Hallows Lecture Examines Little Noted, but Pivotal Civil Rights Decision

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Category: Civil Rights, Constitutional Interpretation, Legal History, Public, Race & Law, Speakers at Marquette
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“Remarkable but relatively obscure” – that’s how Judge Paul T. Watford of the United States Court of Appeals for the Ninth Circuit described the 1945 U.S. Supreme Court decision, Screws v. United States. In presenting Marquette Law School’s annual Hallows Lecture on March 4, Judge Watford aimed to lift the decision from some of its obscurity and increase awareness of “the birth of federal civil rights enforcement,” as the title of his lecture put it.

The case began with the vicious and fatal beating of Robert Hall, an African-American man, by M. Claude Screws, the sheriff of Baker County, Ga., and two of Screws’ deputies. Judge Watford said the circumstances of Hall’s death provide a window into how African Americans of that era had to live with the “ever-present reality” of unwarranted violence against them by white law enforcement officers. Even given the many witnesses to Hall’s death, Georgia authorities declined to prosecute Screws and his deputies. But, in what Watford described as an unusual development for that time, a federal indictment was issued against them for violating Hall’s civil rights.

Ultimately, a splintered Supreme Court did not do all that civil rights advocates would have wanted, but the justices upheld the application in situations such as this of 18 U.S.C. § 242, prohibiting violation of civil rights by someone acting under the color of law. The majority of justices rejected the argument that civil rights violations were a matter to be left to the states, although no single opinion commanded a majority.

“Had Screws come out the other way, and been decided against the federal government, federal civil rights enforcement would have been stifled,” Watford said. “Instead, it was given new life, and that helped change the course of history, particularly in the South, in the second half of the twentieth century.”  Read more »

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(Marriage) Equality and the Popularity Paradox

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition. Read more »

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SCOTUS Strikes Down DOMA

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Category: Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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Just this morning, the United States Supreme Court released its opinion in United States v. Windsor, the case that challenged the constitutionality of the federal Defense of Marriage Act (DOMA).  The Court declared DOMA unconstitutional in a 5-4 vote.  More to follow.

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Don’t Convicted Felons Deserve Second Chances, Too?

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Human Rights, Public
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A group of friends and I email each other links to news articles on a regular basis.  Sometimes the articles are about interesting, funny, or odd developments. The articles that come to mind recently include the Georgetown law student convicted of running a methamphetamine ring; cat-hoarding; rabid beaver attacks; or this article on therapy llamas. (We have a fun group.)  Occasionally we have in-depth back-and-forth discussions about more serious legal topics.  By now, two years removed from law school, we have moved to different cities and states and we all practice in different areas of law, which tends to give us very different perspectives on the various topics that pop up. 

This week, we’ve had a lively debate about Paula Cooper , the Indiana woman released Monday after having been sentenced to die for a crime she committed at fifteen.  The news stories report that she stabbed a 78-year-old woman 33 times with a butcher knife, and was the youngest person in the country sentenced to the death penalty.  For reasons that would take up an entirely separate blog article, since she was sentenced in 1986, it has now been deemed unconstitutional to sentence a child to the death penalty.  Cooper’s sentence was amended to 60 years, and she was released on Monday after having served more than a quarter of a century behind bars.  She will serve time on parole.

The question posed to the group was: would you let this woman out? Read more »

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When Rules Are Invisible

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HiggsResearchers at CERN laboratory in Switzerland announced this week that they believe they have evidence of the existence of the Higgs boson, or Higgs particle. The Higgs boson and the associated Higgs field help to explain, among other things, how particles achieve mass. In 1964 physicist Peter Higgs and five other researchers theorized the Higgs boson. Researchers at CERN have been colliding particles in the Large Hydron Collider to look for the Higgs boson.

The Higgs boson is part of the Standard Model theory, which explains the interactions and characteristics of subatomic particles. Researchers had accounted for the Higgs boson in their Standard Model calculations over the years. In November 2011, a CERN physicist said, “’For our theory to be right, we need the Higgs to exist. If it doesn’t, we need something to replace it.’” The question now appears to be what kind of Higgs boson researchers have observed.

Reading about the Higgs boson announcement reminded me of Professor Lawrence Tribe’s book The Invisible Constitution. The Higgs boson and the United States Constitution don’t at first glance have much in common, but the way Tribe approaches interpreting the Constitution parallels the approach of theoretical physicists in creating models that explain the invisible rules that govern the physical universe. In fact, Tribe himself draws an analogy to physics throughout the book.

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Important Points Won Even as ACA Case Was Lost, Paul Clement Says

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Category: Congress & Congressional Power, Constitutional Interpretation, Federal Law & Legal System, Federalism, Public, Speakers at Marquette, U.S. Supreme Court
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Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Read more »

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Remembering Professor Bork

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Category: Constitutional Interpretation, Judges & Judicial Process, Public, U.S. Supreme Court
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Published reports of the death of Robert Bork on December 19 not surprisingly dwelled on the most controversial events in his long life in the law.  As Solicitor General under President Nixon, Bork in 1975 carried out orders to fire the Watergate special prosecutor.  In 1987, Bork was nominated for the Supreme Court by President Reagan but then rejected by the Senate.  During the 1990s and 2000s, Bork, while employed by conservative think tanks, vigorously argued that elitist liberals were trying to take over the judiciary.

For my own part, I recall Robert Bork from my first year of law school and from the time before he became a prominent national figure.  It seems hard to believe, but I actually had Professor Bork for Constitutional Law.  I also had Professor Bork for Legal Research and Writing because the Yale Law School in those distant days folded each student’s instruction in legal research and writing into an arbitrarily selected substantive first-year course.

