PSCS Constitutional Law Class 2008

Bonus: local privacy/exclusionary rule news

2008-05-23T10:26:00.000-07:00

The Washington State Supreme Court limits the kinds of searches that law enforcement can conduct, in the Seattle PI.

HW for 5/21: An economic liberty puzzle

2008-05-07T10:40:00.000-07:00

Minimum wage laws require that employers pay employees no less than a certain hourly wage. (In Washington, the minimum wage is currently $8.07/hour.)

In effect, this denies workers the freedom to work for whatever wage they are willing to work for.

To illustrate this, let's say the Acme Widget Company hires John Boolihan for $8.07 an hour. I'm unemployed, and really need some work, and I'd be happy to do his job for $7/hour. But the law prohibits Acme Widget and me from entering into a contract for that mutually agreed-upon price.

If Acme and I can reach a bargain, why should the state be able to butt in and say that we can't? Seems to me that's a violation of the "liberty" guaranteed by the 5th and 14th amendments. Shouldn't I be able to work for whatever I want to work for?

In the comments, make an argument for why minimum wage laws do not violate the Constitution.

Bonus: Cell phone 4A question

2008-05-04T21:37:00.000-07:00

When police obtain cell phone records without a warrant in order to help someone in danger, does it violate the Fourth Amendment? See this P-I article.

Bonus: Privacy issue on WA State Ferries

2008-04-30T10:35:00.000-07:00

As mentioned in class today, you can listen to the NPR story on random citizenship checks.

HW for 5/7: Constitutional Amendments

2008-04-28T19:50:00.000-07:00

Amending the Constitution is hard -- it has only been done successfully 15 times in the last 200 years. The process was designed to make it difficult.

Taking into account what you've learned about law and the Constitution over the last eight months, write an amendment that you would like to see added to the Constitution.

Post the text of your amendment in the comments.

Massachussetts v. EPA (environmental)

2008-04-23T09:34:00.000-07:00

Massachusetts petitioned the EPA to regulate carbon dioxide emissions from new motor vehicles under the Clean Air Act which states that "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare" must be regulated. The EPA denied this petition, saying that even if they were authorized to regulate carbon dioxide, they didn't have to until further research was done. Massachusetts appealed this denial to the Court Of Appeals, which sided with the EPA. They appealed then to The Supreme Court, which reversed the decision by a 5-4 vote with Stevens, Kennedy, Souter, Ginsburg and Breyer for Mass., and Stevens wrote the decision, stating that Massachussetts had a "stake in protecting its quasi-sovereign interests" and therefore had a right to sue the EPA for potentially failing to protect it's territory from poison. Roberts dissented, saying that carbon dioxide's damaging qualities were not proven, and Scalia dissented saying that the clean air act was intended to combat "conventional lower-atmosphere pollutants," not global climate change.

Hamdan v. Rumsfeld (War Powers--Military Commissions

2008-04-23T00:30:00.000-07:00

Salim Ahmed Hamdan was a Yemeni citizen who formerly worked at an agricultural project that Osama Bin Laden created, was captured and sent to Guantanamo Bay after the invasion of Afghanistan. The Bush administration charged him in 2004 of conspiracy to commit terrorism and wanted to try him before a military commission (military commissions strip detainees of many civil rights they would have in a regular trial). The Supreme Court decided 5-3 that military commissions violated the Uniform Code of Military Justice and the Geneva Conventions and that President Bush didn’t have the congressional authority to try detainees though them. Justice Stevens wrote the majority opinion, with two concurrences written by Breyer and Kennedy, and the three dissenters—Scalia, Thomas, and Alito each writing their own dissents. Chief Justice Roberts didn’t take part in this case because he was on the three person panel which previously considered it on the United States Court of Appeals for the District of Columbia Circuit.

Brendlin v. The State of California

2008-04-22T23:45:00.000-07:00

In California, officers stopped a car, which they later admitted was not suspicious and showed no indications of wrongful driving. When an officer asked for the driver's liscence and registration, he recognized Brendlin as a person in violation of parolle, and proceeded to arrest Brendlin. While searching his person, the officer found evidence of methanphetamine use. Brendlin was charged with possession of methanphetamine, where he moved to suppress the evidence that the officer fould as a result of the stop, which he argued was unlawful, because the officer did not have probable cause or reasonable suspicion to stop the car, which Brendlin argued was a "seizure" of his person, since he was not free to leave the vehicle. The trial court dismissed his motion to suppress. The California court of appeals reversed the previous court's decision, then the Supreme Court of California narrowly upheld the trial court's ruling.

The Supreme Court ruled unanimously in favor of Brendlin. Justice Souter delivered the opinion of the court.

edit:Sources:
www.findlaw.com
www.wikipedia.org

Huber v. Wal-Mart

2008-04-22T22:32:00.000-07:00

Pam Huber was a Wal-Mart employee who's job consisted of ordering product, and stocking the shelves. Pam endured a severe injury on the job which ultimately she never fully recovered from. After it was made clear that she would not recover from this injury, it was also made clear that she would not be able to maintain her physically challenging position. The ADA (Americans with Disabilities Act) was established to provide fair opportunities for employees that are hurt on the job. The act requires that an employee injured on the job is to be reassigned to a position that is both reasonably within their physical limits, and their pay grade. However, instead of providing Pam with a similar position, they reduced her all the way to a janitor. This dropped her $13.00 per-hour wage to $6.20 per-hour. Since this was seemingly in clear violation of the ADA, Pam brought a lawsuit against Wal-Mart claiming that she was discriminated against because of her injury. Wal-Mart's counter-argument to this was that they did not violate the ADA, and that their store policy defined injury procedures differently. Wal-Mart argued that disabled employees must compete for a position on the same level as everyone else, and that Pam was not the most qualified for the position. The District Court ruled in favor of Pam, but Wal-Mart appealed. The Supreme Court reviewed the petition and ultimately granted in favor of Wal-Mart, however Justice Breyer was not involved.

http://www.scotusblog.com/movabletype/archives/07-480_ob.pdf

BONG HITS 4 JESUS

2008-04-21T21:11:00.000-07:00

Morse Vs. Frederick

In 2002, Joseph Frederick was suspended for displaying a banner the had "Bong HiTS 4 Jesus" written on it. Frederick was a senior and was suspended for 10 days. The principal initially suspended him for the City Juneau's anti-drug policy. Frederick later appealed the suspension to the superintendent, who denied the appeal. Then it traveled through the other courts to SCOTUS. The Majority was written by Chief Justice Roberts which said. "Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick." The Court Decided that Morse was not in violation of Frederick's First Amendment rights, since he was promoting illegal activities during a school event.

The vote was 6-3 in favor of Morse. Court Opinion by Roberts. Concurrence by Thomas & Alito. Concurrence Dissent by Breyer. Dissent by Stevens, Souter, Ginsburg.

Gonzales v. Carhart

2008-04-21T13:25:00.000-07:00

The Partial-Birth Abortion Ban Act was approved by George Dubya Bush on November 5, 2003 and was challenged soon after. The ban was on intact D&E (Dilation and Evacuation), which is a second trimester abortion procedure. In Regular D&E the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina (partially quoted from Findlaw). The fetus is ripped apart before coming out. Intact D&E is very similar, but the fetus does not get ripped up. To allow the fetus to come out intact the doctor must smash its head in.

The ban was upheld on April 18th, 2007 since there was a "lack of proof that the act was unconstitutional". It was 5-4 decision; Justice Kennedy leading the Opinion with Roberts, Scalia, Thomas and Alito joining. Ginsburg Dissented, joined by Stevens, Souter and Breyer.

Findlaw
Wikipedia

Lilly: “That's Lame.”

Parents Involved in Community Schools v. Seattle School District No. 1

2008-04-20T14:15:00.000-07:00

Seattle school districts used tiebreakers to determine which students go to which schools. One of these was based on the student’s race and was intended to enhance the racial diversity of the schools. Students were defined as either white or non-white by these rules. A non-profit group, Parents Involved in Community Schools, sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed, but upon en banc rehearing the court affirmed the lower court decision. From there, the case went to the Supreme Court.

