On Originalism and the First Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Political Processes & Rhetoric, Public, U.S. Supreme CourtLeave a comment» on On Originalism and the First Amendment
Political cartoon from 1888 showing little demons with names like "garbled News," "Paid Puffery," and "Boastful Lies" emerging from the mouth of a printing press.
The Evil Spirits of the Modern Daily Press (Puck Magazine 1888)

On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse).  The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation.  What follows is a copy of my prepared remarks.

“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government.  This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.

The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).

However, originalism as a theory was not invented in order to provide a vehicle for cultural expression.  Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.

Originalism is an interpretive theory that understands a legal text to retain the meaning it had at the moment when it was enacted or ratified, until such time as the law is amended or repealed. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“leastdangerousblog.com, July 8, 2018).  It holds that the discoverable public meaning of the U.S. Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation. (Keith Whittington, “Originalism: A Critical Introduction,” 82 FORDHAM L. REV. 375, 377 (2013)).

There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.

In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning. Continue reading “On Originalism and the First Amendment”

Racial Discrimination in Wisconsin Jury Pool Practices

Posted on Categories Alumni Contributor, Civil Rights, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Poverty & Law, Prisoner Rights, Public, Race & Law, Wisconsin Criminal Law & Process1 Comment on Racial Discrimination in Wisconsin Jury Pool Practices
A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)

As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant.  The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.

Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”

The Mirror of Racial Tyranny in The Civil Rights Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme CourtLeave a comment» on The Mirror of Racial Tyranny in The Civil Rights Cases
Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him.  Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”

National Voter Registration Day: Make Your Voice Heard

Posted on Categories Civil Rights, Election Law, Milwaukee, PublicLeave a comment» on National Voter Registration Day: Make Your Voice Heard

Today has National Voter Registration Day—a good time to remind everyone register to vote so that all eligible voters can make their voices heard on Election Day (which, by the way, is Tuesday, November 6). While Wisconsin allows same-day voter registration, save yourself the time and the hassle of doing it all on Election Day and register now.

You can register to vote online at My Vote up to 20 days before Election Day (para Mi Voto en español, haga clic aquí), by mail up to 20 days before Election Day, or in person at your municipal clerk’s office until the Friday before Election Day. I’ll explain how to register online at My Vote, but first let me explain who is eligible to register to vote in Wisconsin. Continue reading “National Voter Registration Day: Make Your Voice Heard”

Deconstructing Our Segregated Reality

Posted on Categories Alumni Contributor, Civil Rights, Legal Profession, Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public, Race & Law1 Comment on Deconstructing Our Segregated Reality
A map of the city of Milwaukee and surrounding counties illustrating the racial segregation of residents per the 200 census.
Black residential segregation as reflected in 2000 Milwaukee Census

In his commentary on May 24, 2018, Bucks guard Sterling Brown is lucky he wasn’t killed by Milwaukee Police,” Martenzie Johnson casually observes that “Milwaukee is one of the most segregated cities in America, is one of the worst cities for black Americans, economically, the worst city for African-American children to grow up in and is home to the zip code with the highest incarceration rate in the country.”

I moved to Milwaukee in 1984 to become a Marquette Lawyer.  I took my first law school exam on my 30th birthday – Torts by Professor James Ghiardi.  In May of 1987, like every Marquette lawyer graduating before me and after me, I took the attorney’s oath.  I swore to “support the Constitution of the United States,” the one ordained and established in order to “form a more perfect Union.”  I never left Milwaukee and I am proud to say I am from Milwaukee.  Yet I am at a complete loss of words to describe how it is that we, my law school and my fellow Marquette lawyers, go about our busy daily lives virtually unconscious of living in “one of the most segregated cities in America.”  If you believe you can frame the types of questions that, if answered properly and acted on, will help us deconstruct our segregated Milwaukee, then I strongly encourage you to write and to weigh in now.

In October 2015, I was involved in a three week medical malpractice trial in Outagamie County.  Judge Mark McGinnis was presiding, who is one of the best trial judges currently on the bench.  I came home Friday to rest and prepare for the final week of trial.  A little after 1 am on October 31, 2015 the incessant ring of the telephone pulled me from a deep slumber.  The voice of a woman said, “Mr. Thomsen, we tried for 45 minutes, but we couldn’t save your son.”  My wife, Grace, sitting up asks:  “What did they say?”  “He’s gone.”  “Noooooo…” turned into a mourning howl.  It is unforgettable.  And so it is that in one instant the eye of a category 5 hurricane shreds your bed, your son’s mother, your wife, his sister, his fiancé, his daughter, his uncles, aunts, cousins, grandmothers, friends — my life and theirs too.  Judge McGinnis and defense counsel all agreed to a mistrial if I asked for one.  I returned to finish the trial.  The case had progressed and in a way that could not have been replicated.  The lawyer’s oath is a demanding one.

