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Steve Shiffrin
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Shortly after the Ferguson grand jury announced its decision Monday night, President Obama said: “We need to accept that this decision was the grand jury's to make. There are Americans who agree with it, and there are Americans who are deeply upset, even angry. It's an understandable reaction. But I join Michael's parents in asking anyone who protests this decision to do so peacefully.” See here. I am bothered by the statement that we need to accept that this decision was the grand jury’s to make. I read that as an appeal to the rule of law. But the rule of law is not merely procedural; the rule of law should not be construed to include blatant miscarriages of justice rooted in racism. It should not be construed to include denials of probable cause when probable cause so clearly exists. It should not be construed to include executions in the... Continue reading
Posted 2 days ago at ReligiousLeftLaw.com
A recent Princeton study by Martin Gillens and Benjamin I. Page concludes that the U.S. no longer has a democracy. “Using data drawn from over 1,800 different policy initiatives from 1981 to 2002, the two conclude that rich, well-connected individuals on the political scene now steer the direction of the country, regardless of or even against the will of the majority of voters.” See here. Citizens, they say, have little independent influence. If Alexander Hamilton were here, he would tell us that this is the way it should be. The Constitution is designed to prevent the people from having their way. It is a fundamentally undemocratic document designed to prevent change. Alexander Hamilton argued in The Federalist Papers, No. 73 that making change difficult restrained the “excess of lawmaking” and “kept things in the same state in which they happen to be at any given period.” He argued that “the... Continue reading
Posted Nov 20, 2014 at ReligiousLeftLaw.com
Did the last election endorse conservative ideas? James Drader thinks so, and although he is a mere County Republican leader in my area, he echoes a sentiment shared by Republican politicians across the country. It is odd that they think so. After all, Peggy Noonan a couple of weeks before the election criticized the Republicans for telling us what they were against, but projected no vision and had given the electorate no clue as to what they were for. Ironically, in her column she herself offered no suggestions as to the vision or programs the Republicans might recommend. And, of course, she was right. The Republicans made Barack Obama the issue in the 2014 election. And the Democrats ran away from him as well. Were there some conservative arguments made against him? Of course, but it is fantasy to suppose that the last election endorsed a conservative agenda. Despite the... Continue reading
Posted Nov 13, 2014 at ReligiousLeftLaw.com
For many decades, the Republican Party has campaigned with thinly disguised racial appeals. Willie Horton is the poster child for the kind of appeals that have typified the approach taken by Republicans. They have tried to frighten voters with images of black criminals; they have suggested that the poor are lazy while stereotyping the poor as black. They have opposed affirmative action and have gone a long way to turn the Fourteenth Amendment upside down to constitutionalize their opposition. They have passed measures designed to undercut the right of blacks (and others) to vote. I would not claim that opposing President Obama and successfully making him the centerpiece of many Congessional elections was per se a racial appeal to the voters. After all, he is still the President, and most of the opposition to him has nothing to do with his race. But race has something to do with the... Continue reading
Posted Nov 4, 2014 at ReligiousLeftLaw.com
In his Tuesday column, David Brooks announced to parents throughout the United States that if they are judging a potential son or daughter-in-law on political grounds, their “values are out of whack.” So I take it that if liberal parents have liberal children who are about to marry conservative evangelical members of the Tea Party, it should be a matter of indifference. Brooks always seems to write with a touch of smug arrogance, but the blindness of this conclusion is stunning even for him. Let’s leave aside family members for the moment. Let’s think of dinner companions. Would the tone of a conversation change if a table of liberals were joined by a passionate conservative? A table of liberals might make easy assumptions about capital punishment, the use of drones, the need for spending on infrastructure, the failure of the nation to care for the poor, and the immorality and... Continue reading
Posted Oct 30, 2014 at ReligiousLeftLaw.com
The October 27th issue of the Nation has a terrific article: The Government’s War on Whistleblowers by Normon Solomon and Marcy Wheeler.The story powerfully details retaliation by both the Bush and Obama administrations against both whistleblowers and the reporters who tell their stories. In great detail, the Nation shows retaliation against New York Times reporter James Risen who won a Pulitzer Prize for reporting the existence and details of a secret domestic wiretapping program. The story was followed up by a bestselling book. Both recent administrations have sought to prove that Jeffrey Sterling, formerly with the CIA, was the whistleblower who provided Risen with the information. One of the obvious problems with the pursuit of Risen and Sterling is that it was initiated by the very people who were criticized in the reporting and the policies criticized have been continued by the Obama Administration. If a prosecution were contemplated at... Continue reading
