Archive for the ‘Teaching’ Category
This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural due process.
The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).
The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
Distinguishing Between Procedural Due Process and Substantive Due Process
The immediately preceding post deals with procedural due process which focuses on fair and timely procedures.
It is far less complicated and controversial than substantive due process, the subject of this post, which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.
One reason that substantive due process is so controversial is that it is not explicitly based in the text of the Constitution, thereby suggesting to some that the Supreme Court has acted improperly and has simply (or not so simply) made it up.
The History of Substantive Due Process: Economic Regulation/Family
The term “substantive due process” is a bit of an oxymoron since “due process” suggests procedure in contrast to substance. Nevertheless, the Supreme Court, beginning in the late 19th century and ending in the mid-1930’s, used substantive due process to strike down many state regulations dealing with economic matters such as employment relationships, work conditions and other attempts to regulate business interests.
Interestingly, perhaps the first use of substantive due process by the Supreme Court was in the infamous Dred Scott case in antebellum America. Here, the Court held that the Missouri Compromise was unconstitutional because it took away the property of slaveholders and thus violated substantive due process.
Even though substantive due process was typically identified with economic regulation, there was an important component that dealt with liberty in family matters. For example, in the 1920’s the Supreme Court ruled (in Meyer v. Nebraska and Pierce v. Society of Sisters) that states violated substantive due process when they prohibited parents from arranging to have their children learn the German language and also when they required all children to attend a public school while prohibiting them from attending religious private schools. These decisions thus address the non-economic, family related liberty component of substantive due process.
The Retreat from Substantive Due Process in Economic Matters
The high-water mark of substantive due process in economic regulation matters may have been reached in the early part of the 20th century in the (in)famous Lochner v. New York case. Here the Court struck down a New York statute that regulated the maximum hours that bakers could work as a violation of the liberty of contract of employers and employees to negotiate hours and working conditions in general without government interference.
But starting in the mid-1930’s, the Court retreated dramatically from intervening judicially in such matters (one aspect of what some have called “the switch in time that saved nine” in response to President Roosevelt‘s court-packing plan). Eventually the Court became incredibly deferential to state (and federal) regulation of economic matters, using in most such cases what lawyers call a “conceivable rational basis” test. In other words, so long as an economic regulation could be considered to have a rational basis, it did not violate substantive due process.
Current Substantive Due Process/Privacy Doctrine
Even though meaningful substantive due process review is now effectively dead in economic regulation matters, it has survived and subsequently thrived as applied to liberty in family and sexual matters.
There were hints of what was to come in Skinner v. Oklahoma, a 1942 equal protection decision that struck down sterilization as criminal punishment. Here, Justice Douglas famously said: “Marriage and procreation are fundamental to the very existence and survival of the [human] race.” But it was only in Griswold v. Connecticut, a 1965 decision invalidating a criminal prohibition against the use of contraceptives by married persons, that the Court expressly recognized a constitutional right of marital privacy, though there remained some question of its source in the text.
Thereafter, the Court expanded this right of privacy beyond marriage to include the right of a woman to terminate a pregnancy in certain circumstances, largely on family/personal autonomy grounds. Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which modified Roe, are the leading cases so ruling on the basis of substantive due process. However, the Court in 2007 cut back somewhat on the scope of the right in Gonzalez v. Carhart, at least in cases dealing with statutes prohibiting so-called “partial birth abortions.”
Finally, in Lawrence v. Texas, a blockbuster 2003 decision, the Court held, in an opinion by Justice Kennedy, that states may not criminalize intimate homosexual conduct. The ground here was expressly personal autonomy: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
As things now stand, Roe, as modified by Casey and Carhart, is still good law. Lawrence remains good law as well.
The hot issue regarding homosexual conduct that is currently percolating in the circuits is the substantive due process question whether the right to marry someone of your own sex is a fundamental right
protected by substantive due process.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century. Read the rest of this entry »
My post of November 12, 2012, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.
This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.
The First Myth The Constitution is a sacred document or is at least divinely inspired.
Reality The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.
Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.
Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.
The Second Myth The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.
Reality The Constitution is far from a perfect document.
The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.
More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.
Next in the Series: Myths about the Supreme Court
Constitutional Education for Citizens
However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.
What I would like to do in this and in occasional succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.
What is Separation of Powers?
The first three articles of the Constitution create and set out the powers of the three branches of government.
First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.
Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.
Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts. Read the rest of this entry »
Since Nahmodlaw.com began in August 2009, and to this date, July 7, 2010, I have written thirty-four posts (including a video and podcast) on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.
It occurs to me that it would be useful to readers, especially those who have only recently discovered this blog, to have a list of the thirty-four linked posts by category for ease of reference and use.
(It is also possible to use the “search” function to look for particular cases or topics among every one of my posts, including those subsequent to July 7, 2010).
What follows is a list comprising these thirty-four posts divided into the following four categories:
SECTION 1983; CONSTITUTIONAL LAW; FIRST AMENDMENT; EDUCATION
I. SECTION 1983
The First Signs
I noticed it first about eight years ago. Students began asking me in class to repeat what I had just said. This was happening more and more often, so I began to think about its significance, especially for the kind of discussion, or modified Socratic, method I use to teach constitutional law, First Amendment and various seminars. It was especially disconcerting because I had been teaching enthusiastically and, I hope, rather successfully for over three decades.
Once I thought about it, I realized that many students were actually taking dictation on their laptops, rather than thinking about what was being discussed and then taking notes. I also noticed that it was getting harder and harder to get students to participate in class discussion, or even for me to see their faces hidden behind laptops and focused on their laptop screens. And if these things were happening when I was speaking or trying to engage students in discussion, they were surely happening when other students were speaking, further adversely affecting the classroom experience.
My use of the discussion method to teach analysis and evaluation (“thinking like a lawyer”)–and not simply to convey doctrine–was therefore being undermined by the use of laptops in the classroom!
It made no real difference that I regularly reminded students that good note-taking was not about taking dictation, that it was essential for their education and professional development that they participate in class discussion and that they make eye contact with me and fellow students. It also did not make any real difference that I occasionally instructed students to stop using their laptops and just to listen for a few minutes.
Of course, I spoke with colleagues about this, and most of them–particularly those using the discussion method–reported similar concerns. Some also were worried about their students surfing the Web and emailing during class, but that was, so far as I knew, not a problem for me because I have always walked around the classroom when I teach for the purpose of keeping students (and myself) more engaged. Despite their concerns, none of my colleagues had banned laptops in the classroom, although I had heard that some faculty at other law schools were beginning to do so.
A Decision to Ban Laptops
Finally, I made a decision. Beginning with the 2008-9 academic year, I banned laptops from all my classes, making sure that students registering had sufficient notice. It was not an easy or popular decision to make, and it had a touch of irony because I use a computer for research, writing and communicating with students. And I have always appreciated the typing of exams on computers. But I felt that, as an educator with teaching goals going well beyond the transmission of legal doctrine, I had no real choice in the matter.
A Subsequent Modification
Even though I received excellent feedback from many students about the educational value of my ban, I have since repealed the ban in the required con law course because students complained to the administration that they were being forced to take my class without computers.
Though the administration did not compel me to repeal the ban (I believe academic freedom would prevent that), I nevertheless concluded that there was something to the student complaints.
However, I remain convinced that I am correct pedagogically, and I emphasize this to my students.
My law school, Chicago-Kent, and I just wrapped up our 27th annual conference on section 1983 held on April 15-16, 2010. This conference lasted two days and featured nationally known scholars and attorneys addressing different aspects of section 1983 litigation. Over 160 attorneys from all over the country were in attendance and, thanks to the outstanding speakers and excellent audience questions, the conference was once again a major success.
The speakers were Dean and Professor Erwin Chemerinsky (immunities and Supreme Court review), Professor Karen Blum (local government liability) Professor Rosalie Levinson (substantive due process), Professor Carolyn Shapiro (ethical issues), attorney John Murphey (nuts and bolts of section 1983 litigation), attorney Gerry Birnberg (police misconduct) and I (section 1983 cause of action and damages and procedural defenses).
My Podcast on Damages and Procedural Defenses
In addition to doing The Section 1983 Cause of Action, I did an hour-long presentation on Damages and Procedural Defenses, which covered compensatory damages, punitive damages, and procedural defenses such as statutes of limitation, preclusion, release-dismissal agreements and wrongful death and survival. The entire conference was audio-taped and I am posting my hour-long presentation as a podcast available for listening and downloading. I hope you find it informative.
If you would like to save the file directly, here is the link: Damages and Procedural Defenses: The Basics
The Full Conference Is Available
For those of you who may be interested in purchasing CDs containing the entire two-day conference, please contact Chicago-Kent’s Continuing Legal Education Department at 312-906-5090.