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

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

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

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

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

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

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

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

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

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

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

FINALLY, REASON PREVAILS: MY STATE REJECTS FIVE IMMIGRATION BILLS THAT WOULD HAVE BEEN RULED UNCONSTITUTIONAL ANYWAY

By Andrew Hedlund, 2011 Collegiate Fellow

Thankfully, the Arizona state Senate rejected five major immigration bills this week. This was a victory for Constitution-lovers everywhere because several provisions of these bills stood in direct conflict with the 14th Amendment to the federal constitution and with precedent-setting Supreme Court decisions.

Senate Bills 1308 and 1309 would have re-interpreted the birthright citizenship guarantee of the 14th amendment. The amendment declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." It is the phrase “subject to the jurisdiction thereof” in the 14th Amendment that is claimed to be open to interpretation. Those who maintain that the amendment is being read too broadly believe that it should not apply to the children of those who are here illegally because they are not “subject to the jurisdiction” of the United States. But I go with those who argue that the reason this wording was included in the amendment was simply to exclude the children of diplomats and ambassadors.

RELIGIOUS FREE EXPRESSION VERSUS NON-DISCRIMINATION: MY FIRST-HAND EXPERIENCE WITH A SUBJECT THAT LANDED IN THE HIGH COURT

by Erin Moriarty, 2010 Jennings Fellow

By the time that a case arrives for oral argument before the United States Supreme Court the passions that propelled the case to the High Court in the first place can feel remote, or even forgotten. I was reminded of that as I listened to some of this year’s Peter Jennings Project Fellows dispassionately dissect and analyze the decision in Christian Legal Society v. Martinez. I know firsthand how divisive the underlying issues were in this case and the damage caused to several public university law schools. One of those schools was the one I attended. It was no surprise to me when the Justices agreed to hear the case in 2009. This is a difficult issue.

What the Constitution Really Has to Say About the Ground Zero Mosque

As I listen to the debate on the Ground Zero mosque, engage friends and neighbors on the subject, and read editorials in what I hoped would be a more enlightened press, it is disturbing to see so much ignorance of, or indifference to, the Constitution and constitutional values.

Let's begin with the argument that the mosque must be allowed to be built because the First Amendment protects religious freedom. Yes, there is no doubt that the First Amendment protects the free exercise of religion – all religion -- and there should be no debate on whether the leaders of the mosque have the right to build it. They do. But so many, including Mayor Bloomberg of New York, think that the argument should end there. They see those who object to the mosque as hostile to the great American tradition of religious tolerance; indeed, I watched the Mayor on the Jon Stewart show a couple of weeks ago pompously pronouncing this fact to a rewarding round of applause. To which I can only react by asking, “just how much of the First Amendment, Mr. Mayor, have you read?”