Archive for the ‘Constitutional Law’ Category
A Short Video on Equal Protection Basics
I blogged on January 31, 2013, as part of my series on the Constitution: Know Your Constitution (4): What Is Equal Protection?
The following is a link to a five-minute video I made for Chicago-Kent’s Oyez Project on this same topic.
http://www.youtube.com/watch?v=NrClJxXg7EE
I hope you find it informative.
The Second Amendment and Gun Control: Unanswered Questions
Background
As most everyone knows by now, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court (5-4, opinion by Justice Scalia) for the first time found an individual Second Amendment right to possess a handgun in one’s home for self-defense. Accordingly, it struck down a District of Columbia prohibition on the possession of usable handguns in the home. Thereafter, and not surprisingly, the Court (again 5-4) held in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), that the Second Amendment, through incorporation, applies fully to the states and local governments. See my post of November 8, 2010: Gun Control, the Second Amendment and Section 1983 After McDonald v. City of Chicago.
Heller‘s Dicta on Permissible Regulations
In Heller, Justice Scalia asserted that the Court’s decision did not mean that there were no limitations on this Second Amendment right. He listed the following kinds of governmental regulations that were still permissible.
1. Prohibitions on the possession of firearms by felons and the mentally ill
2. Prohibitions on the carrying of firearms in sensitive places such as school and government buildings
3. Imposing conditions and qualifications on the commercial sale of arms
4. Prohibitions, historical in nature, on the carrying of “dangerous and unusual weapons” such as M-16 rifles.
Unanswered Questions
No constitutional right is absolute. So one question in the Second Amendment setting is what the level of scrutiny is. The Court in Heller ducked the issue, pointing out that whatever the standard, the District of Columbia’s prohibition could not stand. On the other hand, the Court stated that the standard is more than rational basis. That’s all we know at this point.
The level of scrutiny is surely relevant to the Court’s dicta on permissible regulations, particularly with regard to restrictions on, and qualifications for, gun ownership and also with regard to those “sensitive places” where the carrying of firearms may be prohibited.
The Court also did not discuss the question whether the Second Amendment right to possess firearms for self-defense applies outside the home. There is already a split in the circuits on this.
A Circuit Split On Carrying
The Seventh Circuit, in an opinion by Judge Posner, held that the Second Amendment does indeed apply outside the home. It therefore struck down an Illinois statute prohibiting carrying a loaded gun, concealed or not. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)(2-1), petition for en banc rehearing denied. In contrast, the Tenth Circuit, in a concealed weapon decision less than a week old as of this writing, ruled that the carrying of concealed weapons is not protected by the Second Amendment. Peterson v. Martinez, No. 11-1149 (10th Cir. 2-22-13). See also Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012), which upheld a New York statute that required an applicant for a permit to carry a concealed handgun in public to show “proper cause,” such as a need for self-defense greater than that of the general public.
The question whether the Second Amendment applies outside the home may therefore be taken up by the Court in the coming 2013 or 2014 Term.
Comment: An Analogy to Roe v. Wade
In addition to the practical importance of getting answers to these questions, I think it will be fascinating from a jurisprudential and historical perspective to see how the Court goes about articulating the scope of the Second Amendment post-Heller. While not everyone will appreciate the analogy, Heller reminds me of Roe v. Wade, 410 U.S. 113 (1973), another controversial decision where the Court ruled for the first time that a women has a substantive due process right to terminate her pregnancy, a right that some believe the Court “made up.” In the years following Roe, the Court spent a great deal of time and energy attempting to articulate the scope of this right. Indeed, Roe remains a doctrinal battlefield forty years later.
It remains to be seen how much time and energy the Court (and dedicated organizations and litigants) will have to devote to the Second Amendment in order to set out its scope adequately.
Know Your Constitution (4): What Is Equal Protection?
This is the fourth in a series of posts about the Constitution that is intended for a general audience. Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.
Background
The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.
The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.
The Four Equal Protection Tests
Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.
Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantage racial minorities and disadvantage a racial majority (as in affirmative action) sometimes survive strict scrutiny.
Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.
Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.
Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.
Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it may come into play in the same-sex marriage cases that are currently before the Court. So too could intermediate level scrutiny.
“Section 1983 Is Born”: A Working Paper
I have written an article about the birth of section 1983 in the Supreme Court that I hope to have published this year.
The article is entitled: Section 1983 Is Born: The Supreme Court Stories of Tenney v. Brandhove and Monroe v. Pape.
It is available as a Working Paper on SSRN and can be downloaded here.
The following is an abstract of this Working Paper:
Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminal section 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.
I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Moreover, these stories must be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.
These stories are of interest to section 1983 scholars, to historians of civil rights and constitutional law and to general readers. For one thing, Justice Frankfurter played an outsized role in both decisions. For another, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983 jurisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the very different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.
Know Your Constitution (3): Myths About the Supreme Court
I blogged on November 29, 2012, regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
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 »
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
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 »
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.
The Health Care Act Decision: A Video Discussion
On June 28, 2012, I blogged about the Supreme Court‘s blockbuster health care act decision (PDF), handed down on that same day.
As almost everyone knows by now, this decision upheld the individual mandate, 5-4, under the Taxing Power, in a surprising opinion by Chief Justice Roberts. This decision also upheld, for the most part, the Congressional expansion of Medicaid, under the Spending Power, to include millions of poor uninsured individuals.
My Chicago-Kent colleague, Professor Carolyn Shapiro (director of ISCOTUS), and I recently engaged in a videotaped 15 minute discussion of the Court’s decision and some of its implications.
This discussion is available at oyez.org.
I believe you will find it informative.
Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)
I blogged on January 18, 2012, about the constitutional challenges to the Patient Protection and Affordable Care Act (“the Act”) , where I expressed the view that the individual mandate was clearly constitutional under the Commerce Clause. Also, on February 24, 2012, I posted a video presentation I made (with others) to the Shriver Center about all aspects of the Act. See these posts for background.
Today, the United States Supreme Court ruled, 5-4, in an opinion (PDF) by Chief Justice Roberts, that the individual mandate was constitutional under the Taxing Power of Congress, albeit not under the Commerce Clause.
The Court also upheld the Act’s significant expansion of Medicaid to include individuals under 65 whose income is under 133% of the federal poverty line, except insofar as the Act provides that states that do not opt into the expansion will lose all of their Medicaid funding.
The Chief Justice’s opinion, Justice Ginsburg‘s concurring in part and dissenting in part opinion (joined by Justices Breyer, Sotomayor and Kagan with regard to the Commerce Clause and the Taxing Power, and by Justice Sotomayor with regard to the Spending Power) and the dissenting opinion of Justices Kennedy, Scalia, Alito and Thomas on every issue except for the Commerce Clause and the Anti-Injunction Act, are available on the Court’s website. They are all quite lengthy.
Here are some points worth noting. Read the rest of this entry »
Nahmod Law 