Articles Posted in Constitutional Law

Justia columnist, George Washington law professor, and economist Neil Buchanan sharply critiques the tax deal that was just passed. Buchanan contends that the big picture here is very different from that painted by Beltway insiders in the run-up to the deal, in important ways. To support his points, Buchanan covers the basics of the deal; points out that merely because both sides were disappointed does not mean that a good deal was struck; and questions the need for the deal in light of the fact that the long-term budget situation looks significantly better than most people think, in part because certain pessimistic assumptions about health-care costs have so far not proven true.

In the second in this two-part series of columns on constitutional gun regulation, Cornell law professor Michael Dorf comments on the ways in which the Supreme Court may interpret the Second Amendment, after the Newtown, Connecticut massacre. In particular, Dorf notes subtleties of interpretation that may matter greatly in this area of constitutional law. In particular, Dorf comments on the difference between living constitutionalism and originalism, and the difference between old originalism and new originalism. Dorf also takes Justice Scalia to task for not fully practicing what he preaches, harkening back to Scalia’s recent comment that the Constitution is “dead, dead, dead.”

Justia columnist and former counsel to the president John Dean urges that filibuster reform is vitally necessary if the nation is to get Congress working again. Dean places the problem squarely on Republicans’ shoulders, and describes the Party’s filibuster abuses. He also notes the baleful effect of the Republicans’ use of the filibuster upon the judicial confirmation process, triggering an emergency situation in the judicial branch. Dean comments on what effective filibuster reform would look like; contends that there are no strong arguments against it; and explains the so-called “nuclear option” that Democrats still could invoke if they so chose.

In Part One of a two-part series of columns on the Second Amendment and gun regulation, Justia columnist and Cornell law professor Michael Dorf considers the question of which firearm regulations the Supreme Court will allow, and which the Court will consider to be Second Amendment violations—a timely question in light of the Newtown Massacre and the many gun-control ideas and suggestions to which that tragedy has led. While some of these suggestions are clearly constitutional, as Dorf explains, others may or may not be. Dorf focuses especially on the possibility of a ban on possession of firearms in public places, and its possible constitutionality or lack thereof, noting that two prior Second Amendment cases that the Court handed down, in 2008 and 2010, do not resolve that issue.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.

Justia columnist and U. Washington law professor Anita Ramasastry comments on Senator Al Franken’s proposed legislation that would regulate cyberstalking and geolocation apps—some of which are installed in a given device without notice of their presence being provided to the user. As Ramasastry explains, some of the chief concerns in this area of law include the possible stalking of domestic violence victims, and the safety of children. As Ramasastry explains, this topic not only sparked Franken’s interest, but also is of interest to the FTC, and the Senate Judiciary Committee.

Justia columnist and Cardozo law professor Marci Hamilton comments on the tragic murders at Sandy Hook, which have shaken the nation. Hamilton discusses the limits to the constitutional right to bear arms, and emphasizes that the murders demand a debate about both gun control and mental health. Without constitutional barriers, despite what the NRA says, Hamilton says that instituting gun control would be easy if there were the political will to do so. The hard part, Hamilton argues, is dealing with those who are mentally ill, and have the capacity to harm others, without returning to the woeful state in which the mentally ill were left in the past. And the really easy part, Hamilton argues, is forbidding parents—like Adam Lanza’s mother—from introducing their mentally ill children to guns and teaching them how to use them.

Justia columnist and Cardozo law professor Marci Hamilton looks back on this year’s important developments regarding justice for victims of child sex abuse. Among the events Hamilton chronicles are the conviction of prominent Satmar Hasidic school counselor Nechemya Weberman, and the Catholic Church and Penn State cases, which led to the convictions, respectively, of Msgr. Willam Lynn and Jerry Sandusky. Other developments, as Hamilton explains, have involved the Boy Scouts’ release of previously secret files, as well as the release of previously secret files pursuant to the settlement by the Catholic Church’s Los Angeles Archdiocese. Key priorities for the future, Hamilton notes, are increased legal reform in this area, and a greater focus on the problem of incest.

