Should We Place Checks and Balances on the Supreme Court?

By  Ronald Trowbridge

I published a paper recently asserting that the constitutionality of the individual mandate of the Affordable Health Care Act would be a close call, though I opined at the conclusion of the impartial analysis that the mandate would likely be ruled unconstitutional by a 5-to-4 Supreme Court vote. I later talked with Texas’s Attorney General Greg Abbott, saying, “It all depends on how swing voter Anthony Kennedy votes”—to which Abbott responded, “If we get Kennedy, we’ve got it made.”

Then it struck me poignantly, how in Heaven’s name did this country ever get in such a predicament that something so enormous, so all-controlling, so inordinately expensive could be finally determined by one person—in a country of over 300 million people?

The U. S. Supreme Court is virtually imperial.  While checks and balances limit the power of the Executive and Legislative branches, nothing limits the power of the Supreme Court.

Former federal appellate judge Robert Bork was so troubled by this unchecked, even political, power that he proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority of votes of each House of Congress.”

The Supreme Court is more a political body than a body of disinterested arbiters.  Republican presidents appoint conservatives to the bench; Democratic presidents, liberals.  These appointees may be subtle, even inchoate, about their political dispositions, but they nonetheless render philosophical—that is, political—judgments.

The Wall Street Journal recently observed that the Westboro free-speech case “managed the rare feat of uniting the Court’s liberal and conservative wings.”  The justices are political—the elephant in the room we choose not to see.

E. B. White put it aptly:  “I have never seen a piece of writing, political or non political, that doesn’t have a slant.  It slants the way a writer leans, and no man is born perpendicular.”  Not even judges.

Judges will, of course, respond that they do not permit their personal views to interfere with their impartial rulings.  Not fully true.  I worked for or with Chief Justice Warren Burger for nine years.  He told me that he did not let his personal views influence his court rulings.  I knew otherwise.  In Mechlenburg he voted for cross-district busing of school children.  He told me that, apart from any other group, African-Americans deserved “special treatment” because they “were brought to this country against their will.”

Chief Justice William Rehnquist let the will of the majority govern his vote.  In his first vote on Miranda, he rejected Miranda rights.  In his second vote much later, he supported Miranda rights, arguing that they were now “part of our culture.”

This unchecked court power began with John Marshall, in Marbury v. Madison, where the Supreme Court for the first time ruled an act of Congress unconstitutional.  In the Supreme Court building today is an enormous statue of Marshall.  Of course.  In the Chief Justice’s dining room are portraits of Marbury and Madison.  Of course.

Today, five federal District judges have ruled on the Affordable Health Care Act.  The three judges  appointed by Democratic presidents have ruled the act constitutional.  The two judges appointed by Republican presidents have ruled it unconstitutional.  Of course.  As Roy Cohn is alleged to have said, “Don’t tell me what the laws are; tell me who the judges are.”

Randy Barnett, a professor of constitutional law at Georgetown University, has recommended  a “Federalism Amendment”—which lays out the process of implementing checks and balances against the unlimited power of Congress and the courts.
 

The Texas legislature should at least examine Barnett’s proposal, in a time of renewed emphasis on states’ rights.

No More Deaths

Kimberly Ashworth


The issues occurring along the border between the United States and Mexico have been the center of media attention for quite some time. The migrants who choose to make the treacherous journey from rural Mexico to the United States face fifteen law enforcement agencies, drug smugglers, bandits, ranchers and gun-toting American militia groups. Those that attempt to provide the migrants with medical aid and assistance face criminal charges and retaliation. Despite these risks, there are those who continue to provide help to the migrants.


