tag:blogger.com,1999:blog-76327998660383694552024-03-21T14:02:16.433-04:00Peter Jennings ProjectNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.comBlogger164125tag:blogger.com,1999:blog-7632799866038369455.post-75565221034545051352011-11-23T10:57:00.003-05:002012-02-13T09:40:50.950-05:00The Jennings Blog Has Moved!<p style="color: rgb(0, 0, 0);" class="MsoNormal"><span style="Calibri","sans-serif"font-family:";font-size:100%;" >As of October 1, 2011 the Jennings Project blog has moved and joined forces with <a style="font-style: italic;" href="http://blog.constitutioncenter.org/category/peter-jennings-project/">Constitution Daily</a>, 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 <span style="font-style: italic;">Constitution Daily</span> on <a href="http://twitter.com/#%21/ConDailyBlog">Twitter</a>. If you are interested in submitting a post to <span style="font-style: italic;">Constitution Daily</span>, please email Stefan Frank at <a href="mailto:JenningsProject@constitutioncenter.org">JenningsProject@constitutioncenter.org</a>. </span></p>National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-12447461698929896042011-09-29T09:19:00.002-04:002011-09-29T09:21:53.325-04:00PJP FELLOW JUSTIN MARTIN SAYS: AN ATTEMPT TO STOP "ANTI-ISRAELI" SPEECH ON CAMPUS IS AN AFFRONT TO THE FIRST AMENDMENT<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgTsjxBqZq_Hakh11r-Me4RgbHBOhQah96JqZHSyYDhKMw-579cmdNQoKFNIZYwkhq4IIBrpl0g6QSaY80CGchMqcW6Yjp7UaYFlWnZuXDKqe3q6bd-oJ5KHX4jRTlhhWjDj-K4klPF9TCI/s1600/Justin+Martin.png"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 132px; height: 179px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgTsjxBqZq_Hakh11r-Me4RgbHBOhQah96JqZHSyYDhKMw-579cmdNQoKFNIZYwkhq4IIBrpl0g6QSaY80CGchMqcW6Yjp7UaYFlWnZuXDKqe3q6bd-oJ5KHX4jRTlhhWjDj-K4klPF9TCI/s320/Justin+Martin.png" alt="" id="BLOGGER_PHOTO_ID_5657771166352106578" border="0" /></a>In an <a href="http://www.csmonitor.com/Commentary/Opinion/2011/0919/Anti-Israel-speech-should-be-protected-not-banned-on-American-campuses">article</a> 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.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-44840248642907578802011-09-27T12:24:00.002-04:002011-09-27T12:27:43.798-04:00THE TOP 2012 PRESIDENTIAL CAMPAIGN THEME? IT'S THE CONSTITUTION, STUPID, THE CONSTITUTION!<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg253y-Nda-jQbIg-S4m5tbBHxJ9OCsFH62jHVrCauBcuUJmggXl_CLFaZPonJll-7fC4dlr4egwyDa6u2KdX61tEwjfkS5JsD2w9DSeTLPXp3RyqWCHkSXwnFKvRc6qFL9J86xtIEJwHMF/s1600/Constitution.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 166px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg253y-Nda-jQbIg-S4m5tbBHxJ9OCsFH62jHVrCauBcuUJmggXl_CLFaZPonJll-7fC4dlr4egwyDa6u2KdX61tEwjfkS5JsD2w9DSeTLPXp3RyqWCHkSXwnFKvRc6qFL9J86xtIEJwHMF/s200/Constitution.jpg" alt="" id="BLOGGER_PHOTO_ID_5657076907440543794" border="0" /></a>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.<br /><br />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 <span style="font-style: italic;">Roe v. Wade</span> 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.<a name='more'></a><br /><br />So much for new readings of old texts. How about a new text altogether? This past weekend, at the Harvard Law School, there was a conference calling for an Article V constitutional convention; in other words, a re-write. It was sponsored by the law school and two widely divergent organizations: the Tea Party Patriots -- a grass roots organization that works to mobilize efforts towards reducing government and taxation -- and <a href="http://www.fixcongressfirst.org/">fixcongressfirst.com</a> which was co-founded by Harvard Law Professor Lawrence Lessig largely in response to the <span style="font-style: italic;">Citizens United </span>decision of a couple of years ago. Its mission is to reduce the influence of private money in politics. The <span style="font-style: italic;">Harvard Crimson</span> was appalled that the institution's esteemed law school would do something that would "legitimate the reactionary Tea Party movement." Not to be outdone, the <span style="font-style: italic;">Crimson</span> editorial suggested that the law school turn instead to a "viable and emancipatory alternative": a constitution for "The New Socialist Republic in North America" as authored by the Revolutionary Communist Party, which advocates the overthrow of the capitalist system of the United States and the establishment of a dictatorship of the proletariat. You can read the entire document <a href="http://revcom.us/socialistconstitution/">here</a>.<br /><br />That leads me to Seth Lipsky, the editor of the conservative <span style="font-style: italic;">New York Sun</span> and author of "The Citizen's Constitution: An Annotated Guide." Lipsky wrote an <a href="http://online.wsj.com/article/SB10001424053111903927204576574522012564248.html">editorial in the <span style="font-style: italic;">Wall Street Journal</span></a> last week asking that the political parties consider doing a presidential debate next year exclusively on the Constitution. Wouldn't it be nice, he mused, if we knew what a prospective president thought about the document he or she might soon be asked to "preserve, protect, and defend'? Yes, and appropriate for a day and age when the Constitution seems to be on everyone's "reconsider list."<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-82304988595249186822011-09-23T09:58:00.002-04:002011-09-23T09:59:50.971-04:00Jennings Fellow Kay Campbell Receives Award for Commentary<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiiF7v0OrGggtzSLqDDs0vbnfkbn0AURc8-hgmb0oqPB2ugwyyN0og5JnqK6BdFq6MXZ4LZdvu_EeOcJINDXyM0RMYIBiWND1xcttdp-Pzja71JtdUdo7PSoCQL9Or73MymLtqAr9WlqwKw/s1600/kay-campbell-8e1db24843f170cb_medium.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiiF7v0OrGggtzSLqDDs0vbnfkbn0AURc8-hgmb0oqPB2ugwyyN0og5JnqK6BdFq6MXZ4LZdvu_EeOcJINDXyM0RMYIBiWND1xcttdp-Pzja71JtdUdo7PSoCQL9Or73MymLtqAr9WlqwKw/s200/kay-campbell-8e1db24843f170cb_medium.jpg" alt="" id="BLOGGER_PHOTO_ID_5655554450319985250" border="0" /></a>The Religion Newswriters Association of America has <a href="http://www.blogger.com/%5Bhttp://www.poynter.org/latest-news/romenesko/146597/religion-newswriters-association-announces-contests-winners/">awarded</a> Jennings Fellow Kay Campbell its honor for Religion Commentary of the Year. Congratulations to Kay.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-14344704718196580522011-09-17T07:30:00.001-04:002011-09-17T07:30:00.620-04:00THE CONSTITUTION, VERMONT, AND MY INNKEEPER<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIRjNdEIbWFXUF3UUf4TFRVLkpjBQbHEA_J2PPiubnJLsq0QIaa8TKlULOGOCYDB-itz7aRfXAf-6BgNNneiElcBOKsdrHm6GyVSarLj72ljONeQpZOwPh_qfQeeBoKEwOscBI4iyaabQs/s1600/Vermont.jpeg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 197px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIRjNdEIbWFXUF3UUf4TFRVLkpjBQbHEA_J2PPiubnJLsq0QIaa8TKlULOGOCYDB-itz7aRfXAf-6BgNNneiElcBOKsdrHm6GyVSarLj72ljONeQpZOwPh_qfQeeBoKEwOscBI4iyaabQs/s320/Vermont.jpeg" alt="" id="BLOGGER_PHOTO_ID_5653065447386273890" border="0" /></a>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.<br /><br />You can go to an interesting <a href="http://vermontrepublic.org/">website</a> 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."<a name='more'></a><br /><br />Vermont is a beautiful state and while it is usually thought of as a bastion of liberalism, particularly with the respect to environmental issues (think former Governor Howard Dean), it has a strong conservative strain as well. In the early 2000s, "Take Back Vermont" signs were regularly seen on many front lawns across the state, a movement that referred to seizing control of the leftward drift of the state and returning it to its Republican roots. And wow, does Vermont ever have Republican roots! For 134 years, from the founding of the modern Republican party in 1854 to the election of George H. W. Bush 1988, Vermont voted for the Republican presidential candidate in all but one election, the 1964 landslide that was won by Democrat Lyndon Baines Johnson. Furthermore, for 109 years, from 1854 to 1963, Vermont had a Republican governor, a stretch that included fifty -- fifty! -- consecutive Republican chief executives. Since then the governor's office has alternated back and forth between the parties, with five Democratic governors and four Republicans occupying the chair. (While Montpelier is the capital of Vermont and the governor has offices there, there is no official "governor's mansion" and there never has been one. The present governor, Democrat Peter Shumlin, lives in a rented house.)