Showing papers in "William and Mary Bill of Rights Journal in 2005"

"The Loss in My Bones": Protecting African American Heirs' Property with the Public Use Doctrine

Abstract: INTRODUCTION The Spanish moss swayed gently in the ancient live oaks, and the pungent smell ofthe salt marsh rolled in with the tide as Johnny Rivers sat on the steps of his home, reminiscing '"Never wanted to be anywhere else ___ I thought I would die here,'"1 he says of the land he lived on for sixty-nine years Patriarch of a family of twentyseven children, grandchildren, and great-grandchildren, Johnny Rivers was born on this seventeen acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina2 His father, Hector Rivers, son of a former slave, acquired the land in 1888, and Rivers family members have been born, reared, and buried on it ever since3 Unfortunately, despite never having missed a tax payment, on September 27, 2001, twenty-five members ofthe Rivers family were evicted in the largest eviction carried out by the Berkeley County Sheriffs Department in at least the last nine years4 The court ordered the Rivers family to accept an offer of $910,000 from an investor who then put the land back on the market eight months later for three million dollars5 Had the judge permitted the Rivers family to sell on the open market rather than convey their land to the only buyer who ever had the opportunity to make an offer, perhaps Hector Rivers' s heirs could have reaped the full value of their land6 Johnny Rivers, who shared title to the land with more than thirty family members scattered as far as New York, Florida, and Georgia,7 could officially claim only 3515 percent of the proceeds after attorneys' fees8 "? feel the loss in my bones,'"9 he said "? feel like part of my body is gone, but Tm stiU living"'10 Today, that seventeen acre tract has been subdivided into "Pinefield Plantation"11 A recent search of properties for sale in the new subdivision turned up a five thousand square foot mansion on a 3 acre lot with a deep water dock selling for 25 million dollars12 A second property included a 29 acre tract, a 4,900 square foot house, and a deep water dock available for just over two milUon dollars13 Johnny Rivers' s story is being repeated all over the South14 "In Berkeley County!, South Carolina,] alone, more than 1,300 properties involving more than 17,000 acres are listed on tax rolls as belonging to the 'heirs of '"15 Because he shared title to the land with family members scattered across the country, many of whom had never even seen the land, Johnny Rivers had no legal recourse when some of those famuy members decided to sell the property Under the current property law system, families who have lived on the same land for generations have little protection when developers wish to take advantage of their fractured, problematic titles by purchasing an interest in the land at below market value16 In order to ensure that these famiHes receive a fair price for their land if they are forced to sell, the statutory system should be revised James Madison stated: "Government is instituted to protect property of every sort This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own"11 Thousands of African American farmers in the Southeast lack record title to their land and are unable to enjoy fully the benefits of land ownership18 Although the families have lived on the land for generations and pay the property taxes, they risk losing their property to developers who can afford to buy them out at court-ordered auctions As the price of desirable coastal property has skyrocketed over the last decade, developers have become adept at finding fractured titles, purchasing a family member's interest in the land for a small price, and going into court to force division of the land19 Because it is impracticable to divide the land physically among the many title holders, courts most often order a partition sale - usually an auction - and the land is sold to the highest bidder, generally at below-market value …

A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy

Abstract: INTRODUCTION The Double Jeopardy Clause of the Fifth Amendment provides: "[N] or shall any person be subject for the same offence to be twice put in jeopardy of life or Hmb."1 This constitutional guarantee encompasses several related protections. First, it bars the government2 from prosecuting a person a second time for the same offense after he has already been tried and acquitted.3 Second, it prohibits the government from prosecuting a person a second time for the same offense after he has already been convicted.4 Third, it forbids the government from imposing multiple punishments upon a person for the same offense in successive proceedings.5 Finally, in some circumstances, it bars the government from prosecuting a person a second time for the same offense after a judge prematurely terminated his first trial, either by declaring a mistrial6 or by dismissing the charge against him before the fact-finder reached a verdict in the case.7 The overall design of the Double Jeopardy Clause was perhaps best expressed by the Supreme Court in Green v. United States* Writing for the majority, Justice Hugo L. Black stated: The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.9 In recent years, courts and jurists have considered the protection against being placed in jeopardy twice for the same offense to be a fundamental right.10 The Supreme Court of the United States in Benton v. Maryland11 stated that "[t]he fundamental nature of the guarantee against double jeopardy can hardly be doubted."12 A dozen years earlier, Justice Felix Frankfurter called the protection "an indispensable requirement of a civilized criminal procedure."13 Justice Ivan Rand of the Supreme Court of Canada made a similar claim, maintaining that this "cardinal principle" lies "[a]t the foundation of criminal law."14 One prominent scholar believes that "[n]o other procedural doctrine is more fundamental or all-pervasive."15 This article will explore the sources of the Fifth Amendment guarantee against double jeopardy and trace its history through its incorporation into the Due Process Clause of the Fourteenth Amendment. I. ORIGINS OF THE GUARANTEE The precise origins of the guarantee against double jeopardy are unclear. Early in the twentieth century, one American court declared that the doctrine "seems to have been always embedded in the common law of England, as well as in the Roman law, and doubtless in every other system of jurisprudence, and, instead of having a specific origin, it simply always existed."16 This claim certainly is overstated. The Code of Hammurabi,17 for example, makes no reference to double jeopardy.18 This, in part, led one scholar to conclude that "[t]he alleged universality of the double jeopardy principle is not apparent from a study of early law."19 Indeed, the United States Supreme Court itself recognized in Palko v. Connecticut20 that "[d]ouble jeopardy ... is not everywhere forbidden."21 Nevertheless, there can be no doubt that the protection against double jeopardy possesses a long history. Ancient Jewish law contains several references to principles encompassed by double jeopardy law.22 The Talmud, a compilation of the teachings of the rabbinic sages, proclaims that in capital cases, an acquittal may not be reversed.23 In the Old Testament, Deuteronomy 25:2 states that when a dispute between men is brought before a court, a guilty man who deserves to be beaten shall be flogged in the presence of the judge according to the measure of his misdeeds. …

"Religion-Neutral" Jurisprudence: An Examination of Its Meaning and End

Abstract: INTRODUCTION The United States Supreme Court has in recent years, more than ever before, rested its jurisprudence of religion largely upon the notion of neutrality. The free exercise of religion, the Court has asserted, does not guarantee a person the right, based upon religious observance, to violate a law that is religiously neutral and of general applicability.! The nonestablishment norm of the Constitution is accordingly not violated so long as state aid to an instrumentality of religion is allocated on the basis of neutral criteria, neither favoring nor disfavoring religion, and is available to both religious and secular beneficiaries on a nondiscriminatory basis.2 Furthermore, when a neutral government program provides aid directly to a broad class of individuals who subsequently direct the aid to religious institutions, there is no violation of the Establishment Clause.3 In addition to these recent pronouncements, the Court has reaffirmed the rather long-standing principle that government policies neutral toward religion, although incidentally benefitting it, are permissible under the Establishment Clause.4 The most compelling question arising from such judicial positions is whether the concept of neutrality is essential, even helpful, to formulating a jurisprudence of religion. My answer to this question is in the negative. I am inclined to reinforce Rawls' s assessment, "that the term neutrality is unfortunate[, because] some of its connotations are highly misleading, [while] others suggest altogether impracticable principles,"5 by maintaining that the meanings of the term considered in this Article are, one and all, both misleading and impracticable. Neutrality is an instrumental, or second-order, value.6 When considering its meaning in any particular context, one must invariably ask: "Neutral how and as to what?" This question suggests that, in a political context, the content of the term depends upon the theory of state responsibility one espouses. One may clarify this principle by turning to business. If an individual adopts a laissez-faire approach to commercial activity, neutrality will stand for little or no state intervention. If yet another individual accepts a socialist theory of economics, neutrality will include a vast amount of state involvement in the means of production and in issues of distributive justice. Political theory is, in other words, intricately bound up with the particular meaning assigned to the term "neutrality." Elsewhere I have advanced a jurisprudence of religion typology,7 in which a political theory corresponds to a particular type of jurisprudential position. I propose in the present Article to elucidate the constitutional meanings of neutrality by utilizing the same typology. A caveat is in order. The typology is intended only as a vehicle by which to explore the various political meanings of neutrality in the jurisprudence of religion and should be judged in this instance solely upon the basis of whether it succeeds in accomplishing that goal. A typology is nothing more than a way to understand what is. The central concern of this Article is the illumination of the United States Supreme Court's jurisprudence of religion rather than an attempt, which would certainly be granthose and misguided, to demonstrate that the history of Supreme Court jurisprudence must always imitate some theory of understanding it. The fact is that the judicial opinions of a single Justice can be, and often are, impossible to reconcile on philosophical grounds. A typology, even if it does nothing else, can bring this stubborn fact into clear focus. The typology may be set forth as follows: The correlation of jurisprudential positions with political theories is as follows: (1) separationism and narrow free exercise, corresponding to the theory of classical liberalism; (2) separationism and expansive free exercise, exemplifying the theory of communitarianism; (3) accommodationism and expansive free exercise, characterizing the theory of revised liberalism; and (4) accommodationism and narrow free exercise, denoting the theory of de facto establishmentarianism. …

The Role of Article III Courts in the War on Terrorism

Abstract: INTRODUCTION After determining that the terrorist group Al Qaeda was behind the devastating attacks in New York and Washington, D.C, on September 11, 2001, the United States launched a counterattack against Al Qaeda bases located within Afghanistan, as well as that country's Taliban rulers who had sheltered the terrorists. Within weeks, the United States had ousted the Taliban from power and routed out Al Qaeda, though notably, many of Al Qaeda' s top leaders remained on the loose. Nevertheless, the United States and its Afghan ally, the Northern Alliance, captured a number of suspected Al Qaeda and Taliban fighters. The United States released many of these prisoners after the end of the direct fighting, but it also transported hundreds of others halfway across the world to the U.S. military base located at Guantanamo Bay, Cuba. Since 1903, pursuant to an agreement following the end of the Spanish- American War of 1898, the United States has leased Guantanamo Bay from Cuba.1 The lease is peculiar in that it continues unless both parties agree to terminate it.2 Thus, the United States has maintained the base throughout Fidel Castro's reign over Cuba, despite Castro's avowed opposition.3 Initially, the United States kept the suspected Al Qaeda and Taliban fighters at a facility dubbed "Camp X-Ray." This facility resembled a dog pound more than a prison, as it was little more than wire cages placed together underneath the blazing Cuban sun.4 Four months later, the detainees were transferred to "Camp Delta." Apparently modeled after the so-called "SuperMax" maximum security penitentiaries in the United States, Camp Delta consists of detention cells that measure six feet, eight inches by eight feet.5 Since then, over one hundred of the detainees have been released or repatriated to their home countries to be detained there.6 However, as of mid-2004, approximately six hundred individuals remained detained at Camp Delta.7 Criticism of the United States' continued detention of the suspected Al Qaeda and Taliban fighters has been intense, to say the least. Camp Delta has been described as a "legal black hole," "legal limbo," and even "gulag."8 British House of Lords member Johan Steyn summed up the nature of the criticism by calling the conditions at Camp Delta "utter lawlessness."9 Lead counsel in one litigated case involving Camp Delta referred to Guantanamo Bay as a "law-free zone" where the United States has "dispens[ed] with the Geneva Conventions as a mere legalism and turn[ed] its back on our own military regulations . . . creating] a culture of disrespect for the law."10 Litigation challenging the Bush administration's actions ensued despite the fact that none of the Guantanamo detainees had access to lawyers. Friends or relatives of a number of detainees filed petitions for writs of habeas corpus, challenging their detention with district courts in the District of Columbia and the Central District of California." During this same time, the administration was also detaining two American citizens, Jose Padilla and Yaser Esam Hamdi, at navy brigs in the United States; they too filed habeas petitions.12 Padilla had been arrested as a material witness on May 8, 2002 at O'Hare International Airport in Chicago, just as he deplaned a flight from Pakistan. A month later, while a motion to vacate the material witness warrant was pending before a district court, President Bush designated Padilla an "enemy combatant" and ordered him detained by the military.13 Hamdi was captured in Afghanistan in late 2001 by the Northern Alliance, which turned him over to the United States; he was sent to detention at Guantanamo Bay in January 2002, but when the military learned that he was a U.S. citizen, he was transferred to a navy brig in April 2002. 14 Like Padilla, he was detained in military custody as an "enemy combatant." Issuing decisions in all three cases on June 28, 2004, the Supreme Court asserted a role for itself in the war on terror. …