Justia columnist and Hofstra law professor Joanna Grossman comments on the two upcoming U.S. Supreme Court cases relating to same-sex marriage. The first case presents the question whether the federal Defense of Marriage Act (DOMA)—one provision of which precludes the federal government from giving effect, for any federal law purpose, to a validly celebrated same-sex marriage—is unconstitutional. The second case raises the issue of the constitutionality—or lack thereof—of a voter referendum in California that eliminated a right of same-sex marriage that the state’s highest court had previously ruled to be constitutionally necessary. Grossman provides detailed background on same-sex marriage developments in the U.S., and then goes on to analyze the issues raised by DOMA and the California referendum, respectively, and to consider the various possible outcomes that the Court might reach in each Supreme Court case. While Grossman notes that the Supreme Court has often tended to rule in ways that bring along straggler states on social justice issues, rather than being ahead of the states as a group, she also notes that this case could be an exception to that pattern.

Justia columnist and attorney Julie Hilden covers a new North Carolina law, described by the North Carolina ACLU as possibly the first of its kind in the United States, which seeks to protect teachers from students’ (1) building a fake online profile or website of the teacher; (2) posting the teacher’s private, personal, or sexual information; (3) tampering with the teacher’s online networks, data or accounts; (4) signing the teacher up to a pornographic website; or (5) making any statement, whether true or false, that is likely to provoke someone else to stalk or harass the teacher. Violations of any of these five provisions carry criminal penalties. Hilden argues that the law’s genuine concern for protecting teachers is already sufficiently addressed by existing civil and/or criminal law, and that to the extent that the provisions go further than existing law, they may raise serious First Amendment issues—issues that have already left the North Carolina ACLU primed to challenge the statute. Hilden also underlines the point that teachers typically have far greater resources and maturity to deal with bullying than students do, and thus, she argues, teachers need less protection from bullying than students do.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a closely watched affirmative action case that the Supreme Court will very likely resolve. As Amar notes, the case concerns how a state that tries to abolish affirmative-action programs may, in doing so, violate the Constitution. As Amar explains, such programs are never constitutionally required to be initiated, but their abolition may be constitutionally problematic—for instance, if programs that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult; or when minorities are subjected to greater political obstacles in the adoption (or re-adoption) of the programs they might support than are other groups.

Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.

Justia columnist and former counsel to the president John Dean takes strong issue with the Norquist Pledge, which Washington lobbyist Grover Norquist has asked Members of Congress to sign. The Pledge says, “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” The Pledge has become significant in the context of raising taxes as a solution to the potential “fiscal cliff” crisis. Dean contends that the Pledge is not only a bad idea, but also one that violates the Constitution. Moreover, Dean points out that, as the pledge is not a valid contract, for it is missing key elements that contract law requires, it is also not enforceable as such.

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a three-judge panel of the U.S. Court of Appeals for the Second Circuit. The decision addressed the question whether the New York City Board of Education can exclude houses of worship from occupying public schools. Hamilton argues that this controversy is part of a much larger issue, regarding religious groups’ seeking government entitlements. She covers the key U.S. Supreme Court cases that are relevant to this issue, and connects the issue to the “church-planting” movement. The ultimate goal of those who seek to allow religious groups to occupy public school, is much more ambitious than just that, Hamilton suggests: It is to convince governments to pay as much money to support religious private schools as it pays to support public schools.

Justia columnist and Cornell law professor Sherry Colb comments on a controversy in Germany in which Germany’s branch of People for the Ethical Treatment of Animals, PETA-D, compared animal exploitation and slaughter to the Nazi Holocaust, in a series of seven graphic posters. The European Court of Human Rights (ECHR) subsequently held that Germany’s censorship of the images was lawful. Colb, who is both an ethical vegan and the daughter of Holocaust survivors, critically analyzes (1) PETA-D’s decision to launch a campaign comparing animal slaughter to the Holocaust; (2) the ECHR’s decision that such a comparison diminishes Holocaust victims and survivors; and (3) the specific nature of the offense that is felt by those who condemn the analogy between animal exploitation and the Holocaust. In her analysis, Colb refers to sources ranging from Adorno, Singer, and Coetzee on animal suffering, to Seinfeld’s “Soup Nazi,” a comparison to which most people don’t object, but perhaps logically should.

