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Steve Shiffrin
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Justice Kennedy obviously did not want to decide the issues presented in the wedding cake case, so he took a specious way out. He argued that the Civil Rights Commission (one of 4 Colorado decisionmakers in the case) had an anti-religious purpose. To support this conclusion, he pointed to an anti-religious statement by one commissioner (of the seven on the Commission) and a number of other statements that even he conceded could be read (and, in my view, clearly should be read) to say that religious businesses had no right to discriminate against their customers. That the statement of the single Commissioner could have been a but for cause of the outcome in Colorado strains credulity to the breaking point. In addition, Justice Kennedy points to an inconsistency on the free speech issue by the Commission. Colorado had ruled that cakemakers could not be compelled to sell a cake with... Continue reading
Posted Jun 5, 2018 at
Democratic candidates for President and many other Democrats are supporting a proposal that would make the government the employer of last resort, at least in the poorest counties. This is not only humane policy; it may be good politics. Guaranteeing a job for blue collar workers that the economy has left behind together with guaranteed health insurance and education combined with an infrastructure program and serious efforts to address climate change gives the Democrats a positive program, that goes well beyond opposition to Donald Trump. It is no secret that Donald Trump appealed to white male blue collar workers and that appeal was a critical part of his success. The guaranteed jobs proposal is designed to appeal to that group and beyond. But I worry. Almost thirty years ago, Johns Hopkins’ William Connolly argued in his book Identity/Difference that liberal policies (see, e.g., affirmative action, busing, and gun control) and... Continue reading
Posted May 13, 2018 at
Donald Trump tells his base that his immigration policy is anti-Muslim, and more than 90% of the people affected by it are Muslim. The Solicitor General tells the Court that the ban is not anti-Muslim because most Muslims in the world do not fall within it. The question is whether the President gets to have it both ways. Continue reading
Posted Apr 26, 2018 at
Recently I saw a debate about hate speech at Cornell between New York law professor (and former ACLU President) Nadine Strossen and NYU law professor Jeremy Waldron. Strossen is opposed to the prohibition of hate speech because it amounts to point of view discrimination which she claimed is acceptable only in an emergency. She also maintained that hate speech statutes have been used to censor the minorities they have been intended to protect. In her recent book on hate speech, Strossen admits that libel law is an exception to the “emergency” principle. The reason is that libel causes harm and it need not be immediate harm to warrant regulation in a wide variety of circumstances. And that is precisely the point of Jeremy Waldron’s book, The Harm in Hate Speech. He argues that hate speech is a form of group libel that threatens the quality of life, the dignity, and... Continue reading
Posted Apr 24, 2018 at
According to the Washington Post this morning (see here), pursuant to a search warrant, FBI investigators seized records of Attorney Michael Cohen including communications with many of his clients, Donald Trump among them. In order to get this warrant, among other things, the FBI would have had to show that there was at least probably cause to show that Trump and Cohen conspired to commit a crime. It is not clear to me why this did not fall under the purview of Mueller’s investigation, but it is not a “witch hunt.” Continue reading
Posted Apr 10, 2018 at
Kurt T. Lash, the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond posted this eye opening post on Facebook: Next term I will teach a course entitled "Abolishing Slavery, Building Liberty: The Adoption of the Thirteenth, Fourteenth and Fifteenth Amendments." This coming Monday, I will give a lunchtime presentation for the students at Richmond Law School talking about the research which led to the creation of the course. In doing so, I will discuss three things I suspect students don't know about these three amendments: First, the Thirteenth Amendment abolishing slavery was preceded by a thirteenth amendment protecting slavery. Both “thirteenth” amendments were sent to the states for ratification. Before he supported the abolition Thirteenth Amendment, Abraham Lincoln supported the pro-slavery thirteenth amendment which would have made slavery an unamendable part of our Constitution. Second, most students have studied Section One of the Fourteenth Amendment—it requires... Continue reading
Posted Apr 8, 2018 at