Yet somehow in the eye of the hurricane you can find love: the love of my son’s fiancé, of my now daughter-in-law Sydney, and my granddaughter, Sienna.  They are proudly biracial.  Sydney is considering law school.  I suggested that she become a Marquette Lawyer.  She said “no” because Milwaukee and Milwaukee County are too segregated.  The truth hurts so much. Continue reading “Deconstructing Our Segregated Reality”

Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

Posted on Categories Civil Rights, Constitutional Law, Criminal Law & Process, Human Rights, Milwaukee, Public, Race & Law, Student ContributorLeave a comment» on Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Andrea Jahimiak.

On February 22, 2017, six individuals who identify as either Black or Latino filed a class‑action lawsuit against the City of Milwaukee, the Milwaukee Fire and Police Commission (“FPC”), and Police Chief Edward Flynn. The plaintiffs allege that their constitutional rights were violated when they were unlawfully stopped, frisked, or both, by Milwaukee Police Department (“MPD”) officers.

Together, the plaintiffs are seeking relief by way of the court: (1) declaring that the defendants’ stop and frisk policies, practices, and customs are unconstitutional; and, (2) ordering immediate and permanent suspension of such policies, practices, and customs.

Allegation of a Named Plaintiff

One of the plaintiffs alleged that her teenage son has been unlawfully stopped by an MPD officer on at least three occasions. The first unlawful stop took place when he was ten years old.

Around noon in October 2010, D.A. walked to his friend’s home. When D.A. arrived at his friend’s home, he rang the doorbell, but no one answered. D.A. then used his cellphone to call his friend.

While on the phone, an MPD officer walked up to D.A., put his arms around D.A. shoulder’s and walked D.A. to his squad car located in the nearby alley. The officer then forcibly removed D.A.’s phone from him, patted him down, and made D.A. put his hands on the hood of the squad car.

The father of D.A.’s friend, a white male, ran out of the home. The father immediately asked the officer what was going on and asked why he was searching a child. The officer replied that he was making sure nothing was wrong. The officer then left.

D.A.’s mother called the associated MPD district and spoke to the sergeant. D.A.’s mother demanded to know why a police officer stopped and frisked her ten-year-old son. The sergeant said that it was MPD policy to stop and frisk young men walking through alleys.

Expert Reports Confirming MPD

Almost a year after filing suit, the ACLU of Wisconsin released three expert reports regarding the MPD’s stop and frisk policies, practices, and customs. The expert reports were conducted in relation to the ongoing class‑action lawsuit.

The expert reports concluded that the MPD has unconstitutional policies, practices, and customs. And that MPD officers routinely conduct unconstitutional stops and frisks procedures, motivated by race and ethnicity. Continue reading “Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs”

Spring in Wisconsin: Slight Chance of Showers with a Great Chance of Heavy Advertising

Posted on Categories Civil Rights, Judges & Judicial Process, Political Processes & Rhetoric, PublicLeave a comment» on Spring in Wisconsin: Slight Chance of Showers with a Great Chance of Heavy Advertising

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Randy Jones.

In Wisconsin, the weather may serve as an indicator of spring. I say “may” because the weather often teases us. Most people would say indicators of spring are pollen or budding of trees, bushes, and flowers. For some, it’s the lake trout (Steelhead) swimming up the rivers to spawn. But a sure indicator is political advertising, even for positions that should not be political. I began to wonder why I am seeing so many advertisements. It seemed to me that everywhere I looked, even scrolling down Facebook, I was being shown an advertisement (subconsciously) telling me to vote for Judge Rebecca Dallet for Supreme Court.

Every spring, Wisconsin has an election. Sometimes the election is for judges, for school board representative, and sometimes for state superintendent. Wisconsin has a problem: voter turnout in Wisconsin primaries has been historically low, even sometimes for a presidential race. Continue reading “Spring in Wisconsin: Slight Chance of Showers with a Great Chance of Heavy Advertising”

Flynn Adamantly Defends Police Department and His Work as He Retires as Chief

Posted on Categories Civil Rights, Criminal Law & Process, Milwaukee, Public, Speakers at MarquetteLeave a comment» on Flynn Adamantly Defends Police Department and His Work as He Retires as Chief

Near the end of their hour-long conversation, Mike Gousha asked outgoing Milwaukee Police Chief Edward Flynn what was next for him.

“Really nothing much,” Flynn said. He’s going to go back to Virginia where his family lives and spend  more time with his children and grandchildren. Maybe he’ll do some consulting ahead. But, first, “I do need to de-stress a little bit, despite how relaxed I’m appearing.”

The line got a big laugh from the audience in the Lubar Center at Eckstein Hall for the “On the Issues with Mike Gousha” on Feb. 8. As he finished a decade as Milwaukee’s police chief, Flynn was fired up, outspoken, and more than a bit emotional and angry. Continue reading “Flynn Adamantly Defends Police Department and His Work as He Retires as Chief”

Scholar Spotlights Role of Coretta Scott King in Her Husband’s Work

Posted on Categories Civil Rights, Public, Speakers at MarquetteLeave a comment» on Scholar Spotlights Role of Coretta Scott King in Her Husband’s Work

If you want to understand the full breadth of the legacy of Dr. Martin Luther King Jr., you need to appreciate two aspects that often don’t get the attention they deserve: The role of his wife, Coretta Scott King, as Martin Luther King’s partner in activism, and the importance both of them attached to the pursuit of social justice beyond a narrower definition of civil rights.

