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Steve Shiffrin
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As you probably know, Masterpiece Cakeshop refused to afford its services for a same-sex wedding reception in Colorado on religious grounds, was found liable for its discrimination, and the case is before the Supreme Court. A number of things bother me about cases like these. First, I am troubled by the secular left’s hostility to religious claims. Freedom of religion was fine when the freedom of religion rights of Quakers or Native Americans were at issue. Indeed, secular liberals favored the Religious Freedom Restoration Act after the Court undermined freedom of religion claims. Today, the secular liberals are hostile to the Act at the federal level and oppose new such acts at the state level. Today the religious claimants are evangelical Christians for whom secular liberals have special contempt. Could that have something to do with it? I too have little regard for the views of evangelical Christians; nonetheless, their... Continue reading
Posted Sep 17, 2017 at
Inspired by the work of my good friend, the Italian legal philosopher Paolo Silvestri, on taxation as gift and the question of "who is my neighbor", I have been returning to the parable of the Good Samaritan in the context of the coming debate about tax reform. We often forget that the parable is a direct engagement with the nature of legal knowledge and as such might be of interest to this group. Recall that the impetus for the parable is actually a lawyer's question: after hearing that he must love his neighbor as himself, the lawyer asks, "and who is my neighbor?" It is a standard lawyer's move, one I make in my classroom every day: OK, we have to provide something for people in the category of "neighbor," so who is in that category? How far should we go? Where do we draw the line? Is the category... Continue reading
Posted Aug 30, 2017 at
To say the least, it is disturbing that relatively few Republicans are standing up to Donald Trump for his repugnant equation of white supremacists with people on the left. Most Republicans on the Hill recognize that some 70% of Republicans still support Donald Trump, and they are reasoning that it is too risky to criticize him in the sharp terms appropriate to the situation. This is distressing because Trump’s turn takes Republican racism a large step to the right. The Republican Party has long engaged in covert racist appeals (Willie Horton, welfare queens, etc.), but it has not openly catered to the Klan or the Nazis. That Republicans feel they need to pull punches here to get votes in the primaries may well be a miscalculation, but it together with their votes on health care promises to be fatal in the general. If you cannot attack Trump on fundamental moral... Continue reading
Posted Aug 16, 2017 at
The Republican Party purports to be the party of religion, and it has secured the lion’s share of the religious vote in Presidential elections. Indeed, Trump received 56% of the weekly churchgoing vote; Clinton received only 40%. But the picture from the perspective of the Democrats is not altogether bleak. The Democrats easily win the votes of Jews and other non-Christian faiths. And Gore, Kerry, and Obama won the Catholic vote. Mainline Protestant also tend to lean Democratic. Democrats typically win 20% of the White evangelical vote, and, of course, they win the vote of Black church members (typically evangelical) by overwhelming margins. See generally here and here. Still Republicans have the Religion image. The Republicans have that image in part because they are seen as the party of religious freedom, because they wear their religion on their sleeve, and because it is well known that atheists and agnostics vote... Continue reading
Posted Jul 31, 2017 at
The press is reporting that Chuck Schumer and Nancy Pelosi have been developing a message designed to show that the Democratic Party stands for more than opposing Donald Trump. Jobs are key to the message, but the jobs program is the kind of multi-pronged list that makes eyes glaze over. It is focused on infrastructure, trade, and the minimum wage. As Montana Senator Jon Tester has observed, “Message has always been a challenge for Democrats, because it tends to get too convoluted and not very simple.” See Politico. A bolder and simple jobs message is vital. The Democratic Party needs to return to Hubert Humphrey’s call for a guaranteed job for all Americans. As I see it, such a program would not be confined to infrastructure, but would include subsidies for public service jobs in law enforcement, civil and criminal, schools, libraries, hospitals, parks, and the like. Although the administration... Continue reading
Posted Jul 20, 2017 at
The editors of the New York Times might take some time to read the reporting in their newspaper. In their Saturday editorial, they wonder if Donald Trump understands the gravity of Russian interference in our election. Their headline suggests he just doesn’t get it. Perhaps because he fears that Russian interference in the election would cast doubt on his proud victory, Donald Trump has deluded himself about their interference. But it is surely more likely that this pathological liar is stonewalling because he is grateful for the Russian interference and thinks that future interference will benefit him and the Republican Party. After all, this is the Party that deliberately tries to suppress the right to vote by inventing fraud claims and passing voter ID laws. This is the Party that arranges it so voters in Republican precincts can vote quickly, but voters in Democratic districts wait in long lines. This... Continue reading
