Category: Constitutional Law


Student # 43 Unmasked!!

Bush.jpgI posted earlier about an answer to my exam question on constitutional amendments written by student with ID number “43.” I said that I gave “43” a C.

Most readers, I think, got it. But based on reactions posted by dolts at lesser blogs and some strange e-mails I received, some didn’t. (Who knew there were so many literalists?)

So, for the benefit of everyone, I’m hereby posting “43’s” facebook photo.

No, I didn’t give my current Constitutional Law students the question I discussed (though I’m confident if I had they would have had no trouble coming up with more carefully thought out proposals than the Federal Marriage Amendment). And I certainly can’t imagine posting a real student’s exam answer on a blog and telling the world how I graded it. That would be outlandish behavior–even for a law professor.

I appreciate the many thoughtful comments I received about this (fictional) post.


The Problem of the 28th Amendment

Here is a question from my exam in Constitutional Law:

The U.S. Constitution contains 27 amendments; the most recent (the 27th), was ratified in 1992. Write a proposed 28th Amendment and explain why your proposed amendment should be adopted. The proposal may deal with any issue you wish.

In addition to giving me something interesting to read when I’m grading, this question is very useful for seeing how well a student understands the Constitution. It’s not easy to draft an amendment that accomplishes what you want (no more, no less) and that fits into the existing Constitution as a whole.

In grading answers, I’m not much concerned with the particular change a student suggests making—my main focus is on how well the student executes the proposal.

If, for instance, a student proposes abolishing the Supreme Court, I expect to see some thinking about how appellate cases will henceforth be decided. If a student wants states to have a power to maintain armies, there should be some attention to resolving the likely federal-state conflicts that will arise. Form also matters: a 2,000 word amendment dealing with the minutiae of traffic regulation would be out of place in a document that creates the structures of government and secures our most important freedoms.

Exam-taker with ID number 43 thinks it’s a good idea to amend the Constitution to prohibit, as he puts it, “activist judges” and maverick local officials from allowing same-sex couples to get married. To accomplish those ends, 43 proposes the following amendment as the 28th Amendment to the U.S. Constitution:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

How well did 43 do?

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The Price of Discrimination: After Fair v. Rumsfeld

Earlier this year, in Fair v. Rumsfeld, the Supreme Court upheld the Solomon Amendment and ruled that law schools that were part of a university receiving federal funds could be required to grant the same access to military recruiters that the schools provide to any other recruiter. The Court rejected the argument of the plaintiffs—a coalition of law schools and faculty members opposed to the military’s exclusion of gays and lesbians—that the government violated their First Amendment rights by conditioning federal funding on granting military recruiters equal access to recruitment facilities. The Solomon Amendment, the Court reasoned, did not require law schools and their faculty members to engage in any speech; the law left them free to voice opposition to military policies.

Since the Court’s FAIR decision, law schools around the country have been working on their plans to protest when the military arrives to recruit their (straight) students.

So far, however, no school has opted for the more obvious solution: tell the government it can keep its money and that the military isn’t welcome.

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Lawrence, FAIR, Scalia, and the “Homosexual Agenda”

Two years ago, in his Lawrence dissent, Justice Scalia warned us of an ominous development. The court, Scalia argued, had not just gotten the law wrong. It had also taken a specific side in the culture wars:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

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Dedicated Ventilators?


Imagine that bird flu hits the United States, and you’re a doctor at a hospital filled with 700 infected patients who all need ventilators to help them breathe. You have 100 ventilators. How do you allocate them? To the sickest? the youngest? the oldest? the most likely to live? the ones most likely to die without one?

The choices would be unthinkable, as Bernard Williams and Martha Nussbaum have suggested. We should be doing much more to avoid them, or at least make them less stark. But as this article from the NYT shows, we are instead doing very little:

Right now, there are 105,000 ventilators, and even during a regular flu season, about 100,000 are in use. In a worst-case human pandemic, according to the national preparedness plan issued by President Bush in November, the country would need as many as 742,500. To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic.

