On Tuesday April 28th the United States Supreme Court will be asked to decide if homosexuals have the right to marry each other (same sex marriage) and/or if a couple is married in a state which practices marriage equality has a right to have that marriage recognized in a state that does not have permit gay-marriage.
If I were a member of SCOTUS (and fortunately there is little chance of that) I believe I would decide the matter that 1. Government needs to get out of the marriage business. We do not have an interest in marriage we have an interest in contracts. All contracts should be honored across state lines due to the theory of comity (legally it means reciprocity among sovereigns). I do not believe the federal government should be sanctioning what is really a religious ceremony. As a contract, I should have the right to contract with any one I choose who is of age and who is not otherwise coerced by me or others to enter into a contract. In other words if a contract is voluntarily and knowingly entered into, it should be enforced everywhere. 2. I would let each state decide if the wanted to issue contracts for marriage but if they did, they would have to allow everyone to have one equally. I would not set a national standard because in the end, it just is not part of the business of the United State's Government. It is a local issue to be decided on a state to state basis.
The issue also presents a divide in the very middle of America's heart and heartland, but it is an important issue. The hypocrisy on both sides of the issue is as ironic as it is unspoken. The anti-marriage equality group do not want to give people the right to contract with whomever they choose but they want to allow the right not to contract to be observed. The pro-marriage equality group wants to allow the right to contract but not the right to not contract. Stupid is as stupid does.
On this issue I have just one more thing to say. To all you "Christians" who do not "support" marriage equality: Do you serve divorced couples? Do you have baby showers for out of wedlock moms? Do you allow people who have committed adultery to later marry in your establishment? Do you serve people who do not make their child support payments? Do you serve people who have stolen from others or even killed others? Is that not supporting that lifestyle which is directly DIRECTLY forbidden by the TEN COMMANDMENTS?? God did not tell Moses that marriage was between a man and a woman but he did say don't kill, don't commit adultery or fornication, don't steal. How is it your "religion" forbids you from servicing homosexual couples but not those committing acts specifically forbidden in the Ten Commandments??
Got news for those types (Mr. Huckabee, Santorum, any number of shop owners and others who want to do away with homosexuals) of politicians and business people: YOU ARE BIGOTS. YOU ARE PREJUDICED, and no amount of joining together to present that view will absolve you of YOUR sin of hypocrisy.
Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts
Monday, April 27, 2015
Wednesday, June 27, 2012
Mischaracterizing The Checks and Balances In Our Constitutions Framework: Justice Scalia's Dissent in Arizona v. USA
As promised I have had a chance to read, reread and digest the Supreme Court ruling on Arizona v. United States where a majority of the Supreme Court ruled Arizona's controversial Immigration law a\k\a SB1070 as unconstitutional.
You can read the original decision or get the cliff notes here
What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.
Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.
With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.
Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.
Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.
(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)
In his frustration, he lashes out politically at the President in his dissent stating:
In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.
Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.
You can read the original decision or get the cliff notes here
What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.
Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.
With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.
Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.
Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.
(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)
In his frustration, he lashes out politically at the President in his dissent stating:
...U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation’s immigration laws?
In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.
Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.
Monday, June 25, 2012
THIS JUST IN:US SUPREME COURT OVERTURNS MOST OF ARIZONA'S ANTI IMMIGRATION LAW!!
I hope to have more details on this later after digesting the 76 page decision but it seems SCOTUS has knocked out everything in the law that Civil Rights advocates attacked except for the stop and check of status.
Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.
Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.
The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.
More later I hope.
Hattip: The New York Times on Line
Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.
Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.
The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.
More later I hope.
Hattip: The New York Times on Line
Tuesday, January 04, 2011
Judge Scalia: The Constitution Permits Sexual Discrimination
In an interview with the California Lawyer Magazine US Supreme Court Justice Antonin Scalia declares that the 14th Amendment to the US Constitution does not prohibit discrimination based on one's sex or sexual orientation.
Scalia is an "Originalist" is one who adheres to the words of the law and what the framers of the law meant when they wrote the words and the document was passed (by the electorate.
A fairly simple guide to Originalism and non-Originalist thinking can be found here
As a general fan of Scalia's I was asked if I agreed with his statement that the 14th does not encompass equal rights for women. I do not. That is because within the Originalist camp, there are two distinct branches. Scalia is an Intentionalist- Someone who interprets the Constitution according to the way he thinks the people who wrote it meant for it to be passed. This style of interpretation is popular among Neo-conservatives but a number of Classical liberals (libertarians) also hold the view.