By a vote of 5 to 4, the court invalidated voluntary integration plans in the school districts of Seattle and metropolitan Louisville, KY., ruling that using a student’s race to govern the availability of a place at a desired school, even for the purpose of preventing resegregation, violated the 14th Amendment’s guarantee of equal protection.

Chief Justice Roberts wrote the opinion in Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908. But Justice Kennedy, a member of the majority, refused to sign the more far-reaching parts of the chief justice’s opinion that would have barred even more general considerations of race. His position in the middle of the court gave small comfort to the four dissenters: Justices Stevens, Breyer, Souter and Ginsburg.

http://en.wikipedia.org/wiki/Parents_v._Seattle

http://www.nytimes.com/2007/07/01/washington/01scotus.html?_r=2&adxnnl=1&oref=slogin&pagewanted=all&adxnnlx=1208405692-xcYFQ/IrF2JphMrN+MXP2A&oref=slogin

"Baze v Rees" (Capital Punishment)

2008-04-20T12:06:00.000-07:00

"Baze v Rees" was a Supreme Court case in which the court agreed to hear the appeal of two men, Ralph Baze and Thomas Bowling, both of Kentucky. The men were sentenced to capital punishment through lethal injection. They argued that executing them by lethal injection would violate their 8th Amendment right to prohibition of cruel and unusual punishment. Under court ruling, lethal injection must not inflict "unnecessary pain". The men's attorneys argued that the chemicals used to kill them carried an unnecessary risk of inflicting pain during the process. The specific drug used for lethal injections in Kentucky is the same drug used in nearly all states that allow and use lethal injection, therefore this case had nationwide attraction.

The Court heard oral arguments on January 7th, and on April 16th, 2008 The Court rejected the challenge brought by Baze and Bowling, therefore upholding Kentucky's method of lethal injection. With the vote of 7-2. Ruth Bader Ginsburg and David Souter dissented.

Bonus: Death penalty cases on NPR

2008-04-16T21:21:00.000-07:00

If you're interested, listen to Nina Totenberg's story about both today's decision in the lethal injection case, as well as today's oral arguments in Kennedy v Louisiana (the child rape case).

HW for 4/23: Recent Decisions

2008-04-16T18:54:00.000-07:00

Pick one case from the 2005, 2006, or 2007 (current) terms of the Supreme Court that interests you, and write a short summary of the case. (If you pick a case from the current term, make sure you choose one that has already been decided.) In doing this we will expand on the "make our own encyclopedia" concept we've employed earlier this year with civil liberties news items and last week with justice biographies.

Post your work in its own blog entry, not as a comment responding to this post. The title of your post should include both the name of the case and the area of constitutional law in which it is relevant (e.g., "Baze v Rees (Capital Punishment)"). In the post, write a short summary of the facts of the case, and a short summary of the decision. Include the vote count, who wrote the opinions of the Court, and indicate who were the dissenters (if any) -- e.g., "The vote was 7-2, with Justices Souter and Ginsburg dissenting. Justice Kennedy wrote the opinion of the court." If you like, you can also include information about other opinions.

Useful resources for browsing decisions:

Cornell's LII highlights for 2005 and 2006 terms

New York Times highlights for 2006 term (may require login)

Cite your sources.

Samuel Alito

2008-04-16T08:05:00.000-07:00

Samuel Alito is a Associate of the Supreme Court of The United States.
He was born on Apirl 1, 1950 in Trenton, New Jersey. Hes parent were
Italian American. He grew up in Hamilton Township, New Jersey.
He was appointed by George W. Bush.
Samuel went to Princeton University , and Yale Law School(were he was
a editor on the Yale Law Journal). He also was a United States attorney
and served on the United States Court of Appeals
for the Third Circuit. He is a Conservative member of the court.

http://en.wikipedia.org/wiki/Samuel_Alito

http://www.whitehouse.gov/infocus/judicialnominees/alito.html

Chief Justice John Roberts

2008-04-16T07:45:00.000-07:00

John Roberts Jr. was born on January 27, 1955. He joined the Supreme Court on September 29, 2005, and is the is the seventeenth Cheif Justice. He was appointed by President Bush. He before this he was a judge for three years in the US Court of Appeals.
He was born in Buffalo, New York, and moved to Long Beach, Indiana a few years after he was born. He graduated Highschool as a National Merit Scholar, then went to Harvard. He graduated with a B.A. summa cum luade in 1976, then enorolled in Harvard Law school and graduated with a J.D. magna cum luade in 1979.
John Roberts suffers from seizers, and has had two in recent years. This was considered during his 2005 nomination, but the committee decided it wasn't of great importance.
He is married to Jane Sullivan Roberts, and they have two adopted children.

David Hackett Souter

2008-04-15T23:25:00.000-07:00

David Hackett Souter is Sixty-Eight years old and was appointed in 1990 by George H.W. Bush, succeeding William J. Brennan. He grew up in Massachusetts and New Hampshire. Upon graduation from Concord High School, he was voted “most likely to succeed” and “most sophisticated”. Wikipedia says that he started out voting on the conservitive side, but now is considered to be part of the “liberal wing” of the court, while oyez.org/justices/david_h_souter makes him out to have a wacky voting record, often inciting anger among liberals and conservatives alike. From what I’ve read (supremecourthistory.org/myweb/justice/souter.htm) Souter seems to be very pro free speech.

dissenting opinion on Cohen vs. Cowles Media Co:

caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=501&invol=663

John Paul Stevens

2008-04-15T22:35:00.000-07:00

John Paul Stevens was born April 20, 1920 in Chicago to a wealthy family as the youngest of four brothers, two of whom would also become lawyers. Majoring in English at the University of Chicago, he initially had thought of being a teacher, but was persuaded otherwise by his brother to be a lawyer after being a naval officer in WWII. He graduated from Northwestern University School of Law in 1947 with the highest GPA the school had ever seen, and then was a clerk for liberal Supreme Court justice Wiley Rutledge.

After working in Chicago for a law firm, establishing a good reputation as an anti-trust lawyer, he started his own in 1951. He caught Nixon’s attention in 1970 with his involvement in the Greenburg Association, was appoint to the United States Court of Appeals for the Seventh Circuit. In 1975 he was nominated to be Associate Justice of the Supreme Court by Gerald Ford to replace the recently retired William O. Douglas, taking his seat December 19 of that year.

Steven’s has avoided the standard liberal and conservative labels most other justices get, making himself known for carefully examining all the facts of a case and balancing many values before making a decision, sometimes favoring the individual, sometimes the authority of the government. This has made him somewhat unpredictable among other justices who tend to be more consistent in their opinions. As the court moved further and further right throughout the Reagan and Bush presidencies, however, he became more liberal by comparison, providing a voice of moderation on a mostly conservative court. And as years have passed, he has in fact moved to the left, having adopted a much more libertarian view on free speech since the 70’s, for example.

He is said to be a very soft spoken guy with a fondness of bowties. Nearly 88, he is the second oldest justice to ever serve on the Supreme Court, and the ninth longest-serving. It doesn’t look like he’s got any intention of retiring soon, and he still can play tennis, which he does on a regular basis. Badass.

Dissenting opinion in Bush v. Gore (2000)

Dissenting opinion in Texas v. Johnson (1989)

Antonin Scalia

2008-04-15T21:39:00.000-07:00

Antonin Scalia, age 72, was appointed to the US Supreme Court by Ronald Reagan in September of 1986. Scalia, born in New Jersey, took William H. Rehnquist's seat and is the second most senior justice on the Court. Scalia and his family moved to New York City when he was 5, where he grew up. Scalia married Maureen McCarthy in 1960, they have had nine children: Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane.

Scalia graduated first of his class from Xavier High School in Manhattan. He studied at Georgetown University, the University of Fribourg in Switzerland, and studied law at Harvard Law School. In 1974-77 Scalia was the Assistant Attorney General for the Office of Legal Counsel under the Ford Administration. In 1982 Reagan appointed Scalia to the US Court of Appeals for the District of Columbia. In 1986, Reagan nominated Scalia to serve on the US Supreme Court, and he was approved by the Senate by a vote of 98-0.

Scalia is known as a formalist and a core part of the conservative wing on the Supreme Court. Scalia uses a very textual interpretation of the law, and regards past legislative opinions to be irrelevant and not a good measure of how a law should be interpreted. In Scalia's rulings he has been an ardent defender of the rights written into the constitution, as well as well established rights like the right to privacy. He also draws a very clear line regarding the separation of powers outlined in the constitution.