Posted Oct 23, 2014 at ReligiousLeftLaw.com
One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as fundamental to the American scheme of justice. If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage. Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pre-trial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on... Continue reading
Posted Oct 20, 2014 at ReligiousLeftLaw.com
In his book, Save the World on Your Own Time, Stanley Fish takes the position that faculty may not advocate political or moral views in the classroom. Indeed, he claims that if “an idea or policy is presented as a candidate for allegiance –aided by the instructor, students are asked to decide where they stand on the matter - then the classroom has been appropriated for political purposes.” If the primary purpose of the professor is to persuade the students to his or her point of view, then Fish has a point. But Fish goes further. He thinks the personal determination of professors and students as to what they believe should be no part of a university classroom life (though he thinks it permissible to evaluate particular pieces of discourse advocating policy positions). In teaching the First Amendment for many decades, along with many, if not most, law professors, contrary... Continue reading
Posted Oct 16, 2014 at ReligiousLeftLaw.com
In a recent symposium in the Illinois Law Review, Jason Mazzone maintains that many, if not most, Constitutional Law articles in laws reviews are principally advocacy pieces. He contends that these articles are not scholarship. He insists that law professors should engage in the same kind of research and writing employed in other departments. See here. (For interesting commentary by Paul Horwitz, see here). In so arguing, Mazzone puts forward the most recent echo (though he does not go quite as far) of the insouciant claims of Stanley Fish, who insists that professors in universities should confine themselves to politically neutral academic discourse. I think it worth observing that advocacy pieces in Constitutional Law have counted as scholarship in American law schools, and the narrow conception of scholarship recommended by Mazzone and Fish borrowed from other disciplines has long been rejected in American law schools, not to mention some other... Continue reading
Posted Oct 12, 2014 at ReligiousLeftLaw.com
Conservative Catholics are involved in a fascinating and heated debate with each other. The debate is about the compatibility (or not) with America as they sometimes style it or liberal democracy as they sometimes conceive of it. One group traceable to John Courtney Murray sometimes called older, orthodox, accommodationist, or neo-conservative maintains that Catholicism is fully compatible with American style democracy. Their position is that the American Constitution is founded on natural law/natural rights principles and is opposed to a relativistic view. Their quest is to fill in the neutrality of liberal democracy, to return us to limited government, laissez faire economics, and a strong foreign policy. They are pro-life, pro-family, and supportive of traditional marriage. The so-called radical school denies the compatibility of Catholicism and liberal democracy. It rejects the individualism, the excesses of capitalism, and the imperial tendencies while sharing the pro-life, pro-family, and traditional marriage views of... Continue reading
Posted Oct 8, 2014 at ReligiousLeftLaw.com
I have yet to read Ronald Dworkin’s book, Religion Without God, but I go into in with three observations. First, as a matter of ordinary usage, our understanding of religion does not require a belief in a transcendent God. If it did, Buddhism as ordinarily understood would not count as a religion. Second, it makes no sense to me to offer legal protection to those who are motivated by religion to live in a certain way, but not to those who as a matter of moral conscience (free of any religious tradition) feel obligated to live their life in a certain way. Third, it is likely that Dworkin’s perspective may offer the most challenging alternative to a theological perspective I find persuasive. Hans Kung and Charles Taylor argue that it is a reasonable for an agnostic or a person with doubts to act on the assumption that God exists. Given... Continue reading
Posted Oct 6, 2014 at ReligiousLeftLaw.com
Saturday’s Wall Street Journal is always a treat: great features and bizarre opinions. Last Saturday, Peggy Noonan departed from her weekly diatribes against President Obama to make the new discovery that it was not enough for Republicans to attack the Democrats. The Republicans had to stand for something. Incredibly, she stopped there leaving me with the impression that she has no clue what positive message could unify the divided Republicans. On the other hand, Donald Kagan put forward an education policy that could unify Republicans, but that policy is indefensible. It is not all wrong, however. Kagan argues that an education should be designed not just for instrumental purposes, but to produce a virtuous people and good citizens. He rejects the idea of a value free education. In my view, as I have argued in prior writing, the notion of a value free education was always bankrupt, if not oxymoronic.... Continue reading