One of the great questions of the day is to ask why evangelicals and conservative Catholics continue to support Donald Trump. One of the answers is abortion, and accompanying that is the view that the pro life movement favors life until a baby is born. This misses the fact that millions of pro lifers do not support Donald Trump and that the traditional Catholic view supports social justice in ways that are too often not recognized. For a strong statement of this por life view, see these eloquent remarks of Sister Joan Chittister from an interview with Bill Moyers. Thanks to Nancy De Coster for posting this interview on facebook. Continue reading
Posted Apr 2, 2018 at
For many years many brokers and insurance agents were permitted to give investment advice to their clients without revealing that they had a conflict of interest with respect to the investments they were recommending. This practice was costing investors $17 billion dollars per year. See here. President Obama’s Labor Department ruled on April 6, 2016 (see here) that these brokers, insurance agents, and others could no longer engage in these shady practices, but had to put their client’s interests above their own. They could not recommend investments that were not in the client’s best interests and they had to reveal conflicts. See here. It is a sad commentary on the brazen corruption of big business that this rule has been fought against and delayed. How dare the Obama administration take away the right to hoodwink investors? After a considerable delay in the Obama administration, President Trump has done his best... Continue reading
Posted Mar 28, 2018 at
The House and Senate have just given the military its largest raise in 15 years. See here. Paul Ryan touted the raise as much needed. One wonders why. In 2017, the U.S. already spent more on defense than the next eight countries combined. That includes China, Russia, Saudia Arabia, India, France, UK, Japan, and Germany. See here. Are we really safer? Yes, we have increased salaries, but we have also lined the pockets of military contractors. One could be forgiven for believing that this increase is more about graft than security. Continue reading
Posted Mar 23, 2018 at
Attorney General Jeff Sessions’ war on the Constitution was carried to Sacramento as he made clear that his previous commitment to states rights was predominantly a manifestation of racism. If abandoning the rights of states harms people of color and furthers the racist brand of the President, so be it. In keeping with Sessions declaration of war, the Justice Department filed United States v. California which centers on three California policies. In this post, I will focus on the most important. California Senate Bill 54 took effect in January of this year. It largely prohibits state and local law enforcement agencies from using either personnel or funds to hold, question or share information about people with federal immigration agents unless those individuals have been convicted of one or more offenses from a list of 800 crime outlined in a 2013 state law. If the federal government can draft state and... Continue reading
Posted Mar 8, 2018 at
I sent an e-mail to Senator Graham this morning along with a different version to Senator Grassley Dear Senator Graham: As new evidence emerges about the scope of Donald Trump's attempts to obstruct justice and about his lack of competence, you seek to change the subject by making public your request for the Justice Department potentially to prosecute the author of a memorandum containing accusations against Donald Trump - the most serious of which have been verified. You did this without consulting any Democrat on your committee. This appears to be a cynical attempt to change the subject. In its groundless presentation, it creates an appearance of retaliation against a political enemy in violation of the rule of law. You have moved from being a Republican with some integrity to the status of lapdog. You should be ashamed. Continue reading
Posted Jan 6, 2018 at
Charlie, Fernando, and Jimbino: thanks for the comments. Charlie, we agree that the violation is a democratic one. I had Fed. 10 in mine when I referred to the constitutional plan. Fed. 10 is also relevant to the campaign finance issue. But I also would go further in claiming the violation also implicates the First Amendment. Fernando, I am not sure how you connect Trump to your comment. If the "militant left" would exclude pro-Trump speakers from public university campuses when those speakers would engage in speech that should be protected under the First Amendment, I would not concur the exclusion. If the exclusion is on a private campus, the First Amendment does not apply (though it's spirit could). One place where we disagree is that I would join the position of the Europeans and the Canadians in prohibiting some forms of racist speech (including some other protected classes)(though my definition might be narrower than that used in some European countries). By the way, do you think that the Canadians and Europeans who support hate speech are all part of the "militant left"? Jimbino, treating singles differently than marrieds (which has nothing to do with the First Amendment) is not the same as discriminating on the basis of point of view which clearly implicates First Amendment issues.
