So the following isn’t big news, but it’s of interest because of its relevance to the cases we have studied. Note the precedents that are referenced!
As amendments go, “Congress shall make no law respecting an establishment of religion…” is kind of a biggie. Don’t tell that to the North Carolina lawmakers behind the Defense of Religion Act.
The bill asserts that “the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.”
According to The Huffington Post, the bill “was filed in response to a lawsuit to stop county commissioners in Rowan County from opening meetings with a Christian prayer,” leading us to assume that the religion they want to establish isn’t Duke basketball. Could legislators in North Carolina actually pull this off?
It’s not likely. Rick Ungar of Forbes points to Lemon v. Kurtzman, the U.S. Supreme Court case that established the “Lemon Test” for whether a state law is violating the First Amendment:
The law or state policy must have been adopted with a neutral or non-religious purpose.
The principle or primary effect must be one that neither advances nor inhibits religion.
The statute or policy must not result in an “excessive entanglement” of government with religion. [Forbes]
Declaring an official religion doesn’t seem to pass the test. Not that states haven’t tried to exempt themselves from federal law before.
“We saw this in the aftermath of Brown v. Board of Education,” Michael Bitzer, a professor at Catawba College, tells NBCNews.com. “The belief is that the states hold more power than the federal government. If the federal government does something, the states can simply ignore it.”
Philip Bump of The Atlantic Wire says the Republicans are pinning their hopes on the interpretation that “since the Tenth Amendment says that anything not delegated to the federal government by the Constitution becomes the province of the states, that means North Carolina can determine for itself what is and isn’t unconstitutional.” This strategy, he notes, has been tried by states many times before and has always failed.
The bill might have had a chance, Ian Millhiser of Think Progress says, if the Fourteenth Amendment hadn’t been ratified in 1868:
While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” [Think Progress]
Don’t worry, if the North Carolina lawmakers behind the bill fail, they can always go the Texan route and try to secede.
From today’s New York Times, the following is an excerpt from a story that describes the reality of one’s right to an attorney. Note that the right doesn’t extend to civil trials, among others.
Right to Lawyer Can Be Empty Promise for Poor
ADEL, Ga. — Billy Jerome Presley spent 17 months in a Georgia jail because he did not have $2,700 for a child support payment. He had no prior jail record but also no lawyer. In Baltimore last fall, Carl Hymes, 21, was arrested on charges of shining a laser into the eyes of a police officer. Bail was set at $75,000. He had no arrest record but also no lawyer. In West Orange, N.J., last summer, Walter Bloss, 89, was served with an eviction notice from the rent-controlled apartment he had lived in for 43 years after a dispute with his landlord. He had gone to court without a lawyer.
Fifty years ago, on March 18, 1963, the Supreme Court unanimously ruled in Gideon v. Wainwright that those accused of a crime have a constitutional right to a lawyer whether or not they can afford one. But as legal officials observe the anniversary of what is widely considered one of the most significant judicial declarations of equality under law, many say that the promise inherent in the Gideon ruling remains unfulfilled because so many legal needs still go unmet.
Civil matters — including legal issues like home foreclosure, job loss, spousal abuse and parental custody — were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.
The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.
“Some of our most essential rights — those involving our families, our homes, our livelihoods — are the least protected,” Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.
James J. Sandman, president of the Legal Services Corporation, said, “Most Americans don’t realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.”
According to the World Justice Project, a nonprofit group promoting the rule of law that got its start through the American Bar Association, the United States ranks 66th out of 98 countries in access to and affordability of civil legal services.
“In most countries, equality before the law means equality between those of high and low income,” remarked Earl Johnson Jr., a retired justice of the California Court of Appeal. “In this country for some reason we are concerned more with individuals versus government.”
With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.
“We don’t have an excess of lawyers,” said Martin Guggenheim, a law professor at New York University. “What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn’t find a lawyer to help you even if you had the money because there isn’t a dime to be made in those cases.”
Even in situations where an individual is up against a state prosecutor and jail may result, not every jurisdiction provides lawyers to the defendants. In Georgia, those charged with failing to pay child support face a prosecutor and jail but are not supplied with a lawyer.
The following piece from The Economist is critical of what it describes as Justice Scalia’s inconsistent judicial philosophy. Is this a fair criticism? Or is Justice Scalia, in this case, justified in seeking to overturn the actions of the legislative branch?
The Voting Rights Act
Antonin Scalia’s uber-activism
WEDNESDAY’S oral argument at the Supreme Court on the constitutionality of Section 5 of the Voting Rights Act of 1965 brought an extraordinary piece of analysis from Justice Antonin Scalia—a comment that drew gasps from the audience. The law’s utility as a shield against voting practices that discriminate based on race, Mr Scalia suggested, had evaporated. He argued that requiring nine Southern states and sections of seven others, all with a history of discrimination, to “pre-clear” changes to voting procedures with the Justice Department is now needless interference with “state sovereignty”.
Analysing the most recent reauthorisation of the act in 2006, Mr Scalia explained away its lopsided support in the Senate (98-0) and House of Representatives (390-33):
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same….I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
After his comment caused a minor stir in the courtroom, Mr Scalia added:
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution… [T]his is not the kind of a question you can leave to Congress….Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?
This is not Mr Scalia’s first impolitic outburst. But for a justice who stakes his jurisprudence on deferring to the democratically elected branches of government, it is a stunning line of reasoning. Consider, by comparison, Mr Scalia’s endorsement of Justice Benjamin Cordozo’s 1933 statement decrying judicial second-guessing of legislative acts:
We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.