Posted Oct 3, 2014 at ReligiousLeftLaw.com
Religion is in terminal decline in many European countries, so I was surprised to learn that 59% of the German population are registered Christians. I am surprised it is as high as it is, but it has been declining sharply this year. And that is directly because church and state are not separate. Like many European countries, Germany requires church members to pay an income tax levy on behalf of the churches. $13.2 billion dollars were collected on behalf of Christian churches last year, and that is not pocket change. But, as reported in an article by Chase Gummer in the Wall Street Journal earlier this month, the churches wanted more. Capital gains had been taxable, but tax enforcement had been ineffective. The churches pressed for measures to make enforcement more efficient. But they should have been more careful about what they wished for. In response to the new measure,... Continue reading
Posted Sep 25, 2014 at ReligiousLeftLaw.com
Wesleyan University has ruled that on campus fraternities must become co-ed over the next three years or forfeit access to meeting spaces and on campus housing. See here. Many will argue that this move violates freedom of association. Indeed Peter Smithhiser, head of the North-American Interfraternity Conference has insisted that the move violates fundamental First Amendment principles. In fact, the First Amendment does not apply because Wesleyan is a private university. But let us leave that to the side. Even assuming the First Amendment applies, it applies in complicated ways. In Christian Legal Society v. Martinez, the Supreme Court held that the Hastings law school could deny privileges to student organizations that did not admit all students (the so-called all comers policy). Given Martinez, although the policy is not precisely an all comers policy, it seems clear to me that Wesleyan can condition access to on campus housing on the... Continue reading
Posted Sep 22, 2014 at ReligiousLeftLaw.com
Typepad HTML Email Thanks for the comment Joe. I appreciate the force of the comment. I would merely note that sincerity is also needed and the religious interest would have to outweigh the government interest. As to Heller, I find it hard to get past the dissenters joining the originalist bandwagon allowing Scalia to set the terms of the debate (even recognizing he flows in and out of originalism throughout his dreadful opinion.
Later this year the Supreme Court will hear an interesting case involving threats and rap lyrics. In Elonis v. United States, Elonis was convicted under a federal statute prohibiting threats to injure the person of another across state lines. Among other things Elonis posted this on his Facebook page about his ex-wife: There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. How does this get to the Supreme Court? The jury was instructed to determine whether a reasonable person would find it to be a threat. The First Amendment claim is that the jury should have been instructed to find that Elonis intended to threaten... Continue reading
Posted Sep 19, 2014 at ReligiousLeftLaw.com
I have a solution to the Hobby Lobby case with which no one will agree. I have previously argued that the government action at issue imposed a serious religious burden on the owners of Hobby Lobby because they were being compelled to engage in activities to which they were morally opposed. Moreover, the government instead could have treated closely held business corporations whose ultimate owners unanimously objected on religious grounds the same way that religious corporations are treated. In that case, women would be fully insured for contraceptive devices. On the other hand, less restrictive alternatives ordinarily cannot be implemented immediately and I am told that administrative changes in regulations cannot be applied retroactively. So it has been in Hobby Lobby. As I understand it, the change in the regulations have not yet been implemented, and when they are they will not be applied retroactively. See (here). As a matter... Continue reading
Posted Sep 16, 2014 at ReligiousLeftLaw.com
Typepad HTML Email Clark In the second paragraph I assume that the exclusion by the organization is based on deeply held religious convictions, but I do not believe a University has to recognize and subsidize organizations that discriminate on the basis of race or sexual orientation regardless of their reasons for doing so. I agree that the effect is to privilege some theological sets of beliefs over others, but not because the state has made a theological judgment. The state has made the political judgment that racial equality and equality for gays and lesbians is important for the polity. Steve
Typepad HTML Email Clark I may have misinterpreted your question. Suppose an organization excludes any person who engages in sex outside of heterosexual marriage whether gay or straight. The impact of the policy is to exclude gays. That impact in my view should count as discrimination against gays even though the policy covers more than gays. I think the same of neutral regulations that have a discriminatory impact on the basis of race, but the Court has long held that impact without intent in the area of race does not give rise to any form of heightened scrutiny.
