Chemerinsky comes to UNLV, speaks on DOMA

On Saturday, March 30th, constitutional law scholar Erwin Chemerinsky came to speak on the question of marriage equality at the William S. Boyd School of Law on the University of Nevada, Las Vegas campus. Chemerinsky is founding dean of the University of California, Irvine, School of Law, a former professor of the Duke School of Law, and was named one of the "23 Law Profs to Take Before You Die" by The National Jurist in March 2011. He regularly authors commentary on the United States Supreme Court for publications such as California LawyerLos Angeles Daily JournalABA Journal,and National Law Journal. His talk was part of a conference entitled "Nevada State Bank Presents: We the People," which was co-hosted by the UNLV chapter of Phi Alpha Delta and Nevada State Bank.

Dean Chemerinsky asked, firstly: “What are the justifications for denying marriage equality?” and secondly: “Are they sufficient to rise to a compelling government interest?”

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Right to "Vote with their Feet" Odious

This article originally appeared in the Las Vegas Review-Journal.

On November 26, a federal district court ruled against eight same-sex couples seeking the freedom to marry in Nevada. In the case, the plaintiffs argued that Nevada's current law—which excludes same-sex couples from marriage by relegating them to the second-class status of domestic partnership—violated their right to equal treatment under the U.S. Constitution.

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"Whiteness of Whiteness" Resists The Voting Rights Act

This article originally appeared in The Nevada View

The United States Supreme Court has begun hearing oral arguments in the case Shelby County v. Holder, which examines the constitutionality of Section 5 of the Voting Rights Act.  Section 5 requires a process called “pre-clearance,” whereby a panel of judges determines whether a state’s change in voting standards is fair before the state can enact the new standards.  The VRA’s purpose in history was to combat any unjust voting regulations that would prevent minorities from exercising their right to vote.

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Cadish Out, Political Extremism In

It’s undoubtedly a sign of the times that a perfectly well qualified nominee for a federal judgeship could be essentially vetoed by her home-state Senator for having once stated the “wrong” opinion on the nature of the right guaranteed by the Second Amendment. On March 8, Judge Cadish, a Nevada judge who had been nominated by the President to be a federal district court judge, submitted a letter to President Obama withdrawing her nomination for the judgeship, concluding that it had reached an impasse. For at least 69 years, from 1939, when the Supreme Court decided United States v. Miller—a decision that read the Second Amendment narrowly and that most lower federal courts interpreted as saying that the Amendment did not secure a personal right to own and use firearms—until the Court’s 2008 decision in District of Columbia v. Heller, the Court said not a word about the Second Amendment and bypassed chances to review numerous quite narrow constructions of it by federal courts. When the Court finally decided to address and resolve the issue, it held that there is such a personal right, but it did so based on a 5 to 4 decision—Supreme Court cases cannot get closer than that.

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Revisiting Racial Profiling and Stop and Frisk--the Need to Draw Lines

This blog has published The Supreme Court and the Practice of Racial Profiling/Racialized Policing.  And it included an article I wrote that was just published.
Setting Us Up for Disaster:  The Supreme Court’s Decision in Terry v. Ohio,  12 Nev. L. J. 609 (2012).

Illustrative of the analysis supplied in the described article is the recent news article, Stop-and-Frisk:  NYPD Stands its Ground While Facing Sharp Criticism, May 12, 2012 (Fox News.com).  Terry purported to require law enforcement to base a forcible detention, that might well be accompanied by a frisk to ensure police safety, on “reasonable suspicion”—a requirement that was deemed to be less than the “probable cause” required to justify a full-blown arrest, but more than an officer’s mere hunch.  The difficulty is that in fact courts have deemed police action in “high crime areas”—which in practice means inner city areas where racial minorities are likely to live—to be justified based on the “suspicion” standard.  Hence the Fox News article referred to above observes that “officers randomly stop a person to determine if they are up to any wrongdoing or possess weapons  and contraband items.”  A result is that the NYPD stopped almost seven  hundred thousand people in 2011, of whom an overwhelming 88 percent were deemed innocent.  Can any one believe that police had adequate grounds, “reasonable suspicion,” to “stop” that many New Yorkers in a single year—and that a “failure rate” of 88 percent can be reconciled with the standard initially set forth in Terry?