And recall Mr Scalia’s claim in the 1990 euthanasia case Cruzan v Missouri that it is not for judges to decide when a patient’s life is “worthless”, but “it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish [to end a life] will be honored.”
So why not let the people’s elected representatives handle the matter of racial discrimination and voting? Why, in this case, does Mr Scalia believe he should substitute his views for those of legislators? Members of Congress, after all, considered 12,000 pages worth of testimony in 2006, which showed “pervasive discrimination” in the covered districts. As Justice Elena Kagan said yesterday to Burt Rein, the attorney for the petitioner, “that’s a big, new power that you are giving us…the power now to decide whether racial discrimination has been solved. I did not think that that fell within our bailiwick.”
For a justice who sniffs out closet activism even in his fellow conservative justices—in 2007 he criticised Chief Justice John Roberts for exercising “faux judicial restraint“—Mr Scalia apparently finds the Voting Rights Act to be a uniquely egregious specimen of legislative incompetence. While Mr Scalia has voted to overturn congressional laws from time to time, such as in City of Boerne v Flores (which got a brief mention during Wednesday’s argument), never has he couched his judicial activism in such cynical terms. We cannot trust the Congress to legislate earnestly on questions of race, Mr Scalia implied, because senators and representatives feel bound to uphold “racial entitlements” that their forebears have enacted. Political correctness rules.
Let us posit for the sake of argument that Mr Scalia’s cynicism is on target: American senators voted unanimously to extend the law in 2006 not because they found merit in its provisions but because they feared that a “no” vote would earn them condemnation as racists. What then? Should America trust its Supreme Court to bring a more careful, measured eye to the question? The tenor of the comments from the conservative justices suggests the answer is no. Consider the simplistic suggestion from the chief justice that because “the citizens in the South are [no] more racist than citizens in the North” we can safely ignore evidence that Southern states still systematically discriminate against minorities. Consider the ease with which Mr Scalia equated the guarantee of an equal right to vote with the concept of “racial entitlement”. And consider the failure of any justice to mention efforts in many of the covered states to depress voter turnout among minority voters in 2012. It remains highly questionable whether a majority of the Supreme Court is up to the task of diagnosing America’s racial challenges.
Here’s a report from the BBC on the “drone wars” carried out by the Bush and Obama administrations and the content of a leaked memo in which the Justice Department provides a legal argument backing drone strikes against Americans. Is this, in your view, a proper use of presidential power? Under what circumstances, if any, are such killings justified? And what, in your opinion, does the word “imminent” mean?
A federal appeals court last week ruled that recess appointments, as practiced by presidents for many years, are unconstitutional. Do you agree or disagree with the court’s decision? Will Republicans who praised this ruling come to disagree with it in the future?
The following suggests that Senator Frank Lautenberg is too old to run for reelection. Meanwhile, Politco has reported that Joe Biden is “intoxicated” (figuratively, that is) by the prospect of becoming president. Biden will be 74 in 2016. So how old is too old? Should there be age limits on elected officials, just as the Constitution imposes a minimum age? Or should we let the voters decide? What about federal judges? Should they be able to serve for life, as they do now? Or should there be a mandatory retirement age?
Senator Frank Lautenberg Is Too Old to Run for Reelection
By Conor Friedersdorf
The 89-year-old New Jerseyan is refusing to bow out in 2014 — in defiance of both fellow Democrat Cory Booker and actuarial tables.
Let’s not mince words: Senator Frank Lautenberg, who will be 90 in 2014, is too old to run for another six-year term. I am not questioning his mental sharpness or the wisdom that he’s accumulated.
They’re beside the point.
He’d be starting a new term while fifteen years older than the average life-expectancy for American males. What are the odds he’d survive in adequate health until 2020?
Low. Too low to risk letting him try, given the political disruption and discontinuity of service that would result if he failed. As a general matter, I am against age discrimination in hiring. I usually oppose mandatory retirement rules. And I know that New Jersey voters can reject the man even if he decides to run.
But don’t candidates owe their constituents the promise that, to the best of their ability to estimate, they’ll be capable of finishing the job? The hard truth is that Lautenberg can’t make that promise. Beyond actuarial reality, he’s already missed important votes because of health problems.
I don’t know if he could win a primary, but incumbency and name recognition are powerful advantages, and if he won, voters in the general election wouldn’t be permitted to just choose the man with the better platform, or the ones from the party with whom they identify more closely — to be responsible, they’d have to factor extreme age and its likely effects into their calculations.
At what point should voters consider age in general? I have no idea where the line should be drawn — just that 90, 91, 92, 93, 94, and 95 are all on the wrong side of it. New Jersey Supreme Court justices must retire at 70.
For those reasons and others, Lautenberg is way out of line for telling — via the Philadelphia Inquirer — Newark Mayor Cory Booker, who is interested in running for his seat, “I have four children, I love each one of them. I can’t tell you that one of them wasn’t occasionally disrespectful, so I gave them a spanking and everything was OK.”
Booker, the man he’s comparing to a child, is 43 years old — 10 years older than Jesus Christ when he died, 10 years older than Thomas Jefferson when he wrote the Declaration of Independence, and eight years older than the minimum age at which one can run for president.
I hope Lautenberg lives to be 110, is healthy and productive until the end, and injects his elder’s wisdom into public discourse at every opportunity. But another six years in the Senate just doesn’t make sense. Earlier in his career, Lautenberg himself injected age into a race against a 72-year-old Republican opponent. He should retire at the end of his term and stay neutral in the race to succeed him.
Senator Rand Paul suggests that the president’s use of an executive order to attempt to curb gun violence is unconstitutional. Do you agree?