Intervarsity Christian Fellowship an evangelical student organization with 949 chapters on 616 campuses was “derecognized” last week by the California State University system. The offense leading to the derecognition was that the ICF required its leaders to have Christian beliefs. This constituted discrimination on the basis of religion. I am no fan of ICF or of evangelical Christianity, but this sanction against ICF strikes me as indefensible. It generally makes great sense for the University system not to recognize organizations that discriminate on the basis of religion. Ordinarily, such discrimination is rightly against public policy. The Sierra Club ought to be able to select its leaders by taking their environmental views into account, but refusing leadership to Catholics, Jews, or Muslims makes no more sense than it would for the Sierra Club to discriminate on the basis of race. But ICF ought to be able to select its leaders on... Continue reading
Posted Sep 14, 2014 at ReligiousLeftLaw.com
In a prior post, I argued that the Hobby Lobby decision properly accommodated the relevant interests because of the availability of a less restrictive alternative. Under that alternative, closely held business corporations would be treated for these purposes in the same way as religious corporations. As the Court put it, that sort of treatment “achieves all of the government’s aims while providing greater respect for religious liberty.” The Court said that the “effect of the HHS-created exemption on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Relying on that language, I concluded that the women at Hobby Lobby would not be harmed by the decision. I was too fast. I continue to believe that the effect on women under the accommodation would be precisely zero, but that assumes the accommodation is in effect. Changes in administrative regulations, however, are not... Continue reading
Posted Sep 12, 2014 at ReligiousLeftLaw.com
Many years ago I wrongly argued that truthful prescription drug advertising deserved First Amendment protection. I did not then know that the commercial speech doctrine would be tortured to protect the advertising of tobacco. It is hard to believe that the merchants of death and suffering deserve constitutional protection for the hawking of their harmful products. Commercial advertising was outside the protection of the First Amendment for almost two hundred years before the Court changed course. It was outside the protection primarily because despite specious arguments to the contrary, commercial advertising taken as a whole is non-political. Proposing commercial transactions generally is not asking for political conduct. But despite the intention and content of individual advertisements, commercial advertising taken as a whole has negative political effects of constitutional dimension. The Constitution is a mixture of Lockean Liberalism and Civic Republicanism. It endorses rights as a part of moral reality, but... Continue reading
Posted Sep 9, 2014 at ReligiousLeftLaw.com
According to the Center on Responsive Politics, outside spending in the 1992 elections was $19.6 million; in the 2000 elections it was $51.6 million; in the 2012 elections it was $1 billion. It is hard to believe that the Supreme Court decisions had nothing to do with this. According to the Court, this is not problematic: Buying access and influence is part of what it means to have a responsive democracy. If you believe helping the wealthy is the same as advancing the public interest, this is all well and good. But some of the same people who believe that the original understanding of the Constitution should control interpretation need to recall that the framers sought to guarantee a Republican form of government and that form of government was designed to resist various forms of corruption in particular the corrupting influence of factions. Instead of a Republican form of government,... Continue reading
Posted Sep 6, 2014 at ReligiousLeftLaw.com
I attended a meeting of the Claremont Institute last week and watched a panel on the future of the Republican Party. I suspect that every person in the room other than me was a card carrying conservative. The mission of the Claremont Institute after all is to teach the brightest conservatives the principle of the Constitutional founders. The panels of the Claremont Institute debate how conservatives should think about the founding and the issues of the day. Three of the presentations stood out to me. Bill Kristol presented a talk about the factors that made it likely the Republicans would control the Senate and the factors suggesting that Republicans would win the next Presidential election. But he also presented the factors suggesting the Democrats would prevail. Of course, Kristol wants Republicans to win, but the talk in terms of substance could have been given by any smart and knowledgeable political... Continue reading
Posted Sep 5, 2014 at ReligiousLeftLaw.com