I specialize in the First Amendment, and friends observe that, in these times, I must be awfully busy. The assumption is that the First Amendment is in trouble during these horrible times. For the most part, I think this assumption is misplaced. Of course, it is proper to think that President Trump is an autocrat, has threatened the rule of law, and has little regard for the First Amendment. For the most part, however, I believe this has helped the First Amendment rather than harmed it. We are witnessing a time in which people are demonstrating and otherwise protesting government actions. We are witnessing a time in which the press is playing a critical role in exposing corruption and misconduct. Taken together the mass of citizens and the press are playing a more vital role than I have seen in my lifetime. Don’t get me wrong. There is a lot... Continue reading
Posted Jan 3, 2018 at
Shared from Taryn Mattice Prayer by American theologian Walter Rauschenbusch, circa 1910. 🔥 🔥 🔥 🔥 "We cry to thee for justice, O Lord, for our soul is weary with the iniquity of greed. Behold the servants of Mammon, who defy thee and drain their fellow men for gain; who grind down the strength of the workers by merciless toil and fling them aside when they are mangled and worn; who rack-rent the poor and make dear the space and air which thou hast made free; who paralyze the hand of justice by corruption and blind the eyes of the people by lies; who nullify by their craft the merciful laws which nobler men have devised for the protection of the weak; who have made us ashamed of our dear country by their defilements and have turned our holy freedom into a hollow name; who have brought upon thy Church... Continue reading
Posted Dec 21, 2017 at
Donald Trump, of course, was trying to curry favor with white evangelicals when he recently criticized the so-called war on Christmas. Those evangelicals have given Christianity a bad name, but the evangelicals who write for Sojourners are quite different. Benjamin Perry in Sojourners eloquently shows just how hypocritical it is for Trump to claim any affiliation with genuine Christianity. He argues that Trump "doesn’t seem to get what Jesus is all about. And, after all, why should he? A man pathologically dedicated to 'winning' cannot understand why God would choose to enter the world as a 'loser.' Someone who conflates wealth with moral authority is unlikely to grasp why God is born into an impoverished body. When one adorns every surface of one’s home in gold, it’s hard to grasp the meaning of the manger. .... President Trump’s Christmas is a spiteful imitation. It revels in commercial excess and gaudy... Continue reading
Posted Dec 20, 2017 at
When the Republicans try to throw millions of citizens off health care, when they support a tax bill offering crumbs to the middle class and massive dollars to the rich exacerbating already serious economic inequality, when they seek to punish those living in states that do not vote Republican, and when they support an incompetent, mentally impoverished, mean-spirited President who blatantly seeks to help those who voted for him and no one else, we have to ask how things could have gone so wrong. The answer is complicated. Here is a partial answer. We can begin by recognizing that this was not the plan. The Framers sought to assure that members of Congress would be people who sought the common good and could be thought of as virtuous persons. They for the most part recognized that the People would have to possess sufficient virtue to assure quality representation. The citizenry... Continue reading
Posted Dec 18, 2017 at
In case you missed it (I did), the American Catholic bishops earlier this month issued a wise document opposing the Republican tax plan. The commentary is from Thomas Reese, former editor of America: Continue reading
Posted Nov 24, 2017 at
Sometime back I asked my now retired doctor how he coped with the fact that despite best efforts, he lost many patients to death. He said, "I am grateful for every day." Continue reading
Posted Nov 23, 2017 at
I was a moderator for a panel celebrating Nelson Tebbe’s sweeping and carefully argued new book, Religious Freedom in an Egalitarian Age. The panel members were Douglas NeJaime, Micah Swartzman, Reva Siegel, and, of course, Nelson. There were many interesting issues provoked, but I was especially interested in the extent to which religious liberty claims can survive when their accommodation would harm third parties. In a co-authored Yale Law Journal article, Reva and Doug take the position that dignitary harms should prevail over religious liberty claims even if no material harm is caused. So a photographer who religiously objects to providing services for a same-sex wedding would lose because of the infliction of dignitary harm on a lesbian couple even if many other photographers were willing to provide services. At the panel, Doug provided a thick description of the nature of dignitary harm, and certainly the unfairness of being denied... Continue reading
Posted Nov 22, 2017 at
