17 December 2008
15 December 2008
14 December 2008
What began as a lowbrow parody of a high school principal goes before a federal appeals court this week.Seems hard to believe that schools could possibly punish students for speech they engage in outside of school, but the Internet has truly changed the nature of speech. The Philadelphia Enquirer has more.
The case of Justin Layshock, who lanced his principal with an unflattering Internet "profile" created on a home computer, has become a battleground pitting Pennsylvania school administrators against groups that defend free-speech rights.
The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments from each side Wednesday.
Mr. Layshock used his grandmother's computer in December 2005 to create a fictitious profile of Hickory High School Principal Eric Trosch. Mr. Layshock, then a high school senior, made fun of the principal's bulk and implied that he smoked marijuana. Mr. Layshock posted the profile on the Internet social site Myspace.com.
Angered, Mr. Trosch and administrators of the Hermitage School District in Mercer County suspended Mr. Layshock from school for 10 days. After that, they placed him in an "alternative" education program that Mr. Layshock considered inferior.
12 December 2008
11 December 2008
A small-town Massachusetts police chief who authorities say promoted, organized and profited from a firearms exposition where children were encouraged to shoot machine guns and where an 8-year-old killed himself with a Micro Uzi was charged Thursday with involuntary manslaughter.The elements of involuntary manslaughter under Massachusetts law are:
Although the event was promoted as an opportunity for children to fire machine guns under the supervision of certified instructors, 8-year-old Christopher Bizilj had been supervised by a 15-year-old boy who was "knowledgeable about guns" but not certified as a firearms instructor, Hampden County District Attorney William M. Bennett said in outlining charges against Pelham Police Chief Edward B. Fleury and two others.
One can commit involuntary manslaughter through:
(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or
(2) an unintentional killing resulting from a battery.
10 December 2008
09 December 2008
05 December 2008
02 December 2008
or maybe I should say to God we give credit. At least that is what legislators in the State of Kentucky say must be part of the Kentucky Department of Office Security's annual report. According to the Associated Press:
The law that organized the Homeland Security office first lists Homeland Security's duty to recognize that government itself can't secure the state without God, even before mentioning other duties, which include distributing millions of dollars in federal grants and analyzing possible threats.This seems to raise the same question that I ask myself every time I see an athlete praise God after a sporting event. If both teams ask for God's help with winning, do members of the losing team blame God for the loss? In the instance above, if God gets credit for securing the State of Kentucky, might he be blamed should something terrible happen there? Probably not. Instead the blame will be placed at the feet of "abortionists" gays and the ACLU. (follow the link and see quote number one if you are unsure what this means).
28 November 2008
How this idea of direct citizen participation and individual rights co-exist could be put to the test soon in California. Last year the California Supreme Court ruled that laws banning gay marriage violated the California Constitution. In response, opponents of gay marriage were able to get an anti-gay marriage referendum on the ballot. This referendum, which a majority of voters supported in the recent November election, amends the Constitution to prohibit what the Supreme Court said had to be allowed under the Constitution: gay marriage.
So a showdown down between the court and the people appears to be on the horizon. Why? Because the California Supreme Court has agreed to review whether the people's amendment to the Constitution violates the Constitution. And so how have supporters of the people's amendment responded? By saying that they will try to recall any judge who votes to overturn the people's amendment. Confused?
Let's recap. The legislature banned gay marriage. The Court said the ban violated the Constitution. The people then amended the Constitution, overruling the Court. Now the Court is going to rule whether the people's action violates the Constitution. And if they do rule that way, the people are threatening to remove the judges. Simple. Which begs the question. Is democracy, as it is practiced in California, a good idea?
27 November 2008
25 November 2008
22 November 2008
Students who have been paying attention to the aftermath of the recent election in the United States probably know that some races for the U.S. Senate and House of Representatives are still not decided. The Senate race in Minnesota is particularly interesting, as both candidates are challenging the validity of ballots cast by voters. How can this be, you might ask. Well, the Minnesota Public Radio website (this link will take you the pictures) has pictures of some of the ballots that are being challenged. It is fascinating. I encourage you to take a look.
16 November 2008
Could it be that even former Presidents can exercise Executive Power? I see Truman's point, but could this apply equally to all of Bush's advisers? I have no doubt Bush would make this argument considering how expansively he has interpreted Executive Privilege.
14 November 2008
2. Vice President
3. Speaker of the House
4. Senate President Pro Tem
5. Secretary of State
6. Secretary of the Treasury
7. Secretary of Defense
8. Attorney GeneralOf course, constitutional scholars believe this federal law is unconstitutional because the Constitution only talks about the Vice-President and then an officer (many believe this means member of the Cabinet) with regards to succession.