Scalia's opinion in "United States v. Playboy Entertainment Group"(Dissenting):

Full Opinion

Anthony Kennedy

2008-04-15T20:17:00.000-07:00

Anthony Kennedy was born on July 23rd, 1936. Making his current age 71. He grew up in Sacramento, California and was surrounded by the legal world all his life. His father was an attorney, and he took the position of a page boy for the California Senate when he was only 9 years-old. In an interview with Kennedy, he said that his position as a page boy made him close with Governor Earl Warren. He became acquainted with the governor’s children and would often times play with them in the mansion. He was a self-proclaimed study nerd in school and had a passionate interest in law. For college he attended both Stanford University and Harvard Law School. He was appointed by president Ronald Reagan on February 18th, 1988.

Kennedy tends to take strong liberal stances when faced with controversial issues. He believes gay marriage should be legal, and there should be more protection around that issue in general. He also believes that there should be restriction, if not elimination of the death penalty.

Dissenting Opinion:
Clean Water Act

Resources:

http://en.wikipedia.org/wiki/Anthony_Kennedy

http://www.law.cornell.edu/supct/justices/kennedy.bio.html

http://www.achievement.org/autodoc/page/ken0int-1

Sandra Day O'Connor

2008-04-14T21:06:00.000-07:00

Sandra Day O’Connor was born in 1930 in Phoenix Arizona and is now 78 year old. She was the very first female Supreme Court justice.

Appointed by President Regan in 1981, succeeding Justice Potter Stewart she was known as a conservative, but thankfully she also turned out to be a swing voter and brought some of the more liberal interpretations into the light.

O’Connor’s views on abortion lead Regan to believe that he could use her to restrict women’s abortion rights. That sucker. She may have opposed abortion herself, but she didn’t want to impose her views on the rest of America. She actually seamed to support the right to choose. In Planned Parenthood V. Casey she was on of the 5 judges who opposed the Pennsylvania abortion laws of having to tell the husband and waiting 24 hours before the operation.

Being very into equal rights, she was the main advocate for affirmative action in colleges, which I think isn’t the best way to be equal or anti-prejudice, but thats just an opinion.

She was succeeded by Samuel Alito in 2006.

Stephen Breyer

2008-04-14T20:51:00.000-07:00

Stephen Breyer, age 69, was born August 15, 1938. He was appointed to the U.S. Supreme Court August 3, 1994, by President Bill Clinton. Breyer attended Stanford University, University of Oxford, and Harvard University. Breyer resides in San Francisco, his place of birth, where he and his wife, Joana Freda Hare live happily.

He has been described as having a pragmatic, or matter-of-fact approach to constitutional law. He also takes on a more liberal position on the Supreme Court and is said to be interested more in producing coherence and continuity in the law than in doctrinal, historical or textual limits. He has said that while some of his colleagues "emphasize language, a more literal reading of the text, history and tradition," he looks more closely to the "purpose and consequences" of the text. According my sources, Justice Breyer frequently sides with Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg as they are known for being on the more liberal side of the court.

Justice Breyer, concurring:
http://www.law.cornell.edu/supct/html/03-9659.ZC.html

Resources:
http://en.wikipedia.org/wiki/Stephen_Breyer#Judicial_philosophy
http://supct.law.cornell.edu/supct/justices/breyer.bio.html
http://www.oyez.org/justices/stephen_g_breyer/

2008-04-14T20:15:00.000-07:00

Ruth Baber Ginsburg was born in Brooklyn, NY on March 15, 1933. She has spent 13 years in the Supreme Court and was appointed by Bill Clinton in 1993. She Attended Cornell for her B.A. then enrolled into Harvard School of Law. She later transfered to Colombia School of Law. She is the first women to be on the Harvard and Colombia law reviews. She has served on the National Organization of Women (NOW) and also served on the in-house council for the American Civil Liberties Union (ACLU). Also, Ginsburg served on the United States Court of Appeals for the District of Colombia Circuit.

Ruth Baber Ginsburg is the second women and the first Jewish member of the Supreme Court. Ginsburg is known as one of the courts two most liberal Justices. In 2007, Forbes voted Ruth Baber Ginsburg has the 20th most powerful women and most powerful women lawer. She well known for being a excellent oral advocate.

Dissent Written By Justice Ginsburg- http://www.law.cornell.edu/supct/html/05-380.ZD.html

Clarence Thomas

2008-04-13T16:06:00.000-07:00

1. The Justice's Age and When he was appointed:

Clarence Thomas was born June 23, 1948 in Pin Point Georgia. He is 59 years old. In 1991, President George Bush Sr. nominated Thomas to replace Thurgood Marshall, who had just retired. The NAACP and other organizations like National Organization for Woman opposed Thomas’s appointment based on his dim view of affirmative action and a speculation that he may not have supported Roe v Wade. Thomas stated at some point that he had no opinion on Roe v Wade. Thomas’s appointment was fraught with problems. In 1991, Clarence Thomas was accused of sexual harassment by Anita Hill, an attorney who worked under Thomas. Angela Wright and Rose Jourdain also accused Thomas of sexual harassment, while Sukari Hardnett accused him of sexual impropriety. Thomas denied all the charges, calling the investigation of the charges “a circus” and “a national disgrace.” However, the investigations committee sent the nomination to the full senate. He was voted in with a 52-48 split. On October 23, 1991 Thomas took his seat as the 106th Associate Justice of the Supreme Court.

2. Judicial Practices

While on the court, Justice Thomas has been described as an Originalist and has often been compared to Justice Scalia. It has been said he does not believe in Stare Decisis. He was one of the Justices who wanted to overturn Roe V Wade. He voted with Justice Scalia in most cases during the 2006-07 court sessions. Thomas consistently supports a strict interpretation of the Constitution's interstate commerce clause and supports limits on the power of federal government in favor of states' rights. Justice Thomas has, in cases of the fourth amendment and pertaining to searches and seizures, often favored law enforcement over the defendants. Justice Thomas is said to be the second most likely Justice to uphold a free speech claim. Also following Justice Scalia, Thomas takes a very dim view of restraints put on capital punishment by the constitution.

3. Oral arguments

Thomas is known for asking very few questions during oral arguments and has said very little from the bench over the course of his time there. In fact, Justice Thomas has said almost nothing from the bench in two years. This is so notable that even CNN took notice and commented on it.

HW for 4/16: SCOTUS Justice Bios

2008-04-09T10:42:00.000-07:00

As we transition this quarter into looking at more recent cases and the politics behind them, it will be useful to know something about the current justices sitting on the Court. For homework, each of you will research and write up a little bit of biographical information about one of the current justices. To make this simple, I've assigned each of you a justice:

Tamlyn: Chief Justice John Roberts

Josh: Samuel Alito

Chloe: Stephen Breyer

Alex: Ruth Bader Ginsburg

Kienan: Anthony Kennedy

Kellen: Antonin Scalia

Murren: David Souter

Josie: John Paul Stevens

Andrew: Clarence Thomas

There are only nine justices, but ten of you in class, so one of you gets a bonus non-current justice. So:

Lilly: Sandra Day O'Connor, the only retired justice who is still alive

Create a new blog post (not a comment on this post) with your justice's name as the title. In the post, write a short biography. Include the justice's age, what year and under which president they were appointed, and any details you find interesting about their life before and outside of the SCOTUS (where they grew up, what their hobbies are, etc.). Also include any information you can about what they're like on the court -- do they tend to decide cases in favor of civil liberties, are they part of a typical voting bloc, what kinds of questions do they ask in oral arguments, etc. Include anything else that you find interesting about the justice. Finally, include a link to the text of an opinion (majority, concurring, or dissenting) that was authored by your justice.

Make your bio concise.

Wikipedia is a useful source, but not the most interesting source nor the final word on anything. I encourage you to look farther afield.

And as usual with anything like this, don't directly quote anything without citing your source.

Bonus: SCOTUS hears "enemy combatant" habeas corpus case

2008-03-25T14:23:00.000-07:00

Today in Washington, the SCOTUS is hearing arguments about whether American citizens, captured by the American military in Iraq and held as "enemy combatants," should have access to the US court system before they are handed over to Iraqi courts. Listen to the NPR story for more info.

