Restricting Liberty in the Name of Equality

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Public, Religion & Law7 Comments on Restricting Liberty in the Name of Equality

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

Continue reading “Restricting Liberty in the Name of Equality”

NAACP Leader: Photo ID Lawsuit Carries on 140 Years of Voting Rights Struggles

Posted on Categories Civil Rights, Marquette Law School, Milwaukee, Poverty & Law, Public, Race & Law, Speakers at Marquette1 Comment on NAACP Leader: Photo ID Lawsuit Carries on 140 Years of Voting Rights Struggles

With its challenge to Wisconsin’s voter ID law, the NAACP is carrying on a struggle for voting rights that dates back to the post-Civil War era, James Hall, president of the Milwaukee branch of the NAACP, told the Law School’s Mike Gousha and an audience of more than 100 during an “On the Issues” session last week.

Hall, president of the organization since January 2011, emphasized the importance of voting and the long history in America of disenfranchising minorities and low income people by use of rules about voting. “There is so much repeating history,” he said.

The NAACP suit against the law, passed by the Wisconsin legislature in 2011 and requiring people to present an acceptable form of photo identification at the polls, led to a Dane County judge putting a halt to enforcement of the law through a temporary injunction a week ago. More legal action in that suit and other challenges to the law is expected in advance of the statewide election on April 3.

Hall, a practicing lawyer whose NAACP position is unpaid, said there were fewer than 20 prosecutions for voter fraud in Wisconsin in recent years. “Why, all of a sudden, this move to require a photo ID?” Hall said. “Certain types of people don’t have that.” Many of them are African American, he said. “In fact, it is a disenfranchisement law.”

The law was supported generally by Republicans and opposed by Democrats. Supporters said it was a sensible way to reduce chances of voter fraud, while opponents said its practical effect would be to put up barriers to voting for many low income people who don’t have drivers licenses.

Hall told Gousha that the civil rights organization, founded in 1909, remains very relevant. “across the country and particularly here in Milwaukee.” He said the city has some of the largest disparities in the country between African Americans and whites when it comes to income, employment, incarceration, and educational achievement.

Milwaukee and its leaders have not responded with the intensity that is needed to deal with the problems facing many black people in Milwaukee, Hall said. He said, “No, there is not the sense of urgency we would like.” He said the NAACP wants to work together with people from throughout the Milwaukee area in solving problems. “It is in our enlightened self-interest to address these disparities,” he said.

The Eckstein Hall session may be viewed by clicking here.

The Civil Jurisdiction of Indian Tribes

Posted on Categories Civil Rights, Congress & Congressional Power, Federal Indian Law, Public3 Comments on The Civil Jurisdiction of Indian Tribes

This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status. Continue reading “The Civil Jurisdiction of Indian Tribes”

Does the Legislature Lack the Power to Revise the Redistricting Law?

Posted on Categories Civil Rights, Constitutional Interpretation, Election Law, Federal Civil Litigation, Public, Wisconsin Supreme Court3 Comments on Does the Legislature Lack the Power to Revise the Redistricting Law?

Republican lawmakers have asserted that they have no power to re-draw the election maps at issue in the ongoing Baldus v. Brennan litigation in federal court, despite a suggestion from the three judge panel hearing the case that the legislature make revisions to the law. The 1954 Wisconsin Supreme Court opinion that these lawmakers cite for this proposition does not decide the issue, and the unique factual situation of that case does not correspond to the present situation. In a familiar pattern, it appears that the fierce litigation between state Republicans and Democrats threatens to pull the courts deep into uncharted waters.

The Wisconsin Constitution provides:

“At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the Senate and Assembly, according to the number of inhabitants.”

(Article IV, Section 3).

In plain English, the legislature must pass a redistricting bill in the first legislative session after the federal census. Once it does so, the general rule is that a valid apportionment law may not be replaced with a law creating new districts until the time of the next census. Of course, if the legislature’s redistricting legislation violates the state or federal constitutions, it is not valid and the legislature must pass a new apportionment bill. The three judge panel in the Baldus case may rule the maps invalid, but it suggested that the legislature might consider passing a new redistricting plan rather than proceed to trial. Continue reading “Does the Legislature Lack the Power to Revise the Redistricting Law?”

Amid Differences, a Call to Work Together to Improve Mental Health Treatment

Posted on Categories Civil Rights, Health Care, Public, Speakers at Marquette1 Comment on Amid Differences, a Call to Work Together to Improve Mental Health Treatment

It wasn’t part of her prepared remarks, but Prof. Lucinda Roy of Virginia Tech University may have offered an especially important point as she began her keynote address at a conference Wednesday at Eckstein Hall on mental illness commitment laws and other issues related to mental illness.