The Three R's: Reading, 'Riting, and Rewarding Illegal Immigrants: How Higher Education Has Acquiesced in the Illegal Presence of Undocumented Aliens in the United States

Abstract: Introduction Illegal immigration into the United States from neighboring countries, mainly Mexico, has caused public universities and colleges to decide whether students illegally residing within their state borders should be treated as in-state residents for tuition purposes. Currently, undocumented aliens cannot be abridged of their right to attend primary and secondary schools.1 However, after completing their education at these levels, federal policies limit their right to financial assistance and their right to qualify for state college and university benefits.2 In response to early increases in immigration, federal laws have established guidelines for admitting foreigners into the United States for business, social, and educational purposes.3 Several immigration statutes outline the entrance requirements for nonimmigrant workers and students.4 To regulate foreigners choosing to enter the United States through non-designated immigration channels,5 Congress enacted two federal mandates: the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)6 and the Illegal Immigrant Reform and Immigration Responsibility Act (IIRIRA).7 This legislation limits the public benefits that may be afforded to illegal aliens. The Supreme Court has already addressed the constitutionality of state policies affecting illegal aliens and education, striking down policies stripping illegal aliens of basic protections and needs.8 While present in the United States, illegal aliens receive protection of their fundamental rights, regardless of their legal status.9 The Supreme Court, however, has declined to classify education as a fundamental right10 or to label undocumented alien adults in the United States with a suspect classification.11 Therefore, a person who chooses to enter this country illegally will only receive protection for their basic needs that are necessary to take part in our society.12 Because there is no explicit answer as to whether illegal alien adults are entitled to higher education, courts rely on current federal mandates and Supreme Court precedent to decipher the relationship between U. S . immigration policies and undocumented aliens' rights. The precedent clearly distinguishes between U.S. citizens, nonimmigrants, legal immigrants, and undocumented aliens in affording benefits and rights.13 Political pressure is mounting to change the process for illegal aliens attempting to receive financial assistance for higher education institutions.14 These political forces are attempting to coerce Congress and the Court to disregard sound public policy initiatives and laws requiring the use of proper immigration channels.15 Some proposed initiatives have even suggested removing the federal government from determining the immigration status of aliens by awarding conditional residency to illegal aliens who are admitted to a public university.16 Several states differentiate between in-state and out-of-state residents for tuition purposes.17 In the current higher education system, the obstacles faced by undocumented aliens who have graduated from high school should be no different than those faced by legal residents who want to attend a college outside of the state where they have their residential status. In addition, foreign students who have legally obtained a visa generally pay a higher rate of tuition to attend a public college or university.18 This discrepancy gives illegal aliens an advantage over nonimmigrants who follow the legally prescribed guidelines to enter the United States.19 Many critics argue that tuition restrictions make it virtually impossible for undocumented aliens to attend higher education institutions,20 but this is simply not the case.21 Most public state universities admit undocumented alien students, but some refrain from providing in-state tuition rates for these individuals based on their understanding of IIRIRA.22 These students are not barred from attending a higher education institution; however, they must pay the same out-of-state tuition rate that nonresident students pay to attend these institutions. …

Cleaning Up the Eighth Amendment Mess

Abstract: This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's text, the Court's own role, and a constitutional requirement of proportionate punishment. In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations of the Clause: (1) a textualist approach; (2) Justice Scalia's understanding that the Clause forbids only punishments unacceptable for all offenses; and (3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the state constitutions they wrote, the Founders used the phrases "cruel and unusual," "cruel or unusual," and "cruel" interchangeably as referring to a unitary concept. An inflexible textual requirement that an unconstitutional punishment be both cruel and unusual would make little sense as a matter of either interpretation or principle. Contrary to Justice Scalia's view, historical evidence ranging from the English Bill of Rights to the first federal criminal code reveals that the Framers endorsed proportionality on both subconstitutional and constitutional levels. A majoritarian approach does little to cabin judicial subjectivity relative to alternatives. While overlooking the potential deficiencies of political processes, it gives their results the force of constitutional law. Such processes can result in problems of undue generality, excessive pursuit of deterrence and incapacitation, inadequate funding, and desuetude. The gratuitously harsh punishments they sometimes produce merit judicial attention. This article proposes a theory of the Eighth Amendment organized around the notion of cruelty. Contrary to the Court's view, which holds that punishment may be supported solely by the utilitarian objectives of deterrence and incapacitation, the article maintains that punishment must be reasonably believed to be consistent with giving the offender her just deserts. It proposes that the term "unusual" play an evidentiary rather than a definitional role and argues for a more nuanced assessment of legislative judgments and majoritarian practice. The article explores how this theory would apply to several issues, including the abolition of the insanity defense, the use of strict liability, and Roper v. Simmons's ban against the execution of juveniles younger than eighteen. TABLE OF CONTENTS INTRODUCTION 476 I. THE EIGHTH AMENDMENT MESS 480 A. The Text 480 B. The Court's Role 491 C. Proportionality 496 D. Summary 502 II. ALTERNATIVES 502 A. Textualism 502 B. Justice Scalia's Originalism 507 C. Majoritarianism 520 D. Summary 531 III. A PROPOSED UNDERSTANDING 531 A. General Characteristics 531 B. Particular Applications 540 CONCLUSION 552 INTRODUCTION The Court's jurisprudence under the Eighth Amendment's Cruel and Unusual Punishment Clause stands in disarray.1 Public attention has focused on the Justices' debates over whether a societal consensus against certain applications of the death penalty may be inferred from international authority or from the States that prohibit the death penalty altogether. …

Comparative and Noncomparative Justice: Some Guidelines for Constitutional Adjudication

Abstract: TABLE OF CONTENTS INTRODUCTION 142 I. PRINCIPLES OF COMPARATIVE AND NONCOMPARATIVE JUSTICE ........ 146 A. The Basic Distinction Between Comparative and Noncomparative Justice Arguments 146 B. The Principle of Comparative Justice and Its Normative Precepts . . . 147 C. The Principle of Noncomparative Justice and Its Normative Precept .150 D. Contexts in Which Both Comparative and Noncomparative Justice Arguments Are Appropriate 151 E. A Closer Look at the Distinction Between Comparative and Noncomparative Justice: Underinclusive and Overinclusive Burdens 153 F. Are Both Comparative and Noncomparative Principles of Justice and Their Corresponding Arguments Really Necessary? 159 II. GUIDELINES FOR ADJUDICATING COMPARATIVE AND NONCOMPARATIVE JUSTICE ARGUMENTS IN CONSTITUTIONAL CONTEXTS 163 A. Courts Should Not Make a Comparative Justice Argument While Characterizing It as a Noncomparative Justice Argument and Should Not Make a Noncomparative Justice Argument While Characterizing It as a Comparative Justice Argument 164 B. Courts Should Not Resolve Constitutional Issues With Comparative Justice Arguments When They Really Believe That the Heart of the Matter Is a Violation of Noncomparative Justice 168 C. Courts Should Not Respond to Claims That Governmental Action Is Noncomparati vely Unjust with Arguments That the Action Is Comparatively Just 171 D. Courts Should Not Construe Constitutional Norms as Giving Rise Only to Comparative Justice Claims When the Desired Outcome Could Be Achieved Using a Noncomparative Justice Analysis ..... 174 E. When Constitutional Norms Apparently Conflict, Courts Can Resolve the Conflict Without Construing Both as Giving Rise to Comparative Justice Claims Alone 179 F. Courts Should Not Make a Comparative Justice Argument in the Name of a Constitutional Norm Apparently Expressed in Noncomparative Justice Language, Or a Noncomparative Justice Argument in the Name of a Constitutional Norm Apparently Expressed in Comparative Justice Language, Without Articulating a Compelling Reason to Override the Semantic Boundaries of the Text's Language 185 G. If a Court Determines that Governmental Action Is Noncomparati vely Unjust, It Need Not Decide Whether the Action Is Comparatively Unjust, But if the Court Is Not Convinced, It Should Decide Whether the Action Is Comparatively Unjust 187 CONCLUSION 191 INTRODUCTION In this article, we propose to shed new light on the appropriate resolution of a wide variety of constitutional claims by examining and evaluating them using a framework built with the Principles of Comparative and Noncomparative Justice and their logical derivatives. The Principle of Comparative Justice mandates that relevantly-similar cases be treated similarly and that relevantly-dissimilar cases be treated differently; the Principle of Noncomparative Justice decrees that each person be treated precisely as she deserves or merits without regard to the way in which anyone else is treated.1 These principles are most familiar in the contexts of Equal Protection and Substantive Due Process claims, respectively.2 We think it illuminating, however, to examine other constitutional provisions to determine whether they, too, can be described as giving rise to comparative arguments (those that essentially claim that the treatment of one is unfair compared to the treatment of another) and/or noncomparative justice arguments (those that essentially claim that one has an intrinsic right to particular treatment, regardless of how others are treated). …