One of the most inspiring stories comes from Tucson, Arizona, where John Fife and Gene Lefebvre continue to work tirelessly to assist migrants. A Presbyterian minister and a co-founder of the Sanctuary Movement, Fife began his mission to help migrants crossing the border in the 1980s. This choice led to criminal charges and five years of probation. Undeterred, he partnered with Lefebvre in 2000 to found Humane Borders in response to the growing number of migrant deaths along the border. Humane Borders built 55-gallon water drums along the paths throughout the desert—or “death trails,” as Fife and Lefebvre call them. In 2002 Fife and Lefebvre founded Samaritans, a faith-based volunteer group that patrols the desert, providing medical aid, water, and food to migrants crossing the border in the summer heat. And in 2004 the two founded their current organization, No More Deaths (No Mas Muertes). No More Deaths is a faith-based humanitarian group whose volunteers walk the death trails and provide water and food to those crossing the border. No More Deaths operates under the slogan “humanitarian aid is never a crime.” Fife and Lefebvre believe their job is to save lives, not to protest or worry about political consequences.


Their thirty-year struggle to help migrants—whose only crime is seeking a better life and way to feed their children—is inspiring. Anti-immigration groups preach about the inevitable downfall of America if migrants are allowed to continue crossing the border into America. But their hate speech only leads to violence and tragedy. Recently, members of an anti-immigration group killed a nine-year-old girl and her father and seriously injured her mother. No More Deaths plays an interesting role in the immigration reform movement. Rather than protest or attempt to change the law, it seeks to provide aid and prevent unnecessary deaths along the border. It is a humanitarian group that can hopefully serve as an inspiration to those against immigration. No More Deaths emphasizes the message that we are all humans and that we are commanded by God, conscience, or another higher power to treat each person as we would want to be treated. It is not about which side is right, but about helping our fellow man. It’s time to forget the anger and violence directed towards those left with no choice but to come to America. It’s is time to remember that we are all human beings no matter where we may be from.

First Amendment Showdown: The Right to Free Speech vs. The Right to Privacy

By Meagan Armstrong

How will the U.S. Supreme Court rule in Snyder v. Phelps, the controversial funeral protest case? This case pits two First Amendment rights against each other: the right to free speech and the right to privacy. The Court is expected to render its opinion sometime in June 2011. Several onlookers have opined that the Court will decide that the right to privacy does not trump the right to free speech in the context of a funeral. Kevin Goldberg, a First Amendment attorney at Fletcher, Heald & Hildreth, predicts how each Justice will vote:

I’ve got it at 5-4, maybe 6-3, in favor of Phelps. 

Here’s how I break it down.

Clearly for Snyder:

There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder. 

Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests. 

Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’s argument, Roberts asked:

[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder

Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time.” Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:

Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp. 

Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.

Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.

Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:

[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps

Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)

But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:

MR. SUMMERS:  The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we -

JUSTICE SCALIA:  I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?

MR. SUMMERS:  Correct.

JUSTICE SCALIA:  That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.  

I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.  

Unknown

Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the "Bong Hits for Jesus" student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.

It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.

Fifth Circuit to Reexamine the Desired Balance Between Security and Privacy in the Context of Incarceration

By Alese Bagdol

The Fifth Circuit may soon reverse its position—in the recently argued case of Jimenez v. Wood County—by finding blanket strip-searches of pretrial arrestees constitutional.

In Jimenez, the plaintiff was arrested for hindering her husband’s apprehension by hiding him in the trunk of her car. (In Texas, “hindering apprehension” is a Class A misdemeanor.) The plaintiff was then taken to Wood County Jail, where she was strip-searched in accordance with the facility’s policy to search all new detainees—regardless of whether they were under suspicion for weapon or contraband possession. The plaintiff sued Wood County under the Fourth Amendment and a jury awarded damages.  Wood County appealed.

The Fourth Amendment protects against unreasonable search and seizure.  So, Jimenez turns on whether this particular strip search was unreasonable. The guards who conduct the strip searches say that security concerns require them to search for weapons possibly smuggled into the facility. But a woman booked for committing a minor misdemeanor would probably lack the foresight to conceal a weapon on her person before her arrest. Is the security threat substantial enough to warrant this invasion of privacy?

