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Steve Shiffrin
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Republican FBI Director Comey and Russian intervention alone will make Donald Trump an illegitimate President. That is, he will have the power, but he has gained that power only because the democratic process has not been respected by the Director of the FBI and has been sideswiped by a foreign power. Moreover, Trump has won the job by appealing to racist values that are alien to what the Constitution stands for. This is not new for Republicans, but this time it has been far more blatant. From a political perspective, Hillary Clinton should have not referred to the large basket of deplorables among Trump supporters, but virtually all of those supporters were aware of the racist (and sexist) appeals and voted to achieve their objectives either because of them or despite them. The point of this post is to decry the media coverage of the campaign. A friend of mine... Continue reading
Posted 4 days ago at ReligiousLeftLaw.com
Hillary Clinton did a lot of things right in this election. She won all three debates. She managed a well-funded, well-oiled campaign machine. Her advertisements were brilliant. Her events were well-conceived. Her volunteers were committed and hardworking. She won the popular vote. Were it not for Director Comey and Russian intervention, she would be the President elect. But one aspect of the campaign was misdirected. The emphasis of her campaign was not why the Republicans are wrong, but that Donald Trump is an incompetent moral monster. That emphasis may have been the best message to get her elected, but for many years now the Republican theme of laissez faire, small government, and lower taxes has not been subjected to the full throated critical scrutiny it deserves. Many are saying that the failure of the campaign was the failure to address the white unemployed in the Rust Belt. Although it was... Continue reading
Posted Nov 13, 2016 at ReligiousLeftLaw.com
Paul Ryan and other Republican leaders are arguing that citizens should vote for Republicans in House and Senate races in order to check Hillary Clinton if she is elected President. Checks and balances are needed, they say. But there is another name for checks and balances in this context: it is called gridlock. Most American have a low opinion of Congress and gridlock is a prime reason. Regrettably, the American Constitution is structured to make gridlock possible. It was designed to protect the wealthy creditors against debtors. It resists change. There is a lot of Constitution worship in this country. You would think we have a perfect Constitution. Well, we don’t. Continue reading
Posted Nov 7, 2016 at ReligiousLeftLaw.com
The lower court in what became Buckley v. Valeo recognized that "it would be strange indeed if . . . the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money and because the amounts they give and spend cannot be limited.” Yet that strange idea, an idea wholly inconsistent with political equality in a democratic society is currently the law. In reversing the lower court, the United States Supreme Court held that the right of wealthy individuals to spend unlimited sums of money in campaign expenditures outweighed the interest of political equality in a democracy. Any other result, the Court claimed, would be "foreign to the First Amendment." Regrettably, that principle not only has be given stubborn adherence; it has been extended to corporations; indeed, even secret spending is constitutionally permissible. One of... Continue reading
Posted Nov 2, 2016 at ReligiousLeftLaw.com
The Clinton campaign is asking the FBI to issue more details about the investigation concerning Hillary Clinton. I think this is a mistake. Clinton and other Democrats (not to mention Republicans) are asking Director Comey to again violate the rules which prohibit the Bureau from commenting on ongoing investigations and not to intervene in election campaigns. It was wrong for the Director to comment before, and I do not think his prior breaking of the rules should serve as a cover for further interventions in the campaign. It ought to be obvious that the Bureau is supposed to operate as an independent nonpartisan agency. It should not be conducting investigations or commenting on investigations because Congress, a political candidate, or a political party wants it to do so. I get that the Clinton campaign wants to make it clear it has nothing to fear. There are better ways. Continue reading
Posted Oct 31, 2016 at ReligiousLeftLaw.com
In case you missed Richard Painter's excellent op-ed in the New York Times here. Continue reading
Posted Oct 30, 2016 at ReligiousLeftLaw.com