Terrorism and the New Criminal Process

Abstract: Can we afford the luxury of pretending that the threats today are simply law enforcement problems, . . . rather than threats of a fundamentally different nature, requiring fundamentally different approaches?1 The paradigm for combating terrorism now involves the application of all elements of our national power and influence. Not only do we employ military power, we use diplomatic, financial, intelligence, and law enforcement activities to protect the Homeland and extend our defenses, disrupt terrorist operations, and deprive our enemies of what they need to operate and survive. We have broken old orthodoxies that once confined our counterterrorism efforts primarily to the criminal justice domain.2 A war to create and maintain social order can have no end. It must involve the continuous, uninterrupted exercise of power and violence. In other words, one cannot win such a war, or, rather, it has to be won again every day. War has thus become virtually indistinguishable from police activity.3 INTRODUCTION 766 I. STRUCTURING A STATE OF EMERGENCY 770 A. The Executive Branch 770 B. Congress 778 C. The Supreme Court 782 1. Hamdi, Padilla, and Detained Citizens 783 2. Rasul and the Detention of Aliens 786 3. Hamdan and Military Commissions 788 II. CRIMINAL PROCESSES, OLD AND NEW 791 A. Comparing Traditional and New Criminal Processes 791 B. Choosing a Process 796 III. THE CONSTITUTION AND THE NEW CRIMINAL PROCESS 797 A. Rights in the Modern State 797 1. Discretionary Power 799 2. Discretionary Rights 800 3. Reasonable Rights-Bearers 805 4. Extraterritoriality 807 B. The Scope of Specific Criminal Procedure Rights 810 1. Search and Seizure 810 2. Interrogation 813 C. Rights, Remedies, and the New Criminal Process 818 D. The Scope of Executive and Legislative Authority to Shape the New Criminal Process 822 IV. THE NEW CRIMINAL PROCESS, EMERGENCY POWER, AND THE STATE OF EXCEPTION 829 CONCLUSION 834 INTRODUCTION This Article argues that the "war on terror" has accelerated the development of a new criminal process and that this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties - whether or not that conduct is considered "terrorism."4 1 also contend that this new process is largely consistent with constitutional norms that are changing under the same pressures that drive the development of the new criminal process. Those pressures, in turn, derive not just from specific events but also from the perception of emergency and rapid change that characterizes modern society and political life. In terms of definition, the new criminal process remains a moving target for at least three reasons: first, it is still a work in progress; second, it extends beyond the boundaries of what we normally think of as criminal process or the criminal justice system; and third - perhaps paradoxically - it overlaps so much with what we have already come to accept as normal or traditional criminal processes. …

"So Long as Our System Shall Exist": Myth, History, and the New Federalism

Abstract: This article provides the broad historical context necessary to understand contemporary developments in federalism doctrine. It shows that dual federalism has a long and varied history and that federalism is a content-neutral principle to which both sides in major political contests have appealed. It seeks to show that the predominant perspective on federalism today-that it is an inherently conservative principle-is the result of historical misperception. This article reinterprets the history of American federalism in light of recent historical scholarship concerning various periods: principally the country's founding; slavery, the Civil War, and Reconstruction; the late nineteenth-century social question; and the Progressive Era. INTRODUCTION Since 1976, and especially in the last few Supreme Court terms, legal scholars have detected a "new federalism." Several decisions suggest that Congress can no longer exercise virtually unlimited control over the nation' s socioeconomic life from its power to "regulate commerce among the States."1 These decisions point toward a revival of the constitutional principle of "dual federalism," in which both federal and state governments enjoy sovereign powers.2 From the ratification ofthe Constitution until the New Deal, a consensus held that the national government was one of limited, enumerated powers and that the states reserved the vast bulk of ordinary government functions. The Tenth Amendment stated this principle, that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."3 In the early years of the twentieth century, the "progressive era," this dual system began to erode as Congress began to exercise local or "police powers" - the general power to legislate on matters concerning the safety, health, welfare, and morals of the people.4 The Supreme Court and the American people were fundamentally ambivalent about this development, favoring greater national power but deeply divided about how far it should go.5 The economic crisis of the Great Depression and political realignment of the New Deal swept that ambivalence away.6 After 1937, the Supreme Court no longer struck down acts of Congress regulating economic activity as beyond the delegated powers of the Constitution.7 The Court and informed public opinion accepted all regulation as coming under Congress's power "to regulate commerce among the States." Suddenly, in 1976, the Court reopened the federal question. In National League of Cities v. Usery* it held that Congress could not impose the Fair Labor Standards Act on state employees.9 To do so limited an "attributeQ of sovereignty attaching to every state government."10 Ten years later, in Garcia v. San Antonio Metropolitan Transit Authority,11 the Court overturned National League of Cities and declared that it would no longer act as the umpire in settling federal-state boundary disputes, leaving such conflicts to the political branches.12 After another decade, the Court effectively overruled Garcia, striking down the Gun-Free School Zones Act.13 Congress could not claim that the criminalization of the possession of a firearm within one thousand feet of a school was a regulation of commerce among the states.14 Two years later, the Court held that Congress could not compel state officers to help enforce the Brady Handgun Violence Prevention Act.15 In 2000, the Court struck down the Violence Against Women Act on similar grounds.16 "Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims," the court declared.17 All of these decisions were 5-4, and nobody knows what they may amount to.18 It is far too early to predict the future or to sort out profitably the intricate legal distinctions of this tumultuous and closely divided set of cases. …

A Constitutional Defense of Legislative History

Abstract: INTRODUCTION Textualism preaches two unalterable truths regarding statutory interpretation. First, the judge's proper focus is the statute's text.1 Second, the judge shall not consult legislative history in interpreting that text.2 The textualist method largely rests upon these two pillars. This Article argues that textualists ignore an equally fundamental aspect of the interpretive enterprise: the inseparability of text and context. That is, a text's meaning becomes determinate only when paired with a specific context.3 For example, consider a sign that admonishes, "Keep off the grass."4 Hanging on the wall of a drug rehabilitation clinic, the sign implores abstention from drugs,5 but when planted in a well-manicured lawn, the sign enjoins passersby from stepping on the turf.6 Pairing the same text with different contexts changes the text's meaning. The text-context link is so fundamental that, even when words appear in isolation, we must hypothesize a context to make sense of those words. Consider a professor who receives an anonymous note that simply reads, "Drop dead."7 To fix meaning on these words, the professor must pair them with a hypothetical context.8 For example, perhaps a colleague with a sense of humor wrote the note after a fight-hearted disagreement.9 Or, perhaps the note is from a disgruntled former student who received a failing grade.10 Paired with the former context, the note is a joke; paired with the latter context, the note is more ominous. Selecting a hypothetical context selects meaning. Similarly, changing context can alter meaning just as radically as changing text, as every text-context pairing potentially has a different meaning. Yet, the constitutional argument for textualism drives a wedge between text and context. Consider the view of Supreme Court Justice Antonin Scalia, whose extensive judicial and other writings defend the practice.11 He argues from the Constitution's lawmaking process, noting that only a statute's text passes through the constitutionally-prescribed lawmaking steps of bicameralism (passage by both chambers of Congress) and presentment (delivery of the bill for the President's signature or veto).12 Conversely, legislative history materials, such as committee reports and floor debates, do not pass through bicameralism and presentment. Consequently, only the statute's text, and not its legislative history, is constitutionally enacted "law" entitled to interpretive weight. This bicameralism and presentment argument is both incoherent and incomplete. It is incoherent because statutory interpretation cannot proceed on text alone - text must be paired with a context. The argument is incomplete because it is silent on the proper context with which to pair statutory text. And this silence is ironic. While textualists like Justice Scalia invoke the Constitution to prohibit consideration of legislative history,13 faithful adherence to constitutional text and structure actually requires such consideration. This disconnect derives from textualism' s misdirected, laser-like focus on the result of the bicameralism and presentment process - statutory text - to the exclusion of the process itself. Yet, the Constitution's text and structure treat bicameralism and presentment as important for its process as well as its result. Thus, legislative deliberation, as reflected in legislative history, is not like so much chafe to be discarded after the final vote. This Article has two parts. Part I describes the textualist constitutional argument against legislative history in statutory interpretation, focusing on the judicial and other writings of Justice Scalia. Part ? then critiques the textualist constitutional argument and explains how constitutional text and structure actually require judges to consider legislative history when interpreting federal statutes. I. THE TEXTUALIST ARGUMENT AGAINST LEGISLATIVE HISTORY Justice Scalia' s rejection of legislative history and corresponding embrace of textualism is most extensively defended in his essay Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. …

The Original Meaning of the Establishment Clause

Abstract: "I appeal to the gentlemen who have heard the voice of their country. " James Madison, pleading for congressional adoption ofthe Bill of Rights1 INTRODUCTION 75 I. THE FOUNDERS' GENTLEMEN'S AGREEMENT: WHAT IT WAS AND WHAT IT DID 81 A. Formation of the Agreement During the Ratification Debates ....... 81 B. Execution of the Agreement in Congress 84 II. THE RELIGION TERMS IN THE GENTLEMEN' S AGREEMENT: FREE EXERCISE 88 A. Introduction 88 B. Reliance of the Policy Against Establishment on the Policy of Free Exercise 88 C. Why A Free Exercise Clause Was Deemed Necessary 90 D. What Did the Founding Generation Mean by "Free Exercise?" ..... 97 III. THE RELIGION TERMS IN THE GENTLEMEN'S AGREEMENT: THE CONSTITUTION'S OATHS AND THE BAN ON RELIGIOUS TESTS ......... 101 IV. THE RELIGION TERMS IN THE GENTLEMEN' S AGREEMENT: THE ESTABLISHMENT CLAUSE 112 A. Evidence that the Establishment Clause Protected Only Theists .... 113 1. Fostering religion 113 2. The Faith-Based Ideology of Disestablishment 119 3. An Objection, and A Response, on the Theistic Basis for the Establishment Clause 122 B. Evidence that the Establishment Clause Protected All Theists ..... 125 V. CONGRESSIONAL ADOPTION OF THE RELIGION CLAUSES 133 CONCLUSION2 136 INTRODUCTION On January 3, 2005, atheist Michael Newdow filed a complaint in the United States District Court for the Eastern District of California asking that the court enforce the Establishment Clause of the First Amendment3 by ordering Congress to remove the words "under God" from the Pledge of Allegiance.4 Various plaintiffs joined Newdow in an effort to cure standing problems that had induced the Supreme Court to deny his claim in an earlier action.5 The advance announcement of Newdow' s lawsuit was one more event in a contentious 2004-2005 holiday season marked by charges that secularists were trying to push Christmas out of public life and by countercharges that Christians were trying to push God down dissenters' throats.6 Within three months, the Supreme Court was hearing oral arguments over the question of whether copies of the Ten Commandments should be removed from state buildings in Kentucky7 and Texas,8 a point on which the Court's justices found themselves severely divided.9 Controversy can be stoked by the absence of clear rules,10 and one thing everyone agrees on is that much of the controversy over the Establishment Clause arises because the Supreme Court' s interpretation of the Clause has not been clear.11 Professor A.E. Dick Howard has called the Court's course of decision a "serpentine wall."12 There are, for example, at least three separate approaches to Establishment Clause adjudication in active use on the Court - "strict separation," "neutraUty," and "accommodation" - and any or all of these approaches can appear in the same case.13 Quite properly, those seeking the meaning of the Establishment Clause have looked to history for answers.14 Yet several have pronounced the historical record hopelessly confused.15 For example, the debate over the Bill of Rights in the First Congress appears, when not read in context, inconclusive.16 The records of state ratification ofthe Bill of Rights are scanty.17 Therefore, both commentators18 and the Supreme Court19 have turned to the church-state philosophies of Thomas Jefferson and James Madison. The premise here is that the philosophies of these two men are key to interpreting the religion clauses, particularly because of their role in the Virginia disestablishment battle. …

Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York

Abstract: The life of the law has not been logic: it has been experience.1 [T]he life of the law is not logic, but expethence.2 INTRODUCTION This Article does not seek to unravel the twists and turns of substantive legal doctrine said to govern regulatory inverse condemnation law. Others have done so in a fulsome fashion, and my own contribution to that subject may be found in an earlier article.3 Rather than parse the elusive substantive meaning of the Supreme Court's opinions that have provided fodder for so many critical commentaries, I inquire here primarily into how the courts got so important a subject so wrong. Though I do so primarily from the point of view of a specialized lawyer trying to understand what black letter rules, if any, govern this field of law, and how judges came to rule as they did in the Penn Central case,4 1 also believe that these legal developments should be viewed from a broader, civic point of view as well. With that in mind, I ask the readers to take a look with me at (I) how the quarter-centuryold Penn Central case arose, (ii) how it was decided as it wended its way through four court levels, and (iii) how, in spite of its dubious provenance and inconsistency with the Supreme Court's preexisting taking jurisprudence that has never been overruled, to say nothing of the Court's lack of jurisdiction to decide it,5 it somehow became the judicial "polestar" of regulatory takings law.6 The readers are invited to make their own judgments as to whether, giving due regard to how the Penn Central case was decided, it represents "landmark justice"7 or "economic lunacy,"8 to borrow the expressions oi Penn Central's admirers and critics respectively. A personal observation seems appropriate before proceeding. My Professor title notwithstanding, I am, and throughout my forty-year-long legal career have been, an appellate lawyer practicing in the field of eminent domain and inverse condemnation. I conceive my function to be knowing the law, imparting it to my students, and bringing it to bear on a client's affairs when I act as counsel. I believe, naively perhaps, that the primary job of appellate courts is to resolve controversies in a principled fashion, and to provide society with precedents - rules that can be comprehended and applied to control similar cases so that in future controversies court rulings are reasonably consistent and the law need not be formulated all over again in each new case. Judicial result-orientation in pursuit of trendy political or ideological notions that may arise in a particular controversy, is counterproductive because such notions change continuously as popular attitudes change, and as different judges pursue different results. At the very least, changes in the law decreed by courts should be rooted in a thorough judicial knowledge of preexisting law and an understanding of the impact of contemplated change on it. That, however, was not the case in the Penn Central case. Indeed, there is now reason to believe that the revolutionary changes in takings doctrine wrought by the Supreme Court's Penn Central opinion were unintended. The way things turned out, developments in regulatory inverse condemnation law have become the antithesis of reasoned legal reform. Penn Central lacks doctrinal clarity because of its outright refusal to formulate the elements of a regulatory taking cause of action, and because of its intellectual romp through the law of eminent domain that paid scant attention to preexisting legal doctrine. Its aftermath has become an economic paradise for specialized lawyers, a burden on the judiciary,9 as well as an indirect impediment to would-be home builders, and an economic disaster for would-be home buyers and for society at large. The vagueness and unpredictability of its rules, or more accurately the "factors" deemed significant by the Court which declined to formulate rules, have encouraged regulators to pursue policies that have sharply reduced the supply of housing and are implicated in the ongoing, mind-boggling escalation in home prices - a process that favors the well-housed rich and increasingly disfavors the middle class, to say nothing of those lower on the economic scale who are still climbing the rungs of the socioeconomic ladder. …

Filibuster vs. Supermajority Rule: From Polarization to a Consensus- and Moderation-Forcing Mechanism for Judicial Confirmations

Abstract: INTRODUCTION Almost no one is happy with the judicial appointments process. Periodically, those who follow the process become alarmed, identifying structural problems that allow for too much partisanship or too much mudslinging. A wave of scholarly and journalistic commentary followed the last great nominations conundrum: the Senate's rejection of Robert Bork' s nomination to the Supreme Court in 1987.1 Similarly, a flood of newspaper editorials and law review articles has been published during the last year as Democratic senators have filibustered a handful of President Bush's nominations and Bush has employed recess nominations to fiU judicial slots.2 Recommendations for recalibrating the process have spanned the legal landscape, from suggesting that we borrow structural approaches from other constitutional systems,3 to urging a return to the Founders' principles and allocation of authority concerning appointments.4 Several commentators, both then and now, have suggested that a supermajority voting requirement in the Senate for judicial confirmations may be appropriate. This idea rankles some as radically reconstructing the Founders' constitutional architecture.5 Others insist that supermajority voting would increase deliberation in the appointments process and lead to moderation, producing mainstream nominations.6 Some scoff at the latter suggestion, pointing to the polarizing effect of the current filibusters, derided as a supermajority rule, that exacerbate partisan one-upsmanship while leaving judicial seats vacant and adding increased burdens to already heavy federal dockets. A number of partisan groups have attacked the current Senate filibusters as unconstitutional, supporting a movement to reform Senate rules and decrease the number of votes needed to break a filibuster.7 Many judge the filibuster, which brings in a supermajority rule through the back door, as unconstitutional for tampering with the Founders' vision of a Senate giving "[a]dvice and [c]onsent"8 in the nominations process by a simple majority.9 This Article does not address the filibuster's constitutionality or whether the filibuster rule should be changed.10 Rather, it argues that the current use of filibusters to impede judicial appointments should not be taken as the bellwether of a true supermajority confirmation mechanism. While a true supermajority rule would empower a Senate minority, it would be more likely to produce moderation and consensus in the confirmation process than the filibuster. It would thus be a more beneficial long-term strategy for both parties, as opposed to engaging in a tit-for-tat game of partisan bickering that amplifies partisan sentiment and produces nominees outside of the mainstream. This Article draws on history, theory, and comparative analysis to suggest that such a rule would reinforce, rather than betray, the founding vision and that it would likely produce substantial structural benefits. In Part I, this Article surveys the various supermajority rules proposed by lawyers and political scientists to modify the judicial confirmation process and suggests that proponents of such rules have failed to make an adequate case for the reform. Part ? explores the drafting of the Appointments Clause and argues that the rise of durable political parties has undermined the structural integrity of the Founders' architecture for judicial appointments. This Part suggests that a supermajority rule would be more faithful to the founding vision than the current process. The Article then examines the Constitution's supermajority provisions in Part HJ and evaluates the theories that have been offered to explain and justify these departures from majority rule. This Part compares the proposed supermajority rule for judicial confirmations to the Constitution's supermajority provisions and measures it against the supermajoritarian theories. Part UI concludes by advancing a set of normative and policy arguments for enacting a supermajority rule for judicial confirmations. …

A Convenient Blanket of Secrecy: The Oft-Cited but Nonexistent Housekeeping Privilege

Abstract: [The] "housekeeping" statute, destitute as it is of all vestige of definitions and standards, is susceptible of being tortured, and has been tortured, with judicial sanction, it must be admitted, into a claim of privilege against disclosure and inspection so allencompassing that it may fairly be said that there is no hope of obtaining inspection of a public record not specifically opened by Congress except through the courtesy of the Government.1 INTRODUCTION Federal agencies today often claim a privilege of confidentiality that is really no privilege at all. These claims are based on a relatively unimportant "housekeeping" statute that grants the heads of federal agencies the power to make regulations for "the custody, use, and preservation" of agency records.2 The law on this matter is widely misunderstood. Federal agencies often interpret this housekeeping statute as granting a substantive privilege to withhold information. Indeed, there are many valid reasons for a federal agency to claim a privilege. And the housekeeping statute facilitates agency decisions about claims of privilege by allowing agencies to make regulations requiring subordinates to report to decision-makers subpoenas for agency documents.3 The statute thus assures that only those approved by an agency will make decisions about whether to comply with a subpoena or to assert a claim of privilege. The housekeeping statute can do nothing more than this. If an agency is to withhold documents from the courts, it must do so in compliance with the law of privilege.4 In 1789, the first U.S. Congress gave cabinet secretaries authority over the records of their departments.5 The statutes granting this authority were not grants of a confidentiality privilege.6 Rather, the authority was merely a housekeeping matter, "enacted to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents."7 Over the years, this authority has been invoked by executive agencies to conceal information from the public and from the courts.8 It has been used as "a convenient blanket to hide anything Congress may have neglected or refused to include under specific secrecy laws."9 It has come to be known as the "housekeeping privilege."10 In fact, though, the housekeeping statute confers no privilege at all.11 Currently codified at 5 U.S. C. § 301, the housekeeping statute actually grants executive agencies the power only to centralize control over agency records in the head of the agency.12 It grants agency heads the power to promulgate regulations for the handling of agency records.13 Such regulations are binding on agency employees, but they are no more binding on the courts than the internal regulations of any employer.14 In 1951, the U.S. Supreme Court decided that a federal agency employee cannot be held in contempt of court for failure to comply with a subpoena duces tecum for agency records when the employee's failure to comply was required by agency regulations.15 The case was called United States ex rel. Touhy v. Ragen,16 and it addressed the problem of agency employees stuck between court orders for information and agency regulations requiring that such information be withheld.17 The Court held that an agency head may validly withdraw from employees the power to decide whether or not to comply with a subpoena.18 The Court did not hold that an agency head could promulgate regulations that would themselves create a privilege to withhold agency records from the courts.19 Federal agencies may indeed have numerous bases for asserting a privilege to withhold information, but such a privilege is not founded on the housekeeping statute. Unfortunately, the Touhy doctrine that developed in the years following this decision bore little resemblance to the Touhy decision.20 Rather, the doctrine has become the basis for federal agency assertions of a general privilege to withhold information when no specific privilege is available. …

Ten Commandments, Nine Judges, and Five Versions of One Amendment - The First. (“ Now What?”)