Posted Jul 9, 2017 at
In his July 3d column in the New York Times, Charles Blow complained that a madman and his legislative minions are holding America hostage: “Everything that springs from him, every person who supports him, every staffer who shields him, every legislator who defends him, is an offense.” The legislators support this incompetent, ignorant, lying, and morally loathsome person with his serious mental health issues because his supporters continue to support him. Although Trump’s ratings are down somewhat among Republicans, as of May 2017, a full 84% of Republicans favored Trump, and he was supported generally by white men to the tune of 47% to 46%. See here. To my mind, these statistics are shocking. These are not favorable ratings in comparison to Hillary Clinton. These are job approval ratings. There are many explanations, of course. Some are tribal. People cling to identities that are hard to shake. For some, Trump’s... Continue reading
Posted Jul 4, 2017 at
As stories in the Washington Post and the New York Times recount, the Trump Presidency has triggered an energetic reaction among religious progressives and their leaders. The Times headline (almost surely not written by Laurie Goldstein, the author of the article) states that leaders of the religious left have been out of politics for forty years and now want in. That, of course, is preposterous. The religious left has been regularly lobbying about issues of immigration, poverty, climate change, war and peace, and the like for many decades. But the organizing energy has been dialed up, and there has been some debate about the extent to which religious progressives should seek the kind of power in the Democratic Party as the religious right has done in the Republican Party. Mark Silk in his justly influential blog Spiritual Politics criticizes the notion that religious progressives “do not need to mirror the... Continue reading
Posted Jun 26, 2017 at
Suppose Donald Trump committed acts of money laundering before he came into office and the Special Counsel wanted to prosecute him. It is not clear that Trump could be impeached for conduct arising prior to his taking office. In 1873, the House Judiciary Committee concluded that Vice President Schuyler Colfax could not be impeached for conduct prior to his assuming office that did not affect his conduct in office (he was near the end of his term). On the other hand, the Supreme Court held that Paula Jones was permitted to sue President Clinton (for conduct previously occurring while he was Governor of Arkansas) even though he was still President and despite a claim of Presidential immunity.The Court held that the President’s civil immunity was confined to his official acts. The Court also rejected the argument that the prosecution of the case would unduly interfere with Clinton's ability to perform... Continue reading
Posted Jun 11, 2017 at
As the attempted withdrawal from the Paris agreement shows yet again, we have a President elected by a minority who is governing by appealing to a minority. He is backed by Republicans in a gerrymandered House who are terrified that they will be ousted in primaries by people as crazy as the President. As an attorney, I once helped represent the Democrats in two different election cycles in California where we defended the Congressional lines drawn against claims of gerrymandering. I asked a Democratic leader whether he thought gerrymanders were fair. He said that in California the Republicans have the money and the Democrats get to draw the lines, so it all evened out. I wonder what he thinks now. Today, Republicans, a minority party, control the House with gerrymandering making a substantial contribution to that control. The Supreme Court has rebuffed political gerrymandering cases in the past on the... Continue reading
Posted Jun 6, 2017 at
They told me that if I voted for Hillary Clinton that state secrets would not be safe in the office of the President. And they were right. I voted for Hillary Clinton, and state secrets are not safe in the office of the President. Continue reading
Posted May 26, 2017 at
Where to begin? Well, it is now well known that the House Health Care Bill is designed to cut health care and predominantly reward the wealthy with $880 billion dollars in tax cuts. This is accomplished by cutting Medicaid (protecting the poor and the disabled) by 25% depriving 24 million people of benefits to the tune of $880 billion. But there is more, the bill cuts $300 billion of subsidies to those who do not have insurance through employers affecting the elderly and low income citizens; it undermines protections for those with pre-existing conditions, and imperils the comprehensive character of insurance benefits received through benefits. This massive transfer of wealth from the poor to the rich was passed by Republican politicians who claim to be Christians. Paul Ryan, who holds himself out as a Catholic, to my knowledge, has yet to explain how the Church or the Bible can possible... Continue reading