Homework due March 25

2008-03-19T12:06:00.000-07:00

A member of the Seventh-day Adventist Church had a job in a textile mill. The mill switched from a five-day to a six-day workweek, including Saturdays. Seventh-Day Adventists, as part of their faith, observe Saturday as the Sabbath, so she refused to work that day. For refusing to work on Saturday, she was fired. She could not find any other work (because she refused to work on Saturday) and applied for unemployment compensation.

Typically, a person is only eligible to receive unemployment benefits if (1) they become unemployed through no fault of their own (e.g., as a result of a layoff); and (2) they take any acceptable job offers that come their way. Since she was fired based on her refusal to work, and she refused to accept other jobs (that also required Saturday hours), the state denied her request for unemployment compensation.

Does the state's refusal to pay unemployment benefits violate the Free Exercise clause of the First Amendment? Explain.

Bonus: WA student privacy rights news

2008-03-14T19:51:00.000-07:00

The state Supreme Court ruled Thursday that forcing students to submit to suspicionless drug testing (as allowed under federal law) violates the state Constitution.

Lee v Weisman (1992)

2008-03-11T14:35:00.000-07:00

Public middle and high schools in Providence (RI) allowed prayers during their graduation ceremonies. Over the years, the prayers were celebrated by ministers of different faiths. After a high school graduation in which an invited rabbi offered an invocation thanking God "for the legacy of America where diversity is celebrated," and a benediction in which he observed "O God, we are grateful for the learning which we have celebrated on this joyous commencement," a parent sued the district for violating the Establishment Clause.

County of Allegheny v ACLU of Greater Pittsburgh (1989)

2008-03-11T14:32:00.000-07:00

For several years, the city permitted the Holy Name Society, a Catholic group, to display a nativity scene in the County Courthouse during the Christmas season. Also, at another county building, during the month of December the county government displayed a large Christmas tree and a menorah, along with a sign explaining how the county celebrates liberty.

Homework due March 19

2008-03-11T14:25:00.000-07:00

In Lemon v Kurtzman (1971), the unanimous court adopted the following test to be used in Establishment Clause cases. A law must meet all three of the following conditions; otherwise it violates the First Amendment:

1. the law must have a secular legislative purpose
2. the law’s primary effect must be one that neither advances nor inhibits religion
3. the law must not foster an excessive government entanglement with religion

Choose one of the two cases in the following posts, and, in the comments for that post, explain why you think the government action does or does not violate the Establishment Clause.

Homework due March 11

2008-02-26T14:16:00.000-08:00

In the 1940s, the Ewing Township school district (in New Jersey) used district funds to reimburse parents for the cost of sending their children to school using public transportation. The district would reimburse parents for transportation whether their children went to public or private school, including to the many Catholic schools in the area. A resident named Arch Everson objected to having his tax dollars spent on this, and he sued the school district, claiming that by paying the bus fare of kids going to Catholic schools, they were supporting religion and therefore in violation of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”) The case was appealed all the way to the Supreme Court.

Does the Ewing Township policy violate the First Amendment? If you were a SCOTUS justice, how would you decide? Explain your reasoning.

HW for 2/26

2008-02-12T14:16:00.000-08:00

The National Association for the Advancement of Colored People (NAACP) encountered bitter opposition in the South for challenging racial discrimination in the courts. Hostility to the organization mounted following its victory in Brown v. Board of Education. As the NAACP worked on forcing school districts to comply with Brown, southern hostility led states to try to figure out ways to stop the NAACP from doing its work.

In 1956, Alabama’s state attorney general tried to stop the NAACP from doing business in Alabama by enforcing a law that required out-of-state corporations to register and satisfy certain reporting requirements before doing business in the state. (Though you may think of a “corporation” as something different, the NAACP counts as a non-profit corporation.) The NAACP was incorporated in New York and considered itself exempt from Alabama’s law requiring, among other things, filing with the state certain records and membership lists, including the names and addresses of all members living in Alabama.

The NAACP filed its registration with the state, but refused to turn over the list of its members. For refusing to obey the state law, the NAACP was declared to be in contempt of court and fined $100,000. On appeal, the case reached the US Supreme Court.

Present (in the comments) your argument for what, if anything, in the Constitution justifies the NAACP in ignoring the Alabama law. Also indicate how you would rule in the case if you were on the court, and why.

Feb 12 HW: Campaign Finance Reform

2008-02-05T14:28:00.000-08:00

The Federal Election Campaign Act of 1971, as amended in 1974, did several things to attempt to control the effect of money on political races. Four of them were:

It placed limits on the amount an individual could donate to a political campaign -- $1000 per election.
It placed limits on the amount an individual could donate to his/her own campaign. The limits varied with the office sought.
It placed limits on the amount a campaign could spend. Again, the limits varied according to the office sought.
It required campaigns to keep detailed records of donors, and make publicly available the names, addresses, occupation, employer, and donation amount of any donor giving more than $100.

In class, you outlined some initial arguments for why this law may or may not be constitutional. Some of the arguments in favor of the law:

Chloe suggested that the 14th amendment protects equal opportunity, and that this law creates an equal opportunity in elections.
Murren argued that the spirit of the 22nd amendment is to keep any one person from having too much power, and that this law does the same thing.
Andrew argued that this law protects fairness, and I suggested that fairness as a principle is present in many places in the Constitution.

On the other side, against the law:

Kienan argued that this law deprives people of the liberty to do what they want with their money, violating the part of the 14thamendment that protects against loss of liberty.
Kienan also argued that money is connected to speech, so this could also be a violation of the 1st amendment.

Your job, for homework, is to choose one argument on each side – for and against the law – and flesh it out into a complete, persuasive argument. You may either use the arguments already listed above, or come up with others of your own.

Be specific about which portion of the law you’re supporting or arguing against, and make explicit the connection you’re making to the Constitution. Be aware of whether you’re making a historical, textual, structural, doctrinal, ethical, or prudential argument.

Articles of interest

2008-01-30T15:00:00.000-08:00

If you're curious about how the post-Brown desegregation fallout affected Seattle, check out this excellent article at HistoryLink.org, a fabulous web archive of local history. On the same site, read an interview that depicts the personal side of forced busing.

Also, a little bit off the specific topic of school desegregation, but related to racial discrimination, is this op-ed piece from George Will this week. It's a bit more relevant to the Regents v Bakke (affirmative action) case we discussed in December, but I thought it was worth mentioning here.

Milliken v Bradley (1974)

2008-01-29T14:19:00.001-08:00

This case concerned the segregation practices of the Detroit school district, which was the fifth largest in the nation in 1970. Several black students and the NAACP filed the suit against the Detroit school district alleging past and present discrimination in the Detroit system, particularly in the drawing of school district and attendance zone boundaries. Lower courts found that there was discrimination and ordered the system to desegregate. Because of white flight to the suburbs, the Detroit school district was largely black, making it difficult to truly desegregate. A plan was devised to include surrounding majority white school districts in the desegregation plan, even though those districts had not engaged in any illegal segregation. This was believed necessary because without their participation, there could not be a racial balance in Detroit's schools.

If you were a Supreme Court justice, would you approve the plan to desegregate multiple school districts even though only one school district had been found to have illegally discriminated? Explain.

Keyes v School District #1, Denver, Colorado (1973)

2008-01-29T14:18:00.000-08:00

This was one of the first cases dealing with school segregation outside of the South. In this case, the lower courts found that the Denver School District deliberately engaged in discrimination in the Park Hill section of the district by building schools in certain areas, gerrymandering student attendance zones, and by the excessive use of mobile classroom units, among other things. The petitioners in the case not only wanted the Park Hill section of the city to be desegregated, but wanted the courts to order desegregation of all segregated schools in the city of Denver, particularly the heavily segregated schools in the core city area, even though there was no evidence of a deliberate attempt to segregate students in all-black schools there.

If you were a Supreme Court justice, would you order the entire district desegregated, or just the Park Hill area? Explain.