<br /><br />All of this is backdrop to the situation at the Wildflower Inn, in Lyndonville, VT where my family and I have stayed most Augusts over the past five or so years. The Inn is owned and run by Jim and Mary O'Reilly around 570 wooded acres. This is the part of Vermont that is known as the "Northeast Kingdom" and it as idyllic a spot as you can find in New England. People vacation at the inn for extended stays, and over the years it has been the site of many marriage ceremonies and receptions. The O'Reillys are an Irish Catholic family, but other than that casual observation, I have have never been subject to any political or religious message attached to their business. I still haven't, yet suddenly this summer the inn became the subject of a federal lawsuit and a vicious Internet posting campaign for its decision to deny a lesbian couple its grounds for their marriage rite. In their defense, the O'Reilly's made it clear that they have never denied same sex couples accommodations or dining nor have they discriminated on the basis of sexual orientation in their employment practices. But, due to their Catholic faith, they do not feel comfortable hosting "expressive events" which they regard to be tantamount to "compelled speech."<br /><br />The words are chosen carefully as they point directly to the First Amendment and in fact the dispute here is a most assuredly a constitutional one. On the one hand, we have the lesbian couple's argument that they are being denied a service on account of their sexual orientation. They maintain this to be a violation of Vermont's Fair Housing and Public Accommodations Act and the O'Reilly's, in their response to the complaint, acknowledge that they are in breach of the statute, even though it was written long before the state recognized same sex civil unions (2000) and same sex marriage (2007). Still, they argue that the law should not apply when it would force a proprietor to host something that is contrary to his or her religious principles and that applying it is in violation of their First Amendment rights.<br /><br />It is tempting to compare this to a resort in Georgia in, say, 1960, denying its grounds for a marriage ceremony because the couple was African-American. Unless, of course, you are a devout Catholic or belong to some other religious community that considers the marriage of a lesbian couple to be an affront to God. Then you would say that this is not discrimination but an expression of faith. We would not expect an obstetrician who believes that abortion is sinful must nonetheless perform them, but since the Wildflower Inn regularly hosts heterosexual marriages, the more accurate analogy here would be an obstetrician who was willing to perform abortions for some but not for others. It is interesting it all leads back to this question: is the marriage of a gay or lesbian couple somehow a different rite than the marriage of a heterosexual couple and of course that is what is at the heart of the same-sex union debate. In the case of the Wildlfower Inn in mostly liberal Vermont, the state legislature has already made it clear that this state's law now regards same sex unions as equivalent to heterosexual unions. That is good news for gay and lesbian couples looking to enjoy the ancient tradition of marriage, along with its legal and social benefits. But from the O'Reillys' point of view, if you are a Catholic businessman in Vermont, must you now also adhere to the state's definition of marriage or to look at it from the flip side, if you are a businessman who is Catholic, is it a breach of your faith, and an interruption to your "free exercise" of religion, that you are forced to facilitate and profit from a rite that your faith considers to be wrong?<br /><br />Naturally, the lawsuit was Topic A among guests chatting by the pool or over dinner this summer and each now faces a moral dilemma of his or her own. The inn's clientele is mostly urban Northeasterners from the Boston or New York area and, by the most cursory observation, more likely to attach themselves to the liberal Vermont spirit than to the latent conservative one. So, for these people (myself included), the question now comes, are the guests implicitly endorsing discrimination by patronizing the inn? Or is this decision by the O'Reillys theirs to make, a private and personal choice that should not fairly be represented either implicitly or explicitly in any other transaction with their business? As guests mull those issues, the federal district court will be considering answers to the constitutional questions here When that decision is handed down, it may well set the standard for so many other states which have recently recognized same-sex unions as well.<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com1tag:blogger.com,1999:blog-7632799866038369455.post-36927594612116119022011-09-16T07:30:00.001-04:002011-09-16T07:30:02.120-04:00<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFE3yoiRvGH1kWAqaJ2qBYUqNV5ARs6h3a4b4l1Yu_XUlzUIFxPM3_CFiyppVOhww_98WU4iM_4N4mGpdXhzNybpeGGzrOLojKCAqOh9URRSj1a_hwn916CYHEm5bZZ0_EwhqS1qXWUCxW/s1600/PJP-Blog-Quotes-banner.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 400px; height: 53px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFE3yoiRvGH1kWAqaJ2qBYUqNV5ARs6h3a4b4l1Yu_XUlzUIFxPM3_CFiyppVOhww_98WU4iM_4N4mGpdXhzNybpeGGzrOLojKCAqOh9URRSj1a_hwn916CYHEm5bZZ0_EwhqS1qXWUCxW/s400/PJP-Blog-Quotes-banner.jpg" alt="" id="BLOGGER_PHOTO_ID_5652334952037250866" border="0" /></a><br /><br /><br /><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNwns1mgFXFWQFU3Sf9yI5I8PU7d7ZYo6n5ykArNECL_JECR1OOmaEsm0dXk-pyp7Xh9D6ASjHjWjlTna6breKF4O8TCV1XsHuRcF7FwE-eeO9ayUytQ2PCigWX_ohDZtkce0JFmYdteU0/s1600/linda-kerber_0.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 270px; height: 205px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNwns1mgFXFWQFU3Sf9yI5I8PU7d7ZYo6n5ykArNECL_JECR1OOmaEsm0dXk-pyp7Xh9D6ASjHjWjlTna6breKF4O8TCV1XsHuRcF7FwE-eeO9ayUytQ2PCigWX_ohDZtkce0JFmYdteU0/s400/linda-kerber_0.jpg" alt="" id="BLOGGER_PHOTO_ID_5652335426118020594" border="0" /></a><span style="font-weight: bold;">“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.”</span> 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 <a href="http://www.dailyiowan.com/2011/09/13/Metro/24828.html">speaking to The Daily Iowan</a> 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.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-46768650956623510392011-09-15T07:30:00.002-04:002011-09-16T16:57:12.475-04:00PJP FELLOW ANNAMARYA SCACCIA EXAMINES NEW HHS HEALTH CARE GUIDELINES AS MANDATED BY OBAMA HEALTH CARE REFORM;<span style="font-size:130%;">HOW CAN WE SQUARE THE OPTION FOR "RELIGIOUS EXEMPTIONS" WITH THE FIRST AMENDMENT? </span><br /><br />Last month, the US Department of Health and Human Services (HHS)<a href="http://www.hhs.gov/news/press/2011pres/08/20110801b.html"> issued new Affordable Care Act guidelines</a> 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.<br /><br />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:<br /><br /><ol><li><span style="font-style: italic;">has the inculcation of religious values as its purpose;</span></li><li><span style="font-style: italic;">primarily employs persons who share its religious tenets;</span></li><li><span style="font-style: italic;">primarily serves persons who share its religious tenets; and</span></li><li><span style="font-style: italic;">is a non-profit organization.</span></li></ol><a name='more'></a><br />In short, this classification is only relative to houses of worship like synagogues and churches—where possible anti-contraception views of the institution’s executive are commonly shared by the institution’s workers—thus ensuring that the constitutionally-protected right to religious freedom and right to privacy is intact across the board. Yet, for a number of Catholic intellectuals, this definition is just too narrow.