Abstract: I. When the annual Spring Symposium of the Bill of Rights Institute at the MarshallWythe School of Law took up the two Ten Commandments cases then on the docket of the Supreme Court, I ventured a forecast of the outcomes and even of the manner in which the Court would divide. My forecast was that the 'Ten Commandments"1 displays installed with a hastily arranged cluster of accompanying framed documents on the interior courthouse walls in two Kentucky counties by recent orders of county executives would be disallowed, even as the federal district court itself had previously held.2 I also suggested that the outcome in this case would turn on a divided vote in the Supreme Court, 5-4, with Justice O'Connor - in effect - deciding the case by her single vote. My forecast in respect to the case from Texas was that the State's maintenance of an imposing Ten Commandments granite monument on the Capitol grounds in Austin would not be regarded in the same way.3 A gift from a private organization widely promoting such monuments in public places, the monument had been accepted and installed on the Capitol grounds four decades earlier in 1961. It was both larger in size and somewhat more strategically placed - alongside a sidewalk pathway from the Capitol building to the state supreme court building - than any of the sixteen other monuments and twenty-one historical markers. Nevertheless, I predicted that the Court would affirm the federal district court' s decision rejecting a citizen's suit seeking its removal,4 and it would do so in still another closely divided vote. The vote would be either 5-4 or 6-3. The one- vote variance in this second hedged forecast5 turned only on my uncertainty of how Justice O'Connor would vote in this case from Texas, it being reasonably clear to me, on the other hand, as to how the other eight justices most likely would divide. As matters turned out, on June 27, 2005, both forecasts were substantially, albeit not exactly, proved correct. Thus, in McCreary County v. American Civil Liberties Union of Kentucky,6 pursuant to an opinion for the Court by Justice Souter,7 the studied efforts of local Kentucky officials to promote the status and sectarian commands of a jealous Judeo-Christian god8 in composing the indoctrinative decor of the county's courthouses were brought up short.9 Oppositely, however, in Van Orden v. Perry, announced on the same day, in a very different opinion10 issued by Chief Justice Rehnquist,1! the Austin Capitol grounds monolith was left to stand intact (even as it doubtless does today) so to declare in letters etched large into its granite face its bold assertion of intimidating authority ("IAM the LORD thy GOD"), swiftly followed by laying down as its first demand (i.e., "commandment") that "Thou shalt have no other gods before mer And having presumed to settle both of those questions, the inscribed monolith proceeds canonically down through its remaining peremptory list of God-decreed "dos"12 and God-decreed "don'ts."13 As I say, however, neither of the outcomes respectively in McCreary and in Van Orden came as any surprise. Nor, to be sure, was there anything particularly impressive in respect to my facile confidence in presuming to predict not merely the outcome in each case, but even how the Court would divide. Indeed, it is merely fair to say that the most casual student of the doctrinal schisms14 that have gradually shaped up within the Supreme Court itself over the past twenty years of Establishment and Free Exercise Clause cases, beginning even before the elevation of Justice Rehnquist to the post of Chief Justice,15 would have wagered the outcomes and the votes of the several justices in these cases in very much the same fashion as did I. Rather, if there were any surprise - and there was some - it was to be found principally in the decision by Justice O'Connor in the Texas case not to enlist on her own last day of service on the Supreme Court with Chief Justice Rehnquist, as she might reasonably have been expected to do. …

Racial Free-Riding on the Coattails of a Dream Deferred: Can I Borrow Your Social Capital?

Abstract: INTRODUCTION With the recent revelation of who actually benefits from affirmative action, the genie is finaUy out of the bottle and a deep fissure in the bulwark of race relations among West Indians, Africans, African Americans, and biracial persons has emerged. A short time ago, a brow-raising article in the New York Times revealed that the descendants of U.S. slaves comprise a minority of West Indian and African immigrants who benefit from affirmative action.1 These groups, their children and the children of biracial couples represented the largest portion of blacks admitted to the most selective institutions of higher education.2 Fueling this debate over who should reap the benefits of affirmative action is the notion that West Indians, Africans, and other immigrants continue to free ride on benefits borne out of a legacy of racial struggle fought by African Americans over the past 400 years. Shortly before this debate ensued, however, the noted comedian and philanthropist Bill Cosby sparked another debate with his controversial remarks regarding the rearing of black youth and the ghettoized nature of the black American family at a NAACP gala dinner.3 Few have discussed, however, the inherent relationship between these two debates as a matter not merely of differential racialization, but of group social capital. The dialogue in both of these domains does more than perpetuate racial stereotypes that rhetorically justify disparate results for each group. The terms of the debate grossly overlook something more important but which still remains unacknowledged. This essay will discuss a nexus that exists between these two momentous debates with an eye to understanding the nature and shape black social progress must take and the inevitable role social capital must play within it. For example, is there some new light that new arrivals to the United States can shed on what Cosby sees as the demoralization of black youth today? Are such immigrant experiences transferable to the black American experience? What will it take to reclaim black neighborhood schools and the process of affirmative action for black Americans? When does social capital matter and when does it not in this regard? What roles do personal efficacy and self-esteem play in shaping African American academic performance and their ability to take advantage of affirmative action? How does this sense of personal efficacy differ among immigrants, West Indians, Africans, and biracial persons? I. WHY 'THEM" INSTEAD OF "US"? Although recently united in favor of affirmative action, new revelations about which minority groups actually benefit from affirmative action have divided the black community. In an article discussing Ward Connerly' s Racial Privacy Initiative (RPI) in California, I noted how the proposed measure had caused division within the black community against those white conservatives favoring the proposal.4 Faced with the proposal's prospect of abolishing racial classifications, African Americans, Africans, and West Indians nearly categorically opposed it primarily on the ground that to do so would attenuate governmental accountability in monitoring and enforcing racial justice concerns, such as racial profiling, consumer discrimination, and a host of other policies with racially disparate impacts.5 For constituencies of African descent, the choice was ostensibly clear - the obliteration of racial categories meant the elimination of the need to keep the racial data required to challenge and monitor racially discriminatory governmental conduct.6 Moreover, the consequences of abolishing such classifications pointed to the kind of unaccountability and invidious racial profiling that the sacred covenant of the Fourteenth Amendment's Equal Protection Clause promised to change. The chorus of dissent from people of color to the RPI proposal was so strong that it seemed that a unity among racial minorities reinvigorated the discourse on racial justice. …

Why Justice Breyer Was Wrong in Van Orden v. Perry

Abstract: INTRODUCTION From the moment Thomas Van Orden called me to ask if I'd be willing to try and get Supreme Court review in his case,1 I was convinced that the outcome would turn on Justice Sandra Day O'Connor. As I wrote the brief and as I stood before the Justices, I saw O'Connor as being the swing vote. I saw little chance of getting the votes of Chief Justice Rehnquist or Justices Scalia, Kennedy, or Thomas. They consistently had expressed a view of the Establishment Clause that left little chance that they would find a religious symbol on government property to be unconstitutional. Justice Kennedy, for example, wrote an opinion in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter arguing for allowing religious symbols on government property and contending that the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation.2 Rehnquist and Scalia joined this opinion. I could not think of a way under this test to argue that the Ten Commandments display between the Texas State Capitol and the Texas Supreme Court is unconstitutional. Justice Thomas has argued repeatedly that he does not believe that the Establishment Clause applies to state and local governments at all. Almost sixty years ago, the Supreme Court unanimously held that the Establishment Clause, like almost all of the other provisions in the Bill of Rights, applies to state and local governments.3 On several occasions in recent years, Justice Thomas has urged the Court to overrule Everson and to hold that the Establishment Clause does not apply to state and local governments.4 Obviously, this view makes anything Texas wants to do constitutional. Texas could put a large cross atop its State Capitol, and Thomas would uphold its constitutionality. On the other hand, Justices Stevens, Souter, Ginsburg, and Breyer have been much more willing to enforce the Establishment Clause. They dissented in Zelman v. Simmons-Harris, where the Court held that vouchers from the government may be used for parochial schools.5 They also dissented in Agostini v. Felton,6 which allowed more aid to parochial schools, and Rosenberger v. Rectors and Visitors of the University of Virginia7 which held that the government cannot deny funding to religious student groups when money is available to secular groups. Justice O' Connor thus seemed to be the swing vote. She had played exactly this role in Allegheny, finding that a nativity scene by itself on government property was unconstitutional, but that a menorah was constitutional since it was part of an overall holiday display.8 She had repeatedly rejected the very limited scope of the Establishment Clause urged by Rehnquist, Scalia, Kennedy, and Thomas.9 But she also had joined them in cases like Zelman, Agostini, and Rosenberger.10 Thus, on June 27, 1 was disappointed but not shocked to learn that I had lost 5^1; however, I was very surprised when I found out that Justice Breyer was the fifth vote for the majority. As expected, Chief Justice Rehnquist' s plurality opinion, joined by Justices Scalia, Kennedy, and Thomas, made clear that they believe that religious symbols on government property are constitutional.11 Justice Breyer did not join that opinion but instead concurred in the judgment.12 He was clear that he accepts the test adopted by the four dissenting justices - Stevens, O'Connor, Souter, and Ginsburg - that the government may not place religious symbols on government property if they symbolically endorse religion.13 Breyer concluded by saying that he agreed with Justice O' Connor' s statement of principles, but not her application in this case.14 In other words, Breyer did not see a six-foot-high, three-foot-wide Ten Commandments monument between the Texas State Capitol and the Texas Supreme Court as symbolically endorsing religion. In this Article, I want to explain why Justice Breyer was wrong in his analysis. …

The Fear Factor: How FCC Fines Are Chilling Free Speech

Abstract: INTRODUCTION The bare bum of Homer Simpson glides over the glass ceiling of a cathedral, horrifying the churchgoers below; Jerry, George, Elaine, and Kramer engage in an infamous contest of restraint from self-pleasure; Ellen DeGeneres reveals her homosexuality to her sitcom's audience. Moments such as these, irreverent and envelope-pushing, defined television in the 1990s. It was an era of hands-off regulation of the airwaves, and as the decade ended, all signs indicated that the era would continue. "I don't believe that government should be your nanny," uttered Michael K. Powell, the newly-appointed chairman of the Federal Communications Commission (FCC), in 2001 .! Broadcasters, whose exercise of editorial autonomy was lucrative indeed, and those viewers who found television's most controversial moments to be those most enjoyable, breathed a sigh of relief. While not suggesting that the above are moments of great artistic significance, moments such as these pass over the broadcast airwaves into living rooms so to create a virtual national community. By giving people something to talk about the next day, or the next decade, television unites, if only in a shallow way, a nation uniquely and resolutely heterogeneous. People who have nothing in common other than their ultimate demise can simultaneously share and react to an image of tragedy, a catchphrase, a flash of an aging pop star's breast. One viewer might be bored, another delighted, yet another repulsed, but a powerful opportunity for universality of experience exists, even if that experience is not always the most enlightened. No single image has exemplified this concept more than the infamous Super Bowl "wardrobe malfunction." During the live telecast of Super Bowl XXXVIII in January 2004, watched by an average of 89.6 million people,2 Justin Timberlake removed a portion of Janet Jackson's clothing - revealing her breast and inspiring a revolution against indecency on the airwaves. It was, to some, proof that television's power to unite the nation in a positive way is overwhelmed by its power both to offend and to endanger the moral fiber of the country. The Parents Television Council asserted: "[Television] can be a wonderful way to educate, inspire, and entertain America's children. Sadly it's doing the opposite and undermining the positive values parents are trying to instill in their young ones."3 Ms. Jackson's bare breast alone prompted over half a million complaints to the FCC,4 a colossal increase over the 14,000 total complaints lodged in 2002.5 By the end of 2004, the FCC received half a million more complaints about other alleged incidents of indecency on the airwaves.6 The FCC, long maligned for its inactivity and hands-off deregulation of the airwaves,7 responded by imposing a meteoric rise in fines. Scant years after he espoused laissez-faire treatment of television content, Chairman Powell' s FCC became somewhat of a prudish nanny - an exacting, expensive one at that. Advising people to turn off the television, it seems, is not nearly as lucrative as levying monetary penalties. In 2004, the FCC levied $7.7 million in indecency fines, a piddling amount compared to what the Environmental Protection Agency reaps,8 but one that is $7.69 million greater than the fines collected in the first year Powell served on the FCC.9 In fact, before the Jackson/Timberlake incident, the FCC had not proposed any fines for indecency on television since 2002, 10 when it fined a San Francisco television station $27,500 for the inadvertent exposure of a performer's penis while preparing to demonstrate "genital origami."11 For the fleeting exposure of Ms. Jackson's breast, the FCC levied $550,000 in fines.12 Then, in October 2004, the FCC fined 169 Fox stations a record-breaking $1.2 million for airing a program entitled Married by America which featured digitally-obscured nudity and strippers.13 Powell justified the increased activities of the FCC as a response, not to "public pressure" but to more intense "public concern,"14 evidenced by the higher number of complaints. …