Swann v Charlotte-Mecklenberg Board of Education (1971)

2008-01-29T14:17:00.000-08:00

The school district in question was a part-urban, part-rural district covering 550 square miles and serving 84,000 pupils in 101 schools. The school population was 29 percent black and those pupils were concentrated in one quadrant of Charlotte. Even after the Brown decision, more than half of the black students attended schools without any white students or teachers. The federal district court adopted a plan to scatter the highly concentrated black student population by transporting students. The plan would involve 13,000 students and require 100 new buses at a cost of millions of dollars.

If you were a Supreme Court justice, would you order the desegregation of this school district through a busing system to disperse students? Explain.

Green v County School Board of New Kent County (1968)

2008-01-29T14:16:00.000-08:00

States and counties adopted many different plans to desegregate their schools. In 1965, the New Kent County school board adopted a "freedom-of-choice plan," which essentially allowed students in the rural, residentially integrated district to choose which of the two schools they wished to attend: the formerly all-black Watkins School or the formerly all-white New Kent School. After three years of the new plan, no whites had elected to attend Watkins and only 115 blacks attended New Kent. The black school children in this case contended that the "freedom-of-choice plan" in practice operated to perpetuate the racially segregated school system. It placed the burden of desegregation on the black children's shoulders.

If you were a Supreme Court justice, would you rule this "freedom-of-choice plan" constitutional? Explain.

Homework due Feb 5

2008-01-29T14:15:00.001-08:00

If You Were a Supreme Court Justice

The Brown v. Board of Education decision did not dictate how schools should desegregate. Many school districts did not want to desegregate (surprise surprise) and experimented with ways to get around the Court decision in Brown. Many lawsuits were filed by minority students, the NAACP, and the Justice Department to force school districts to comply with the Brown decision. The law, however, was not always clear. Taking into consideration what you know about the Brown case (refer to your handout) and the spirit in which it was written, choose at least one of the cases described in the following posts and explain (in the comments of that post) how you would decide the case.

CIA tapes deleted

2008-01-29T13:24:00.000-08:00

CIA officials ignored a court oder, and deleted a tape of an interrogation and possible torture of two suspected terrorists. They said they deleted them to hide the identity of the interrogators, and that the tapes didn't have any relevance to the torture investigations.

http://civilliberty.about.com/od/tortureandrendition/p/torture_tapes.htm

"No Match" rule

2008-01-28T13:22:00.000-08:00

The Department of Homeland Security has been trying to use social security records to enforce immigration laws. Judge Charles R. Breyer shot them down finding that the rule would effect thousands of innocent citizens. The Bush administration plans to ropose a similar law that they say will pass legal muster.

www.aclu.org/immigrants/workplace/32870prs20071124.html

Cheney wants surveillance law expanded

2008-01-28T10:59:00.000-08:00

Cheney's been trying to convince congress not only to renew the "Protect America Act," but to expand it as well. As it is, it gives the administration authority to listen to the phone conversations and read the emails of suspected terrorists and eases up the requirement to get permission from a special court before doing so. The Bush administration and some of their friends in congress want to add a part to it that would make phone companies and other communications providers immune from lawsuits they would get for helping the government eavesdrop.

http://seattlepi.nwsource.com/national/1151ap_cheney_terrorist_surveillance.html

Citizen arrested for photographing police, ACLU intervenes

2008-01-28T10:10:00.000-08:00

Last year in November, an innocent bystander who happened to have a camera and witness a police arrest, decided to take pictures of the event. After he did this, a woman who was an acquaintance of the suspect requested a copy of the photos because she felt the arrest was unjust. The police noticed this happening and asked the man to hand over his camera. Within his rights, the man did not do so, and asked what he had done wrong. Without further notice, the police handcuffed him and took all of his personal possessions, including his camera and wallet. An ACLU attorney handled the case and not only had him acquitted, but awarded eight-thousand dollars from the city claims department and disciplinary action was taken against the officers.

Article found here

Telecom Phone Tapping Challenged

2008-01-27T11:49:00.000-08:00

Civil liberty groups around the country are challenging Congress not to renew the Protect America Act. This act allows warrentless wiretapping which Telecom provide phone service to much of the country. They have been ambushed from many citizens with lawsuits against them. Dick Cheney is pressuring congress to pass this bill allowing Telecom to continue wiretapping.

http://www.pcworld.com/article/id,141848-c,privacylegislation/article.html

Police Allowed To Search Teen's Homes Without Warrant

2008-01-26T17:29:00.000-08:00

In the city of Boston, Massachusetts police are launching a new program that "will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children's bedrooms." The point behind this program is to help parents who have trouble with their kids by having police officers confront their kids and remove unwanted guns, which will in turn cut down on crime in neighborhoods.

Resource: http://www.boston.com/news/local/articles/2007/11/17/police_to_search_for_guns_in_homes/?page=2

Federal Judge Rules Passphrases Safe From Subpoena

2008-01-26T11:09:00.000-08:00

On November 29th, 2007 a Federal Judge in Vermont ruled that Sebastien Boucher could not be compelled to release his PGP key to prosecutors in his child pornography case. US Magistrate Judge Jerome Niedermeier ruled that compelling Boucher to disclose his passphrase would violate his 5th amendment right to not incriminate himself. If the prosecutor decides to appeal, this could be the case that defines what kind of privacy citizens can expect in the digital age.

News.com story

Michigan: No IDs for Illegal Immigrants

2008-01-22T20:00:00.000-08:00

The state of Michigan just decided today that Illegal immigrants
cant not have drivers licenses. Only 7 states do not check to see
if a person applying for a license is a illegal immigrants, those
states are: Hawaii, Maine, Maryland, New Mexico, Oregon, Utah
and Washington.

http://www.nytimes.com/2008/01/22/us/22brfs-NOID8217SFOR_BRF.html?_r=1&ref=todayspaper&oref=slogin

Federal Court Protects Access to Abortion Care for Women Prisoners in Missouri

2008-01-22T18:54:00.000-08:00

In 2005 Missouri prison officials tried their best to deny a female prisoner’s right to an abortion. The ACLU successfully requested (to a Missouri state court) that the prison be made to transfer the prisoner to a hospital. The State of Missouri tried to ask the US Supreme Court to intervene with the decision, but were quickly shot down. The next year, the ACLU certified a class-action lawsuit supporting equal reproductive rights for Missouri prisoners. Today the Missouri Federal Appeals Court upheld a ruling that Missouri Prison officials may not deny prisoner’s abortion rights.

(link)

Man beaten to death in China for taking pictures

2008-01-22T17:22:00.000-08:00

The title pretty much sums it up. The guys name was Wei Wenhua, his only crime was to take a few pictures on his phone. He was a civilian who was witness to a group of city inspectors getting into a confrontation with villagers who were protesting the dump of (I believe nuclear) waste near their homes. When the inspectors became aware of Wei, they proceeded to beat him for 5 minutes. He was D.O.A. at Tianmen hospital. Anywhere from twenty to fifty inspectors were involved in his death. While things can be really shitty in the US, I don't think governemnt officials are in the habit of beating people to death for just taking pictures.

http://www.cnn.com/2008/WORLD/asiapcf/01/11/china.blogger/

well, I'm depressed now.

Homework for Jan 29: Bonus Round

2008-01-22T14:15:00.000-08:00

We'll be talking about Brown v Board of Education on the 29th, as a followup to Plessy, but you don't need to do any related prep work in advance.

Instead, find an article about a current (within the last year) story about civil liberties or constitutional law that interests you. Create your own post (not a comment to this one) with a short summary of your article and a link to the full text.

(Sound familiar? We did this before.)

Print a Constitution

2008-01-18T21:41:00.000-08:00

For those of you without a laptop in class, please print and bring a copy of the Constitution to future classes. Some choices, all PDF:

Homework for Jan 22: Plessy v. Ferguson

2008-01-15T14:15:00.000-08:00

In 1890, Louisiana passed a statute called the "Separate Car Act", which stated "that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations. . . . " The penalty for sitting in the wrong compartment was a fine of $25 or 20 days in jail.