<br /><br />Religious academics and leaders, such as Georgetown University’s Rev. Thomas Reese and Catholic University’s Professor Stephen Schneck, contest the current language of the clause, claiming it excludes institutions that, while affiliated with religion, employ and serve people of all moral backgrounds. It infringes on their First Amendment right to freedom of religion, they say, instead suggesting the definition be broadened so that organizations like Catholic hospitals and charities can be included in this protection. But using language that encompasses those types of employers would only complicate the issue of the amendment’s constitutionality.<br /><br />How so? Employees are protected by the 14th Amendment’s right to privacy as established in 1965’s <span style="font-style: italic;">Griswold v. Connecticut</span>, and later affirmed in 1972’s <span style="font-style: italic;">Eisenstadt v. Baird</span> and 2003’s <span style="font-style: italic;">Lawrence v. Texas</span>. While the religious institution is offering the group health plan at a discounted rate, it is the employee who is paying the monthly premium to keep their coverage, which is typically deducted from their paycheck before taxes. Therefore, this shifts the responsibility of the health policy to the employee—the employer is the mere provider—turning it into a private individual matter. What contraceptives and services the employee uses as covered by said policy should not be impeded nor denied. Furthermore, if an organization that employs people of different faiths opts out of the contraceptive option, they are indeed infringing on their employees’ right to not only practice religion freely but to not be forced to adhere to opposing religious beliefs, as protected by the First Amendment.<br /><br />But the corporation may also have some footing. As legal journalist Lyle Denniston <a href="http://blog.constitutioncenter.org/does-the-constitution-treat-corporations-as-persons/">recently discussed for <span style="font-style: italic;">Constitution Daily</span></a>, corporations are privy to some constitutional rights, such a broad right to free speech as upheld in last year’s <span style="font-style: italic;">Citizens United v. Federal Election Commission</span>. Additionally, he writes, corporate records are somewhat protected by the Fourth Amendment’s limit on government searches, and an 1886 California case established that the 14th Amendment’s equal protection clause does, in fact, apply to corporations. Even so, this question of “corporate personhood” is not exactly cut and dry—in this year’s <span style="font-style: italic;">Federal Communications Commission v. AT&T</span>, the Supreme Court ruled that the Freedom of Information Act’s “personal privacy” protection does not apply to corporate records. Still, using the <span style="font-style: italic;">Citizens United</span> ruling as a base, a religious institution would have a viable argument under the First Amendment’s freedom of religion clause if they are required to offer a service that goes against their moral judgment.<br /><br />It would be interesting to see if and how HHS revamps the language of the religious exemption amendment. Would they chose the side of the individual or the corporation?National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com1tag:blogger.com,1999:blog-7632799866038369455.post-63901668300242541062011-09-14T12:53:00.002-04:002011-09-14T12:56:56.795-04:00SAVING "FACE" OR SILENCING PROTEST?:<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi8Hlw2vQFiDYHG8k4fxBGplsvk9_dFcj_pc855q0fta_6Uz_k4dNg2MiWwLS5fLz8bKA8eTS4Wy-r1wGf4v1z2pGSblaymv1y3czxPkXibYXNjQmsVkqa9rNb73VOpBRZmpoNdJvHoM1dd/s1600/safe_image.php.jpeg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 213px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi8Hlw2vQFiDYHG8k4fxBGplsvk9_dFcj_pc855q0fta_6Uz_k4dNg2MiWwLS5fLz8bKA8eTS4Wy-r1wGf4v1z2pGSblaymv1y3czxPkXibYXNjQmsVkqa9rNb73VOpBRZmpoNdJvHoM1dd/s320/safe_image.php.jpeg" alt="" id="BLOGGER_PHOTO_ID_5652260317683816322" border="0" /></a><span style="font-size:130%;">PJP FELLOW CARRIE JOHNSON REPORTS ON RAMPED-UP ENFORCEMENT OF A STATUTE RESTRICTING SPEECH IN PROXIMITY TO ABORTION CLINICS</span><br /><br />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.<br /><br />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 <span style="font-style: italic;">Ashcroft v. Norton</span>, 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 <a href="http://www.npr.org/2011/09/01/140094051/obama-takes-tougher-stance-on-abortion-protesters?sc=tw&cc=share">here</a> and the court's opinion in <span style="font-style: italic;">Ashcroft</span> <a href="http://scholar.google.com/scholar_case?case=2919370780750538606&hl=en&as_sdt=2&as_vis=1&oi=scholarr">here</a>.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-59470577636557132542011-09-12T14:53:00.002-04:002011-09-12T14:56:08.519-04:00LISTENING FOR THE CONSTITUTION: THREE MORE LEADS1) <span style="font-weight: bold;">“Do the world a favor and go kill yourself. P.S. Have a nice day.”</span> 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 <a href="http://codes.lp.findlaw.com/uscode/18/I/110A/2261A">here</a>. 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?<br /><br />2) <span style="font-weight: bold;">"[We are just trying to ensure]...that taxpayer money isn't subsidizing somebody's drug habit.</span>" 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.<a name='more'></a><br /><br />3) <span style="font-weight: bold;">“Now you can have a shooting gallery in your backyard.”</span> Shelley Vana, a Palm Beach County commissioner, speaking to the <span style="font-style: italic;">New York Times</span> in a story you can read <a href="http://www.nytimes.com/2011/09/11/us/11guns.html?hp">here</a>. She is referring to a new Florida state law that will fine any county or municipality that enforces its own gun ordinance. Many localities in the state have ordinances that prevent guns from being carried into parks or libraries or shot into the air to celebrate. These will now have to be removed. Towns that enforce such ordinances risk a $100,000 fine. The motivation for banning local ordinances is to make it easier for people to navigate the state without having to determine what they can and cannot do from one locality to the next.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-6004418383012838622011-09-08T10:59:00.006-04:002011-09-15T09:08:32.437-04:00THE FEDERAL COURT NOMINATIONS BATTLES: HAVE WE CONSIDERED THE CONSEQUENCES?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcIaU7AiiNkQpgfvgxFI9C_NeSyYQAnj0wm57NfxBYG2X6w8k3x9E_W2xJeqRrUfN-3Pzp0ZdbTqAEHpV8Pj60NDtlNUnso-6OSoAN49WEDpj-l5KcQ_vQce-TpPYs3wl-RwBnm2-4EOao/s1600/Lewis.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 113px; height: 169px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjcIaU7AiiNkQpgfvgxFI9C_NeSyYQAnj0wm57NfxBYG2X6w8k3x9E_W2xJeqRrUfN-3Pzp0ZdbTqAEHpV8Pj60NDtlNUnso-6OSoAN49WEDpj-l5KcQ_vQce-TpPYs3wl-RwBnm2-4EOao/s320/Lewis.jpg" alt="" id="BLOGGER_PHOTO_ID_5650005521146107186" border="0" /></a><span style="font-size:85%;">by Judge Timothy K. Lewis</span><br /><br />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.<br /><br />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<span style="font-style: italic;"> difficult</span> confirmation battle). But, of course, they were under consideration for the Supreme Court.<a name='more'></a><br /><br />Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 145 confirmed nominees and Bill Clinton had 163 confirmed.<br /><br />The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the president’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this president, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top -- top -- political priority over the next two years should be to deny President Obama a second term in office. Really, senator? So where on the priority list do we put conducting the senate’s constitutional business?<br /><br />What do we stand to lose? When compared to the debt-ceiling debate this summer, the lag in judicial confirmations may seem like the wrong fight to pick, but that would be a dangerous conclusion. For one, the president has an opportunity to make a significant contribution to the diversity of the federal courts. Of the confirmed nominees in the Obama presidency, nearly half are women (nearly twice that of the Bush and Clinton years) and about a fifth of them are African-American. There are also three openly gay nominees.