Constitutional Law
stcynic | March 1, 2005The Supreme Court ruled today that state laws giving the death penalty for those under 18 were unconstitutional, in violation of the 8th amendment prohibition on cruel and unusual punishments. I'm not going to take a position either way on the ruling, since I really know nothing of the history or legal arguments. But I want to focus on the most fascinating part of Scalia's dissent in the case, where he uses - inconsistently, I will argue - the standard conservative rhetoric against the vague bugaboo of "judicial activism":
Because I do not believe that the meaning of our Eighth Amendment,…
stcynic | February 28, 2005In a major ruling with enormous implications, a federal judge has ruled that the government has 45 days to charge Jose Padilla with a crime, prove that he is a material witness and must be held, or release him. Padilla, a US citizen, has been held for over two and a half years in a military prison with no charges filed against him and no chance to have his day in court to challenge his detention, in clear violation of at least three amendments in the Bill of Rights. A suit was filed in federal court last year, but the Supreme Court ruled in June that it was filed in the wrong jurisdiction and…
stcynic | February 26, 2005At the same time that wannabe satrap Gerald Allen has been conspiring to kill free thought with his bill to ban all books and plays that mention homosexuality, the University of Alabama Faculty Senate has passed a resolution calling on restrictions on "hate speech" at that university. This is as good an opportunity as any to point out that threats to free speech do not come exclusively from the right; the left is equally zealous, in many cases, to punish those who speak ill of protected minorities. Nat Hentoff wrote of this phenomenon brilliantly in his book Free Speech for Me, But Not for…
stcynic | February 25, 2005Jon Rowe has an interesting post up about the question of incorporating the Establishment Clause of the first amendment. It was sparked by a discussion on the Panda's Thumb between Sandefur and another frequent commentator here, Ed Darrell (you have to scroll down a ways in the comments to find the right ones). All attorneys, and all essentially on the same side, but arguing over what I at least think are interesting details of constitutional interpretation. I think the quote from Akhil Amar that Jon offers really nails the issue:
Perhaps the greatest elaboration came from Thomas Cooley's…
stcynic | February 23, 2005The latest installment in my never-ending series to demonstrate that when conservatives use the phrase "judicial activism", it means nothing other than "when judges do things we don't like." From the AP:
Politically conservative public interest groups filed lawsuits Tuesday seeking to invalidate the $3 billion stem cell research funding institution California voters approved in November.
One lawsuit filed by the People's Advocate and the National Tax Limitation Foundation alleges that the California Institute for Regenerative Medicine violates California law because it's not governed…
stcynic | February 22, 2005The New York Times is reporting this morning that the White House is expecting Rehnquist to retire at the end of the current term in June, if he can hold on that long, and they are preparing for that event. They also quote sources as saying that 10th Circuit Court Judge Michael McConnell has rapidly moved up the lists because, while he is solidly conserative, he also garnered an enormous amount of support from liberal law profs during his confirmation hearings for his current post. Groups with which I am normally allied, such as Americans United, publicly opposed his nomination to the 10th…
stcynic | February 21, 2005A couple of recent happenings concerning evolution disclaimer stickers in science textbooks. In the Cobb County case, the 11th Circuit Court of Appeals has asked the two sides in that dispute to meet with a mediator to see if they can reach a settlement in the case rather than having to have a full appellate trial. Neither of the attorneys in the case think that any settlement is likely, and neither do I. There really isn't much room there for compromise.
Meanwhile, a school district in Shelby County, TN is trying to place its own disclaimers in biology textbooks. PZ Myers has a post with…
stcynic | February 18, 2005On rare occasions, we are on the same side. I am happy to announce that a judge in Philadelphia has dismissed the charges against a group of Christians who were arrested after preaching on the sidewalks during a gay pride event there last fall. The charges were clearly a violation of the first amendment and the judge was right to dismiss them. Hopefully the DA's office in that city will think twice before filing such charges in the future.