Up Against the Wall of Separation: The Question of American Religious Democracy

Abstract: Introduction Can religious democracy be a question for the United States? Are we not beyond such sectarianism? Are we not pluralistic and fundamentally secular in our laws? We are not Iraq, with its conflicting Shiite and Sunni communities. Nor are we the State of Israel, which grants benefits and preferences based upon the Jewish religion of most of its citizens. Surely in the United States, religious democracy is not a question. Two recent events, however, suggest that religion now has a dominant place in American political life. The first event was the re-election of President George W. Bush in the November 2004 presidential election, along with somewhat enlarged Republican majorities in both houses of Congress. The second event was the March 2005 spectacle surrounding the death of Theresa Marie Schiavo. In both events, religion, including political organizing and influence by people who identify themselves as religious, played the key role. Religion's newfound presence is not confined to politics. There was a time that mainstream television would not feature this society's majority religion, Christianity.1 In 2005, however, ABC broadcast a respectful and serious examination of the resurrection of Jesus,2 and NBC aired a show - Revelations - that seemed to imitate aspects of the well-known Left Behind book series3 by suggesting that the current age may be the biblically predicted end-times.4 A year earlier, ABC broadcast several hours examining the roots of early Christianity.5 Aside from these planned events, the three broadcast networks and really all of the media covered in great depth the death of Pope John Paul II and the election of Pope Benedict XVI. For two weeks, the Catholic Church dominated the airwaves. Liberals are viewing this religious surge with alarm.6 Other observers will say that this rumor of religion is a media creation7 and that political matters have not changed all that much. There is some truth in such denials. Religion has always played a large part in American political life. The 2004 Presidential election was hardly a complete break with the past. Conversely, the religiosity of the American people can easily be overstated, as the generally negative public reaction to the Relief of the Parents of Theresa Marie Schiavo Act8 suggested. America is not a theocracy.9 Nevertheless, religion is a political force today in a way that it has not been during the past fifty years. Religion has made a cultural breakthrough that would have been hard to predict during the mid-twentieth century.10 America is now a religious democracy. As a provisional definition, by the term "religious democracy," I mean simply that a substantial number of voters in America now vote the way they do for what they consider to be religious reasons and that as a result of their voting, government policy is changed.11 In other words, George Bush might just as well have said out loud during the 2004 campaign, "Vote for me because I am a Christian, and I will carry out policies that you and I believe are consistent with the Christian faith."12 Now that he has been elected in that way, President Bush tries to carry out those promised policies. As Senator Rick Santorum says, "Elections have consequences."13 This is the political system we now have and, it appears, will have for the foreseeable future. The questions that this article begins to address are the consequences of this event. How does a religious democracy function? How, if at all, does it differ from any other kind of democracy? Can there even be such a thing as religious democracy? What is the role of the secular voter in a religious democracy? For that matter, what is a secular voter? This article proceeds in four parts. Part I examines the current political/religious landscape to indicate why America might be thought to have entered new terrain. Part ? asks whether America has ever had something that could be called secular democracy, or even whether such a thing is possible. …

Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v. United States

Abstract: INTRODUCTION In constitutional law, the gold standard of individual liberties is the specific pronouncements found in the Bill of Rights,1 the first ten amendments adopted to protect against abuses of power by government officials.2 While all of us benefit from the balance of power that these protections ensure, many of the amendments' Umits on governmental overreaching are particularly important to those of us the government suspects of committing a crime. The Fifth Amendment, for example, provides for indictment by a grand jury, and prohibits the government from holding a person in jeopardy twice for the same offense, from compelling a defendant to testify against himself, and from depriving anyone of life, liberty, or property without due process.3 The Sixth Amendment guarantees a criminal defendant a lengthy list of trial rights, from the right to a speedy trial to the right to assistance of counsel.4 And the Eighth Amendment prohibits excessive bail, along with cruel and unusual punishments.5 In addition to these specific rights, the Supreme Court has read the Sixth Amendment to include a right to be present to defend against the government's charges.6 This right means not only that the defendant must be given the opportunity to be physically present, but also that he must possess the mental ability both to understand the charges against him and to consult with his lawyer in preparing a defense.7 A defendant who lacks this mental ability is incompetent to stand trial.8 Some defendants are incompetent to stand trial because of disorders that are essentially unbeatable, such as mental retardation; these defendants are unlikely ever to become competent. Other defendants, who are incompetent because of a treatable mental illness such as schizophrenia, might become competent if they receive treatment - usually antipsychotic or other psychotropic medications that can potentially alleviate, although not cure, the symptoms of schizophrenia and other psychotic disorders.9 But a defendant who, because of his mental iUness, believes that his doctors, or the FBI, or the special beings that communicate with him through his radio, are trying to poison him, or are taking thoughts out of his head, or are otherwise out to get him, can be difficult to convince that taking psychotropic medications is in his best medical interest.10 If a defendant refuses to take these medications, the government is left to decide whether to seek a court order allowing for the administration of the medications over the defendant's objections.11 Several difficult issues arise, however, when the government requests such an order. The first issue, common to all cases in which the government seeks to administer involuntary medications, is that administering the medications must serve a government interest - such as preventing a mentally ill person from harming himself or others - that justifies abridging the person's interest in refusing unwanted medical treatments.12 An additional issue, unique to cases in which the government seeks to administer involuntary medications to a criminal defendant for the purpose of rendering him competent to stand trial, is that the medications will threaten many of the defendant's trial rights. Any medication that succeeds in rendering the defendant competent to stand trial is likely to alter his mental functioning and physical appearance in myriad ways, thereby potentially compromising the fairness of his trial.13 For example, a medicated defendant can have difficulty concentrating,14 and thus he might have problems consulting with his attorney or testifying on his own behalf. Medications can also unfairly prejudice a jury's perception of a defendant's character or credibility. A jury might decide that a defendant who looks drowsy or disinterested15 is coldhearted or that a defendant who is experiencing motor tremors16 is nervous or not telling the truth. Given the importance of the right to a fair trial, and the threat to this right posed by administering involuntary medications, the Supreme Court understandably cautions in its recent decision in the case of Sell v. …

Modernizing the Law of Open-Air Speech: The Hughes Court and the Birth of Content-Neutral Balancing

Abstract: INTRODUCTION On February 15, 2003, a massive crowd, perhaps as large as 400,000 people,1 gathered in the streets of New York City to protest the impending war with Iraq2 Protest organizers had requested a permit for a march in front of the United Nations building, but city officials, concerned about security, refused to allow a parade3 A federal district court upheld the city's decision to limit the protest to a stationary rally4 Drawing upon Supreme Court precedents from the 1930s, the district court declared that while citizens have a right to use streets for public assembly, the government may also regulate public expression to protect safety and similar content-neutral interests5 A century ago, however, there was a different constitutional order concerning open-air speech Under Davis v Massachusetts,6 municipal officials had the authority to ban rallies on public property Some officials also believed they had the authority to allow public property to be used only by those speakers with favored viewpoints From the late 1800s until the late 1930s, Davis and "the atmosphere which it generated"7 influenced a variety of police power ordinances sharply restricting certain forms of public expression in American cities8 In the late 1930s and early 1940s, the Court turned away from Davis and crafted several crucial doctrines concerning open-air speech In an earlier article, I summarized these interrelated doctrines as follows: "First, licensing standards allowing unduly discretionary judgments by government officials are unconstitutional Second, certain public properties are appropriate places for expression Finally, the government may protect public safety and similar interests through narrowly drawn, content-neutral regulations"9 These doctrines remain key facets of the current Court's free expression methodology For example, Watchtower Bible & Tract Society, Inc v Village ofStratton,10 decided in 2002, was largely decided within the "historical and analytical backdrop" created by cases from the late 1930s and early 1940s11 As Justice Kennedy reminded the Court in 2000, "the whole course of our free speech jurisprudence, sustaining the idea of open public discourse which is the hallmark of the American constitutional system, rests to a significant extent on cases involving picketing and leafleting"12 The abandonment of Davis is part of a larger story concerning the Supreme Court's discovery of the First Amendment, a process that began in 1919 with the famous dissents of Justices Holmes and Brandeis,13 gained momentum in the early 1930s with cases such as Near v Minnesota14 and Stromberg v California,15 and escalated with a series of cases articulating the preferred position doctrine in the late 1930s and early 1940s16 Familiar elements of that story include the renunciation of Lochner-era freedom of contract, the elevation of First Amendment freedoms as preferred rights, and the development of bifurcated judicial review17 The traditional accounts of the Supreme Court's discovery of the First Amendment emphasize the contributions of Justices Oliver Wendell Holmes, Jr and Louis Brandeis, Judge Learned Hand, and Professor Zechariah Chafee, Jr18 These seminal figures were focused on the government's treatment of anti-government speech, a critical content regulation problem19 Of these individuals, only Holmes had a significant part to play in the development of content-neutral doctrine Holmes's role, however, was negative The doctrinal developments in the 1930s were contrary to Holmes's views about the power of local governments to restrict open-air speech In 1 895, while a member of the Massachusetts Supreme Judicial Court, Holmes wrote the following: "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house …

Turning a Government Search into a Permanent Power: Thornton V. United States and the "Progressive Distortion" of Search Incident to Arrest

Abstract: INTRODUCTION A member of Congress once lamented, "It has been said that if one dies and goes to heaven and wants to come back to Earth and have eternal life, come back as a federal program."1 The simple logic behind this reasoning seems unassailable. Once the federal government creates a program which offers a certain class of individuals a benefit, it has simultaneously created an interest group that will seek to maintain or even increase that benefit. Those who do not receive the largess, being too diffuse and disorganized, cannot stop the flow of federal dollars. The government program, therefore, endures and grows even if the original purpose for the entitlement has ceased to exist. Perhaps such immortality also favors the Supreme Court's grant of search rights to police. Once the Court has created an exception to the Fourth Amendment's limits on government powers,2 that license to search not only persists, but grows over time, regardless of the original exigencies that caused the Court to craft the rule in the first place. When Carroll v. United States3 created the automobile exception enabling police to immediately search cars at the scene of a stop, this police right flourished in Fourth Amendment j urisprudence. First, the automobile exception was expanded to allow searches of vehicles not only on the street, but also when they are safely secured at police stations.4 Next, police were enabled to search not only the car itself, but any "containers" found within.5 Likewise, when the Court found special needs to allow school officials to search the purses of students they suspected of rule breaking or criminality,6 this right to search grew into a government right to randomly drug test student athletes' urine.7 This official intrusion, in turn, spread beyond athletes to include urinalysis of any student participating in extracurricular activities, such as the Vocal Club or Future Farmers of America.8 The Court has now continued this pattern with yet another government search right, the search incident to arrest exception to the warrant requirement. Like a government subsidy, the search incident to arrest was designed in Chimel v. California to meet particular needs.9 It then was expanded in New York v. Belton for arrests of occupants of a car.10 Now, in Thornton v. United States, the Court has extended search incident to arrest once again to apply when an officer first meets a person outside a vehicle. 1 1 Thornton's expansion of search incident to arrest is of particular concern because its logical inconsistencies and its confused rule have created uncertainty regarding the warrant exception's purpose and scope. This Article begins, in Part I, with a review of the background of the search incident to arrest rule and its foundations, justifications, and scope. Part ? assesses Thornton - its facts, lower court litigation, and the Court's decision. In Part Dl, this Article examines the Court's analysis and considers the implications of its new ruling. I. BACKGROUND A. The Warrant Requirement Government violation of a person's privacy is such a serious act that it should occur only after sober consideration by an official who is separated from the passions of the particular case. Such reasoning has guided the Court at least since the 1914 case Weeks v. United States,12 where the Court declared clearly that the United States Marshal "[c]ould only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information, and describing with reasonable particularity the thing for which the search was to be made."13 The Weeks Court condemned the warrantless action in the case as "without sanction of law."14 In Agnello v. United States,15 the Court reaffirmed the warrant mandate, warning: "Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. …

