I was recently asked to contribute to a symposium where the participants were to offer their nominations for the most unhelpful, or even disastrous, Supreme Court opinion in American history. The problem was not to identify a decision thought to be clearly and unequivocally wrongly decided, but the one with long-term consequences that have been harmful to the nation and our system of constitutional justice. My nominee for this “honor” was the Supreme Court decision stating the Court’s ruling in Terry v. Ohio, 392 U.S. 1 (1968). (The contribution, hereafter, is contained in: Setting Us Up for Disaster: The Supreme Court’s Decision in Terry v. Ohio.) My central objection to the Court’s decision in Terry is its central role in fostering a pervasive practice of “racialized policing,” illustrated most powerfully in the well-known practice of “racial profiling.” Terry is famous for being the Supreme Court’s “stop-and-frisk” case, where the Court held that law enforcement could detain individuals, and impose a “frisk” to ensure that they were not armed and dangerous, based on “reasonable suspicion” rather than the probable cause required to justify full arrests or complete searches of one’s person or home.Read more
Nevada's Second Congressional District special election is in the national spotlight as political pundits look for bellwethers of the nation's taste for Democrats and Republicans going into the 2012 election cycle. That attention has brought a spotlight to an issue haunting the judiciary in Nevada and elsewhere in this country.
Nevada District Court Judge James Russell decided a case which determined how the political candidates would be chosen for the special election, overturning the Secretary of State's decision to allow multiple candidates from each political party to run. Aside from the issues we could take with his determination, Judge Russell's decision to not recuse himself (and not even disclose the potential conflict) has an entirely different set of consequences outside the merits of the case.Read more
This post first appeared in The Nevada View (Author - Justin McAffee)
The Eleventh Circuit Court’s ruling that the individual mandate in the Affordable Care Act is unconstitutional may make the heart of some conservatives flutter, but don’t go getting your hopes up, (or down as the case may be). Conservatives on the Supreme Court somewhat recently ruled in a highly expansive interpretation of the Commerce Clause of the U.S. Constitution, in which the regulation of economic inactivity of individuals was upheld as Constitutional. (See Thomas McAffee on Judge Vinson's decision for more on this topic.)
In the case of Gonzalez v. Raich, two prominent conservatives on the Court (Scalia and Kennedy) ruled in favor of expanding the Commerce Clause to a federal power that regulates something that is not a “commercial activity.” A single individual growing a plant for their own personal use does not qualify as an economic activity under the standard that the 11th Circuit ruling suggests is required.Read more
Some Reflections and Review of a Book 'The New Jim Crow: Mass Incarceration in the Age of Colorblindness'
It is sometimes said that time “heals” all wounds. Perhaps. But there is a corresponding danger. The passage of time may also enable folks to believe and act on the basis of either sheer ignorance or perhaps denial; and in that form, time can become the enemy of perceiving the steps required for genuine healing. I was born just two years prior to the Supreme Court’s earth-shattering decision in Brown v. Board of Education. So I grew up in the era of the civil rights revolution and have never really lost track of the prevalence of sentiment in that era that was deeply opposed to, and even offended by, the insistence that government was obligated to ensure equality before the law.
