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.