<br /><br />There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court's business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate. The old cliché is “justice delayed is justice denied,” but note that we are not only speaking here about the assertion of principle. There are real world consequences to this situation: businesses suffer while awaiting decisions on crucial matters; where there are liberty interests involved, people suffer. Imagine telling the man unfairly convicted that his appeal can’t be heard because there aren’t enough judges to handle it.<br /><br />One has to consider what damage is done to the judicial profession itself. Throughout most of American history, we have tended to look upon the federal judiciary as non-partisan. There is a reason for this: the judiciary is meant to act as a counterweight to the political branches of our government, not move in lock step with them. While presidents, of course, tend to nominate those who share their perspective on judicial matters, and to some degree that is informed by politics, judges seek to make unbiased decisions based on neutral principles.<br /><br />Naturally, then, judicial nominees should be confirmed on the basis of qualifications, rather than political affiliation and this was long the tradition. Yet a quick look at those Obama nominees who failed to get senate confirmation shows a dangerous development:<br /><br />Goodwin Liu was nominated for the Ninth Circuit and received the endorsement of such high profile Republicans as Ken Starr and John Yoo, yet his name was withdrawn under threat of a Republican filibuster due to some intemperate remarks he made a few years ago about the nominations of Sam Alito and John Roberts to the Supreme Court as well as some scholarly papers that suggested a constitutional mandate for the welfare state.<br /><br />Robert Chatigny, a Connecticut federal district judge, was put forward for the Second Circuit Court of Appeals, but withdrew his nomination after Republican critics accused him of being “soft” on the sentencing of sex offenders and for granting a stay of execution for Michael Bruce Ross, a serial killer who refused to oppose his own execution. Chatigny had wanted a clearer sense of whether Ross, who saw his execution as a release to another life, was competent to make that decision before allowing the execution to go ahead. Eventually, it did.<br /><br />David Hamilton was eventually confirmed 57-39 for a seat on the Seventh Circuit Court of Appeals, but the opposition was substantial, based largely on two decisions: one finding an Indiana law requiring counseling and a waiting period before an abortion unconstitutionally burdensome and another in which he found the practice of opening sessions of the Indiana legislature with a Christian prayer to be a violation of the First Amendment establishment clause.<br /><br />Finally, in what feels like a tit-for-tat political skirmish, Barbara Milano Keenan’s nomination to the Fourth Circuit was delayed by Republican filibuster in part because Democrats derailed the original nominee for the spot, William J. Haynes III, who had been put forward by George W. Bush way back in 2005. Haynes had been opposed by Democrats because, as a counsel at the Pentagon, he had been involved in conversations over the alleged "torture" of detainees. Once that nomination failed, the seat was left unfilled until Obama's inauguration. Keenan had no serious opposition; she was eventually confirmed 99-0.<br /><br />With such tales, what chance is there for maintaining a judiciary indifferent to politics, as the Framers intended? And what chance is there that a talented judge would follow his convictions when a potentially controversial decision could make him politically unsuitable for promotion to a higher court? In each case, I'd like to think that principle would win out, but the partisan process of the past few years makes me worry.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-39045451937594020132011-09-06T10:30:00.001-04:002011-09-06T10:32:18.122-04:00IS EUROPE HAVING AN AMERICAN HISTORICAL MOMENT?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiPpKx-VuVt4n4ChJm2sfZR-HSJNmtplkWTtkggP8RK2O9JGwk1mpuHZaYeChImd-gvJZL-tqfhUWv1wweL_hOVZJHXfnmA5R7qYESK7eFQU1MaFHDAHyQOMveEfMpo7z9acScqOeTHJQY7/s1600/Flag_of_Europe.png"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 320px; height: 213px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiPpKx-VuVt4n4ChJm2sfZR-HSJNmtplkWTtkggP8RK2O9JGwk1mpuHZaYeChImd-gvJZL-tqfhUWv1wweL_hOVZJHXfnmA5R7qYESK7eFQU1MaFHDAHyQOMveEfMpo7z9acScqOeTHJQY7/s320/Flag_of_Europe.png" alt="" id="BLOGGER_PHOTO_ID_5649254370681468018" border="0" /></a>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 <span style="font-style: italic;"><a href="http://www.nytimes.com/2011/09/06/business/global/reluctantly-europe-inches-closer-to-a-fiscal-union.html?_r=1&nl=todaysheadlines&emc=tha2">New York Times</a></span>, 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.”National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-83373550863242290152011-09-02T07:00:00.002-04:002011-09-02T07:00:04.032-04:00THE CONSTITUTION IN OUR MIDST: A SAMPLE OF STORIES FROM JUST THE PAST FEW DAYSTo 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...
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<br />1) <span style="font-weight: bold;">"This is all about safety, not about religion."</span> 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 <a href="http://www.lohud.com/article/20110901/NEWS02/109010408/Update-Muslim-group-s-statement-Playland-melee-says-police-overreacted">here</a>.
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<br />2) <span style="font-weight: bold;">“This was a very dark chapter in the history of medical research sponsored by the U.S. government.”</span> 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 <a href="http://www.cbsnews.com/8301-504763_162-20099804-10391704.html">here</a>.<a name='more'></a>
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<br />3) <span style="font-weight: bold;">“Harassment, intimidation or bullying means any gesture, any written, verbal or physical act, or any electronic communication…that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory [handicap] disability…”</span> So reads New Jersey’s new Anti-Bullying Bill of Rights Act, signed into law this past week by Governor Chris Christie. The bill, which requires each school to designate an anti-bullying official to examine perceived instances of bullying, has received criticism from those who worry that it will further tax the resources of the state’s schools. There are also concerns that this will elevate the ordinary dispute to the level of administrative review when it might otherwise be worked out in a discussion between parties. Learn more <a href="http://www.nytimes.com/2011/08/31/nyregion/bullying-law-puts-new-jersey-schools-on-spot.html">here</a>.
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<br />4) <span style="font-weight: bold;"> “It’s not about us wanting money, money, money...It’s really about getting [sexual abuse victims] the help they deserve.”</span> The words of Rick Gipprich, a spokesman for Texas Association Against Sexual Abuse, on the news that the Texas Supreme Court had ruled the state’s Sexually Oriented Business Fee Act of 2007 constitutional. The bill, which requires the payment of a “pole tax” – as it has been amusingly called – of each and every patron of any nude dancing establishment that also serves alcohol, would mandate those funds to be spent on aiding sexual abuse victims. The bill had been challenged as an infringement on free speech. Read about it <a href="http://www.reporternews.com/news/2011/aug/31/pole-tax-xly-xyl-xyl-xyl-xyl/">here</a>.
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<br />5) <span style="font-weight: bold;">“It [is] shocking just how unreliable your eyes can be.”</span> A reflection from a writer with the <span style="font-style: italic;">New Prospect</span> reflecting on a decision from the New Jersey Supreme Court that called into question the effectiveness of police lineups. The decision created more rigorous criteria for such identifications, looking to avoid the impact of stress on the viewer and a tendency to “recall” racial characteristics improperly. The decision relied on a study that demonstrated that those viewing lineups were as often wrong as they were right. Read about it <a href="http://www.nytimes.com/2011/08/29/us/29witness.html">here</a>.