The U.S. Supreme Court addressed a similar issue when, in 1979, it decided Bell v. Wolfish.  In that case, however, the facility conducted hands-off body cavity strip searches after detainees had had contact visits with friends and family from the outside.  The court reasoned that the need to uphold security interests outweighed any concern for an inmate’s right to privacy.

Like the Fifth Circuit in Stewart v. Lubbock, most Circuits have distinguished their seminal cases on the subject from Wolfish.  Only when the Eleventh Circuit remarked that most other Circuits have wrongly interpreted Supreme Court precedent did the Fifth Circuit contemplate reversing its view.

Security interests run high in many contexts, especially incarceration.  Still, how far ought a court to go to protect those interests? Will reading Wolfish more broadly lead to greater infringement of an inmate’s right to privacy? The judges on the Fifth Circuit ought to consider these questions before reversing their initial stance on striking the proper balance between maintaining adequate security standards and protecting the privacy rights of inmates in custody.

Is Judge Phillips's Decision on DADT Vulnerable to Reversal? Professor Darren Hutchinson Thinks So.

By Onye Chinwah

On October 12, 2010, Judge Virginia A. Phillips declared Don't-Ask-Don't-Tell unconstitutional and enjoined its enforcement. In particular, the judge held that DADT violates the Due Process and First Amendment rights of lesbians and gays. But Darren Hutchinson, Professor of Law at American University Washington College of Law, notes that the judge's ruling is flawed and therefore vulnerable to reversal.  He writes:

There are three elements to the decision that could result in a reversal.

First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.

Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.

The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.

The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.

There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.

In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.

Symposium: LIVE BLOGGING

Today's Symposium was an amazing success! I want to give a special THANKS to our Symposium Chair Kenya Wells for putting this all together! As promised, all our speakers were amazing - a big THANKS to them too!

In case you couldn't make it, I was live blogging during Panel 2 and 3 so be sure to read the transcripts below. I included links, etc. to try to narrate what it was all about. Also, take a look at a re-cap of Panel 1 posted by Notes Editor, (and one of next year's EICs!) Mary Murphy.





Panel 1 Recap

The first group of panelists (Richard Lavallo from Advocacy, Inc., Deborah Fowler from Texas Appleseed, and Mark Levin from the Center for Effective Justice) discussed many of the larger systemic problems that contribute to problems in the juvenile justice system. Mr. Lavallo shared a video documentary which included interviews with youth with mental health issues at Texas Youth Commission. He noted the significant lack of planning involved when youth with mental health issues are released from TYC. These youth are often released to more rural areas without the mental health resources (both professionals and medication) as readily available as they were at TYC. Mr. Lavallo presented that many of these youth have mental problems that perhaps should preclude them from standing trial in the first place. He also noted that these youth are, in most cases, victims of abuse and trauma themselves and are entitled to treatment. TYC's incarceration policy includes use of force and restraint, which tends to exacerbate the affect of trauma on youth with mental health issues.

Ms. Fowler introduced the concept of the "School to Prison Pipeline." Texas Appleseed is conducting research on the statistic that the number one indicator of an individuals future incarceration is past disciplinary action taken against them in schools. She noted that this means, primarily, that schools' discipline procedures are failing to improve behavior in students. Ms. Fowler also discussed the way in which schools "took and ran" with the idea of zero tolerance policy from the juvenile criminal system. While schools are required to report certain behaviors, discretionary referrals far outnumber mandatory referrals.

Finally, Mr. Levin briefly discussed changes in the juvenile justice system that have decreased the number of youth in TYC. Youth who commit misdemeanors now go through juvenile probation rather than immediately to TYC, and TYC has instituted "length of time" review panels that seeks to be proactive in evaluating the appropriate time necessary for a youth's incarceration in TYC. Mr. Levin noted that peer contagion is a serious problem in TYC, and efforts should continue to mete appropriate consequences to youth who have committed less serious offenses.