Rasul v. Bush: Unanswered Questions

Abstract: INTRODUCTION Of the three recent Supreme Court cases concerning enemy combatants, Hamdi v. Rumsfeld,1 Rasul v. Bush,2 and Rumsfeld v. Padilla,3 Rasul is the case that will affect the most people and most affect future governmental operations. Hamdi and Padilla concern citizens who have been classified as enemy combatants by President Bush. Those cases consider important procedural and constitutional issues but leave much to be decided by future courts. Those issues are significant and worthy of debate,4 but in a practical sense, the reach of the two decisions will be limited. As far as we know, only two citizens have been detained as enemy combatants, and it is doubtful that legions of citizens will be incarcerated as enemy combatants in the future. While the issues in those two cases, both addressed and unanswered, are important, not many people will be directly affected by their resolution. Rasul, on the other hand, concluded that American courts have jurisdiction to decide habeas corpus petitions from aliens detained at the U.S. naval base at Guantanamo Bay, Cuba.5 This decision has an immediate, significant impact because it affects the hundreds of aliens detained at Guantanamo Bay, but its potential reach is much broader. Rasul's reasoning seems to allow anyone, alien or citizen, detained by the United States to challenge the legality of his detention by a habeas corpus petition in American courts. If so, not only are many people affected now, many others who might be detained by the United States as a result of military or other governmental actions will be affected in the future. Whether Rasul really grants this broad right to habeas corpus is a question that lower courts will have to address, but there are many other issues about the possible substance of habeas corpus claims from aliens detained as enemy combatants that lower courts will also have to confront. Rasul did not address these issues, but they present crucial and difficult questions. Constitutional doctrine states that aliens outside American territories do not have rights under the U.S. Constitution. What valid grounds, if any, then, are there for enemy-combatant aliens abroad to claim that their detentions by the United States are illegal? This Article will explore various questions not answered by Rasul. Answers, however, will be few because many of those questions have seldom, if ever, been presented to the courts. Instead, the real legacy of Rasul may be an opened door into uncharted legal areas. Part I of this Article discusses federal court jurisdiction of habeas corpus petitions from aliens detained abroad as enemy combatants. While Rasul could have limited habeas jurisdiction to aliens detained on Guantanamo Bay because the naval base there is, in essence, U.S. territory, the Court's decision went further and grants jurisdiction to aliens held by the United States anywhere in the world. Part ? discusses the question of what substantive claims aliens can make in their habeas petitions. Because aliens not in the United States generally do not have rights under the U.S. Constitution, possible claims are not clear and will raise difficult issues that have not been squarely addressed by the courts. I. JURISDICTION OF THE HABEAS PETITIONS A. Background Shortly after the al Qaeda attacks of September 11, 2001, Congress passed a joint resolution, "Authorization for Use of Military Force."6 Its operative language states: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 1 1, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.7 Subsequently, President Bush sent U.S. military forces into Afghanistan for a campaign against al Qaeda and the Taliban, which controlled that country and supported the terrorist group. …

The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion

Abstract: INTRODUCTION The Supreme Court's decisions in Van Orden v Perry1 and McCreary County, Kentucky v ACLU of Kentucky2 have done nothing to clear away the fog obscuring religious display cases or Establishment Clause jurisprudence generally If anything, the decisions have exacerbated an already confused and confusing area of the Court's decisional law, an area which Justice Scalia has not shrunk from calling "embarrassing"3 Douglas Laycock, who filed amicus briefs in both cases in support of challengers of the respective displays, laments that the Court's decisions "draw fuzzy and unprincipled lines"4 An editorial in Christianity Today captures the understandable reactions of partisans of both sides: Everyone knows the Supreme Court ruled that one kind of Ten Commandments display on government property is unconstitutional, but that another kind is acceptable But no one - including the Supreme Court itself - seems to be able to explain why5 It seems that the Chief Justice may have chosen the wrong classical allusion when, in his Van Orden plurality opinion, he described the Court's Establishment Clause cases as "Januslike,"6 ie, pointing in two directions7 A better choice would have been "Hydralike," after the nine-headed mythological creature killed by Hercules as part of his famous Twelve Labors8 After this pair of decisions, the question is whether there is anywhere a logical, coherent principle or set of principles upon which five or more members of the Court can agree in order to perform the apparently Herculean task of adjudicating these cases in any kind of consistent, predictable manner I BACKGROUND Perhaps the most disappointing aspect of the Van Orden and McCreary decisions is that they utterly failed to resolve an issue that has been boiling over in the lower courts for the past decade Prior to 1996, only three reported decisions addressed the merits of constitutional challenges to Ten Commandments displays on non-school public property9 After that, the deluge10 As this non-exhaustive list shows, from about 1997 on, hardly a month went by without a decision being issued by either a district court or court of appeals on the constitutionality of some Ten Commandments display somewhere in the nation The results were anything but consistent The courts of appeals divided as follows: The Tenth Circuit held onto a ore-Stone v Graham11 case upholding a courthouse display of the Fraternal Order of Eagles monument12 The Third Circuit upheld a courthouse plaque of the Decalogue dating from 192013 The Sixth Circuit struck down every Ten Commandments display brought before it, including a Van Ordenesque state Capitol Eagles monument,14 a judge's courtroom poster,15 a school lawn historical texts display,16 and, of course, McCreary County's "Foundations of American Law and Government" display17 The Eleventh Circuit struck down Chief Justice Roy Moore's monumental display,18 but upheld Richmond County, Georgia's use of the Decalogue in its seal19 The Fifth Circuit upheld Texas's state capitol display of the Eagles monument in Van Orden20 The Seventh Circuit struck down a state capitol monument display,21 struck down a city hall Eagles monument display in the city of Elkhart, Indiana,22 but, just three months before the hammer fell on McCreary County's display, upheld a courthouse display identical to McCreary' s in the county of Elkhart, Indiana23 The Eighth Circuit took a wait-andsee attitude That court vacated a three judge panel's 2-1 decision affirming the district court's striking down of an Eagles monument in a city park,24 heard oral argument en banc on September 15, 2004, then apparently informally abated further action pending the Supreme Court's consideration of Van Orden and McCreary25 Confused? So were the lower courts, which frequently expressed, in the cases cited above as well as in district court opinions, their frustration with the lack of anything approaching clear direction from the highest court in the land …

The Supreme Court and the Federalist Papers: Is There Less Here Than Meets the Eye?

Abstract: INTRODUCTION Printz v. United States1 raised an issue of constitutional law that had not previously been determined, whether the United States could require executive state officials to implement federal laws.2 As demonstrated by the 5^- split on the Court and the commentary in its wake, Printz was not an easy case. Justice Scalia, writing for the majority, began his analysis with a statement that has become increasingly familiar in recent years: "Because there is no constitutional text speaking to this precise question, the answer to the [constitutional] challenge must be sought in historical understanding and practice."3 What made the decision in Printz stand out from the crowd was not its explication of historical materials nor the way in which these materials were detailed. Rather, it was the dispositive effect of one set of those materials, The Federalist. Both Justice ScaHa's majority opinion and Justice Souter's dissent focused on the language of various The Federalist in a way that can best be described as the historical record equivalent of statutory interpretation. Justice ScaHa's word-for-word discussion of these early attempts to convince fence sitters in New York to vote to ratify the proposed Constitution covers some six pages of the United States Reports.4 Justice Souter's equally detailed discussion covers the same number of pages.5 This comprises twelve pages of excruciating detail concerning what we can or should imply from the language used (and not used) by Alexander Hamilton and James Madison. Certainly for Justice Souter, if not Justice Scalia,6 what Madison and Hamilton may or may not have suggested about the federal government's authority to impress state officers in the service of national law was determinative not only of the original understanding but, more importantly, the outcome of the case. "In deciding these cases ... it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Government's position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45. "7 Because of the extraordinary and, as this paper will demonstrate, rarely seen reliance upon The Federalist, some illustration (in less than twelve pages) is required. First, Justice Souter: Hamilton in No. 27 first notes that because the new Constitution would authorize the National Government to bind individuals directly through national law, it could "employ the ordinary magistracy of each [State] in the execution of its laws." . . . [H]e states that "the legislatures, courts and magistrates of the respective members will be incorporated into the operations of the national government, as far as its just and constitutional authority extends." . . . The natural reading ... is not merely that the officers of the various branches of state governments may be employed in the performance of natural functions; Hamilton says that the state governmental machinery "will be incorporated" .... Madison in No. 44 supports this .... He asks why state magistrates should have to swear to support the National Constitution ___ His answer is that national officials "will have no agency in carrying the State Constitutions into effect. The members and officers ofthe State Governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution." .... ... In No. 45, Hamilton says that if a State is not given (or declines to exercise) an option to supply its citizens' share of a federal tax, the "eventual collection [of the federal tax] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States." And in No. 36, he explains that the National Government would more readily "employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments."8 Justice ScaHa, for the majority, replies: [N] one of these statements necessarily impUes - what is the critical point here - that Congress could impose these responsibilities without the consent of the States. …

Quieting the Clang: Hathcock as a Model of the State-Based Protection of Property Which Kelo Demands