<br />National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-25956874645774424072011-09-01T11:43:00.003-04:002011-09-01T13:49:51.031-04:00WHY DON’T THEY JUST COME OUT AND SAY IT? TEA PARTIERS ARE RUNNING AGAINST ABRAHAM LINCOLN<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiAFCyOhnRjPbh1u8QK58oZ3pRiUEcsNz8QgP8gUmtY0jBq2ppOUra_hAMwpCsmhq0o9_DaqKTaAtiJRE75xL4SyUy8NprTTOyVskP46BvUN34_E9Qxcux0VwsSJuJLJHVggBzR_a2i296S/s1600/456px-Abraham_Lincoln_head_on_shoulders_photo_portrait.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 244px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiAFCyOhnRjPbh1u8QK58oZ3pRiUEcsNz8QgP8gUmtY0jBq2ppOUra_hAMwpCsmhq0o9_DaqKTaAtiJRE75xL4SyUy8NprTTOyVskP46BvUN34_E9Qxcux0VwsSJuJLJHVggBzR_a2i296S/s320/456px-Abraham_Lincoln_head_on_shoulders_photo_portrait.jpg" alt="" id="BLOGGER_PHOTO_ID_5647417842447752418" border="0" /></a>“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.<a name='more'></a>
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<br />Governor Rick Perry of Texas, the latest to enter the race for the Republican nomination, is another of this breed and judging by the results of a <a href="http://www.gallup.com/poll/149180/perry-zooms-front-pack-2012-gop-nomination.aspx">Gallup poll</a> released last week, the favorite by far of those who identify themselves as Tea Partiers. A few years ago, he wrote a book called “Fed Up! Our Fight to Save America from Washington” in which he argued for, essentially, a return to America as it was in 1890. Perry wants the 16th amendment (giving Washington the power to institute the income tax) repealed as well as the 17th amendment (which provided for direct election of senators instead of their being chosen by state legislatures, as had been the Constitution’s original mandate). There are a few other constitutional changes he wants: a new amendment outlawing gay marriage and another outlawing abortion. But Perry’s vision, like that of most of the Tea Partiers, is mostly one of rolling back the Constitution, not adding to it.
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<br />A few years ago, “rolling back” meant disavowing the liberal Warren Court decisions of the 1960s; then, in what seemed a radical departure, a pre-New Deal Constitution, and now, by attacking the 16th and 17th amendments, the Tea Partiers are essentially asking us to go back to the time before the Progressive Era. But why not simply go all the way? The most revered president in American history, Abraham Lincoln, was the original Big Government man.
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<br />The income tax, which Perry describes as the first step on “the road to serfdom” (a reference, for all Beck listeners, to Hayek) -- was first instituted by Abraham Lincoln as a means of raising revenue to fight the Civil War. The Court later declared the tax, which ended with the war, unconstitutional, leading to the 16th amendment, ratified in 1913, that gave Congress the power to re-establish the income tax. But Lincoln did much more that Tea Partiers profess to resent. He fought the war to keep the Union intact. Perry has threatened to lead his state to secede from the Union and earlier this year mistakenly declared that Texas had made the right of secession a stipulation to its joining the Union in 1844. With the Emancipation Proclamation in 1863, Lincoln made the end of slavery a war aim as well. The Proclamation was a brazen display of executive power, preceded by an earlier display of executive power, the suspension of habeas corpus. Depending on whom you are speaking to, the Civil War was either a contest over the future of slavery or a contest over the future of states rights. But either way you look at it the South lost. As many historians have asserted, the “United States” was a plural noun before the war; a singular noun afterwards.
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<br />Pre-Civil War America was a Tea Partier’s dream: a decentralized republic where the post office was the only way that most people had any connection with the federal government. The war, and Lincoln’s vision for a new “birth of freedom” introduced federal taxes, a federally conscripted army, a wider jurisdiction for federal courts, a national currency system and a sense of America as one place, with Washington DC at its core. It is Lincoln’s Washington that Perry and other Tea Partiers are “fed up” with. Yet Lincoln remains among Americans' most admired presidents. You can find that in a recent <a href="http://www.gallup.com/poll/146183/americans-say-reagan-greatest-president.aspx">Gallup poll </a>as well.
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<br />National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-78592949650263110812011-08-23T13:37:00.003-04:002011-08-23T16:50:12.929-04:00IS THE CELL PHONE THE MODERN DAY EQUIVALENT OF A BULL HORN?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjiCdJnxmTzd1KlC7FEAgRBXLYECXOuUPWDLwa97m8Cj904fS7RxTeZeg6_Te7_5ZwZKyJJEXQEt9z-MkRZnEWBoxBxH52Y1xXIAfsqboqzbtGb_s79f0d68E7Ziie3ax5CajoWdXLoZeWn/s1600/Carrie+Johnson.JPG"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 213px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjiCdJnxmTzd1KlC7FEAgRBXLYECXOuUPWDLwa97m8Cj904fS7RxTeZeg6_Te7_5ZwZKyJJEXQEt9z-MkRZnEWBoxBxH52Y1xXIAfsqboqzbtGb_s79f0d68E7Ziie3ax5CajoWdXLoZeWn/s320/Carrie+Johnson.JPG" alt="" id="BLOGGER_PHOTO_ID_5644156568013866626" border="0" /></a><span style="font-size:130%;">PJP FELLOW CARRIE JOHNSON REPORTS ON THE DECISION TO SHUT DOWN MOBILE SERVICE ON SAN FRANCISCO'S SUBWAY SYSTEM:</span>
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<br />Jennings Fellow and NPR Correspondent Carrie Johnson <a href="http://www.npr.org/2011/08/16/139656641/cell-service-shutdown-raises-free-speech-questions">reported last week</a> 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. National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-86489346632603031292011-08-17T15:22:00.002-04:002011-08-18T12:09:04.225-04:00WILL 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.<a name='more'></a>
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<br />But the Federal Elections Commission does not allow foreign nationals to make monetary contributions to any federal or state election campaign. In fact, it has not allowed them to do so since Congress passed a statute banning such contributions in 1974. More recently, Congress passed the Bipartisan Campaign Reform Act of 2002 (often referred to as "McCain-Feingold") which extended the ban by making it illegal for foreign nationals to make contributions through the "soft money" process (money given to political parties or other interest groups but not directly to a political campaign) as well as any other method of "express advocacy" that specifically advocates the choice of a particular candidate in a federal or state election. In C<span style="font-style: italic;">itizens United v. Federal Elections Commission</span>, the Supreme Court overturned part of that law as inconsistent with the freedom of speech clause of the First Amendment, but never directly addressed the issue over whether restrictions on the spending of foreign nationals in the American political process can be regulated.
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<br />Now comes the view of a three-judge panel, parsing out the "foreign contributions" angle as it applies to the suit filed by Bluman and Steiman. Last week, in a decision written by George W. Bush appointee Brett Kavanaugh, who has twice served a PJP Moot Court Judge, the court sided with the FEC, arguing that speech restrictions like those made law under the Bipartisan Campaign Reform Act only demonstrate "...the sovereign's obligation to preserve the basic conception of a political community." In other words, Bluman and Steiman cannot vote in American elections, so they should not be allowed to spend money or make donations in support of candidates in those elections.
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<br />But how does this notion measure against the reasoning the Court adopted in <span style="font-style: italic;">Citizens United</span>? There the majority opinion in what was a 5-4 decision proved unhelpful to Kavanaugh. In reaching a decision to reject the bill's limitations on corporate speech, the majority found it unnecessary to address McCain-Feingold's new limitations on "foreign nationals" (in the tradition of the Court, decisions are reached on the narrowest issue possible.) So Kavanaugh looked instead to the non-binding dissenting opinion, where the now-retired Justice John Paul Stevens argued that the Bipartisan Campaign Reform Act's restrictions on the speech of foreign nationals was consistent with the First Amendment. Four members of the Court joined that dissent.