2010 Symposium MONDAY, March 29!

This year's topic is juvenile justice - and we have some AMAZING speakers lined up. Check out the info:



Please join the Texas Journal on Civil Liberties and Civil Rights in
conjunction with the American Journal of Criminal Law for a symposium
on Juvenile Justice: the Rights of Minors in the American Criminal
Justice System next Monday, March 29, 2010 starting at 9:00 a.m. in
the Eidman Courtroom, at the University of Texas School of Law.
The School of Law is located at 727 E. Dean Keeton, Austin, TX 78705.
The event is free and open to the public. Parking is available on Dean Keeton
and in the San Jacinto parking Garage, located on campus. The following link
provides directions to parking in the San Jacinto garage:
http://www.utexas.edu/law/about/parking.html
List of events:

9:00-9:10: Welcome
9:15-10:30 Meeting the Needs of Juvenile Offenders: The Legal and
Policy Response featuring Deborah Fowler of Texas Appleseed, Richard
Lavallo of Advocacy Inc., and Marc Levin of Texas Public Policy
Foundation
10:45-11:45 Dealing with Serious Juvenile Offenders in the Juvenile
Justice System featuring Riley Shaw of the Tarrant County District
Attorney’s Office and Kameron Johnson of the Travis County Juvenile
Public Defender’s Office
12:00:1:00 Lunch in the Sheffield Room
1:15-2:30 National Juvenile Justice Reform Initiatives featuring
Michele Deitch of the University of Texas Schools of Law and Public
Affairs, Jody Kent of the National Campaign for the Fair Sentencing of
Youth, and Cynthia Totten of Just Detention International

5:30-7:30 Happy Hour at 219 West, located at 219 West 4th St., Austin, TX 78701

For further inquiries about the symposium, you may contact us via email at tjclcrsymposiumchair@gmail.com. We sincerely hope to see you in the Eidman Courtroom on Monday!

Hope to see you there!

Also, here is the video about mental illness of juvenile offenders that Richard Lavallo from our first panel will be showing:

OIO Mental Health Discharges (Draft 7) from Will Harrell on Vimeo.

Unlawful Search and Seizure: Like Taking Candy From A Baby

Since 2002, Texas' Department of State Health Services has been storing samples of newborn babies' blood for research on birth defects. Although it sounds like reasonable research, the Department failed to clear one tiny detail - consent. In other words, if you've had a baby in Texas since 2002, there is a good chance the State has some of your little one's DNA stored somewhere in a Texas A&M University lab. Creepy.

Thankfully, last week the Department announced it would destroy the blood samples (totaling to over 5 million) as part of a settlement of a federal lawsuit filed by the Texas Civil Rights Project. The lawsuit alleged that the State violated the constitutional protections against unlawful search and seizure. As a result, any blood sample collected without consent will be destroyed. Additionally, the Department must publish a list of all the research projects that used the blood samples. That should be an interesting read...

This is so scary to me. Not only is it an unlawful seizure, but it is the biggest privacy breach I can think of. The state has actual DNA - proof that Child A will develop X genetic disease later in life. What if that information somehow ended up in the wrong hands? A health insurance company for example. Exactly the horrific situation from the movie Gattaca (you should watch it...even if you don't like Ethan Hawke). Basic plot: as a newborn you are screened for diseases and then discriminated against depending on your "superiority."

For a State that makes such a big deal out of conducting open meetings, it seems extremely suspect that they would keep this scheme a secret. If they aren't doing anything wrong or controversial with the blood, why would they keep it so hush hush? I'm sure millions of parents would consent to donate the blood to the cause as long as they knew where it was going - in other words, I have a hard time believing that getting consent would significantly hinder any sort of valid scientific innovation.