The Plessy case was carefully orchestrated by both the Citizens' Committee to Test the Constitutionality of the Separate Car Act, a group of blacks who raised $3000 to challenge the Act, and the East Louisiana Railroad Company, which sought to terminate the Act largely for monetary reasons. They chose a 30-year-old shoemaker named Homer Plessy, a citizen of the United States who was one-eighth black and a resident of the state of Louisiana. On June 7, 1892, Plessy purchased a first-class passage from New Orleans to Covington, Louisiana and sat in the railroad car designated for whites only. The railroad officials, following through on the arrangement, arrested Plessy and charged him with violating the Separate Car Act. Well known advocate for black rights Albion Tourgee, a white lawyer, agreed to argue the case without compensation.

In the criminal district court for the parish of Orleans, Plessy argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution.

Thirteenth Amendment

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

John Howard Ferguson was the judge presiding over Plessy's criminal case in the district court. He had previously declared the Separate Car Act "unconstitutional on trains that traveled through several states." However, in Plessy's case he decided that the state could choose to regulate railroad companies that operated solely within the state of Louisiana. Therefore, Ferguson found Plessy guilty and declared the Separate Car Act constitutional.

Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision that the Louisiana law as constitutional. Plessy petitioned for a writ of error from the Supreme Court of the United States. Judge John Howard Ferguson was named in the case brought before the United States Supreme Court (Plessy v. Ferguson) because he had been named in the petition to the Louisiana Supreme Court and not because he was a party to the initial lawsuit.

Choose at least one of the following questions and answer in the comments:

1. In State of Louisiana v. Plessy, Judge Ferguson decided that the state could choose to regulate railroad companies that operated within the state even though he had previously declared the "Separate Car Act" unconstitutional on trains that traveled through several states. If an act is declared unconstitutional in one case, shouldn't it be held unconstitutional in all cases? How do you think Judge Ferguson could legally justify making this distinction?

2. What rights do the Thirteenth and Fourteenth Amendments provide? Why did Plessy believe that the Separate Car Act violated these rights?

3. Is it possible for two races to remain separated while striving for equality? Are separation and equality compatible? Why or why not?

4. Can you think of an example or situation where separation does not mean inequality?

Homework for Jan 15: McCulloch v Maryland

2008-01-08T14:16:00.000-08:00

In 1791, the first Bank of the United States was established to serve as a central bank for the country. It was a place for storing government funds, collecting taxes, and issuing sound currency. At the time it was created, the government was in its infancy and there was a great deal of debate over exactly how much power the national government should have. Some people, such as Alexander Hamilton, argued for the supremacy of the national government and a loose interpretation of its powers, which would include the ability to establish a bank. Others, such as Thomas Jefferson, advocated states' rights, limited government, and a stricter interpretation of the national government's powers under the Constitution and, therefore, no bank. While Jefferson was President, the Bank's charter was not renewed. After the War of 1812, President James Madison determined that the country could utilize the services of a national bank to help fulfill its powers listed in Article I, Section 8 of the Constitution. In response to his suggestion, Congress proposed a Second Bank of the United States in 1816.

President Madison approved the charter and branches were established throughout the United States. Many states opposed opening branches of this bank within their boundaries for several reasons. First, the Bank of the United States competed with their own banks. Second, the states found many of the managers of the Bank of the United States to be corrupt. Third, the states felt that the federal government was exerting too much power over them by attempting to curtail the state practice of issuing more paper money than they were able to redeem on demand.

One state opposed to the Bank of the United States was Maryland. In an attempt to drive the Baltimore branch of the Bank of the United States out of business, the Maryland State Legislature required that all banks chartered outside of Maryland pay an annual tax of $15,000. There was a $500 penalty for each violation of this statute. James McCulloch, cashier of the Baltimore branch of the Bank of the United States, refused to pay the tax.

The State of Maryland took him to court, arguing that because Maryland was a sovereign state, it had the authority to tax businesses within its border, and that because the Bank of the United States was one such business, it had to pay the tax. Luther Martin, one of the attorneys for Maryland, reasoned that because the federal government had the authority to regulate state banks, Maryland could do the same to federal banks. Besides, he argued, the Constitution does not give Congress the power to establish a Bank of the United States. McCulloch was convicted by a Maryland court of violating the tax statute and was fined $2,500.

McCulloch appealed the decision to the Maryland Court of Appeals. His attorneys, who included Daniel Webster, asserted that the establishment of a national bank was a "necessary and proper" function of the Congress. Webster stated that many powers of the government are implied rather than specifically stated in the Constitution. Furthermore, he argued, Maryland did not have the authority to levy the tax, because doing so interfered with the workings of the federal government.

After the Maryland Court of Appeals upheld the original decision against McCulloch, he appealed again. The case was heard by the Supreme Court of the United States, then headed by Chief Justice John Marshall.

Pick at least a couple of the following questions and post your answers in the comments:

1. What are the advantages for the federal government of establishing a national bank? (See Article I, Section 8 of the U.S. Constitution to determine which functions of Congress might be helped by such a bank.)

2. Why would states feel threatened by a national bank?

3. In your opinion, does the United States government have the authority to establish a national bank? Provide justification for your answer based on the Constitution.

4. If the United States does have authority to establish a bank, does Maryland have the authority to tax that bank? Why or why not?

5. Why do you think the Supreme Court of the United States agreed to hear this case? What larger principles were at stake?

Constitution: Article 1, Section 8

2008-01-08T14:15:00.000-08:00

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Homework for 12/18

2007-12-11T10:56:00.000-08:00

You are an admissions officer at the University of Washington, and you receive applications from the following eight people:

Candidate A

White Female
4.0 G.P.A.
1560 S.A.T. scores
Captain of the swim team
Competes in horseback riding at local club

Candidate B

African American Female
3.7 G.P.A.
1380 S.A.T. scores
Captain of her school's cheerleading squad
All-state in Forensics (public speaking group)
Takes dance lessons and performs in recitals
Tutors elementary school children for one hour each Saturday

Candidate C

African Male
3.4 G.P.A.
1150 S.A.T. scores
Runs track; his relay team placed second in the state last year
Member of Students for Global Responsibility, an organization that works for a better environment by recycling, cleaning up streams, and performing other service projects
Moved to United States three years ago from a war-torn country where his education was interrupted; his father and brothers were killed in that war
Volunteers in a neighborhood literacy program after school and during the summer

Candidate D

Latina Female
3.5 G.P.A.
1200 S.A.T. scores
President of her school's Hispanic Club
Sings in her school and church choir
Has lived in the United States for 5 years
English is her second language; her family speaks Spanish at home
Works 20 hours per week at her parents store and cares for her younger siblings

Candidate E

Asian Male
3.8 G.P.A.
1350 S.A.T. scores
Editor of his school's newspaper
Member of the football team
Treasurer of the Vietnamese club
Has been in the United states for 8 years; English is his second language
Coaches a neighborhood Little League baseball team

Candidate F

White Male
3.8 G.P.A.
1400 S.A.T. scores
Class president of his senior class
Member of Students Against Drunk Driving
Member of his school band
Captain of his school's debate team
Helps care for his younger brother, who is severely mentally and emotionally disabled

Candidate G

White Male
3.5 G.P.A.
1200 S.A.T. scores
All-State Wrestler
Captain of his school's soccer team
His father and grandfather both graduated from the university
His family donates $10,000 a year to the university

Candidate H

White Female
3.7 G.P.A.
1380 S.A.T. scores
President of her school's Student Government Association
Plays three varsity sports; captain of one
Volunteer tutor for disabled students at lunch and after school
Active in her church's youth group
Prom Queen
Her mother died of cancer when she was 14

Answer the following questions in the comments:

You can only admit three students. Which three would you choose?
How did you decide which factors should carry more weight in your decision?
Should race/ethnicity play a role in college admissions? Why or why not?

Sodomy Laws

2007-12-11T10:51:00.000-08:00

(following up on class today -- this is all optional/for your curiosity)

Check out the oral arguments in Bowers v. Hardwick in both audio and transcript form.

Also, here is more about Lawrence v Texas, which explicitly overturned Bowers.

Guantanamo Bay and Habeas Corpus

2007-12-04T16:43:00.000-08:00

(Note: this is not about Roe v Wade, duh. Nor is it part of the homework. Just something on the topic of civil liberties during wartime that I thought might interest you all.)

Tomorrow the SCOTUS holds a hearing on whether the Bush administration can hold prisoners at the Guantanamo Bay concentration camp without allowing them to exercise their habeas corpus rights in civilian courts. This is a big test of the administration's policies.