Many are worried that pardons by Trump or the firing of the Special Prosecutor would trigger a constitutional crisis. This is understandable. The notion that a suspected criminal could pardon people who might implicate him or stop the investigation is clearly at war with the rule of law. The rule of law calls for an impartial investigation. It does not call for a suspected criminal to pardon people or stop investigations for illicit reasons. Even assuming that the Courts would uphold such actions and assuming that the spineless Republicans would continue to cater to the deplorables in their base by looking the other way, Robert Mueller has a backup plan that will mitigate the damage. Perhaps you noticed that Paul Manafort was not charged with all the felonies implicated in the indictment. Tax evasion is one of the most conspicuous omissions. If the factual claims of the indictment are accurate,... Continue reading
Posted Nov 5, 2017 at
What's wrong with the Russians using speech to influence our elections? Citizens United argued that limits on the speech of business corporations interfered with “the open marketplace of ideas protected by the First Amendment.” The Court said that “The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.” (emphasis added). So, if we trust the marketplace of ideas, shouldn’t the Court protect the speech of the Russian government or Russian corporations. President Obama in his 2010 State of the Union Address worried that the Court would go that far: "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." You will recall... Continue reading
Posted Oct 31, 2017 at
I have subscribed to the Wall Street Journal (along with the New York Times) off and on for many years. Its excellent news pages have been accompanied by conservative editorials and often marred by kooky or mean-spirited contributions to the editorial pages. Nonetheless, even in the editorial pages, I have often enjoyed the writing of people like Peggy Noonan. Nonetheless, tomorrow I will cancel my subscription to the Wall Street Journal. A few days ago, the Journal suggested that Clinton, the Democratic Party, and FBI colluded with the Russians. It demanded an investigation and called for the resignation of Robert Mueller. For a summary, see I will cancel not just because the Journal has crossed over into Fox, Limbaugh, Breitbart territory and not just because the Journal can no longer be thought of as a serious newspaper. By joining the liars and lunatics, the Journal in calling for Mueller’s... Continue reading
Posted Oct 29, 2017 at
Wedding Cake Brief I filed a brief in the United States Supreme Court yesterday in the wedding cake case on behalf of Mike Dorf, Seana Shiffrin, and myself. We address the free speech issue in the case, but not the religion issue. We argue that wedding cakes are not speech within the meaning of the First Amendment, at least in the absence of a specifically articulated message on the cake. Although Jack Phillips, the baker in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, has religious objections to producing wedding cakes for same-sex weddings, a wedding cake does not communicate that a wedding should be celebrated, and a wedding cake has no theology. It does not carry a message of divine approval. It carries no message that contradicts the baker’s ideology. The baker maintains that his cakes are art, but no court has ever held that wedding cakes are the... Continue reading
Posted Oct 27, 2017 at
Many of us have wondered why evangelical Christians have stuck with Donald Trump for so long. It is, of course, child’s play to come up with reasons why they would not and should not. Initially, I thought abortion was the main reason. Certainly, the evangelicals applauded the appointment of Justice Neil Gorsuch. But I had not thought about why the abortion issue was so important to evangelicals except for the obvious pro-life, pro-choice debate. That view, however, misses the underlying sociology. More than 30 years ago, Kristen Luker wrote Abortion and the Politics of Motherhood. The book drew on 200 interviews with abortion activists on different sides of the issue. She found that their position was connected to their views on sexual behavior, the care of children, and family life. So thirty three years ago, Luker discovered what I had forgotten. The abortion issue is centrally connected to the evangelical... Continue reading
Posted Sep 24, 2017 at
Posted by Robert Hockett When Bill Clinton's notorious 'It depends on what the meaning of "is" is' became something of a 'meme' in the late 1990s, I was struck by two things. The first was that Clinton was actually being forthcoming in saying this in the context in which he said it; for he went on in the same deposition to explain that on one plausible understanding of 'is' in the question addressed to him, the answer would be x, while on the other plausible understanding the answer would be y. The second thing that struck me during this episode was that everyone's taking Clinton's locution as emblematic of a penchant for dissembling was itself emblematic of something: namely, that Clinton had evidently long since developed - indeed, probably earned - a reputation for dissembling, and that this enabled even his attempts at parsing in good faith to stand in... Continue reading
Posted Jan 23, 2017 at