Thoughts? Please post comments!
~AnDrea

Secrets, Sex, and Controversy

It's 2010 and, after a long break, we're back in the swing of things at the law school. Our website is finally functional (mostly...working on that) and we're already working on our next publication. Even more exciting - we're planning for our Spring Symposium! The topic is Juvenile Justice and it's going to be awesome. Tentatively it will be sometime the week of March 29. I'll be sure to keep you posted. So let's get to it:

Mum's the Word: With a Twang

In mid-December, a bunch of Texas cities and elected officials filed a lawsuit against the state. They claim that part of the Texas Open Meetings Act is unconstitutional as it infringes on elected officials' First Amendment Free Speech rights. The way the law stands, a "quorum" of elected officials cannot discuss issues facing the public without notice that they will be doing so. Historically, this was meant to combat secretive deals and deliberations - the public had to be "invited," so to speak, to discussions about public policy. But now, with changes in technology, this prohibition has been extended to email communications about public business, facebook posts, and twitter. The idea behind it is simple: PUBLIC business should be discussed in PUBLIC...otherwise it's private (or at least not "public"). The officials seem to be claiming that the Open Meetings Act is chilling their speech - i.e. making them afraid to even contact other representatives at all. To me, this notion seems ridiculous. I have an EXTREMELY hard time believing the public would have a problem with certain communications:

@texasshotgunfan Hey old man, how's about we get blasted this weekend and watch the Superbowl?
@huntfishordie Sounds great! I'll bring the scotch and you bring the babes. My team is going to KILL your team!
@texasshotgunfan @huntfishordie Why don't you ever invite Houston representatives to your parties?
@htownhunk Because Houston is too close to College Station. And you always scare off the girls.
@texasshotgunfan Whatevs. There ain't no party like an H-Town party.
@htownhunk Enjoy your sausage fest.

But seriously (and I in no way meant to suggest anything about our representatives, or offend anyone who might have those twitter names - it was merely an exaggerated way of getting my point across. The Houston thing is true though)...I feel that it is pretty obvious the sorts of discussions that would be considered public matters or not. A spokesman from the Attorney General's office said:

If a quorum of public officials wants to discuss public business, the law requires that they do so in public. In this case, elected officials, municipalities and critics of open government are turning the First Amendment on its head. Open meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue.

Should be interesting to see how it pans out.
For more info, read this.


Transgendered New Yorker Files SuitS

Last week, Angelina Mavilia, a transgendered woman, filed suit against NFL player Eric Green for sex assault alleging forcible sodomy. She says they met in a casino, went back to his condo, and then upon discovering that she was transgendered, he sodomized her and stated, "This never happened. You'd better not tell." Obviously it's too soon to tell if this is just a case of badgering money out of a sports star (as many commentators argue) or more proof of bigger problems - the discrimination against transgendered people and the stigma that is associated with it.

The same woman also filed suit against the city of New York claiming that she had been harassed by police. After being arrested for trespassing, Mavilia claims that a female cop demanded she remove her bra and panties and then exclaimed, "It's a girl!" upon looking at her genitals. She was later put in jail with a male after another officer made her strip down. The officer came to the conclusion that, "You're not fooling me; I know you were not born a woman, I can see your plastic surgery."

For another take on this story, check this blog out.


The End of "Don't Ask, Don't Tell"?

In last week's State of the Union address, President Obama said:

This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.

And now, more officials are supporting his plan to repeal the law. Today, Defense Secretary Robert Gates and chairman of the Joint Chiefs of Staff Admiral Mike Mullen spoke out against "Don't Ask, Don't Tell." Hopefully this plan will be put in action soon and, as Adm. Mullen put it, soldiers will no longer have to "lie about who they are in order to defend their fellow citizens."

Please, feel free to comment or share any news with us.
~ Andréa
Email me at: tjclcrteched@gmail.com

Update: Dallas Police Chief Kunkle

Remember our good friend Dallas Police Chief Kunkle from the last post? Interestingly enough, he announced his retirement early this week. Here is his Retirement Letter to DPD.

~Andréa

Speak English or Get Ticketed

Apparently, over the past 3 years Dallas police officers have issued 39 tickets for not speaking English. The fine - $204. After "discovering" that his officers had been issuing tickets for this non-existent charge, Dallas police Chief David Kunkle stated to the Dallas Morning News:

"I was surprised and stunned that that would happen, particularly in the city of Dallas....In my world, you would never tell someone not to speak Spanish."