08 November 2008
The case, Federal Communications Commission v. Fox Television Stations, concerns fines given out by the FCC to the Fox television network. The fines were were for "indecent" language on live television (here is one example from the Golden Globe Awards; at around 5:35 of the clip you can hear U2's Bono utter the "offensive" word).
In the lower courts, lawyers arguing in defense of Fox used the offending words as part of their arguments. One commentator described the arguments as being littered with the talk of seventh grade boys in a locker room. So as time drew near for oral arguments in front of the U.S. Supreme Court, commentators began to wonder whether Fox's attorney would dare to utter these words in front of the nine justices of the Supreme Court. So if televisions are not allowed in the courtroom, then what's the big deal?
Well, a few years ago the Court started allowing audio recordings of oral arguments to be released on the same day of the arguments. But in anticipation of this argument, Chief Justice Roberts has said the audio from this particular argument will not be available until the end of the term. This rather silly attempt to protect the public from naughty words was for naught. The lawyer for Fox decided against filling the hallowed chamber of the Court with F-words and S-words, so the audio of the arguments is "clean." Heaven forbid a few colorful terms be heard over the public airwaves or via mp3 download from the Court.
15 July 2008
The members of the current Supreme Court, by age:
John Paul Stevens, 88
Ruth Bader Ginsburg, 75
Antonin Scalia, 72
Anthony Kennedy, 71
Stephen Breyer, 69
David Souter, 68
Clarence Thomas, 60
Samuel Alito, 58
John Roberts, 53
The last 10 justices to leave the Supreme Court, with their age and date of retirement:
Sandra Day O'Connor, 75, Jan. 31, 2006
William Rehnquist, 80, Sept. 3, 2005
Harry Blackmun, 85, Aug. 3, 1994
Byron White, 76, June 28, 1993
Thurgood Marshall, 83, Oct. 1, 1991
William Brennan, 84, July 20, 1990
Lewis Powell, 79, June 26, 1987
Warren Burger, 79, Sept. 26, 1986
Potter Stewart, 66, July 3, 1981
William Douglas, 77, Nov. 12, 1975
25 June 2008
23 June 2008
The State of South Carolina will soon be offering a license plate to its drives with a Christian cross on it, as well as the words "I believe." Anyone who has been to the States might have noticed that one can find a variety of different license plates within a given state. While in Florida last year, I noticed license plates containing environmental themes ("protect our reefs" and "save the manatee"), sports themes (NASCAR, University of Florida, Florida State University) and family themes ("family first" or "family values"). click here for a complete list of Florida specialty license plates.
The question here isn't whether states can have specialty plates, but what happens when one of these specialty plates contains a message that may violate the Constitution. As students in both my classes this semester know, the First Amendment of the U.S. Constitution contains the Establish Clause, among other clauses. This clause has been interpreted by the Court to require some semblance of a separation of church and state. So when a state provides a license plate with an unmistakable Christian symbol on it, does this act violate the Establishment Clause? The courts will most surely be asked to decide this question in the near future.
18 June 2008
Why make a distinction between a traditional public forum and other government property? Generally because the Courts have been sympathetic to the government's position that allowing speech on all government property in any manner would interfere with workings of the government. Imagine if the government had to allow protesters onto military bases or into prisons. Clearly, this kind of expressive activity would interfere with the ability of government to carry out it's mission, whatever that mission might be on the property in question. For purposes of this class, students don't need to know this distinction, but I hope it helps explain why these protesters, who entered the grounds of the Supreme Court, were arrested.
16 June 2008
12 June 2008
A few years ago the U.S. Supreme Court struck down a Texas statute that outlawed consensual homosexual sex. (see Lawrence v. Texas). According to many commentators, and three judges on the First Circuit Court of Appeals, the decision in Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label." In short, the Court didn't use the rational basis test to deal with this law that classified gays and lesbians differently then heterosexual couples, which is how courts had always dealt with such classifications in the past.
But even using this "new" level of scrutiny that falls between strict scrutiny and rational basis, the First Circuit Court of Appeals still found the Don't Ask, Don't Tell policy to be constitutional. How?
The court began it's analysis by noting that "Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied." In short, the Lawrence Court weighed the "protected liberty interest" as noted above, against the state's interest in stopping "immoral conduct." In the end, the Lawrence Court felt that individual right was more important.
Lawrence truly was a departure from past reviews of laws that classified gays and lesbians differently, i.e. using the rational basis test. A rational basis analysis "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law," said the First Circuit Court of Appeals. In Lawrence, the Court most certainly looked at the individual interest at stake.
