Of Prisons and Safety, Courts and Legislatures, and the Meaning of “Cruel and Inhuman”

This Tuesday, the Supreme Court will hold a hearing on a case that will be watched closely by state legislatures and prison officials across the country. It involves a decision by a three-judge federal panel in California to force that state to release thousands of inmates in state prisons in an effort to relieve overcrowding (they are now operating at twice the facilities’ design capabilities) as well as the prisons’ inability to address health issues in a timely and humane manner. In issuing its ruling, the three-judge panel, unusual in that it included two district court judges and a circuit court judge, declared that “a significant number of inmates have died as a result of the state's failure to provide constitutionally adequate medical care. As of mid-2005, a California inmate was dying needlessly every six or seven days.”

Featured Guest Blogger Witold J. Walczak

Two Cases Before the Third Circuit Raise the Question: Just How Far Can Public Schools go in Policing “off-campus” Speech?

As we react to the (merciful) end to one of the nastiest campaign seasons in memory, no one is suggesting that we should resort to censorship of political candidates. People are rightfully debating whether allowing corporate money is a good thing – a door opened by the Supreme Court in the Citizens United v. F.C.C. case last year – and whether disclosure requirements for donors should be imposed as a check on undue influence, but no one is suggesting that the government pass laws to limit candidates’ speech in order to promote civility and truthfulness, both of which seem in short supply.

Featured Guest Blogger Sarah Hinchliff Pearson

When Speech Can Get You in Trouble, Despite the First Amendment: The Shirvell Case

When an employer restricts an employee’s right to speak, by banning employee blogs or limiting what employees can say on social media sites, it is common for people to say it is a violation of the First Amendment right to free speech. This is not true. The First Amendment only protects people from government restrictions on speech. Private employers have no First Amendment limitations. They can fire employees for their speech without any constitutional consequences. (Employees are protected from being fired for some speech – like whistleblowing or union involvement – but these are statutory and unrelated to the First Amendment.)

The Constitution in "Quotes"

"I wish I didn't get nervous seeing black men behind me on the street. I wish there was no correlation between race and crime. I wish 100 percent of the terrorists who attacked us on 9/11 had not been members of one religion. I wish we didn't hear diatribes on a daily basis threatening our children and us in the name of Allah. I wish I didn't get nervous seeing Muslims on a plane. But firing Juan Williams won't make it so"

Former PJP Faculty Member Susan Estrich opining the firing of NPR commentator Juan Williams for comments he made on Fox News. Williams was canned for saying that he gets nervous when he gets on a plane and "sees people in Muslim garb." Estrich's entire piece can be read here.

Can the use of the word "boy" by a white supervisor addressing a black employee in a work situation be deemed an act of discrimination?

The 11th circuit says no.

2006 PJP Fellow Bill Rankin, writing in the Atlanta Journal-Constitution examines an interesting case that was recently heard by the 11th Circuit Court of Appeals in Atlanta. The suit was brought by John Hithon, a worker at the Tyson's chicken processing plant in Gadsden, Alabama, who claimed that his supervisor had addressed him as "boy," a term with historical racial overtones recalling the relationship between master and slave. Indeed, the trial court twice awarded Hithon damages on his claim that such slurs represented the racism that led to his being passed over for promotion. But in both cases, the circuit court overturned the decision, most recently when a three judge panel heard the case and dismissed it in Tyson's favor. As Rankin reports, now a distinguished group of civil rights pioneers -- including former Atlanta mayor Andrew Young, Rev. Fred Shuttlesworth (co-founder of the Southern Christian leadership Council) and former SCLC president Rev, Joseph Lowery -- is asking the 11th Circuit to reconsider the case en banc; that is, as a twelve-judge panel including all of the judges of the 11th circuit.

2010 PJP Fellow Lion Calandra Asks: "Why do Americans get the Constitution so wrong?"

"Recently, I was standing in line at a movie house behind a woman who objected to the theater’s policy of searching purses and backpacks. She indignantly told a theater employee that her purse could not be inspected, citing the Fourth Amendment’s protection against illegal searches. She did not know that, in general, the Fourth Amendment does not apply to private businesses – only to governments. The movie theater has a right to require a bag search; she has the right to take her business elsewhere."

So writes 2010 PJP Fellow Lion Calandra in a piece published in the Christian Science Monitor. But Calandra's fellow moviegoer pales in her constitutional ignorance when compared to many government servants. Calandra cites Sen. Roland Burris "quoting" the Constitution's as providing "for the health, welfare, and defense of the country." No such words appear in the document. She cites Sen. John Conyers of Michigan referencing the "good and welfare clause" of the U.S. Constitution. There is no such clause. Even President Barack Obama has tripped up, referencing, in his first State of the Union speech, "the promise enshrined in our Constitution: the notion that we’re all created equal." The "all men are created equal" line is actually from the Declaration of Independence.

The Constitution in "Quotes"

“Nothing in the Constitution or any other law requires the U.S. government to defend a law in court or to appeal an adverse ruling. Executive officials at all levels of government have discretion as to how, if at all, to proceed in court. All government officials take an oath to uphold the Constitution, and it would be inconsistent with that oath to require them to defend a law that they believe is unconstitutional..."

Former PJP Faculty Member Erwin Chemerinsky, dean of the University of California Irvine School of Law, in a piece in The Los Angeles Times,in which he asks why the Obama administration feels it necessary to defend “Don’t Ask, Don’t Tell,” the Pentagon’s policy on gays in the military, after a federal judge ruled it an unconstitutional restriction on freedom of speech. To read Dean Chemerinsky’s entire piece, follow this link.

The Constitution in "Quotes"

“The Tea Partiers would be well advised to devote their efforts to achieving significant limits on the federal government — such as limiting federal spending, cutting taxes, and reversing Obamacare — that don’t demand an amendment to the Constitution. They will have a limited political window to apply their political capital; constitutional amendments will only waste it..."

Former PJP faculty member John Yoo, writing in the National Review Online, on a movement among Tea Party members to repeal the 17th amendment to the Constitution, which required popular election of US senators. Prior to the 17th amendment, senators were elected by state legislatures. Many Tea Partiers believe that popular election undermines federalism, since the people are more likely to encourage federal involvement in state business than state legislatures would.To read the entire piece, follow this link.

The Constitution in "Quotes"

“The issue is not one of Thomas's First Amendment rights. She has them just like every other American. The question is one of civility and respect for the very powerful office her husband holds..."

From PJP Board member Sherrilyn Ifill's piece in ARENA, reacting to the news that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, had left a telephone message on Anita Hill's answering machine, looking to send "an olive branch" to her husband's accuser. Hill's accusations of sexual harassment dominated Thomas's 1991 senate confirmation hearings. To read the entire piece by Ifill, follow this link.

2010 Jennings Fellow Accepts Fulbright to Teach in Kenya

Anna Clark, a 2010 Fellow of the Peter Jennings Project, is about to go to Kenya on a Fulbright grant where she will teach creative writing to Kenyans and report regularly for the Detroit News. An article in the local Michigan Herald-Palladium detailed her achievement. PJP has asked Anna to post reflections on constitutional issues during her visit.