Perhaps Chief Kunkle needs to come back to THIS world where HIS officers are doing just that. His city of Dallas is the same city that practically rioted when the pizza chain "Pizza Patron" started accepting pesos a few years back. This is the same Dallas whose DA's office was discovered to have a long-established practice of racially discriminating to get all-white capital case jurors. So I'm not sure that discriminating based on the language someone speaks is all that surprising (sorry!). Kunkle mentioned to the Dallas Morning News that he was worried this would damage the department's relationship with the Hispanic community. My response: (1) duh, (2) ship might have sailed on that one awhile ago.

So what will the outcome of all this be? Any outstanding tickets issued for not speaking English will be dismissed and those already paid will be reimbursed. The department is going to do an investigation, blah, blah, blah. In the meantime, if the writers for Reno 911 are short on material, this surely would make for a ridiculous show!

God Bless Texas
~Andréa

Is October Discrimination Month in the South?!

Apparently we didn't get the memo here at the Texas Journal on Civil Liberties and Civil Rights (not surprisingly). Two of the most blatant cases of recent discrimination come out of Louisiana and New Mexico.

Exhibit 1. (Unsolicited) Life Lessons from Keith Bardwell:

In this interesting case out of Louisiana, Keith Bardwell, justice of the peace in Tangipahoa Parish, denied a marriage license to an interracial couple because he was concerned for the children that the couple might have. According to Bardwell, neither Black or White society accepts mixed children so he wanted to save the couple's potential children from being ostracized. (Gee, what a great guy.) He also explained to them that in his experience, interracial marriages don't last long. But wait, he's not being racist. Look what he told AP news:

"I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

It's nice to know that he doesn't have separate facilities in his home, really. You go Bardwell. MLK would be proud.

Luckily Louisiana Governor Bobby Jindal didn't buy it. He called for the state judiciary committee to review the incident and revoke Bardwell's license.


Exhibit 2. Anglicizing Your Hispanic Name

No it's not a facebook application or a Flavor Flav-esque nicknaming game. When Larry Whitten took over a failing hotel in Taos, New Mexico, he laid down some controversial new rules. Rule 1: don't speak Spanish in his presence (lest his workers talk about him behind his back). Rule 2: Change your name from Marcos to Mark. Rule 3: "there are too many Hispanics working at the hotel - I'm firing a bunch" (I paraphrase). Whitten, who has worked to place numerous hotels back on their feet, says he has always required his workers to Anglicize their names; it's less confusing for guests that way. However, residents in the Taos community embrace their Native American and Hispanic cultural background and find his actions extremely offensive. But Whitten claims he is not a racist:

"It has nothing to do with racism. I'm not doing it for any reason other than for the satisfaction of my guests, because people calling from all over America don't know the Spanish accents or the Spanish culture or Spanish anything." [From Yahoo News interview]

Clearly, nobody wants to travel or stay at a hotel where they might learn something about another culture - that's just crazy. Rather than trust the people of the community and take the time to learn about the culture he set up shop in, Whitten simply called the residents "mountain people" and "potheads who escaped society." I'm interested to see how well a Southwestern adobe-style hotel run by an all-white staff will fare in an area known for its vibrant and interesting culture.

Thankfully this month is almost over.

~Posted by Jane Smith (the blogger formerly known as Andréa Villarreal)

Why Strict Construction and Originalism Cannot Be A Moral Way Of Interpreting The Constitution

Submitted by TJCLCR Staffer Elliott Becker:

Strict Construction and Originalism have a fair amount of cachet in conservative constitutional jurisprudence and that is fine as they have their merits, but unlike other judicial philosophies are only one (Originalism is a type of Strict Construction) to make the grandiose claim to being the only legitimate method of constitutional interpretation. The idea goes something like this: federal judges are unelected political officials, so judges, unlike the legislature or executive, should defer as much as possible to these elected bodies. For Strict Construction, it means going by what the words say. For Originalism it means going by what the words meant at the time the law was adopted.