stcynic | February 14, 2005Marci Hamilton has an interesting column on Findlaw about whether the Establishment Clause is incorporated by the 14th amendment, which means whether it now applies to the states or not. The Supreme Court has long held that it does, but at least one justice, Clarence Thomas, argues that it does not. In his opinion in the Newdow pledge of allegiance case, Thomas argued that rather than denying Newdow's standing to bring the suit, the court should have granted him standing and ruled against him, and in the process overturned a number of precedents based upon the incorporation of the…
stcynic | February 7, 2005Jon Rowe has a couple of posts up about a breathtakingly bad argument for why Congress has the authority to ban gay marriage under the 14th amendment. The argument is made by Austin Bramwell in this article from the American Conservative magazine. Here is the argument as Bramwell states it:
It isn't true that only a constitutional amendment can stop the courts from imposing gay marriage. On the contrary, Congress can stop the gay-marriage movement cold by passing a simple statute. That statute need say nothing more than "No State shall define marriage as anything other than between a man and…
stcynic | February 1, 2005Timothy Sandefur has an excellent post at the Panda's Thumb fisking Frank Beckwith's article in Legal Times concerning the Cobb County decision. The crux of Beckwith's argument is that the ruling "presents a Catch-22 that makes it nearly impossible for religious citizens to remedy public policies that they believe are uniquely hostile to their beliefs." There are many problems with this argument and Sandefur nails several of them. I'd just like to expand on one point, which is the almost ubiquitous nature of such complaints and therefore desires for such a "remedy".
Beckwith's argument is…
stcynic | January 27, 2005A few days ago, I wrote about the new Illinois bill that added sexual orientation to their already existing anti-discrimination laws. That bill, signed by the governor last week, did not specifically include an exemption for churches. That lack of exemption has caused what can only be described as a full scale freakout in the right wing media. As I said the other day, being opposed to such a law is entirely reasonable, as a law prohibiting churches from discriminating on the basis of sexual orientation or religion is quite clearly unconstitutional. But that is exactly why I wasn't too…
stcynic | January 22, 2005Jon Rowe has caught another great example of why the phrase "judicial activism", thrown about incessantly by conservatives, means nothing more than "judges doing things we don't like". The example comes, predictably, from the Worldnutdaily. Illinois has just passed a law to become the 15th state to add sexual orientation to their anti-discrimination laws. The law was passed by the state legislature and signed by the governor. Peter LaBarbera, director of the Illinois Family Institute, is up in arms and wants it overturned by the courts because it does not exempt churches and religious…
stcynic | January 15, 2005New Alabama Supreme Court Justice Tom Parker, like former justice Roy Moore, is a bit of a controversial figure. He is, as Feddie from Southern Appeal put it, a Roy Moore clone. After being elected to that position, he had two different non-binding ceremonial swearings-in, one by Roy Moore and one by Clarence Thomas. This report on those ceremonies contains what I think is a stunning claim by Parker:
Many stood and applauded former Alabama Chief Justice Roy Moore as he walked to the stage to administer the oath to Parker. Moore's action was ceremonial, since Parker took his formal oath of…
stcynic | January 13, 2005Timothy Sandefur has a report on the decision at the Panda's Thumb. And CE Petit has a post about it as well. Both seem to think that it's a pretty solid decision.
You can also access the amicus curiae brief that was written by Sandefur on behalf of Michigan Citizens for Science and seven other state science organizations here.
stcynic | January 13, 2005Judge Clarence Cooper has ruled against the Cobb County school district regarding the evolution disclaimers:
"Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case," he wrote.
"By adopting this specific language, even if at the direction of counsel, the Cobb County School Board appears to have sided with these religiously motivated individuals."
The sticker, he said,…
stcynic | January 9, 2005Steven Gey, Matthew Brauer and Barbara Forrest have published a new working paper on SSRN, Is It Science Yet? Intelligent Design Creationism and the Constitution. Here is the abstract:
On several occasions during the last eighty years states have attempted to either prohibit the teaching of evolution in public school science classes or counter the teaching of evolution with mandatory references to the religious doctrine of creationism. The Supreme Court struck down examples of the first two generations of these statutes, holding that they violated the Establishment Clause of the First…
stcynic | January 5, 2005Continuing on the theme from the other day, here are more examples of the innumerable cases where, contrary to the absurd rhetoric of the likes of Joseph Farah, the ACLU has defended the free exercise rights of Christians and Christian organizations. Here's a story about how the ACLU of Nevada has been defending the right of street preachers to preach to people on the sidewalks of Las Vegas. The preachers themselves, as the article notes, hate the ACLU and think they're anti-Christian, but the ACLU defends them anyway because their client is really the Constitutional principle of free speech…
stcynic | January 4, 2005Mr. Sandefur has a thorough fisking of a law review article advocating the teaching of ID as constitutional at the Panda's Thumb. Travel hither and read.
stcynic | January 4, 2005Jon Rowe is back to blogging at his own place and has kept up the great writing he has been doing the last couple weeks. I'm gonna take a stab in the dark and guess that he hasn't been teaching because of holiday vacation and has had more time to write? Whatever the reason, you should look at this essay on public vs. private morality, which sets out to dig a little deeper into the question of whether the government should attempt to "legislate morality". He is correct that both sides tend to oversimplify and that it isn't merely a question of legislating morality, but of which moral questions…