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<br />So, what happens now? If the Supreme Court reviews the case and affirms the lower court opinion, it might undermine its own reasoning in <span style="font-style: italic;">Citizens United</span> which, in rejecting limits on corporate spending, essentially adopted the position that more speech is good, no matter the source. Corporations cannot vote any more than foreign nationals can, so on what basis should the speech of temporary residents like Bluman and Steiman be curtailed while corporate speech is not? And what of the speech of foreign corporations operating in the United States? There is a long history of legislative curbs on this going back before McCain-Feingold, but that was before our day, when the multi-national corporation thrives. Given the spread of American corporate interest throughout the world, particularly China, can we really expect a domestic corporation to be any more invested in the integrity of our political community than an international firm? Of course, challenging the Court to reconsider its reasoning in <span style="font-style: italic;">Citizens United</span> may well have been the primary motivation behind the suit brought by Bluman and Steiman. The two may get that chance now, on appeal.
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<br />TB
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<br />National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-73463003269919918812011-08-08T10:10:00.001-04:002011-08-08T10:12:59.689-04:00THE TALK IN TENNESSEE IS ABOUT THE CONSTITUTION<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIbkIzcAb2FRrbkMBM3XdmTEQaPmv8G9yD9kQgZYGB9Y_rtoYuRURc5lpcToP9_H3Grlw7PkKecUWSJCe7SEZnCq8zad2AJXlf-WJgX59qkRUtq9MEztZg599T0QizL2ozmpfTS5jz_NpB/s1600/Flag-map_of_Tennessee.svg.png"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 320px; height: 75px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIbkIzcAb2FRrbkMBM3XdmTEQaPmv8G9yD9kQgZYGB9Y_rtoYuRURc5lpcToP9_H3Grlw7PkKecUWSJCe7SEZnCq8zad2AJXlf-WJgX59qkRUtq9MEztZg599T0QizL2ozmpfTS5jz_NpB/s320/Flag-map_of_Tennessee.svg.png" alt="" id="BLOGGER_PHOTO_ID_5638487816088024898" border="0" /></a>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.
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<br />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?<a name='more'></a>
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<br />Now a movement is building to either amend the state constitution to incorporate the Tennessee Plan as the official method for judicial choice, or, by a new statute, require popular elections for all judges as clearly stated in the state's founding document. There is no doubt that the latter would lead to a more politicized judiciary. Since the Tennessee Plan was adopted, only one judge has ever lost a retention election: Penny White, whose 1996 decision to reject the death penalty in a murder and rape case led to a state-wide campaign to dump her. White's removal was endorsed by the state's two U.S. senators at the time, Bill Frist and Fred Thompson, as well as the governor, Don Sundquist, and yet, ironically, judicial ethics required her to remain silent throughout the campaign, unable to answer charges that she was "weak on crime."
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<br />The Tennessee Plan has been tested in the state's courts and survived constitutional scrutiny there. But those who oppose it insist that no panel of judges would rule against a plan that would subject them, and other judges, to public approval. The conversation is about to get ratcheted up a notch. Last March, Tennessee Lieutenant Governor Ron Ramsey cast the deciding vote in the state's Judiciary Committee, advancing a bill that would require popular elections of all judges. The bill now moves to another senate committee before it can be addressed by the state's House of Representative.
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<br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-24651892043451339672011-08-05T11:25:00.001-04:002011-08-05T11:28:33.815-04:00Eight years after the Court’s Landmark Rulings in Grutter and Graz, Affirmative Action is on its Way Back to the DocketTwo 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.<br /><br />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…<a name='more'></a><br /><br /><span style="font-weight: bold;">WHEREAS discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States…[all government contractors]…shall not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take <span style="font-style: italic;">affirmative action</span> to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.</span><br /><br />Even then, it was unclear what the Order meant by “affirmative action,” but over time we have come to associate the phrase with providing expanded opportunities to minorities through everything from quota systems to less overt methods like the “plus system” addressed in the Fifth Circuit opinion, all of them aimed at reversing entrenched racial discrimination. Of course, from the beginning many have noted the irony: in order to correct the centuries of wrong doing when racial minorities were denied equal access to education and jobs due to the color of their skin, we now give minorities a built-in advantage and majorities a built in disadvantage because of the color of their skin. Is that any way to assemble a “color-blind” society?<br /><br />Only a few years ago, the Court examined this issue in <span style="font-style: italic;">Grutter</span> and <span style="font-style: italic;">Graz</span>, two cases from Michigan that looked at the question of affirmative action. In the first, <span style="font-style: italic;">Grutter</span>, it allowed for the University of Michigan Law School’s use of race as a factor in admissions since it read the goal of a diverse student body as a “tailored use”; in <span style="font-style: italic;">Graz</span>, however, which involved the undergraduate admissions policy of the University of Michigan, it ruled that the points system which the university used to determine acceptance was too “mechanistic.” (On a scale that required 100 points out of 150 maximum, it automatically gave twenty points to an underrepresented minority and just twelve points to someone who scored a perfect 1600 on the SAT tests). In the opinion (the two cases were decided together) Justice Sandra Day O'Connor noted that sometime in the future, maybe twenty-five years out, racial affirmative action would no longer be necessary in order to promote diversity. The statement – odd, since it suggests that the principle of equal protection in the constitution is not absolute; instead, it is time-sensitive – gave rise to the question: why twenty-five years from now? Why not twenty, ten or five? Indeed, why not now?<br /><br />The voters spoke next. A ban on affirmative action was inserted in the Michigan state constitution after a 2006 voter initiative. Led by Jennifer Graz (seen here), the lead plaintiff in the undergraduate case, the initiative, known as Proposal Two, passed by 58 percent to 42 percent. Bans like Michigan’s are currently on the books in California, Nebraska and Washington. But the Sixth Circuit decision invalidating Proposal Two is binding only in Kentucky, Michigan, Ohio and Tennessee. That makes it ripe for Supreme Court review: the Court is determined to adjust differences between districts on issues of constitutional law.<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-36034379922500424742011-08-03T09:45:00.002-04:002011-08-04T09:49:41.729-04:00TWENTY-FIVE YEARS AGO, THE NOMINATION OF ROBERT BORK TO THE SUPREME COURT SPLIT WASHINGTON;<span style="font-size:180%;">NOW THE CONTROVERSIAL JUDGE HAS BECOME A TRUSTED ROMNEY ADVISER</span><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-smHhI4f9AjHKfqVLkubZec6-xyfBfT8Xud-i8-4IQRtkEFlr6QeQgkNorDnnUro00tDWzJtUlD4K5OH-3sjyS3NAsLkGWkXi6Sv3FfnF0owoqEcGOnTPUuc4KqqvUNmDkitXNe-UYueX/s1600/Bork2.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 250px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-smHhI4f9AjHKfqVLkubZec6-xyfBfT8Xud-i8-4IQRtkEFlr6QeQgkNorDnnUro00tDWzJtUlD4K5OH-3sjyS3NAsLkGWkXi6Sv3FfnF0owoqEcGOnTPUuc4KqqvUNmDkitXNe-UYueX/s320/Bork2.jpg" alt="" id="BLOGGER_PHOTO_ID_5636997255290710722" border="0" /></a>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.