By contrast, the four boys I raised all grew up in a time when the rhetoric of both sides of contemporary debate insisted on “color-blindness,” and it was plainly unacceptable to invoke unequivocally racist premises in support of policies that hurt the interests of racial minorities. In this new world, open arguments in favor of white supremacy or clearly reflecting racial animosity were simply unacceptable. We live in a world where Sean Hannity can invoke the selection of African Americans for prestigious cabinet positions in a conservative administration as evidence that only sheer partisanship could explain why civil rights advocates oppose the views and policies of political conservatives. And many conclude that the election of Barack Obama signifies the arrival of a “post-racial” era. Young people raised in a world they perceive as almost devoid of “color consciousness” take such characterizations quite seriously and find the underlying assumptions plausible.Read more
The Lost History of the Ninth Amendment—And Its Implications for Libertarian Political Theory and its Relation to the Constitution
Professor Kurt Lash published a book in 2009, The Lost History of the Ninth Amendment [hereinafter The Lost History], that supplies a devastating critique of the contention that it was designed to secure and protect “unenumerated rights,” beyond the fundamental rights stated in the first ten amendments, or elsewhere in the Constitution. The amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”Read more
The Tea Party Movement and Constitutionalism—Its Questionable Commitment, Despite Its Libertarian Professions
American historian Jill Lepore is certainly right that, whatever its precise political philosophy, the Tea Party Movement has advocated “historical fundamentalism” in its approach to American revolutionary and founding era thought. See Jill Lepore’s Book, the Tea Party and Originalism; Tea Party, Constitution and Historical Fundamentalism, both from this blog. The problem is that the result is bad American history and fundamental errors in ascertaining the original understanding of the Constitution. Even so, the movement has sought to wrap itself in “the flag” of the founding generation’s commitment to our system of federalism and the protection of individual liberty. See, e.g., Judge Vinson: Individual Mandate and Boston Tea Party, in this blog. An important question is thus whether the movement has shown real fidelity to the original meaning of the Constitution. My conclusion is that it has not.Read more
The Tea Party movement is nothing if not perplexing. There seems to be a near-universal opposition to what is deemed extravagant government spending that is combined with deep skepticism about the motives of government officials; and all of this prompts a fear of what is called “big government,” if not “socialism” or worse. Several advocates of Tea Party politics I know base their opposition to government on fears of the abuse of government power and are enthusiastic advocates of the views of former presidential candidate, Ron Paul. They claim to be, in short, libertarians. And, of course, the word “liberty” is one of the watchwords of Tea Party advocates. I assume it was people of this sort of viewpoint that, at least initially, helped to block, in the House of Representatives, extending provisions of the Patriot Act—a vote that the Washington Post described “as the first small uprising of the [republican] party’s tea-party bloc.” And in the end, the three-month extension that was adopted extended the law for less time than desired by its strongest advocates, and several legislators emphasized the idea that the extension supplied time to review and reform that act as needed.Read more
It is well known that the celebration of the now-iconic Ronald Reagan’s 100th birthday has been as much about the promulgating of time-honored myths about the man and the leader as the remembering of genuine accomplishments. As one example, Lincoln Mitchell suggested that the “enormous defense budgets that both create massive debt problems and ensure an aggressive and often disastrous US foreign policy, have their origins in the Reagan years.” (Huffington Post, Feb. 8, 2011)
Perhaps even more classic, however, in the light of the dark memories Americans hold about Richard Nixon’s Watergate scandal, is that Reagan’s handling of the Iran-Contra scandal reflects that the executive actually “improved its capacity for cover-up,” as the Reagan administration, and the Bush administration that followed, “regularly thwarted [efforts to understand] by the strategy of destroying or withholding information, denying classified documents, and issuing presidential pardons.” Louis Fisher, Epilogue: Constitutional Violence, in The Presidency and the Law: The Clinton Legacy 192, 198 (David Gray Adler & Michael A. Genovese, eds. 2002).Read more
We've all had to deal with hearing about awful tragedies involving guns at schools across the country. The severity and frequency seem to be on the rise. Despite recent rulings which have made the Second Amendment an individual right, state courts have continued to allow gun bans on college campuses.
Casey J. Nelson, a student at UNLV Boyd School of Law, presents some compelling arguments about the right of self-defense, the Second Amendment and perhaps how they apply to these situations on the campuses of our institutions of higher learning. The introduction is posted here, and the full text is attached as a pdf.
Later in the article, Casey cites to an article by Professor Volokh that I am providing a link to here.Read more
On the Attempt to Revive Legally Enforceable Federalism Boundaries
An important theme of twentieth century constitutional discussion and debate concerned whether our federal system—with its allocation of powers to the nation and the states--is most meaningfully preserved by judicial efforts to define and legally enforce its appropriate or intended boundaries. Herbert Wechsler developed a theme of James Madison’s, contending that federalism’s boundaries may well be most effectively maintained by the natural safeguards built in to the political system. Herbert Wechsler, Principles, Politics, and Fundamental Law 49-82 (1961). The Supreme Court itself has been known to articulate the view that the “principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 469 (1985). There are, of course, those who doubt the adequacy of these political safeguards, and the Supreme Court has attempted to renew a commitment to enforceable federalism boundaries in the last decade. But there are good reasons to doubt whether it truly makes sense to attempt to significantly limit national power by constitutional construction—and reasons to see the attempt to impose such limits as a form of conservative “activism” that conservatives, advocates of judicial self-restraint, generally purport to avoid.Read more