Now aren’t you happy that market forces got rid of all that “excess hospital capacity” in the 80s and 90s? According to one doctor from the Mayo Medical School, “Families are going to be told, ‘We have to take your loved one off the ventilator even though, if we could keep him on it for a week, he might be fine.'”

Given various budgetary crises, we can’t expect much help from government. Is there any creative solution? I’d like to suggest one: Let individuals buy ventilators to dedicate for themselves and their families (at nearby hospitals), in exchange for their donation of one ventilator for each one they dedicate. Here’s some “figures”….

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Hallucinogenic Tea with Chief Justice Roberts


Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

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Take Your Case to the Supreme Court and Get a Website


So you’re one of the lucky few, whose case has made it to the U.S. Supreme Court. Indeed, your odds of getting your case to the Supreme Court are no better than winning Powerball these days. Your next step: create a website. You can parlay your luck at getting chosen by the Supreme Court and become a legal celebrity.

Over at the VC, Orin Kerr is collecting information about the websites of litigants in famous cases.

Here’s Dudley Hiibel’s website. Hiibel was the center of attention in Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004), where the Supreme Court upheld a statute requiring people to identify themselves during a stop. You can check out pictures of Hiibel and his attorneys. And you can even watch a video of the stop that gave rise to his case.

Here’s Danny Kyllo’s website. Kyllo was the defendant in Kyllo v. United States, 533 U.S. 27 (2001), where the Supreme Court held that the police needed a search warrant in order to use a thermal sensor device to detect heat patterns in people’s homes. At the website, you can see pictures of Danny Kyllo’s house. You can even buy Kyllo’s “just say no to thermal imaging” T-shirt.

Go to Orin’s post and check out the comments for more websites.

[The picture above on left is Hiibel and the one on the right is Kyllo.]


Gay Marriage in New Jersey

Courtesy of Howard is this article from Newsday describing the case pending in New Jersey which challenges that state’s restriction of marriage to opposite-sex couples. In the interest of full disclosure, I favor allowing gay couples to marry, but I would prefer that decision be made by state legislatures. I am not yet convinced that the Equal Protection Clause of the federal Constitution requires state recognition of gay marriages, though I understand the parallels to Loving v. Virginia.

I am curious to see what the New Jersey Supreme Court does with the case, from a political perspective as well as a legal one. Assume that the court thinks the proper result is to strike down the restriction. Should the court “vote its sincere preferences,” as political scientists say, the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President. Surely the last thing the New Jersey Supreme Court wants to do is help Republicans. Heck, that court’s decision in the Doug Forrester case in 2002 was far more transparently partisan than any ruling in Bush v. Gore. Some political science suggests that the court will shade its interpretations so as not to antagonize the other branches, which are not accepting of gay marriage, but the evidence is far from conclusive. See, e.g., Jeffrey A Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28 (1997); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991).

For this reason, however, the court is in a no-win posture. If the court mandates gay marriage, it triggers the ire and votes of Republicans as well as opening itself to criticism for being judicial legislators. If it defeats the claim, it will be accused of doing so for political reasons rather than legal ones. Vermont-style civil unions are another option, though the article reports that New Jersey already grants domestic partnership developments. If the court tries to mandate civil unions its ruling may be the least defensible of all, for it would allow the state to create two classes of couples while effectively conceding that there is no reason not to give homosexual couples all the advantages of marriage.

It’s interesting that the provision apparently at issue is the New Jersey Constitution’s provision that “all persons are by nature free and independent” — not any provision explicitly invoking the ideal of “equality.” I know nothing of the way in which this clause has been interpreted in the past, but isn’t it ironic that the persons invoking the clause want the state to recognize their dependence on their partners, and for the state to recognize a continuing obligation to care for them? Free and independent indeed.