FBI Director James Comey’s decision announcing that the Bureau is investigating e-mails found on a computer used by Huma Abdin in connection with the investigation of Hillary Clinton is inconsistent with D.O.J. policy, indefensible, and was apparently prompted by his ineptitude in the execution of the prior questionable decision to make public remarks attempting to justify the decision not to prosecute Hillary Clinton. According to long established D.O.J. rules, the FBI does not comment on ongoing investigations, and the usual practice is not to comment on decisions not to go forward with a prosecution. Comey’s prior decision to publicly comment on the decision not to prosecute was itself unusual, and it was difficult to defend because the claim that Clinton was “extremely careless” in handling e-mails intervened in the election with no law enforcement purpose. What has turned out to be equally problematic, Comey left the impression that the Clinton... Continue reading
Posted Oct 29, 2016 at ReligiousLeftLaw.com
My new book What's Wrong with the First Amendment? has now been published in hardback, paperback, and e-book formats by Cambridge University Press. The book argues that the US love affair with the First Amendment has mutated into free speech idolatry. Free speech has been placed on so high a pedestal that it is almost automatically privileged over privacy, fair trials, equality and public health, even protecting depictions of animal cruelty and violent video games sold to children. At the same time, dissent is unduly stifled and religious minorities are burdened. The First Amendment benefits the powerful at the expense of the vulnerable. By contrast, other Western democracies provide more reasonable accommodations between free speech and other values though their protections of dissent, and religious minorities are also inadequate. The book argues that US free speech extremism is not the product of broad cultural factors, but rather political ideologies developed... Continue reading
Posted Oct 24, 2016 at ReligiousLeftLaw.com
Recently, I proudly presided at the wedding of Jacob Shiffrin and Sarah Olbrantz in Saint Louis, Missouri. It was a wonderful event. But, how you might ask, could I have the authority to marry them. I am not a judge, a clergyman, or authorized by a religious institution of which Jacob or Sarah are members as Missouri law seems to require. The answer, of course, is that I became a pseudo-clergyman on line in a couple of minutes. Missouri accepts such credentials. So do most states (although questions have been raised in Connecticut, Virginia, Tennessee, Alabama, and New York). Although Missouri permits judges to marry couples, some states require that only spiritual leaders preside at weddings. Suppose, however, that a couple want a non-religious social worker to marry them. Is a state law preventing the social worker from marrying the couple constitutional? It strikes me that a law forcing a... Continue reading
Posted Oct 5, 2016 at ReligiousLeftLaw.com
From the New York Times to PBS, the media proclaims that Donald Trump is not stable, but he is the change candidate, and Hillary Clinton is not. In other words, she just stands for four more years of Obama. In one sense this is true. It will not be possible to get legislation through the Republican House. At the same time, Trump would not be able to get anything through the Senate which is likely to be controlled by the Democrats. So on the domestic level, whoever is President will govern at the margins by executive order, although appointments to the federal departments are obviously important. In terms of foreign policy, Trump is the change candidate. But change in the hands of an ignorant, reckless, thin-skinned, narcissist is hard to rally around. But Hillary Clinton is the real change candidate. The Supreme Court has been dominated by Republicans since the... Continue reading
Posted Sep 19, 2016 at ReligiousLeftLaw.com
Of course, under the circumstances, Hillary Clinton must be elected President, but what can she be trusted to do? I will argue that there is a lot to worry about here, but first, some things she can be trusted to do. First, she will appoint Justices who will transform the Supreme Court from a dream of the Federalist Society to a moderately liberal court that respects equality, principles of criminal justice, and fairness in elections. Second, she will on most issues act like a Democratic President. Third, e-mail carelessness to the contrary, her brilliance, experience and judgment will make her a reliable anchor in foreign policy and national security (though many of us prefer she were less hawkish). Fourth, she will block Donald Trump from ever becoming President of the United States. But there is much to worry about and not because she is more likely to issue false statements... Continue reading
Posted Aug 7, 2016 at ReligiousLeftLaw.com