I have no evidence that Professor Bork ever read the assorted memoranda and briefs I wrote “under his tutelage,” but I certainly recall his approach to Constitutional Law.  Read more »

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Commerce Claws

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Category: Constitutional Interpretation, Constitutional Law, Public
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There are more than 50 polydactl (6 toed) cats at the Hemingway Museum in Key West Florida. The cats are descended from six-toed felines raised by Hemingway at his house in Key West, which is now a museum. The cats roam the grounds and the house at will. Several years ago, a visitor became concerned about the cats’ welfare, and reported the issue to the US Department of Agriculture. Long story short, the USDA decided the cats fell under the Animal Welfare Act with its accompanying regulations and requirements. The museum filed suit stating that the USDA did not have authority over the cats, the judge disagreed, and the Museum appealed.

Last week a three-judge appeals court panel (11th Circuit) decided the case using a broad interpretation of the Animal Welfare Act. The court also evaluated whether the cats “substantially affect” interstate commerce under the Commerce Clause. One part of the analysis determined that the Hemingway Museum purposefully uses the cats for marketing campaigns to attract visitors from outside of Florida, and as such, their exhibition has a commercial purpose and affects interstate commerce. You can see more about the case here and here.

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Home Rule Begins At Home

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In Wisconsin, the Home Rule Amendment to the Wisconsin Constitution grants cities and villages the power to determine their local affairs and government, subject only to the constitution itself and uniform legislative enactments of statewide concern.  The Wisconsin Supreme Court has recognized that the Home Rule Amendment serves not only to empower cities and villages, but also to curtail the power of the state legislature to act within the sphere of local affairs.  Van Gilder v. City of Madison, 267 N.W. 25 (1936).  The job of defining the proper province of constitutional home rule authority (i.e., what constitutes a matter of “local affairs and government” or a matter of “statewide concern”) falls to the courts and, not surprisingly, it is no easy task.  Given the concurrent interest of state and local government in many governmental functions, one may argue that such functions cannot be so classified except by arbitrary reasoning.

Notwithstanding the difficulty in defining its exact reach, local home rule is worth preserving and worth defending.  Read more »

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The Boden Lecture: The Reconstruction Era Birth of Our Concept of Citizenship

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The Declaration of Independence, the United States Constitution, the Civil Rights Act of 1866 – as great as the first two were, it was the third that put in place the concepts of American citizenship and the civil rights of all Americans that are part of the bedrock of American life, prominent historian Eric Foner said in a lecture at Eckstein Hall.

Delivering Marquette Law School’s 2012 Robert F. Boden Lecture last week, Foner focused on the origins in American law of birthright citizenship, the principle that (with immaterial exceptions) anyone born in the United States is a citizen and has basic rights that go with citizenship.

Foner, DeWitt Clinton Professor of History at Columbia University, said many people assume that the principle of “equality under the law” dates back to the origins of the United States – or, as he put it humorously, that the nation was born perfect and has gotten better ever since.

In reality, he said, the nation was definitely not premised on equality under the law in its early stages. For one thing, the Constitution itself did not give citizenship to even free black people, much less to slaves. And, Foner said, citizenship issues were controlled by individual states, rather than the federal government. Every state in the nation had laws that treated black people worse than white people, he noted.

The great changes that declared all men (women’s issues came later) born in America to have basic rights, such as the right to own property and take disputes to court, came with the Civil Rights Act of 1866, put into law by Congress over President Andrew Johnson’s veto, and the subsequent adoption of the Fourteenth Amendment to the Constitution.

The rights extended by those federal enactments and others in the Reconstruction Era were violated with impunity for many decades. But the rights they embraced eventually took hold and came alive in the Civil Rights Era of the mid-twentieth century, Foner said.

Foner said the history of America is a tale of ups and downs, of rights granted and lost. The right to citizenship extended to anyone born in the United States has become controversial in recent years as immigration issues have heated up, he observed. It is a right that arose from the “titanic struggle” of the era of the Civil War and its aftermath, and it was one of the nation’s ways of addressing the legacy of slavery and the pervasive denial of rights to black people. Given how birthright citizenship has served the country, Foner said, “we should think long and hard before changing it.”

A version of Foner’s Boden Lecture will appear in 2013, in the next Marquette Lawyer.

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Legal Anomalies in Federal Indian Law, Part I—Equal Protection

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Category: Constitutional Interpretation, Constitutional Law, Federal Indian Law, Public, Race & Law
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Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response. Read more »

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We Should Be Careful That We Know What We Are Sticking To, When We Stick To The Constitution

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Like my colleague Ed Fallone, I spoke at the Marquette Constitution Day program on Monday, September 17, sponsored by the Marquette Political Science Department. We were joined on the program by Marquette Political Science professors John McAdams and Paul Nolette. The program was centered around the concept of “Sticking to the Constitution.”

For the sake of brevity, I will simply summarize my arguments.

1. The text of the United States Constitution is more important as a symbol of our commitment to democratic government and the rule of law than it is as a source of answers to contemporary problems.

2. The United States Constitution of 1787 has lasted as long as it has because it is extremely brief and extremely vague. These characteristics allow it to be adapted to just about any position on any question, and has thus allowed significant changes to occur in the governmental structure of the United States without the need to alter the text of the constitution. Had it been more specific and detailed, it would have been repealed or substantially amended long ago.

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