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Steve Shiffrin
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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 yesterday at
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 4 days ago at
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
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
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
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
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
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
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
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
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
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
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
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
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
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
In a series of well known decisions, Republicans on the Supreme Court have made it easy for big money to influence the outcome of election campaigns. The cynical side of me suggests that it is not a coincidence that these decisions are likely to help Republicans over the long haul. So I find it surprising that in this difficult year for Democrats, the Democratic Party committees and the Democratic Super PACS are outraising the comparable Republican groups by substantial margins. See (Wall Street Journal subscription required). This does not include money given to 501 (c) (4) groups where disclosure is not required, but it is still worrisome to Republicans, like those at the Journal. It ought to prompt some concern by the rank and file Democrats though because it is a vivid reminder that the Democrats depend upon large donations just as much as the hated Republicans. When Barack Obama... Continue reading
Posted Aug 28, 2014 at
Sister Elizabeth Johnson, C.S.J. is a prominent Catholic theologian whose book Quest for a Living God was criticized by a committee of American Bishops for not toeing the Vatican line. I would ordinarily regard this as a description and not a criticism, but in this case there is substantial evidence that the Bishops misread the book, criticized positions she did not take, disagreed with positions she did take that are consistent with the Catholic catechism, claimed that she had undermined the Gospel (anyone who has read any of her books would find this claim implausible) and otherwise engaged in careless analysis. Indeed, the analysis was so poor that Commonweal editor Grant Gallicho was prompted to write a post in which he wondered whether the doctrinal committee had even read the book! See here. As is so often with censorial criticism, purchases of the book significantly increased. Recently, the Leadership Conference... Continue reading
Posted Aug 22, 2014 at
The Huffington Post reports here that a Satanic religious group is citing Hobby Lobby to claim that the rights to religious freedom of women belonging to the group would be violated by abortion materials required by informed consent laws. Their claim is that the materials include false statements and that their religion calls for making health decisions based on the best scientific understanding of the world. As Marc DeGirolami observes at the Center for Law and Religion (here), however, Hobby Lobby has no application to the informed consent laws of state governments (it only applies to the Federal government) and it is not clear that the mere reception of materials is a serious enough burden on religion to trigger statutory or constitutional religion protections (even assuming the Satanists were to qualify as a religion). A freedom of religion objection is unsustainable, but a freedom of speech objection is well placed... Continue reading
Posted Aug 18, 2014 at
I argued in a recent post here that the Supreme Court has prepared the way to overturn a 40 year old precedent that has protected the financial stability of public unions. Abood v. Detroit Board of Education held that objecting members of a bargaining unit could not be forced under the First Amendment to pay union dues used for its political expenditures, but could be compelled to pay union dues used to support collective bargaining, not because the First Amendment was inapplicable, but because First Amendment standards were satisfied. On the last day of the term this year, Harris v. Quinn criticized Abood’s view that First Amendment standards are satisfied when objecting members of a bargaining unit are forced to pay dues to support collective bargaining. I argued that Abood was rightly decided for the wrong reasons. I do not think the First Amendment rights of an individual are implicated... Continue reading
Posted Aug 7, 2014 at
Released the same day as Hobby Lobby -to no public fanfare - Harris v. Quinn decided a case of little national importance on outrageous grounds purportedly rooted in the First Amendment while setting the stage for a decision of major national importance. The case raised the question whether home health workers could be forced to financially support a public union to which they were ideologically opposed. A forty year old precedent, Abood v. Detroit Board of Education, ruled that the First Amendment did not preclude the imposition of a fee to support a public employees union if they were members of the bargaining unit that the union served. In Quinn, the Court ruled that one of the interests at stake such as peace in the workplace was not implicated when the workers were spread out in many workplaces. Not unreasonable though the interest in not permitting free riders was obviously... Continue reading
Posted Jul 28, 2014 at
Typepad HTML Email Tamara Terrific comment. As you probably would guess, I agree with most of what you say and think it is very well argued. Just a few comments. In using the term liberal, I may be concentrating too much on the ACLU and the majority of First Amendment scholars. I think of my position on free speech and yours as a position of the left rather than liberal , but I recognize that some would characterize this as a dispute among liberals. As to my position on free exercise, I regard that as part of a dispute in liberal politics (despite the fact that most supporters of Hobby Lobby are on the right People like Tom Berg, Susan Stabile, Perry Dane are certainly not associated with the right); I do not think of my position as likely shared by many people who are ordinarily left of liberals. I entirely agree with your view of corporate social responsibility. I also strongly agree with your argument that the anti-discrimination theme in Hobby Lobby re distinguishing between corporations is indefensible and should arouse some concern that it will find resonance in problematic ways. But I do not think the constitutional rights of woman are burdened by the Hobby Lobby decision. I also think they will have statutorily guaranteed insurance for contraceptives (which under a just constitution would be a constitutional right). If I did not think so, we would be on the same side on this issue.