It had been an intense, and at times tense, morning before a full house of more than 200 in the Appellate Courtroom. Meg Kissinger, a reporter for the Milwaukee Journal Sentinel, described “Imminent Danger,” the large project she authored which ran in the newspaper in recent weeks. It described how a revolution in American mental commitment laws, which began with a federal court ruling in a case involving a West Allis woman in 1972, had led to far more people with mental illnesses living outside of mental institutions. Some of them refuse treatment and a few have committed violent acts.

Kissinger and the newspaper had been strongly criticized by some members of the audience who thought the series was sensationalistic and left people with a harmful and wrong image of those with mental illnesses as dangerous. One speaker, Tom Zander, a psychologist, lawyer, and long-time prominent advocate for alternatives to mental commitment, had sharply attacked the series as based on what he regarded as false premises, including the notion that the West Allis case had led to specific horrible crimes. (Zander is an adjunct professor at Marquette University Law School.)

Throughout the morning, which included presentations by experts and by family members of people who had long-term mental illnesses, the difficulties of dealing with mental illness, the failings of the current system for helping people, and the high emotions that the subject raises were clear. Continue reading “Amid Differences, a Call to Work Together to Improve Mental Health Treatment”

American Indians and Equal Protection

Posted on Categories Civil Rights, Federal Indian Law, Public, Race & LawLeave a comment» on American Indians and Equal Protection

This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection? Continue reading “American Indians and Equal Protection”

Why the Permit Policies in the U.S. Capitol Are Irrelevant

Posted on Categories Civil Rights, Constitutional Interpretation, First Amendment, Public, Western District of Wisconsin, Wisconsin Law & Legal System1 Comment on Why the Permit Policies in the U.S. Capitol Are Irrelevant

Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is. Continue reading “Why the Permit Policies in the U.S. Capitol Are Irrelevant”

What Price Protest?

Posted on Categories Civil Rights, Constitutional Interpretation, First Amendment, Poverty & Law, Public, U.S. Supreme Court4 Comments on What Price Protest?

On December 1, the Wisconsin Department of Administration released new rules governing access to state facilities, including the State Capitol, for protests, rallies, demonstrations and any other “gathering of four or more people for the purpose of actively promoting any cause.” You may read the entire policy here.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.” Continue reading “What Price Protest?”

New Affirmative Action Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Federal Civil Litigation, Higher Education, Public, Race & Law, U.S. Supreme Court2 Comments on New Affirmative Action Cases

[Editor’s Note: This month, faculty members are posting on upcoming judicial decisions of particular interest. This is the second post in the series.]

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies. Continue reading “New Affirmative Action Cases”

Orcas and the Thirteenth Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, PublicLeave a comment» on Orcas and the Thirteenth Amendment

This last week, a lawsuit was filed in the U.S. District Court for the Southern District of California alleging that SeaWorld’s captivity and exploitation of five wild-captured orcas, or so-called killer whales, amounts to slavery and involuntary servitude in violation of the 13th Amendment to the U.S. Constitution.  The nominal plaintiffs are the orcas themselves—Tilikum, Katina, Corky, Kasatka, and Ulises—although the suit is technically being brought by PETA and several individuals.  The complaint seeks “an injunction freeing [the orcas] from Defendants’ bondage and placing them in a habitat suited to their individual needs and best interests.” Continue reading “Orcas and the Thirteenth Amendment”

Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

Posted on Categories Civil Rights, Constitutional Interpretation, Election Law, Public, U.S. Supreme Court10 Comments on Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

In August 2011, The League of Women Voters of Wisconsin publicly announced its intention to file a lawsuit challenging the constitutionality of the new Wisconsin Voter ID law. While no complaint has been filed as of date, and it is undoubtedly foolish predict the likelihood of success of any lawsuit without first reading the complaint, one would expect the promised lawsuit to face a hostile reception in the courts. This statement does not mean that the Wisconsin Voter ID law reflects good public policy. Many people believe that it does not. Nor does the above statement mean that the existing judicial precedent focusing on state voter ID laws does a particularly credible job at analyzing the constitutional issues raised by this type of legislation. Many will argue that the existing precedent is flawed. However, the current legal landscape is what it is, and the fact remains that any future legal challenge by the League of Women Voters seems unlikely to succeed.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot. Continue reading “Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law”

R.I.P. Derrick Bell, Pioneer of Critical Race Theory

Posted on Categories Civil Rights, Education & Law, Legal Scholarship, Public, Race & Law2 Comments on R.I.P. Derrick Bell, Pioneer of Critical Race Theory

 

On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights. Continue reading “R.I.P. Derrick Bell, Pioneer of Critical Race Theory”