In a well argued facebook post, Patrick O'Donnell maintains that a vote for a third party candidate is morally irresponsible. Here is what he has to say: The upcoming election is a binary choice (i.e., abstention or third party voting is morally and politically irresponsible), and here's my brief argument as to why: If one assumes (and it seems a reasonable assumption given what current numbers suggest and 'experts' are saying about the upcoming presidential election) that this presidential race will be fairly close and, furthermore, believes that Donald Trump is an immeasurably worse candidate than Hilary Clinton, than it would be politically (and I think morally) irresponsible to vote for a third party candidate of any sort, for that would be tantamount to giving your vote to Trump. If one believes a vote for a third party candidate amounts to a salutary or necessary expression of one's ideals or... Continue reading
Posted Jul 20, 2016 at ReligiousLeftLaw.com
Apparently, Hilary Clinton over the years has made false statements in order to minimize or deny wrongdoing of one sort or another. It is not right, but millions of people are not truthful when accused of wrongdoing. And, of course, Hilary Clinton has been accused of wrongdoing on many occasions when the charges were entirely trumped up. Donald Trump, on the other hand (leaving aside his regular diet of groundless claims), time and again has made false statements in order to defraud others. There is obviously an important a moral difference between lying to defend oneself and lying to defraud others. Not all lies are equally defective. And now, let’s not put aside Trump’s regular diet of lies about birth certificates, participation in assassinations, and bribery of the Attorney General etc, etc, etc. Here there is good reason to ask whether the man is just a liar or is a... Continue reading
Posted Jul 8, 2016 at ReligiousLeftLaw.com
I attended a workshop today in which Nelson Tebbe perceptively discussed the question whether harm to third parties should invalidate government creation of religious exemptions to otherwise valid laws, and, if so, under what circumstances. Many in the audience posed questions that raised the issue whether religion is special. At first glance, one might think that under our Constitution religion must be special. After all, it contains religion clauses. Nonetheless, there is a substantial literature arguing to the contrary, and I take a mixed position. I begin with the proposition that a major purpose of government is to make arrangements assuring that human lives flourish. A major responsibility associated with this is to assure that citizens can lead moral lives. Protecting religion under the Constitution and promoting free exercise exemptions by statute furthers that responsibility. Of course, religious institutions are filled with sinners, and some religions have twisted views of... Continue reading
Posted Jul 6, 2016 at ReligiousLeftLaw.com
Lost in the Supreme Court shuffle yesterday was the Court’s drunk driving decision (Birchfield v. North Dakota) on breath and blood tests and the Fourth Amendment. The Court ruled that breath tests whether at the scene or at the station did not require a warrant. On the other hand, blood tests because of their more intrusive character were ruled to require a warrant. The significance of this decision in drunk driving cases is small for two reasons. First, most jurisdictions rely on breath tests administered at the station (the breath test administered in the field, whatever its merits as a screening test is inadmissible). Presumably those jurisdictions using blood tests in drunk driving cases will begin to shift to in-station breath tests. On the other hand, blood tests are the standard test employed to determine whether a motorist has been driving under the influence of drugs other than alcohol, and,... Continue reading
Posted Jun 24, 2016 at ReligiousLeftLaw.com
Michael Arnovitz on Facebook has a terrific defense of Hillary Clinton. It is the best I have seen. Well worth reading. See here. Continue reading
Posted Jun 13, 2016 at ReligiousLeftLaw.com
Donald Trump has famously contended that a federal judge cannot impartially adjudicate a case involving Trump because the judge’s ethnic background is not French, German, or Italian, but Mexican. According to Trump, the judge has an inherent conflict of interest because of his Mexican heritage. This breathtaking racist display has rightly been condemned, but there is a germ of truth (but just a germ) in his statement that I want to mention. Suppose for a moment, that we focus on the selection of jurors. It is unconstitutional for attorneys to use preemptory challenges when they exclude jurors on the exclusive basis of race or gender. The Court has referred to impermissible stereotypes. Nonetheless, as Justice O’Connor observed in J.E.B. v. Alabama ex rel. T.B., “[O]ne need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his... Continue reading