<br /><br />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..."<a name='more'></a><br /><br />Bork, who had been a professor at Yale Law School and served as Solicitor General in the Richard Nixon White House, was nominated by President Ronald Reagan for the seat that would eventually go to Anthony Kennedy, who is still a member of the Supreme Court today. Back then, the judge was feared by many on the Left, not only because he had strongly-articulated originalist views on how to read the Constitution, but also because he was an influential thinker whose views on privacy, especially, were well known. As a member of the DC Circuit Court of Appeals Bork had suggested that the Supreme Court erred in finding a "right to privacy" in the Constitution, leading many to wonder if he joined the Court he might persuade it to reverse Roe v Wade, the landmark 1973 abortion decision finding a privacy right that extended, under certain conditions, to the decision to have an abortion. Here is how Senator Kennedy, speaking on the floor of the senate, described what America would be like if Robert Bork became a justice on the Supreme Court: "...a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only—protector of the individual rights that are the heart of our democracy...No justice would be better than this justice."<br /><br />Kennedy's heated rhetoric was meant to scare and it worked. The nomination went down to defeat, 58-42, one of only twelve times in American history that the senate has rejected a president's nominee to the High Court. But with the Bork nomination, American politics changed. Historians looking for the origin point of the partisan rancor that has dominated our politics over the past two decades, culminating, perhaps, with the debt ceiling debate of the past few weeks, would do well to look here. Now, with Bork as a person of influence in the Romney campaign, can we expect him to become a lightning rod again?<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-29849086075405708822011-08-01T12:50:00.002-04:002011-08-01T12:54:12.568-04:00WHEN THE COURTROOM BECOMES A SOAPBOX: ANDERS BREIVIK AND THE RIGHT TO A PUBLIC TRIAL<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg11dX4ysL1AtG1viLbL934CqkfaRnFgE6SBUMRRtLUz4Hm0MkwoQ565OHvmM9SyqbrN4sBnSXOArKbSzwndYLDGd5LUEZtNasZLS96DabQz-7aObSLKc2x4QasS5sP6UyfbnCMF2odP1X6/s1600/Anders_Behring_Breivik_in_black_suit_%2528self_portrait%2529_cropped.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 261px; height: 263px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg11dX4ysL1AtG1viLbL934CqkfaRnFgE6SBUMRRtLUz4Hm0MkwoQ565OHvmM9SyqbrN4sBnSXOArKbSzwndYLDGd5LUEZtNasZLS96DabQz-7aObSLKc2x4QasS5sP6UyfbnCMF2odP1X6/s320/Anders_Behring_Breivik_in_black_suit_%2528self_portrait%2529_cropped.jpg" alt="" id="BLOGGER_PHOTO_ID_5635931740999319122" border="0" /></a>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.<br /><br />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.<br /><br />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?<a name='more'></a><br /><br />Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the “people” get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a “public trial” <span style="font-style: italic;">not</span> in its interest.<br /><br />The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In <span style="font-style: italic;">Moore v. Dempsey</span> (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgement. Justice Oliver Wendell Holmes, writing for the majority in that case, declared that “if the whole proceeding is a mask – that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion…neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing the petitioners their constitutional rights.” It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes. Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.<br /><br />There are few applicable precedents to consult. In the 1990s, the self-proclaimed “Unambomber,” Ted Kaczynski, terrorized the academic community by sending deadly mail bombs that killed three and injured 23. Kaczynski was looking for attention on his own manifesto, a 35,000 word rant against technology. He finally sent a letter to the <span style="font-style: italic;">New York Times</span> saying that he would stop his terror campaign if the paper published his treatise and, urged on by law enforcement, the <span style="font-style: italic;">Times</span>, in a move still criticized as rewarding violence, ultimately did. Police suspected that if the treatise was published it would result in someone recognizing Kaczynski and lead to his capture and that is precisely what happened when Kaczynski’s brother read the statement in the <span style="font-style: italic;">Times</span> and identified him. There never was a “Unabomber” trial; Kaczynski pleaded guilty to the murders as a way of avoiding the death penalty. But thanks to the <span style="font-style: italic;">Times</span>, his ideas had a wide public airing.<br /><br />Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content. What will the Norwegians do? Breivik has asked for a public trial and his preference to attend "in uniform." Norway's notoriously lenient criminal law caps prison sentences at 21 years, meaning that Anders Behring Breivik, if convicted of the killings, will received just 82 days per victim. It also means that he will emerge to freedom in 2032 at age 53, still in the prime of his life.<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-44568746543042565802011-07-29T13:42:00.006-04:002011-09-08T11:09:22.498-04:00...and if Obama ignored the Congress and simply raised the debt ceiling on his own?<span style="color: rgb(0, 0, 0);font-size:180%;" ><span style="color: rgb(51, 51, 153);">PJP Faculty Member Jeffrey Rosen speculates how the Supreme Court might decide</span> </span><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq1d-SOSRNPTbpC15oQSzLT7aPRzRKRfV4acv4xnxQnDQ09Anl_r24FX-rly1XOgYe7apaPDxfLEITe7zZl6m8oOP84uJHIZbk5zWafTcfqZmUEtEx33D3fj4ck4p8Xxy1RFk-00mxqfMo/s1600/Rosen.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 160px; height: 220px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq1d-SOSRNPTbpC15oQSzLT7aPRzRKRfV4acv4xnxQnDQ09Anl_r24FX-rly1XOgYe7apaPDxfLEITe7zZl6m8oOP84uJHIZbk5zWafTcfqZmUEtEx33D3fj4ck4p8Xxy1RFk-00mxqfMo/s320/Rosen.jpg" alt="" id="BLOGGER_PHOTO_ID_5634831617584901026" border="0" /></a>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 <a href="http://www.blogger.com/%5Bhttp://www.tnr.com/article/politics/92884/supreme-court-obama-debt-ceiling?utm_source=The+New+Republic&utm_campaign=8e779f9a83-TNR_Daily_072911&utm_medium=email">points out today</a> in <span style="font-style: italic;">The New Republic Daily</span>, 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.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-19131082914349483902011-07-26T13:14:00.003-04:002011-07-26T13:17:55.515-04:00"Watching the Cars Crash": the Constitution's Place in this Summer's Debt Limit Discussions<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEirLrPRVo1kulp9QwE5CnOe4m-oTkPz555vfZDpwYWyMoQXvp5iO9VpOJDI0OwVn4zgvNh6ZYnVm3YiYjgq4DoVefM8iDAPeYGgaUEnitm9Zq8_Hb0iojXbGLsw5sSBGSg0qbx8wWgocp1o/s1600/President%252BObama%252BHouse%252BSpeaker%252BBoehner%252BMeet%252BuZ70ppVMjPcl.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 320px; height: 217px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEirLrPRVo1kulp9QwE5CnOe4m-oTkPz555vfZDpwYWyMoQXvp5iO9VpOJDI0OwVn4zgvNh6ZYnVm3YiYjgq4DoVefM8iDAPeYGgaUEnitm9Zq8_Hb0iojXbGLsw5sSBGSg0qbx8wWgocp1o/s320/President%252BObama%252BHouse%252BSpeaker%252BBoehner%252BMeet%252BuZ70ppVMjPcl.jpg" alt="" id="BLOGGER_PHOTO_ID_5633711309058811922" border="0" /></a>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."<br /><br />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.”<a name='more'></a> <br /><br />Why? Truth is, no one knows quite how to understand the fourth section of the Fourteenth Amendment since there is no doctrine to consult. The Court has not addressed the issue. "It's not clear, it's not been tested," said Jonathan Turley of George Washington University Law Center's Jonathan Turley to Keith Olbermann on Olbermann's Current TV program, "Countdown." "For a law professor who comes to watch the cars crash, it could be exciting. But I'm not too sure it's good for the country."