This is a nice sounding idea, and certainly at least somewhat worthy of its due, but there are significant problems with it for constitutional interpretation, all the more so if it is the only method. There are actually enough problems with this methodology to write a book on the topic and there probably are one or two out there already. Nevertheless, I wanted to focus on a couple issues, particularly as regards the Orginalism strand, but this applies to Strict Construction more generally as well.

The very first thing to note is that the American Revolution was a break with the legitimate rule of the British government. By legitimate I don’t mean to make a moral judgment, but instead merely to note that while many people believed that revolution became necessary to overthrow an unjust rule, the government of Britain was both the original government most of colonists had become colonists under and that the government was continuous, there was no junta that took over, it was the British monarchy throughout. But a revolution did occur and the newly independent United States lived under the Articles of Confederation for a few years before deciding they weren’t working and a big enough group of states emerged to adopt the new Constitution. When some states broke with the Articles of Confederation, the Articles required unanimity to end them, and yet that is not what happened. The always intransigent Rhode Island refused to end them, so the other states just ignored Rhode Island. So the states weren’t following the law there. To recap then, in two of the U.S.’s fundamental moments, carried out by our venerated founding fathers, they weren’t following the expressly written rules. But OK, they are patriots, and to some people’s mind a better group of people than at any other time.

How about this then, the Constitution was written in secret and the provisions for amending the Constitution are literally the most difficult in the world according to Prof. Sanford Levinson. Originalism says that judges ought to abide by this constitution’s terms regardless of any manifest injustice they would work. Really? A constitution, drafted in secret by a small group of white men hundreds of years ago, with ridiculously difficult to affect terms, and judges should just do what it says. Really.

Alright, what about the issue of enfranchisement? Black people and women have both been enfranchised over the course of U.S. history, but when the constitution was amended to make that change it wasn’t followed up with a new constitutional convention. No, instead black people and women were just told to enjoy their votes (and not even often that) and accept the constitution they were given. That is the exact opposite of what a constitution is supposed to be. A constitution is supposed to be a contract by a society with itself on how it is going to govern itself. It isn’t meant to be imposed on a particular polity and told they have the tools to alter the contract. It would be like if I made you live in a house I had made, and told you if you didn’t like it that you had a screwdriver and that was the only way you were allowed to alter things. It might seem a bit unfair.

The above is meant to be the basis of an attack on Orginalism at the roots. We can’t simply accept the Constitution as it arrives to us, laden with injustice already as it is. To continue the attack to the end is beyond the scope of this post, but other the part is less theoretical and more practical, showing how Originalism is frequently used as mere pretext and discarded as needed by its advocates (Scalia in Heller for example). Also, some discussion is needed of the futility of trying to come to some sort of consensus on what words mean or meant when originally written (how do you define ‘right’?). Nevertheless, on its own the above should serve adequately to explain the moral bankruptcy of Originalism and Strict Construction.

But what of the Supreme Court, bereft of Originalism, with no lodestar to guide them in their grave tasks. In a shocking turn of events, the justices will have to come to judgments based on justifying their arguments to each other and the public. Law is a complicated mix of justice, social norms, institutional interactions and other things, and it should come as no surprise that there is no magic formula that produces the right result in all cases. Therefore a variety of methods, including Strict Construction and Originalism, should be used to produce a just result for society.

Upcoming Events

Please check out the upcoming events we've got going on! We have some interesting speakers coming that you don't want to miss. We'll keep a running list of them to the right so make sure to keep checking back!

~Andréa

Is Texas' Ban on Gay Marraige Unconstitutional?

