven.

While the CIA was responsible for tracking Bin Laden to the Abbottabad, Pakistan neighborhood where he had been hiding for years, once President Obama decided to launch the raid, Leon Panetta, the CIA Chief, turned the operation over to McRaven, a formed SEAL himself, who was positioned at Bagram Air Force Base in Afghanistan for the raid.

PJP FELLOW MISSING IN SYRIA; FEARED TO BE IN GOVERNMENT CUSTODY

Dorothy Parvaz, a 2009 PJP Fellow, has been reported missing in Syria. Parvaz, who was formerly with the Seattle Post-Intelligencer, was working for Al Jazeera English and an appeal for her release can be seen on its website. Parvaz has Iranian, American and Canadian citizenship. A story in the New York Times can be viewed here.

UPDATE: The Oregonian reports Syrian government has confirmed it has journalist Dorothy Parvaz. Read the most up-to-date news on Parvaz here.

Five Questions to Ask About the Killing of Bin Laden

1. Why not capture him?

In fact, the administration says the plan was to capture Bin Laden if he did not offer any resistance, though officials considered it unlikely that he would give himself up. Still, the question is tantalizing: if he had not offered resistance and the Seals had taken him alive and brought him into custody, what would be the plan going forward? Like Kahlid Sheik Mohammed, who is the acknowledged mastermind of the September 11 attacks, he would have to be incarcerated somewhere – Guantanamo? The very place that Obama promised to close? – and, again, like Kahlid Sheik Mohammed, put on trial. Only last month, the Obama administration made the decision to cease plans to try Mohammed in civil courts and proceed instead with a trial before a military commission as outlined in the Military Commissions Act of 2006. One of the reasons was that it was impossible to find a suitable venue. New York City, where the attacks were carried out, did not want the trial since it would no doubt have been a challenge to provide security. If there were security challenges for a trial of Mohammed, imagine the security challenges to a trial for Bin Laden.

THE OBAMA ADMINISTRATION’S NEW GUIDELINES ON MIRANDA IN TERRORISM CASES: IS THERE REALLY ANYTHING NEW HERE?

At this year’s PJP event in March, the moot court considered expanding the “public safety exception” to reading Miranda rights in terrorism cases. I authored the hypothetical for that moot and you can watch the oral argument here. Since then, the Wall Street Journal obtained an FBI memorandum delineating circumstances in which its agents can interrogate terror suspects without advising them of their Miranda rights. There have been three types of reactions to the memo. Many on the Left see it as the gutting of Miranda. “With a swoop of a pen — more than nine years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving,” wrote Glenn Greenwald in Slate. Many on the Right, who think the warnings cause terrorist suspects to clam up and deny interrogators crucial intelligence, see it as a blow for national security. Then there is a third camp that thinks this is much ado about nothing.

After reading over the memo, I confess, I’m solidly in the third camp.

WHAT HAPPENS WHEN A JURY GETS IT WRONG? EXAMINING THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL

by Erin Moriarty, 2010 Jennings Fellow

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Sixth Amendment to the Constitution “… a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,''

Duncan v. Louisiana (1968).

WATCH THE DEBATE: THE OBAMA ADMINISTRATION MOVES TO ALLOW FOR LATITUDE IN PRE-MIRANDA INTERROGATIONS, BUT IS THIS MOVE CONSTITUTIONAL?

Here, in the 2011 Peter Jennings Project moot court, two eminent Supreme Court attorneys argue whether Miranda doctrine should be changed to allow terror suspects to be interrogated without first being informed of their rights Last week, the Obama Administration announced a dramatic switch on the procedures law enforcement personnel should follow when interrogating "operational terrorists" on issues that involved an "immediate" threat. The new rules, which ere outlined in a FBI memo, expanded the previous "public safety" exception to Miranda rights -- the requirement that suspects first be informed that anything they say may be used in a court of law against them, that they have a right to an attorney and to remain silent. Heretofore, there had to be an "imminent threat" -- a stricter standard than "immediate" -- for pre-Miranda statements to be admissible in court. But the Obama justice department declared that the "magnitude and complexity" of the terrorism issue required a "significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.” Is the administration acting outside the constitutional guarantee of due process? On March 5 of this year, in a public program crafted by the NCC-sponsored Peter Jennings Project for Journalists and the Constitution, two well-establshed Supreme Court litigators -- Carter Phillips and Kanan Shanmugam -- argued this very issue before a panel of distinguished federal judges. You can watch the moot court here.