<br /><br />That last argument – what is “good for the country” – would almost certainly be part of any federal court decision on this issue and it would likely look at it this way: no matter how the language reads and no matter how we understand it to be applied in this circumstance, the size, scope, and particulars of the national budget are without a doubt a “political question.” In other words, a decision best left to the branches elected by the people, not the judiciary.<br /><br />High school civics classes may leave us with the impression that the American system of government is split between three co-equal branches. But in fact, there is a priority to the two political branches – the executive and the Congress – which the Courts have traditionally respected as superior on many matters. Yes, constitutional doctrine does provide the judiciary with the power to overturn acts of Congress as inconsistent with the Constitution, but especially in areas, like the national budget, where the Constitution clearly establishes the responsibility for action with the political branches, the Courts, as the least democratic branch, are loath to intervene.<br /><br />There is even a hierarchy between the two political branches with Congress holding a slight edge. Consider the Court’s landmark 1952 decision in the Steel Seizure case, also known as <span style="font-style: italic;">Youngstown Sheet and Tube Company v. Sawyer</span>. The case, which involved President Harry Truman’s decision to take over the steel industry when it was in the midst of a labor dispute that threatened to stall production and create economic instability, ended with a stinging rebuke of the president and the establishment of a formula of sorts by which to judge the relative power positions held by these often competing branches of government. Justice Hugo Black wrote the Majority opinion, siding with the steel industry. But it was Justice Robert Jackson’s concurrence which carried forth as a guiding principle. Jackson said that there are three categories of Congressional-Executive disputes: those where the president is attempting to use power expressing or implicitly established by Congress; those where Congress has said nothing on the issue; and those where Congress has been clearly in opposition to the president. These, he said, should be seen in descending order of legitimacy. In other words, the president needs Congress’s assent or, barring that, silence to act within the scope of constitutional authority.<br /><br />This Congress – our Congress, that is – may not, as of today, have spoken on the issue of raising the debt ceiling, but it has been anything but silent, suggesting, in Justice Jackson’s formula, that not only is the debt ceiling a “political issue,” but the president does not have the authority here to act alone. For an executive of the world's most powerful nation, that can be bitter medicine. Back in 1952, when the Court told Harry Truman to relinquish his hold over the steel industry, the combative president was stunned. Later that afternoon, Justice Hugo Black invited him over to his home for a drink. “Hugo,” the president reportedly said to his host, “I don’t much care for your law, by golly this bourbon is good.”<br /><br />TBNational Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-38643480221648149282011-07-23T07:30:00.000-04:002011-07-23T07:30:02.146-04:00Out of the 77,000 National Rifle Association (NRA) certified firearms trainers only 1,700 are women...<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgpEJE_TZByqOWAq_adanyzvLXrJNr0lGGe71FPqGM5JBuevXwPBFyhmItG81TCEvKCtow_IJr0CJlgbZGeCEu-nB4fNIUvv9CBlyCnwQPttBQbPn04ZD9PPYxLmND6R03c2_AJYNIoSO_j/s1600/a_7889b.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 130px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgpEJE_TZByqOWAq_adanyzvLXrJNr0lGGe71FPqGM5JBuevXwPBFyhmItG81TCEvKCtow_IJr0CJlgbZGeCEu-nB4fNIUvv9CBlyCnwQPttBQbPn04ZD9PPYxLmND6R03c2_AJYNIoSO_j/s200/a_7889b.jpg" alt="" id="BLOGGER_PHOTO_ID_5632257361676842690" border="0" /></a>2011 PJP Fellow Angela McKenzie found one proud Second Amendment advocate in Poughkeepsie, N.Y.'s JACKIE EMSLIE.<br /><br />You can hear her profile of Emslie <a href="http://www.archive.org/details/Ir-10-482ndAmendmentFirearmsExpertJackieEmslie">here</a>.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-88381798866423979472011-07-22T15:01:00.002-04:002011-07-22T15:11:21.709-04:002011 PJP Fellow Andrew Hedlund asks: Does the mere imposition of a debt ceiling violate the 14th Amendment?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiV8upZt2x7SZGoNKIIKhY2O4Ai2NCKW5f8UXaajqsiuHXosxRdz7tUhhX2V364KjZPd4z45Kp-qVpOKBmtbZoiATNPayFXZaeO97yhLMP93dtiVTpEsd6LMSl_CNw3IOfdJs1CF8ISLsAw/s1600/DSC00283.JPG"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 150px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiV8upZt2x7SZGoNKIIKhY2O4Ai2NCKW5f8UXaajqsiuHXosxRdz7tUhhX2V364KjZPd4z45Kp-qVpOKBmtbZoiATNPayFXZaeO97yhLMP93dtiVTpEsd6LMSl_CNw3IOfdJs1CF8ISLsAw/s200/DSC00283.JPG" alt="" id="BLOGGER_PHOTO_ID_5632256357392983650" border="0" /></a>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 <a href="http://www.eastvalleytribune.com/money/article_a0453642-b258-11e0-889b-001cc4c002e0.html">discussion</a> on the issue in the Tempe, Arizona East Valley Tribune.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-41863088166613903642011-07-14T09:05:00.002-04:002011-07-14T09:08:12.051-04:00<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRoZuQ1ODEi6aACgjMH7HfU3ii69oUfEJKiK94sfvjl04iv8bhpLHS9U4MMciCeSq6QejT2hEwQnxc6waaM3j5jHOYsq1eoAc2dxRwxwF_tclKI0Tu-CT6qe9A6sdIW1vfuRWpMQ-XOnVH/s1600/PJP-Blog-Quotes-banner.jpg"><img id="BLOGGER_PHOTO_ID_5405523841427073410" style="float: left; margin: 0px 10px 10px 0px; width: 400px; height: 53px;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRoZuQ1ODEi6aACgjMH7HfU3ii69oUfEJKiK94sfvjl04iv8bhpLHS9U4MMciCeSq6QejT2hEwQnxc6waaM3j5jHOYsq1eoAc2dxRwxwF_tclKI0Tu-CT6qe9A6sdIW1vfuRWpMQ-XOnVH/s400/PJP-Blog-Quotes-banner.jpg" border="0" /></a><br /><br /><div><br /><br /><br /></div><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj27L4vgc2jzA6P_iSmCZXQyJsFe-pt-hevd2YmWS-S1lmbkBxyE75BWrPHC2Z4kNOsOW5Vq-0lv1ksRvGQkLDBy_c-8CIzu0X25XYNXDJOgvC2DFlFcquBNdC61QzHPLvNbF9cMBeWTobz/s1600/Coburn.jpg"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 150px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj27L4vgc2jzA6P_iSmCZXQyJsFe-pt-hevd2YmWS-S1lmbkBxyE75BWrPHC2Z4kNOsOW5Vq-0lv1ksRvGQkLDBy_c-8CIzu0X25XYNXDJOgvC2DFlFcquBNdC61QzHPLvNbF9cMBeWTobz/s200/Coburn.jpg" alt="" id="BLOGGER_PHOTO_ID_5629194082919494658" border="0" /></a>"Which pledge is most important... the pledge to uphold your oath to the <span style="font-weight: bold;">Constitution</span> 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?"<br /><br /><br /><span style="font-size:85%;"><span style="font-weight: bold;">Senator Tom Coburn</span>, 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).</span>National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0tag:blogger.com,1999:blog-7632799866038369455.post-12160589857205076502011-07-13T15:28:00.005-04:002011-07-13T15:33:49.558-04:00Did the Court's 2003 Ruling in Lawrence v. Texas inevitably lead to this?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjF0e6HqDUMfDk_HrnMOMzASMM9PPPxEDqLNG-Ao0heq763A7aEWPxiYrj-afndKOr_JN5UYexzx2nDtqjK_6dE_Y7Vffllz7pt5tg3lAdWBEwpHoNwHxcis4k7WgsvizgmEabtecbHq-EZ/s1600/Polygamy.gif"><img style="float: left; margin: 0pt 10px 10px 0pt; cursor: pointer; width: 200px; height: 174px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjF0e6HqDUMfDk_HrnMOMzASMM9PPPxEDqLNG-Ao0heq763A7aEWPxiYrj-afndKOr_JN5UYexzx2nDtqjK_6dE_Y7Vffllz7pt5tg3lAdWBEwpHoNwHxcis4k7WgsvizgmEabtecbHq-EZ/s200/Polygamy.gif" alt="" id="BLOGGER_PHOTO_ID_5628922291852740866" border="0" /></a><span style="font-weight: bold;font-size:130%;" >Of Reality Shows, Polygamy, Sodomy and the Constitution</span><br /><br />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?<br /><br />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.<br /><br />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 <a href="http://www.blogger.com/www.jonathanturley.org">Turley's blog</a> and search through <a href="http://jonathanturley.org/?s=Lawrence+v.+Texas">dozens of posts</a> on other laws he argues should be invalidated by the Court's ruling in <span style="font-style: italic;">Lawrence</span>.National Constitution Centerhttp://www.blogger.com/profile/15811271345613488822noreply@blogger.com0