Posted May 15, 2017 at
So the nuclear option (eliminating the filibuster for Supreme Court appointments) has been exercised and Judge Gorsuch is now Justice Gorsuch. Most commentators now worry that the filibuster will be entirely abolished. And the betting is that ultimately it will be. See here. I believe that the abolition of the filibuster would be a small step in the right direction. The structure of our government is already designed to make it difficult for the will of the majority to be enacted. The wealthy, not the people, dominate the Congress, and that was true before Citizens United. See here. Nor is this an accident. 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 injury which possibly may be done by defeating... Continue reading
Posted Apr 23, 2017 at
The President asserts that Trump Tower was wiretapped at President Obama’s direction, and the House Intelligence Committee springs into action. The press supports this because it makes for a good story however it comes out; the Democrats support it because the serial liar has gone over the top; and the Republicans support it for many reasons including loyalty, diverting attention, and for some recognizing that this time the man has gone too far. Clearly, the claim that Obama ordered a wiretap or other surveillance is believed by no serious person. But investigating whether there has been surveillance of Trump Tower plays into the hands of the targets. If there was surveillance, it was supported by a judicial order with a substantial showing. The targets benefit from knowing whether or not there was surveillance. The question should not have been asked or answered. The same is true of the question what... Continue reading
Posted Apr 5, 2017 at
I sent the following message to Speaker Ryan this morning. Dear Mr. Ryan You try to project yourself as a person of integrity. But your lapdog Chair of the House Intelligence Committee is attempting to obstruct attempts to get at the truth (suggesting there is something to hide). And you declare full confidence in his inept and corrupt actions. You are famously a Catholic, but you mock that description by sponsoring legislation in health care and elsewhere that would rob the poor to help the rich. I am not a constituent in your district, but I will be happy to contribute to your opponent in the next election including the primary. Continue reading
Posted Mar 29, 2017 at
I apologize if you have already answered these questions. I can’t stand to watch a hearing in which you spend so much time refusing to answer questions. Could you tell me where in the Constitution it provides that it is to be interpreted according to its original understanding? Does it matter that the Framers kept their proceedings confidential because they did not want their intent to be taken into account? Is it an attractive theory of interpretation that binds us to the views of nineteenth century agrarian white male slave holders? Where in the Constitution is there a developed theory of precedent? Where do you get your theory of precedent? Does it matter that in modern times the overwhelming majority of justices have not been originalists? Were all of these justices not acting like judges? Are you just one of the few with the requisite piety, integrity, and rectitude? Given... Continue reading
Posted Mar 22, 2017 at
Larry Tribe and others have begun a blog today ( devoted to defending the rule of law under Trump. His initial commentary presents a hard hitting synthesis of the problem. See Continue reading
Posted Mar 16, 2017 at
From my Cornell colleague Gerald Torres on his facebook page It's happening NOW. The U.S. House of Representatives has introduced Bill 610. This bill will effectively start the school voucher system to be used by children ages 5 to 17, and starts the de-funding process of public schools. The bill will ELIMINATE the Elementary and Secondary Education Act (ESSA) of 1965 which is the nation's educational law and provides equal opportunity in education. It is a comprehensive program that covers programs for struggling learners, AP classes, ESL classes, classes for minorities such as Native Americans, Rural Education, Education for the Homeless, School Safety (Gun-Free schools), Monitoring and Compliance and Federal Accountability Programs. The bill also abolishes the Nutritional Act of 2012 (No Hungry Kids Act) which provides nutritional standards in school breakfast and lunch. For our most vulnerable, this may be the ONLY nutritious food they have in a day.... Continue reading
Posted Mar 13, 2017 at
Of course, even before yesterday’s revelations, it was clear that Jeff Sessions should have no role in determining whether Michael Flynn should be prosecuted for violating 18 U.S.C. § 1001 for falsely telling federal agents that he had not discussed sanctions with a Russian Ambassador Kislyak. A number of reasons have been given not to prosecute. We are told he took his false statement back. I doubt that defense has been uniformly applied. We are told that the statement was not material to any criminal act. That the Logan Act has not yet founded a prosecution to my mind is no reason for it to lie fallow. Prosecutorial inaction does not erase a criminal statute from the books. We are told that he could claim that he did not discuss sanctions just the removal of some Russian officials from the country. I would think a jury could decide whether that... Continue reading