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The Religious Test Clause Revisited: Violating Its Spirit If Not Its Letter

In a selection appearing in the Christina Newswire, April 12, 2012, Bill Keller, characterized as “the world’s leading Internet Evangelist,” queries the title asks:  Why Would Christians Vote for Romney and Listen to Beck, Both Cult Members?  In a prior entry to this blog, we took up the subject of the Religious Test Clause—the provision that explicitly forbids making any “religious Test” a “Qualification to any Office or public Trust under the United States.”  U.S. Const. art. VI.   Mitt Romney, Rick Santorum, and the Spirit of the Religious Test Clause of Article VI

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Cleon Skousen, the Tea Party, and Equal Rights Before the Law

 A good friend of mine is extremely sympathetic to the Tea Party movement.  She urged me to read the book, The Five Thousand Year Leap:  28 Great Ideas That Changed the World (Ann. Ed. 2009).   Its author, Cleon Skousen, has been described, by Jeff Rosen of George Washington University Law School, as “the constitutional guru of the Tea Party movement.”  His work has been endorsed and promoted by none other than Glenn Beck. See Wickipedia, Willard Cleon Skousen (January 20, 1913 – January 9, 2006).  The work is certainly a historical review of the founding era that attempts as well to provide something like an intellectual history of the political thought underlying the American constitutional order.  Without question, however, it approaches constitutionalism from the perspective of a modern proponent of right wing political philosophy.  It also fits rather nicely into the model of thought suggested by Jill Lepore, a revolutionary era historian, in that it “presents to us ‘historical fundamentalism’ that is ‘marked by the belief that a particular and quite narrowly defined past—‘the founding’—is ageless and sacred and to be worshiped; that certain historical texts—the ‘founding documents’—are to be read in the same spirit with which religious fundamentalists read, for instance the Ten Commandments.” See  Jill Lepore, The Whites of Their Eyes:  The Tea Party’s Revolution and the Battle Over American History 16 (2010) See also Tea Party, Constitution and Historical Fundamentalismelsewhere in this blog.

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Religious Liberty—the Freedom to Rule and the Freedom to be an Individual: The Letter and the Spirit

I note in my constitutional law class that the generation that founded the American Constitution could frequently use the word “liberty” ambiguously.   Sometimes speaking of “liberty” was a way of referring to the sovereignty of the people; their “right” to govern themselves.   Even now when we say we are a “free” people, we often mean that no other nation, force, or individual exercises control over the United States of America.  We are “free” to govern ourselves.  Modern republicans often use freedom the same way, to refer as much to the “liberty” of the collective people of particular states to decide the direction their government will take as to the liberty of individual citizens to decide things in their own lives.  This is why it made perfect sense to Rick Perry and his campaign people to put in an Iowa political commercial the complaint that the federal government had tyrannically robbed Texas of the liberty of self-government when the federal Supreme Court ruled that public schools could not initiate a public prayer at the beginning of every school day.  In his book, Fed Up!:  Our Fight to Save America From Washington (2010), Perry complained that Americans “face unprecedented federal intrusion into numerous facets of our lives,” including “the education of our children.”  (Loc. 22 of 3637)  Hence Perry is an advocate of amending the Constitution to allow school prayer programs.

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Mitt Romney, Rick Santorum, and the Spirit of the Religious Test Clause of Article VI

The Tea Party movement, and an increasing number of members of Congress, has invoked the Constitution as supporting efforts to move the nation a long ways to the right.  Last year members of Congress made a big production of reading orally the text of the Constitution—as though a single act of studious reverence could serve as a renewal of fidelity to following the Constitution.  So one important issue without doubt is whether the current movement advocating political conservatism embodies real commitment to constitutional principles. At least one sign of the seriousness of that commitment is to move beyond the rhetoric on behalf of states’ rights, and the tendency to assume that opposition to federal health care reflects a commitment to constitutional liberty, to discover whether contemporary conservatives pay serious attention to the principles underlying the Constitution.

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National Powers

IV.       The Distribution of National Powers

A.  Introduction

 The federal system distributes power vertically–between the nation, on the one hand, and the states, on the other.  But there is also a distribution of powers that exists just as to the national government.  The framers of the Constitution believed that this horizontal separation of government powers did more than any other single thing to prevent to evolution of government into tyranny.  James Madison attempted to set forth the separation of powers, and the precise methods employed to try to achieve it, in The Federalist.

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