Read the BBC's analysis for more info, and/or check out this opinion piece in Wednesday's P-I.

Resolving The Ongoing Debate

2007-12-04T10:45:00.002-08:00

The 1973 Roe decision did not end the debate over abortion. In many ways, the decision actually intensified the debate, making it a national issue rather than a state issue. Abortion is an extremely controversial issue that involves people’s strongly held beliefs about religion, morality, life, the role of the government, and the right to bodily integrity and privacy. Each year, on the anniversary of the decision (January 22, 1973), pro-life and pro-choice supporters stage protest rallies in front of the Supreme Court.

Abortion has become an important issue in elections and in judicial nominations. Depending on who is president and which party controls Congress, abortion counseling at federally funded clinics has sometimes been permitted and sometimes been prohibited. In congressional districts and U.S. Senate elections where the public is closely divided on this issue, candidates are often reluctant to take a strong stand either for or against abortion rights for fear of alienating an important segment of voters. And as long as the public believes that the U.S. Supreme Court is closely divided over abortion issues, advocacy groups on both sides will closely monitor presidential nominations to the Supreme Court and even to lower federal courts.

In addition to political arenas, confrontations over abortions take place on a regular basis in many communities outside of clinics that offer abortion services. Those who are against abortion often stage protests outside of clinics and those who support abortion rights volunteer to escort patients who might otherwise be discouraged from entering the clinics as a result of protests. Some extreme opponents of abortion feel so strongly that abortion is wrong that they advocate the killing of doctors who perform abortions. On the other side, some advocates of abortion rights argue that abortion opponents who threaten women or their doctors should be treated like terrorists because they advocate violence and attempt to intimidate people from exercising their constitutional rights.

When people feel strongly on both sides of such an important issue, how might a compromise be reached? What can be done to lessen the hostilities between the two sides?

Planned Parenthood v Casey

2007-12-04T10:45:00.001-08:00

In 1992, the Supreme Court decided the case of Planned Parenthood of Southern Pennsylvania vs. Casey. At issue were five provisions of the Pennsylvania Abortion Control Act of 1982, which required that a woman seeking an abortion give her informed consent prior to the procedure; specified that she be provided with certain information at least 24 hours before the abortion is performed; mandated the informed consent of one parent for a minor to obtain an abortion; required that a married woman seeking an abortion notify her husband; and imposed certain reporting requirements on facilities providing abortion services. Because the make-up of the Court had changed and become more conservative since Roe was first decided, many people believed that the Court might use this case to overturn Roe altogether.

In a 5-4 decision, the Court reaffirmed its commitment to Roe and to the basic right of a woman to have an abortion under certain circumstances. Justice O’Connor, who authored the majority opinion, argued that stare decisis required the Court to not overturn Roe. Stare decisis is the general principle that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. (However, the doctrine of stare decisis is not always relied upon. From time to time, the Court overrules earlier precedent that the Justices believe had been wrongly decided.) O’Connor argued that a generation of women had come to depend on the right to an abortion. Nonetheless, certain restrictions were upheld.

As a result of the case, a woman continues to have a right to an abortion before the fetus is viable (before the fetus could live independently outside of the mother’s womb). The Court held that states cannot prohibit abortion prior to viability. However, the states can regulate abortions before viability as long as the regulation does not place an “undue burden” on the access to abortion. After fetal viability, however, states have increased power to restrict the availability of abortions. The state maintains the power to restrict some abortions because of its legitimate interest in protecting the health of the woman and the potential life of the fetus. The Court stated that a regulation places an “undue burden” on access to abortion when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” However, the Court did not define what constitutes a “substantial obstacle.” Specifically in Casey, the Court upheld the 24 hour waiting period, but found the spousal notification requirement to be unconstitutional.

States can pass some laws that regulate abortion, but these laws cannot place a “substantial obstacle in the path of a woman seeking an abortion.” However, the Court did not define precisely what constitutes a substantial obstacle. The Casey decision held that regulations were constitutional if they did not place an “undue burden” on obtaining an abortion. For example, the decision allowed a regulation that requires a woman to give “informed consent” at least 24 hours before the abortion takes place.

Under the undue burden test adopted by Casey, which of the following would place an undue burden on the right to an abortion.? Give reasons for each answer.

A state law requires the father of the baby to provide written consent before his wife is able to obtain an abortion.
A poor woman is unable to obtain an abortion because her state does not provide public funds to cover such a medical procedure.
A state law requires 24-hour waiting period between the time of a woman’s formal decision to have an abortion and the actual procedure.
A state law requires a pregnant minor to obtain written consent from both parents in order to obtain an abortion.
A state law requires a pregnant minor to obtain written consent from one parent or a judge in order to obtain an abortion.

Excerpts from Rehnquist's dissent in Roe v Wade

2007-12-04T10:45:00.000-08:00

(Read the opinion excerpts below and respond to the questions at the bottom.)

The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.

The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. [However, no party in the case was currently in her first trimester of pregnancy.] … Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.

… The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective ... But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

…To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. …. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

Justice Rehnquist argues that the drafters of the Fourteenth Amendment did not intend for the rights to be extended to include abortion. Do you think he is correct? Should a right only be recognized if it was intended by the original drafters of the Constitution or the amendments? Explain your answer.

Homework for 12/11

2007-12-04T10:40:00.000-08:00

Read the excerpts from the Roe v Wade majority opinion below. It can be difficult reading, with some legal language. Take your time, and ask questions of others if you need to.

After reading the excerpts, choose one of the following three posts and write your response in the comments section of that post.

MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell joined the opinion.

…We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

…The principal thrust of [Jane Roe]'s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. [Roe] would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.

…The Constitution does not explicitly mention any right of privacy. …[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, [Roe] and [others] argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute….We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

… (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

[If you're interested, you can read the full opinion here. ]

2007-12-02T16:28:00.000-08:00

The Supreme court should rule in Alvarados favor. I believe that juveniles should have they're rights communicated even more, than adults rights are, when you are in custody.

Illinois v. Perkins

2007-11-27T10:45:00.003-08:00

In this case, police informants posed as prisoners in order to obtain evidence of Perkins' involvement in a murder. Perkins made statements to the one of the "prisoners" implicating himself. This information was subsequently used at trial and Perkins was convicted. There had been no Miranda warning, since the defendant did not know he was speaking to someone acting on behalf of the police.

Should Perkins' incriminating statements have been allowed at trial, considering that he made them without having been warned of his rights?

Answer this question from two perspectives:

Your own common sense. Is this police tactic fair or reasonable? Explain.
The Supreme Court. Justify your answer using what you know about the Miranda decision.

Yarborough v. Alvarado

2007-11-27T10:45:00.002-08:00

Michael Alvarado was convicted of second-degree murder and robbery for his alleged role in a 1995 killing. Alvarado, who was not the triggerman, was convicted in large part because of incriminating statements he made during a two hour interview with a police detective. At the time of the interview, Alvarado was a 17-year-old high school student with no prior arrest record. The detective had contacted Alvarado's mother, who agreed to bring him to the police station for questioning. When Alvarado arrived with his parents, the detective denied the parents' request to remain with their son during the interview. While they waited in the lobby, Alvarado was questioned alone for two hours. He was not placed under arrest and was allowed to leave after the questioning ended. At no time was Alvarado advised that he had a right to remain silent, a right to consult an attorney prior to answering, or a right to leave the police station at any time. Alvarado alleges he was deprived of his Fifth and Sixth Amendment rights in violation of Miranda v. Arizona.

Following his criminal conviction, Alvarado brought a petition in federal district court against Yarborough, the warden of the prison where he was being held. The district court denied Alvarado's petition. However, the Ninth Circuit Court of Appeals reversed, holding that Alvarado was "in custody" when he was interrogated by police and, therefore, should have been read his Miranda warnings. The Ninth Circuit insisted that federal criminal law treated children differently and this principle should apply to Miranda custody determinations. The Supreme Court granted review.

How do you think the Supreme Court should rule? In determining "custody" for purposes of Miranda, should a court apply a different standard for juveniles?