A judge out of Dallas thinks so. Two men who were married a few years ago in Massachusetts and then moved to Texas came to her courtroom on Thursday seeking a divorce. Legally, since they have residency here in Texas, it was the only state they could be divorced in. Rather than trying to make any kind of narrow ruling, the judge said that our state's ban on gay marriage violates the guarantee of equal protection.

I think this is a big step. And it was an interesting way to take it. After all, in order to legally release someone from a marriage, you have to recognize it as a legal marriage in the first place. I don't even have to dust off my crystal ball to tell you to expect some interesting litigation (and some unnecessary slandering) in the near future.

Here's a link to the Dallas Morning News article about it:
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/100109dnmetgaymarriage.1d5a0d50d.html

~Andréa

Welcome Back! 2009-2010

On behalf of the board of the Texas Journal on Civil Liberties and Civil Rights I would like to welcome our new members! We had a wonderful showing of students interested in joining the staff and are pleased with the quality of our new staffers. This year should be the best one yet! Stay tuned for details on what we're working on.

And now, let's get down to it:
As you might have heard, last week Ohio prison workers had some unexpected trouble giving Romell Broom the lethal injection. Broom reportedly winced and cried while flexing, tugging on the tourniquet, turning from side to side, and doing everything in his power to help the prison workers find a vein strong enough to take the lethal injections. After 2 hours and 23 minutes of poking, prodding, and even inserting a shunt into Broom's leg, Ohio Governor Ted Strickland finally called the execution off...and rescheduled it.

This has raised some serious Constitutional concerns: Mr Broom's lawyer has filed lawsuits alleging that Broom's civil rights would be violated by another execution attempt, and others are debating the legal question of whether subjecting Broom to a second execution amounts to cruel and unusual punishment in violation of the 8th Amendment.

But apparently this isn't the first time Ohio has had this problem. The ACLU reports that this is the 3rd time in 3 years.

Supposedly lethal injection is the "most humane" or at very least "most accepted" method of execution - but should that be reassessed? Just the first attempt - 2 hours and 23 minutes of being stuck with needles sounds like torture to me. But if the 2nd attempt were successful would it simply negate the 1st? At what point would his civil rights be violated - and do you take his crimes into consideration?

What do you think?

~Andréa

When are warrantless car searches ok?

On Tuesday, the Supreme Court answered this question in Arizona v. Gant.

The case involved Rodney Gant, a man arrested in Arizona for driving with a suspended license. After police placed him in the patrol car, they searched his vehicle and found cocaine. Gant's counsel argued that this was an improper search barred by the Fourth Amendment.

Since New York v. Belton was decided in 1981, courts had been relying on this precedential language: “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The problem - how "contemporaneous" does it have to be? Up until Tuesday, this limited authority to perform a warrantless search had arguably been expanded to allow "routine" car searches after suspects (for any crime involving a vehicle) had already been placed in custody.

In Tuesday's 5-4 decision, the Court ruled that the only way police can conduct a warrantless search of a car as part of an arrest is if the person being arrested is (1) within reach of the car or (2) the police officers have reason to believe that “evidence of the offense of arrest might be found in the vehicle.” The "within reach" test is to protect the officers and the second part is to prevent tampering with evidence.

The Court said that there was no way Gant could have reached his car to tamper with evidence nor did he pose any safety threats to the officers - he had been searched unconstitutionally.

~ Andréa

Welcome!

We're in the process of building and launching a new TJCLCR blog and website. Please bear with us as we get things off the ground!

Here's a little bit about what we do:

The Texas Journal on Civil Liberties and Civil Rights is a publication coming out of the University of Texas School of Law in Austin. The Journal synthesizes and analyzes current thinking on issues in various areas of civil liberties and civil rights through articles by legal scholars, practicing attorneys, state and federal judges, and students. We publish twice a year [subscribe] in conjunction with the Individual Rights and Responsibilities (IRR) Section of the State Bar of Texas. The IRR provides us with funding and a readership base while the journal publishes IRR news and announcements. The Journal is also available on Westlaw, Lexis, and HeinOnline, and is carried by the majority of important institutions.