Justia columnist and attorney Julie Hilden comments on a federal district court case that was brought after Mississippi teen Taylor Bell was suspended based on the lyrics of a rap song he wrote and posted on Facebook and YouTube, where it was heard by his high school classmates. Hilden explains why the case implicated the U.S. Supreme Court’s decision in Tinker v. Des Moines, even if the rap song fell short of constituting a “true threat” under other free speech precedents. Taylor lost before the federal district court, but, as Hilden explains, his attorney has noted a number of key points that will likely help strengthen Taylor’s case in the planned appeal.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the new couples pages feature on Facebook, which aggregates a Facebook user’s information with that of his or her self-designated significant other. Ramasastry notes that the feature has been controversial, and explains why some users have been upset by it. She notes, too, that Facebook is entering a privacy gray area with the couples pages feature, under which Facebook relies on its privacy policies, but users feel they have lost control. Moreover, Ramasastry suggests that the Electronic Privacy Information Center (EPIC), which previously criticized Facebook’s Timeline feature, may want to scrutinize Facebook’s couples pages feature as well. Finally, Ramasastry questions whether Facebook’s couples pages are permissible under Facebook’s recent settlement with the FTC.

Justia columnist and Cardozo law professor Marci Hamilton discusses the child-sex-abuse investigation in Australia and developments regarding child sex abuse here in the U.S. Hamilton argues that America’s response to evidence of child sex abuse in our institutions has been woefully deficient. While some local or state prosecutors have moved forward, Hamilton argues that what is needed, as well, is a response at the federal level. Hamilton suggests that Members of Congress are afraid to take on the relevant institutions, despite the terrible toll that child sex abuse takes on children and the monetary costs that are associated with that toll. Hamilton argues, however, that addressing child sex abuse is not only the right thing to do, but also ultimately in Members of Congress’ political interests. In particular, she urges Republicans to change their focus from “unborn children” to actual children who are suffering due to child sex abuse. Hamilton also urges Democrats in Congress and President Obama to investigate and act on this important issue, including by reforming the insurance industry's role.

Justia columnist and Hofstra law professor Joanna Grossman evaluates the meaning of the votes cast across the nation on the various pro-same-sex marriage referendums. Such referendums passed in Maryland, Maine, and Washington State. Grossman describes the details of the various referendums and other ballot measures relating to same-sex marriage, and notes the split, in each state she discusses, regarding votes for Obama and for Romney, respectively. Grossman explains why such referendums are noteworthy: (1) the common but not necessarily correct idea that this is an issue for the people (not courts) to decide; (2) the fact that the referendums may augur the future of same-sex marriage in America; and (3) the referendums show that young voters tend to be pro-same-sex marriage, and as more and young people reach voting age, there very likely will be even more pro-same-sex marriage voters. Grossman concludes, citing relevant statistics and developments, that among young people, and Americans generally, we are seeing a sea change toward support of gay marriage.

Justia columnist and attorney Julie Hilden comments on a U.S. Court of Appeals for the Ninth Circuit panel decision arising out of a controversy regarding the treatment by Oregon State University (OSU) of a conservative student newspaper, The Liberty. While OSU's traditional newspaper, The Barometer, was allowed to use on-campus newsbins, The Liberty first had its copies dumped out of its newsbins, with no prior notice, and then was allowed to put The Liberty in only two designated areas on campus, whereas The Barometer suffered under no such restrictions. Hilden argues that the Ninth Circuit panel was right to rule that the student newspapers should have been treated equally, with The Liberty accorded the same access as The Barometer.