Balancing competing interests

2007-11-27T10:45:00.001-08:00

Write a detailed response to the following statement. Use what you have learned about the Miranda case as evidence to support your thesis, either agreeing or disagreeing with the statement.

"The Supreme Court's decision in Miranda restricts the ability of the police to fight crime. Police officers are on the front lines in the fight against crime, and they should be allowed to interrogate suspects as they best see fit. Society's right to public safety is more important than the rights of criminals."

Political Cartoon

2007-11-27T10:45:00.000-08:00

What is the cartoonist's message? Do you agree or disagree with the message? Explain your answer.

Homework due December 4

2007-11-27T10:40:00.000-08:00

Choose at least one of the next four posts -- the one you find most interesting, perhaps? -- and respond to it in the comments section of that post.

Patriot act redifines domestic terrorism.

2007-11-27T00:11:00.000-08:00

The patriot act broadens the category of what can be investigated as domestic terrorism. Groups like Greenpeace, Operation Rescue, the Earth Liberation Front, asnd the Animal Liberation Front have been envolved in activites that could encourage an investigation into the possibility domestic terrorism.

http://www.aclu.org/natsec/emergpowers/14444leg20021206.html

ACLU represents anonymous ISP in court.

2007-11-26T23:48:00.000-08:00

Earlier this year, the ACLU fought for an anonymous Internet Service Provider who claimed that the NSL (National Security Letter) was infringing upon their First Amendment rights. The NSL (which is the provision to the PATRIOT Act) granted the government the ability to obtain files, records, and other data without probable cause, or any other authorization. Upon receiving an NSL, you are required to provide the requested data to the government. You are also bound with a suppression order. This forces you to remain anonymous. You also cannot share certain information, and you cannot let it be known that you received an NSL in the first place. This is clearly a conflicting law. The Judge ruled in favor of the ISP but the government has appealed the case and they are still continuing to fight for it in court.

Article found here.

Judge Invalidates Patriot Act Provisions

2007-11-26T22:22:00.000-08:00

On September 6, US District Court Judge Victor Marrero struck down certain controversial portions of the patriot act regarding the FBI's widespread use of National Security Letters. The case was filed by the ACLU. Although the FBI was allowed the use of NSLs before the patriot act, afterwards the rules for issuing them were dramatically relaxed. Marrero stated: "several aspects . . . violate the First Amendment and the principle of separation of powers."

www.washingtonpost.com/wp-dyn/content/article/2007/09/06/AR2007090601438.html

Doe vs Gonzales.

2007-11-26T21:48:00.000-08:00

The FBI wanted too get all the computer recordes of the Connecticut libraries, in 2005. Some librarians said no and filed a lawsuit. They won their case.

http://www.ala.org/ala/oif/ifissues/usactlibrarians.htm

FBI ordered to turn over Patriot Act abuse documents

2007-11-26T16:38:00.000-08:00

In April of this year, an inquiry was followed through about the misuse of National Security Letters(NSLs) by the FBI. It was found that, although the NSLs are to be used sparingly, the FBI issued over 47,000 of them in 2005. Around 700 issued NSLs were discovered to have false information. The FBI now has to turn over 2,500 pages a month to the Electronic Frontier Foundation (EFF), who discovered the breaking and bending of laws the FBI was commiting.

http://blog.wired.com/27bstroke6/2007/06/judge_orders_fb.html

FBI tries to get information from journalists

2007-11-26T14:40:00.000-08:00

In 2003 the FBI used the PATRIOT Act to subpoena a bunch of journalists who wrote stories about or interviewed Adrian Lamo, who had been arrested for hacking into the New York Times webpage. The reporters were told to hand over emails, interviews with third parties, independent investigations, off the record statements, their own notes, pretty much everything that had anything to do with Lamo. Later the FBI apologized for their demands, and instead requested that the reporters give the information voluntarily.

http://www.theregister.co.uk/2003/09/29/fbi_bypasses_first_amendment/

http://www.wired.com/politics/security/news/2003/09/60538

http://www.usatoday.com/tech/news/computersecurity/2003-10-08-lamo-apology_x.htm

FBI Employees face criminal investigation

2007-11-25T18:54:00.000-08:00

FBI personnel used misleading "emergency" letters to acquire thousands of phone records.

www.wired.com/politics/law/news/2007/07/exigentinvestigation

USA Patriot Act Used to Clear Out Homeless

2007-11-25T18:47:00.000-08:00

In the New York City suburb of Summit, Richard Kreimer (a homeless man) was kicked out of a train station. The police told Kreimer that he was being removed because of the Patriot Act, specifically because of potential attacks on mass transit systems. According to the article, Kreimer said he has the right to be in a public place and sued the city for 5 million dollars. He wanted the judge to rule that the train station was a public place. Interestingly, the U.S. Justice Department criticized Summit for using the USA Patriot Act in a unreasonable way.

Resource: http://www.hightimes.com/ht/news/content.php?bid=506&aid=24

Audit Finds Many "National Security Letters" Misissued

2007-11-25T15:58:00.000-08:00

This is a Wired Article by Ryan Singel on the FBI's use of "National Security Letters" that I found through Bruce Schneier's blog. Bruce Schneier is a world renowned security expert and his blog is an excellent source of security related news and information.

The article is about how a Department of Justice audit found that the majority of the times that the FBI issued a "National Security Letter," they did not follow the (limited) rules listed in the USA Patriot Act of 2001. This article is a good example on how useful the "checks and balances" part of the constitution really is.

U.S. Citizen Asks Federal Court to Insure Safe Passage For His Family Back from Canada

2007-11-23T19:08:00.000-08:00

On December 17th, 2006 a family of full-fledged US citizens, who just happened to be Muslim, had been blocked from traveling back across the US-Canadian border. The Father, Akif Rahman was seized by security in the Toronto airport and underwent terrorist screening procedures. It took at least an hour, which caused Rahman and his family to miss their flight. on the 21st, with help from the ACLU, he asked a federal judge to help insure a safe and calm trip back to Chicago. He had been unfairly and (he claims) violently detained in similar situations 4 other times since 2004. This is all due to him having a similar name to a suspected terrorist on a government watch-list. Rahman and the ACLU had filed a lawsuit against the DHS (Department of Homeland Security) in 2005.

(I can't find any updates on him and his family adsafhjdkslabcnxkcsorry)

NPR News Report

Most Recent ACLU Article

FBI uses incorrect information and Patriot Act to arrest innocent man

2007-11-21T08:49:00.000-08:00

On May 2004, the FBI arrested attorney at law Brandon Mayfield without charge. This was because Mayfield was erroneously linked to the 2004 train bombings in Madrid. A finger print found near a detonator was identified by the FBI as being Mayfield’s. The FBI used Letters of National Security to wire tap Mayfield’s phone and conduct searches of his house. Despite Spanish police’s conviction that the print belonged to someone else as well as documented evidence that there was an “unusual similarity” which was confusing to investigators, the FBI arrested Mayfield when information about the investigation was leaked. Mayfield was held without charge for over two weeks. The FBI refused to release Mayfield, even after the Spanish police provided evidence that the finger print belonged to an Algerian national named Ouhane Daoud. He was finally released when the international press broke the story. A judge dismissed the case outright. Mayfield and many others believe that he was persecuted due to his Muslim faith. Mayfield received a public apology from the FBI; never the less, he has filed several suits against them for invasion of privacy. This could not have happened without the Patriot Act

Links:

http://www.homelandstupidity.us/2006/03/11/patriot-act-dont-worry-about-abuse-worry-about-incompetence

http://www.msnbc.msn.com/id/5053007

http://en.wikipedia.org/wiki/Brandon_Mayfield

Homework Due 11/27/07

2007-11-20T10:57:00.000-08:00

In class today I explained several key sections of the USA PATRIOT Act, passed in the fall of 2001. Your task as a group is to "fill in the gap" -- what kinds of things have happened since the Patriot Act was passed?

1. Research news stories, other articles, or other info on the web about how the Patriot Act has been enforced, challenged, changed, or otherwise impacted people. Choose an article that is interesting to you.

2. Post your findings to this blog. Give your posting a descriptive title, and in the body of the post write a 100-word (or less) summary of the information you found. Include a link to the page where you found the information.

3. Read what other students contribute, and comment if you wish.

Contact me if you have questions.