That was an overall theme of a lecture on Martin Luther King’s legacy at Eckstein Hall on Jan. 25 by Clayborne Carson, a history professor at Stanford University, director of the Martin Luther King Jr. Research and Education Institute, and one of the foremost experts on the King family’s work. Carson has authored several books about the civil rights era and, in 1985, was asked by Coretta Scott King to edit and publish authoritative editions of her husband’s speeches, sermons, and other writing. That led to seven volumes of the papers of King. Continue reading “Scholar Spotlights Role of Coretta Scott King in Her Husband’s Work”

On Overstating the Case for Confederate Monuments

Posted on Categories Civil Rights, First Amendment, Political Processes & Rhetoric, Public, Race & Law, UncategorizedLeave a comment» on On Overstating the Case for Confederate Monuments
Statue of Confederate Army General Robert E. Lee sitting astride a horse.
The Robert Edward Lee statue in Emancipation Park

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two. Continue reading “On Overstating the Case for Confederate Monuments”

Bill O’Reilly & Fox News: Does Money Matter More Than Doing the Right Thing?

Posted on Categories Civil Rights, Feminism, Human Rights, Media & Journalism, Public, Tort Law3 Comments on Bill O’Reilly & Fox News: Does Money Matter More Than Doing the Right Thing?

Yesterday, Fox News ousted Bill O’Reilly, who for two decades was the top-rated host with his show, The O’Reilly Factor. O’Reilly’s blustery on-air persona—which inspired Stephen Colbert to create ultraconservative pundit Stephen Colbert on the Colbert Show—minced no words, ever.

As a result, he often said outrageous, offensive, if not downright inaccurate things on the air. For example, he said that the slaves who built the White House were “well-fed and had decent lodging provided by the government.” He called child hunger “a total lie,” and said that feminists should not be allowed to report on Trump “because Trump is the antithesis of” feminism. He’s also been known to make inappropriate comments to women on the air.

O’Reilly’s personal conduct (like that of his former boss Roger Ailes before him) apparently has been similarly offensive. Over the course of his time at Fox News, O’Reilly has been accused of sexual harassment and other inappropriate behavior involving both women at the network who worked for him and women who appeared as guests on his show. Continue reading “Bill O’Reilly & Fox News: Does Money Matter More Than Doing the Right Thing?”

Saving by Investing in Civil Legal Aid

Posted on Categories Civil Rights, Family Law, Legal Profession, Poverty & Law, Pro Bono, PublicLeave a comment» on Saving by Investing in Civil Legal Aid

Kara is a single parent with two children. She works full-time, but still makes less than $1,500 each month. Kara’s boyfriend Jay, the father of one of Kara’s two children, lives with her, but does not always contribute to the household. In addition, he’s physically abusive to the family cat and to Kara. After the most recent incident where Jay pushed Kara into the wall and grabbed her arm so hard he left a bruise, Kara wants him to leave. And she wants a restraining order. But knowing who to call and where to go—and, most of all, how to pay for services she’ll need—is overwhelming her. If Kara lives in a state that invests in civil legal aid, she’ll have no problem finding resources and will be able to have a lawyer represent her—at little to no cost to her—at any court hearing she needs to get a domestic violence injunction.

While Kara’s story is merely illustrative—though many people experience circumstances like Kara’s every day—its larger point is important. Civil legal aid is a combination of services and resources that helps Americans of all backgrounds—including those who face the toughest legal challenges: children, veterans, seniors, ill or disabled people, and victims of domestic violence—to effectively navigate the justice system. Civil legal aid helps ensure fairness for all in the justice system, regardless of one’s ability to pay. It provides access to legal help for people to protect their livelihoods, their health, and their families. Civil legal aid makes it easier to access information through court forms; legal assistance or representation; and legal self-help centers. Civil legal aid also helps streamline the court system and cuts down on court and other public costs. When we say the Pledge of Allegiance, we close with “justice for all.” We need civil legal aid to ensure that the very principle our founders envisioned remains alive: justice for all, not the few who can afford it.

Our state has had a rocky history of funding civil legal aid programs. While the state did begin such funding, of late, that funding has since dropped precipitously. In 2007, for the first time in Wisconsin history, the legislature included nearly $2 million in the state budget for civil legal aid. In 2009, the funding was increased to just over $2.5 million. But in 2011, the funding was eliminated completely from the state budget. From 2012-2015, Wisconsin was one of just three states that did not provide any funding for civil legal aid for low income people. (The other two are Florida and Idaho.) Continue reading “Saving by Investing in Civil Legal Aid”