So the First Circuit Court of Appeals now had to use this new approach to judge the military policy at issue. And they did so rather quickly, saying basically that when it comes to matters of the military, courts have always shown deference to Congress because: 1) Congress is in a much better position than the courts to determine the proper workings of the military and; 2) the U.S. Constitution specifically gives Congress the power to raise and support armed forces. The Court then noted that the policy in question was created after a careful and thorough review noting that Congress:
focused explicitly on the effect that the Act could have on constitutional rights of homosexuals, concluding that "if the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee's judgment as to the effect of homosexual conduct in the armed forces. . . . Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.In short, concerning matters of the military, courts should basically defer to Congress, which is really what Courts generally do when applying the rational basis test. Which begs the question. Did the First Circuit really use something other than the rational basis test in concluding that the policy did not violate the Constitution? It doesn't appear so.
11 June 2008
10 June 2008
So, under California law it is the local government (in this case county government) that must help carry out the medical marijuana law, but the counties are beginning to question whether this is wise (and lawful) in light of the aforementioned U.S. Supreme Court decision. Ah, the joys of federalism.
UPDATE - A California court has ruled that California's medical marijuana laws do not violate federal law saying, "The purpose of the (federal law) is to combat recreational drug use, not to regulate a state's medical practices." It is possible that this ruling will be appealed to California Supreme Court.
09 June 2008
03 June 2008
16 May 2008
What do I mean by that? Simple. Government cannot violate these rights. Period. But governments (state and federal) may provide greater rights. How so? A case decided by the California Supreme Court yesterday provides a nice illustration.
The U.S. Congress is on record saying that marriage can only be between a man and woman. Federal courts have generally ruled that this limitation does not violate the U.S. Constitution (although the U.S. Supreme Court has never weighed in on this question). But several states have decided that under their own constitutions, the right to marry is extended to couples of the same sex.
By a 4 to 3 vote, the California Supreme Court said that a California law restricting marriage to only couples of the opposite sex violates the California Constitution. By doing so, the California Court is providing greater rights to gays and lesbians then what is given to them under the U.S. Constitution. In short, the U.S. Constitution sets a floor of rights under which government may not go. But if government decides to provide greater rights, that's fine as there is no ceiling set by the U.S. Constitution when it comes to the states granting fundamental rights under their own constitutions.
14 May 2008
09 May 2008
24 April 2008
22 April 2008
Understanding Congressional power, especially as it relates to the Commerce Clause in Article I of the U.S. Constitution, is not an easy task. My hunch is that many students walked out of yesterday's lecture on the Commerce Clause wondering, "what the heck is LeMieux talking about." As I said yesterday, the central question here is what are the limits of Congressional power? That's really what's at the heart of discussions concerning the Commerce Clause. An excellent example of this concerns whether Congress can pass laws aimed at protecting the environment. As Benjamin Wittes, of the Atlantic Monthly, pointed out in a 2005 article:
Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?His point is, if enough judges on the Supreme Court believe that Congressional power under the Commerce Clause is not very broad, might the Court start striking down laws aimed at protecting endangered animals and wetlands? Good question and one that makes environmentalists in the United States lose sleep.
15 April 2008
El Masri's case was dismissed by a federal court because the government claimed his lawsuit involved state secrets. As the Washington Post noted in an editorial earlier this week:
IN RECENT YEARS, a number of possibly deserving litigants have been denied their day in court after the Bush administration claimed that too many secrets would be spilled in an open trial. The cases of people who alleged they were subjected to illegal eavesdropping or were handed over to a foreign country in an "extraordinary rendition" have been fended off in this way.But now Congress is trying to change this by passing a law that would allow courts to look more closely at the state secrets defense that has been raised in these cases. This is a classic example of one branch (Legislative) trying to place limitations on another branch (Executive) by giving the third branch (Judiciary) more power to check government actions. Whether Congress has the power to do this will be a topic we will address next week.
04 February 2008
28 January 2008
Reports out of England (yes, I am aware that this link is to a page run by the University of Pittsburgh law school and that Pittsburgh is NOT in England) indicate that the current Lord Chief Justice will likely sit as the head of the new court when it opens in 2009, replacing the current head of the Law Lords who is set to retire sometime this year. The other three vacancies will likely be filled under the new appointment system, which may include submitting an application and doing interviews.
23 January 2008
18 January 2008
14 January 2008
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Notice the placement of the commas! It's confusing at best, unintelligible at worst. As the Times piece explains, advocates of gun rights claim the second comma, after "State," endows individuals with the right to bear arms. The U.S. Court of Appeals for the D.C. Circuit agreed with this interpretation, and struck down a Washington D.C. law attempting to regulate gun ownership. Other advocates talk about "absolute phrases" and "main clauses;" things that would make a grammarian proud but leave the rest of us perplexed.
The author of the Times piece makes an interesting claim about how commas were used at the time the Second Amendment was written, and essentially claims the Court should ignore the commas altogether. Give the article a quick read to see how comma placement can cause headaches, especially when the commas were placed by people who use different grammar rules than we use today.