Nahmod Law

Know Your Constitution (2): Myths About the Constitution

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

Written by snahmod

November 29, 2012 at 3:11 pm

Know Your Constitution (1): The Structure of Government

Constitutional Education for Citizens

United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.

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.

This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.

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 »

Written by snahmod

November 12, 2012 at 2:04 pm

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

Persons Who Are Not “Persons”

The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.

On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking.

It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.

Three Categories of Absolutely Immune Individuals

There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.

The Supreme Court’s Approach and Policy Considerations

Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.

First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?

The policy considerations specifically underlying absolute individual immunity are several.  The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions. Read the rest of this entry »

Written by snahmod

October 25, 2012 at 2:20 pm

Affirmative Action and Fisher v. University of Texas: A Video Discussion

As most of you know by now, the Supreme Court has granted certiorari in Fisher v. University of Texas, an affirmative action case that was argued on October 10, 2012.

I previously blogged about affirmative action and the Equal Protection Clause on November 5, 2009. You might want to consult that post for general background: what affirmative action is and is not, the appropriate equal protection test and a survey of the cases.

My colleague, Professor Carolyn Shapiro, and I discussed the issues raised in Fisher on September 24, 2012, and had this discussion videotaped for The Oyez Project. I think you will find it of interest.

This discussion, lasting 20 minutes (each segment is 10 minutes), is accessible through the following links: Case Background and Arguments.

Written by snahmod

October 10, 2012 at 10:55 am

Posted in Constitutional Law

Section 1983 and the Intracorporate Conspiracy Doctrine

The Intracorporate Conspiracy Doctrine

What is the intracorporate conspiracy doctrine and what role, if any, does it play in the § 1983 conspiracy setting?

In the words of the Eleventh Circuit in a § 1985(3) case, “under the doctrine, a corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves.”McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)(en banc).

(Mis?)Applying the Doctrine in a § 1983 Case: The Eleventh Circuit in Grider v. City of Auburn

Subsequently, in another Eleventh Circuit case, Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), the plaintiff sued various city officials, including law enforcement officers, under § 1983, alleging that they maliciously conspired to prosecute him falsely for bribery. Even though the evidence showed that one of the officers was involved in the other’s bribery charge against the plaintiff, the court ruled that both officers could not be sued for an alleged § 1983 conspiracy because of the intracorporate conspiracy doctrine. Read the rest of this entry »

Written by snahmod

October 8, 2012 at 1:24 pm

Two Recent Post-Iqbal Pleading Decisions in the Circuits


Several years ago the Supreme Court articulated what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(Bivens action vs. federal officials). Precisely what this meant in real-world terms was not entirely clear, and federal courts and litigants have  since struggled with the plausibility standard and its relation to notice pleading in federal courts.

Last year, in a post dated 5-13-11, I set out several post-Iqbal decisions from three circuits. This year, as I was again preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2011; West Group)(CIVLIBLIT on WESTLAW), I came across two additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2012 Update.

One of these decisions is from the First Circuit. The other is from the Seventh and was written by Judge Posner. Read the rest of this entry »

Written by snahmod

September 7, 2012 at 12:32 pm

A Section 1983 Primer (6): Claim and Issue Preclusion

This is the sixth of my section 1983 primers. I previously blogged on section 1983’s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10); and on statutes of limitations in section 1983 cases (post of 10-27-11).

Overview of Preclusion

This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983  cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.

To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding?  As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.

1. The Relevance of 28 U.S.C. section 1738

Like statute of limitations issues in section 1983 litigation, preclusion issues involve a mixture of federal and state law. This is because 28 U.S.C. section 1738 requires federal courts to give the same effect to prior state judicial decisions as would the courts of the forum state. Section 1738 is based on the Constitution’s Full Faith and Credit Clause, Art. IV, section 1.

2. The Preclusive Effect of Prior State Criminal Proceedings

(a)   Suppose that a defendant in a criminal case makes a Fourth Amendment motion to suppress evidence, which the state court denies, and the defendant is acquitted anyway. The defendant then becomes a section 1983 plaintiff seeking damages against the law enforcement defendants for violating his Fourth Amendment rights. What is the preclusive effect, if any, of that state court decision on the plaintiff’s section 1983 Fourth Amendment claim? Read the rest of this entry »

Written by snahmod

August 15, 2012 at 8:39 pm


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