Posted Mar 2, 2017 at
Recently Rachel Maddow has been asking the question, assuming Donald Trump has violated laws, what governmental entity will take him to task? The spineless Republican Congress? The Justice Department led by Jeff Sessions? Not likely. Well Fordham University Law Professor has developed an approach in which states attorney’s general could move to dissolve the Trump Corporation in all its U.S. tributaries. In accord with that Free Speech for People has sent a 24 page letter to New York Attorney General Eric Schneiderman to open an investigation to determine whether to revoke the New York charter of the Trump Organization, Inc. The basis for this is the history of its illegal activity including concerns about Emoluments Clause violations. Such an action would combat substantial corruption concerns in the Trump administration and it would open the door to important discovery. It would not speak to the Russian scandal, but it opens the... Continue reading
Posted Feb 16, 2017 at
It is theoretically possible that a cabinet filled with the wealthy would rule in a way that would benefit the poor and the middle class. On the campaign trail, Donald Trump contended that he knew the unfairness of the system, a system that helped him, and he would move to fix it. He would drain the swamp. Millions believed him. The evidence that Trump’s intentions were quite different is manifest, but from my perspective the most conspicuous example is his treatment of the so-called fiduciary rule. That rule provides that those who give retirement investment advice steer clients toward investments that are in their best interest. The current rule permits many advisers (brokers and insurance agents who work on commission) to steer clients toward investments that are suitable for them, but not necessarily in their best interests. In other words, the current rule permits conflicts of interest and resulting higher... Continue reading
Posted Feb 14, 2017 at
I wrote this to the President this morning: Dear President Trump Your executive order banning immigrants from various Muslim majority countries willfully ignores (or proceeds in ignorance of the already extensive vetting requirements). It is calculated to be an unnecessary and unconstitutional form of religious profiling. It does not make us safer. Indeed, it will be used as a recruiting tool by those who mean to do us harm. Grabbing headlines at the expense of the public interest while exploiting those who have already been vetted and have proceeded in reliance on U.S. assurances is a moral outrage. Continue reading
Posted Jan 29, 2017 at
Should the press report Donald Trump’s obvious falsehoods as lies? NPR featured a discussion this morning in which two arguments were made against calling them lies. First, if the press called them lies, it would appear partisan and the press would lose credibility. Second, to be a lie, one has to know the statement is false, and it is not possible to get in someone’s head. The first argument is unacceptable. The press should not refrain from telling the truth because people would doubt its credibility. This is akin to not telling the truth because advertisers would worry about loss of audience. It is entirely contrary to what the press is supposed to stand for. The second argument is overbroad. Demonstrating a lie frequently depends upon circumstantial evidence. But there is a third consideration. When Donald Trump says that his inauguration crowd was larger than Obama’s or that 3 of... Continue reading
Posted Jan 25, 2017 at
The election of Donald Trump created trauma, depression, and associated health issues with those who were shocked by the result. Virtually all of us thought it can’t happen here. The U.S. could not elect an ignorant, intellectually lazy, vindictive, racist, sexist, lying narcissist to be President of the United States. Most of us thought the system was at least sensible enough that it could not go that wrong. To some extent, apart from fear, the trauma is associated with the recognition that the marketplace of ideas did not sort truth from falsehood. Yes, Clinton won the popular vote, but if the marketplace of ideas functioned properly, she would have won with many more millions of votes. But confidence in the marketplace of ideas was deficient from the start. As Frederick Schauer states, “Once we fathom the full scope of factors other than the truth of a proposition that might determine... Continue reading
Posted Jan 17, 2017 at
I have been reflecting on the great bookstores I have visited. My favorite is Powell’s in Portland, Oregon. But there are many others. Book Culture, Nine Lives and the Strand in New York City. University Press Books, City Lights, Green Apple, and Moes in the Bay Area; the Seminary Co-Op Bookstore in Chicago (great for religion, but a wide selection beyond religion); the Harvard Bookstore in Cambridge, Massachusetts; the Elliot Bay Book Company in Seattle; Diesel in Los Angeles (like Nine Lives, small, but good selection); Politics and Prose and Kramerbooks in D.C. I would be interested in others. Here are links to interviews with the owners of Book Culture and Diesel. Continue reading
Posted Jan 4, 2017 at