Posted Jun 8, 2016 at ReligiousLeftLaw.com
The cases involving religious freedom and the contraception mandate were decided yesterday. Some of the reporting discussed the case as if it showed the problems of a 4-4 division of the Justices on the Court. I do not agree. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the religious employer claimants argued that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make them complicit in what they regard as sinful activity. The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the... Continue reading
Posted May 17, 2016 at ReligiousLeftLaw.com
I rarely have trouble determining who to vote for, but deciding between Clinton and Sanders in the New York primary has not been easy for me. For a long time, I supported Clinton. I thought Sanders was helping the cause of the left by moving her to the left, but that he could not accomplish his goals with a Republican House. I thought she was smart, generally Progressive, more qualified, more likely to get things done, unfairly vilified, and I believed it was past time that a woman be elected President of the United States. I still think all of that, but I am voting for Sanders. The easy reason is that Clinton will win New York, and votes for Sanders will send a message that the heart of the party is and should be moving to the left. But there is more. At the moment, the polls show that... Continue reading
Posted Apr 17, 2016 at ReligiousLeftLaw.com
The cases involving religious freedom and the contraception mandate took an interesting turn last week. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the main arguments of the religious employer claimants were that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make the employer complicit with the provision of contraceptives. This is a rather extravagant view of moral complicity particularly given the public moral objection to its provision. It is at odds with standard Catholic teaching on moral complicity as the discussion by Cathleen Kaveny makes clear (cited by Michael Perry on this site here). The claim of the Little Sisters of the Poor might be more attractively stated if it argued that it had religious objections... Continue reading
Posted Apr 6, 2016 at ReligiousLeftLaw.com
With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students,... Continue reading
Posted Mar 20, 2016 at ReligiousLeftLaw.com
The tale of this election is that those candidates who are running against the “Establishment” are doing very well. There is obviously something to this, but it obscures the actual workings of American politics. Just for starters, Hilary Clinton won Nevada on Saturday propelled by African-American and Latino voters. Those voters would be surprised to learn that they are part of the Establishment. And, of course, except for some of them, they are not. What people mean by the Establishment refers variously to the Washington Establishment, the Business Establishment, and the Media Establishment or all three. What this “description” slides over is that none of these Establishments are monolithic. Is there anyone who thinks that Washington is monolithic? The Media? More interesting is the claim that Business is the establishment. On this theory, Donald Trump is a narcissistic member of the Establishment, and I believe he is precisely that. Bernie... Continue reading
Posted Feb 21, 2016 at ReligiousLeftLaw.com
The Republican claim that nominations for the Supreme Court have not been approved during election years is simply false. President Reagan’s nomination of Justice Anthony Kennedy was approved by a Democratic Senate in 1988. Mitch McConnell and Charles Grassley were among those who voted for Kennedy. It is not clear whether Republicans like Ted Cruz have forgotten or are lying. Continue reading
Posted Feb 18, 2016 at ReligiousLeftLaw.com
Justice Scalia has rightly been described as an influential Justice, but the nature of that influence needs to be put into perspective, and the desirability of that influence needs to be questioned. Recent commentary mentions Justice Scalia’s influence in advocating for originalism, a theory of constitutional interpretation that would honor the original text of the Constitution and its meaning as understood at the time of the text’s adoption. There is no question that Scalia had a substantial effect on the debate in the academy regarding the proper mode of constitutional interpretation. He did not initiate the debate. His intervention was preceded among other things by the writing of Raoul Berger and the pressing of originalism by Edwin Meese, the Attorney General in the Reagan Justice Department. Nonetheless, Scalia was a great writer and rhetorician. His advocacy had a profound effect on law students and legal scholarship. But his influence on... Continue reading
Posted Feb 18, 2016 at ReligiousLeftLaw.com