Abstract: INTRODUCTION 352 I. THE AMERICAN FOUNDING AND PRIVATE PROPERTY 355 A. The Right to Property is a Natural Right 355 B. Government Should Protect Private Property 356 II. THE FOUNDERS REQUIRED A TAKING TO BE FOR A "PUBLIC USE" ......... 36 1 A. The Presence of a "PubHc Use" Requirement 361 B. Determining What Constitutes a "PubHc Use" 364 III. THE ROAD TO POLETOWN 368 A. A National Progression 368 B. Michigan's Path 370 IV. POLETOWN CONTRADICTED BOTH THE MICHIGAN FOUNDERS' AND THE NATIONAL FOUNDERS' VIEW OF "PUBLIC USE" 371 V. HATHCOCK RESTORES MEANING TO THE "PUBLIC USE" REQUIREMENT . . 375 A. Interpreting "Public Use" in Michigan 376 B. A General Economic Benefit is not a "PubHc Use" 377 C. Three Acceptable Cases for Making a Public Use Condemnation 378 D. Hathcock Accords with the Original, Restrictive Meaning of "Public Use" 379 VI. THE JUDICIAL LANDSCAPE - LOOKING FORWARD 380 A. Successes in the States 381 B. Problems in the States 382 C. A National Misstep 383 D. Returning to the Path 384 CONCLUSION 385 INTRODUCTION "I thought as long as you got the title your home belongs to you for life."1 For most of American history and in most instances, Ann Giannini would have been correct. But unfortunately for Mrs. Giannini, her home was no longer protected by a rigid "public use" requirement. Because the City of Detroit believed it could find a more economically beneficial use for the land her house occupied, the City seized and demolished her home. The Founders, when drafting the United States Constitution, protected private property from confiscation by the federal government through the Fifth Amendment requirement that no "private property be taken for public use, without just compensation."2 The constitutions of forty-seven states, including Michigan, have similarly encapsulated this protection by using the same "public use" language.3 But during the course of the twentieth century, American courts and the Michigan Supreme Court, specifically in its Poletown decision, expanded the definition of "public use" in new and broadening ways - ways which made Mrs. Giannini incorrect. In 1981, the Michigan Supreme Court found a new "public use" when it decided Poletown Neighborhood Council v. City of Detroit.4 Poletown employed a new theory of "public use" - one that rested on the general economic benefit that may result to the community from the taking.5 The Poletown court ruled that the Michigan Constitution at article 10, section 26 permitted as a "public use" the transfer of private property to a different private owner "to promote industry and commerce, thereby adding jobs and taxes to the economic base of the municipality and state."7 In reaching its decision, the Michigan Supreme Court found that "[t]he term 'public use' has not received a narrow or inelastic definition by this Court in prior cases."8 The economic benefit rationale used in Poletown had been growing in prominence across the nation. Through its prominence, Poletown pushed forward the nationwide acceptance of the economic benefit rationale. Poletown, though heavily criticized at the time it was decided, began to be taught in law school texts as an acceptable justification for public takings. …

The Promise of Equality: A Comparative Analysis of the Constitutional Guarantees of Equality in India and the United States

Abstract: INTRODUCTION All men are not created equal. This assertion seems wrong, even immoral, as modern liberal thought has established the inherent, equal worth of every person. But true equality among people cannot be achieved because there are natural inequalities among us. We recognize that one individual may have greater innate literary or athletic talent than another, or superior beauty or strength. These talents, in a just society, should be rewarded even though they have no moral significance. Therefore, some measure of discrimination among people is legitimate, and even mandated under a conception of a just society.1 The difficulty in establishing and furthering such a meritocratic society, however, arises from the pernicious effects of longstanding illegitimate and immoral bases for discriminating among people, such as gender, race, and class. Over time, these differences compound, so that the child born into a relatively privileged family often gains certain advantages without any demonstration of superior talent, ability, or moral worthiness.2 This Article explores the differing conceptions of equality in the very different constitutional systems of India and the United States. The respective histories and predominant religions in each country have shaped divergent views concerning equality. India's long and complex history of entrenched social hierarchy has led its people to view the concept of equality as rather collective; in particular, the idea of perfect equality, for many Indians, would chiefly include elimination of caste barriers and inferiority. In the United States, historical and religious influences resulted in, and perpetuate, a view focused on equality of individuals. This view has been described as "equality of opportunity," or as embodying an "antidiscrimination principle."3 Every aspect of national expression reflects the self-identification of the people in a nation as predominantly individualist or collectivist - whether in the areas of economic policy, foreign affairs, trade, or human rights. This Article primarily focuses on the issue of class equality, although that focus will hardly prove distinct. In India, an examination of class inequality must inevitably focus on caste inequality, yet elements of racial inequality and gender inequality will certainly intersect. Similarly, in the United States, while the concerns of the poor and of blacks are not fully aligned, black Americans are disproportionately poor. Moreover, the American paradigm of individual rights finds its strongest expression in the politics of economic disparity. National identification with either of these paradigmatic worldviews - individualist or collective - and the resulting conception of equality as it existed at the time of constitution drafting, find embodiment in the documents themselves. In addition, I would argue that those constitutional imperatives subsequently mold and shape a national ideology of equality. In particular, India's hierarchical social order and the historical degradation of certain groups led to compensatory discrimination programs in its constitution. Subsequently, the constitution shaped the view of social organization, with upper-caste groups now perceiving themselves as disadvantaged. Established after independence, the Constitution of India reflects the assumption that Indian society represents inequality, and the provisions regarding compensatory discrimination programs propose reforms toward that goal, with an ultimate aim of ameliorating unequal effects. Americans' belief that their nation is essentially classless has led to a Constitution uniquely focused on individual rights. An examination of the 14th Amendment as representative of a color-blind approach toward remedying inequalities reveals how the assumption that the United States is a nation of equals has been used to hamper reforms, in particular by disregarding the apparent effects of societal inequality and focusing instead on the implementation of a formalistic antidiscrimination principle. …

The Market for Legal Education & Freedom of Association: Why the Solomon Amendment Is Constitutional and Law Schools are Not Expressive Associations

Abstract: This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest in career services offices. INTRODUCTION This term the Supreme Court will consider whether Congress may constitutionally require law schools that accept federal funds (or that are part of universities which do so) to allow military recruiters the same access to the law schools' career services offices that the schools provide to other employers.1 The answer is straightforward: Yes. In Forum for Academic and Institutional Rights, Inc. v. Rumsfeld 2 (hereinafter "FAIR v. Rumsfeld"), a divided panel of the U.S. Court of Appeals for the Third Circuit held that the federal statute, known as the "Solomon Amendment,"3 that imposes this choice on universities violated the First Amendment rights of law schools. Some law schools wish to deny access to military recruiters because the Congressional "Don't Ask, Don't Tell" policy on openly homosexual members of the military violates the law schools' antidiscrimination policies.4 The Third Circuit's conclusion was incorrect and should be reversed.5 The purpose of this Article is to identify three problems with the Third Circuit panel's analysis in FAIR v. Rumsfeld - problems which should lead the Supreme Court to reverse the decision and uphold the Solomon Amendment.6 First, the Third Circuit improperly treated the law schools and law faculties as if they were independent entities entitled to assert associational freedom claims. They are not. Second, the Third Circuit undervalued the government's interest by failing to give sufficient deference to Congress's power to raise and support the armed forces.7 Proper deference to Congress's decision on how to recruit military lawyers changes the result. Third, the Third Circuit overvalued the law schools' and law faculties' interests by misunderstanding the nature of legal education and the impact of the Solomon Amendment on it. A correct understanding of these issues compels a result opposite to the one reached by the appeals court. However, any one of these grounds is sufficient to reverse the Third Circuit's opinion. Together they make a compelling case against FAIR. Section I briefly discusses the background necessary for these legal arguments. The structure of the market for legal education is critical to the proper understanding of the associational status of law schools and to the appropriate weighing of the government's and law schools' interests. I therefore provide a brief summary of the relevant market characteristics. Relatively few of the details of the Solomon Amendment or the underlying "Don't Ask, Don't Tell" policy on homosexuality and the military are relevant to the constitutional issues. The Third Circuit opinion focused on irrelevant aspects of each, however, and so I briefly describe the constitutionally relevant aspects of both. Parts II-IV set out the three critiques of the Third Circuit's opinion listed above. Part V concludes. I. LAW SCHOOLS, THE MILITARY'S POLICY ON HOMOSEXUALITY, AND THE SOLOMON AMENDMENT The clash between the plaintiff law schools and law faculties and the military over the Solomon Amendment is well known and needs only to be briefly summarized to emphasize the points critical to the argument below. (I refer the reader to the multitude of law review articles8 and both parties' thorough factual sections in their briefs and other pleadings9 for a more complete account of the background. …

Grutter and the Passion of Justice Thomas: A Response to Professor Kearney

Abstract: INTRODUCTION In an April 1996 speech delivered at the University of Kansas School of Law, Justice Clarence Thomas discussed his views on judging. l Declaring that judges are "bound by the will of the people as expressed by the Constitution and federal statutes,"2 Thomas stated that "[t]he popular idea that Justices and judges somehow 'make' the law, or represent the interests of certain constituencies (or help the Constitution 'evolve') is a dangerous idea that is at war with the very concept of impartial judging and the rule of law."3 Legal realism, Critical Legal Theory, Critical Race Theory, Critical Feminist Theory - these and other "schools of thought" posit, in Thomas's view, that "the law itself, is merely a product of the person and, more importantly, the social structure and class that produced him or her," such that "law becomes a means of oppression or of social control by the political, cultural, and economic elite of which judges are a part."4 Rejecting the notion that judges are "not bound by anything at all save one's own conscience,"5 Justice Thomas told his authence that "judges must be impartial referees who are willing at times to defend constitutional principles from attempts by different groups, parties, or the people as a whole, to overwhelm them in the name of expethency."6 Accusing "the critical theorists and the political interest groups [of] wish[ing] to destroy" the value of impartiality,7 Justice Thomas said: [!]mpartiality is the very essence of judging and of being a judge. A judge does not look to his or her sex or racial, social, or religious background when deciding a case. It is exactly these factors that a judge must push to one side in order to render a fair, reasoned judgment on the meaning of the law. In order to be a judge, a person must attempt to exorcise himself or herself of the passions, thoughts, and emotions that fill any frail human being. He must become almost pure, in the way that fire purifies metal, before he can decide a case. Otherwise, he is not a judge, but a legislator, for whom it is entirely appropriate to consider personal and group interests.8 In cases involving the Constitution, impartiality is obtained and maintained by "seekfing] the original understanding of the provision's text,"9 Thomas stated, as the judge's analysis is tethered "to the understanding of those who drafted and ratified the text."10 Justice Thomas's views on - and call for - impartial judging, and his declaration that passion and emotion have no place in judicial decision making, immediately came to mind as I read Professor Mary Kate Kearney's article, Justice Thomas in Grutter v. Bollinger: Can Passion Play a Role in a Jurist's Reasoning?}1 In this article, Kearney focuses on Justice Thomas's opinion in the United States Supreme Court's recent and highly anticipated decision in Grutter v. Bollinger}2 wherein Thomas disagreed with the Court's holding that the University of Michigan Law School constitutionally considered the race of certain applicants when making student admissions decisions.13 Focusing on and embracing Thomas's opinion, Kearney argues that Thomas, "the only black member of the Supreme Court ... has a unique vantage point on affirmative action,"14 that his opinion "stripped away the formalism that can distance judges . . . from the reality of the situation at hand,"15 and that Thomas's views on and opposition to affirmative action are "infused by [his] personal experiences"16 and an undefined notion of "passion."17 Assuming arguendo that Professor Kearney correctly characterizes Justice Thomas's opinion as an expression of his passion-driven and personalized opposition to affirmative action,18 this response agrees with Professor Kearney that passion can play a role in a jurist's legal reasoning and conclusions. But should passion play such a role, and to what extent? Justice Thomas has forcefully derided and decried judicial resort to and use of passion and emotion. …