I am a textualist. I believe the text means what the text says. I would probably be closer in vision to the late Justice Hugo Black who would decide 1st Amendment issues by reminding his colleagues that "Congress shall pass no law" meant NO. LAW. Textualists look at the words and give to them the meaning that they have. We do not believe that one can go back and decide what the collective voice of the people was except by using the words themselves.
Getting back to Scalia if he is correct that the people who framed the 14th amendment as well as the people who voted for it were not concerned with sexual equality or the equal treatment of those with non-traditional views of sexual orientation then in his view such discrimination would be as legally legislated as the banning of such discrimination.
I do not believe however, that the Constitution is limited by what the majority of people thought at the time of passage. I doubt we can truly discern that. I fall on the side that says read the statute literally as it is the only document we know was voted on. So in this case the 14th Amendment at least for me as a classical liberal means what it says:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Broken down: All persons (Male female black white other etc)born or naturalized in the United States (meaning born here not born here of documented or non documented aliens, BORN. IN THE USA. or given citizenship by us after birth somewhere other than IN THE USA),are Citizens of the US and the state where they reside (So the states do not have a choice in who they may bestow rights upon.)
No State (NO. STATE.)shall make or enforce any law (ANY LAW) which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person (ANY. PERSON)of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I think Justice Scalia needs to rethink even his sense of Originalist thought. I do not believe that voters (who were mostly male at the time of the adoption of the amendment) did not think their wives or daughters were not persons or citizens. Whether they could conceive the law would someday be applied to women they could have understood it would. After all they failed to exclude them and they could have done so if they never wanted the amendment to apply to these women. I think that trying to apply what they would have decided to do had they issue been debated is just not possible. The original words speak for themselves Women were citizens. The end.
I expect to see Tea Party people try to limit the scope of the 14th amendment and claim to other conservatives that the original intent requires that the amendment not apply to citizenship of the American born children of undocumented aliens. THAT IS NOT WHAT THE AMENDMENT SAYS. Further I can guarantee none of those types of people are smart enough to discern what Americans of 1865 thought. They have no idea what Americans today think I don't want them straining to go back 150 years.
Hattip: Huffington Post
Scalia is an "Originalist" is one who adheres to the words of the law and what the framers of the law meant when they wrote the words and the document was passed (by the electorate.
A fairly simple guide to Originalism and non-Originalist thinking can be found here
As a general fan of Scalia's I was asked if I agreed with his statement that the 14th does not encompass equal rights for women. I do not. That is because within the Originalist camp, there are two distinct branches. Scalia is an Intentionalist- Someone who interprets the Constitution according to the way he thinks the people who wrote it meant for it to be passed. This style of interpretation is popular among Neo-conservatives but a number of Classical liberals (libertarians) also hold the view.
I am a textualist. I believe the text means what the text says. I would probably be closer in vision to the late Justice Hugo Black who would decide 1st Amendment issues by reminding his colleagues that "Congress shall pass no law" meant NO. LAW. Textualists look at the words and give to them the meaning that they have. We do not believe that one can go back and decide what the collective voice of the people was except by using the words themselves.
Getting back to Scalia if he is correct that the people who framed the 14th amendment as well as the people who voted for it were not concerned with sexual equality or the equal treatment of those with non-traditional views of sexual orientation then in his view such discrimination would be as legally legislated as the banning of such discrimination.
I do not believe however, that the Constitution is limited by what the majority of people thought at the time of passage. I doubt we can truly discern that. I fall on the side that says read the statute literally as it is the only document we know was voted on. So in this case the 14th Amendment at least for me as a classical liberal means what it says:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Broken down: All persons (Male female black white other etc)born or naturalized in the United States (meaning born here not born here of documented or non documented aliens, BORN. IN THE USA. or given citizenship by us after birth somewhere other than IN THE USA),are Citizens of the US and the state where they reside (So the states do not have a choice in who they may bestow rights upon.)
No State (NO. STATE.)shall make or enforce any law (ANY LAW) which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person (ANY. PERSON)of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I think Justice Scalia needs to rethink even his sense of Originalist thought. I do not believe that voters (who were mostly male at the time of the adoption of the amendment) did not think their wives or daughters were not persons or citizens. Whether they could conceive the law would someday be applied to women they could have understood it would. After all they failed to exclude them and they could have done so if they never wanted the amendment to apply to these women. I think that trying to apply what they would have decided to do had they issue been debated is just not possible. The original words speak for themselves Women were citizens. The end.
I expect to see Tea Party people try to limit the scope of the 14th amendment and claim to other conservatives that the original intent requires that the amendment not apply to citizenship of the American born children of undocumented aliens. THAT IS NOT WHAT THE AMENDMENT SAYS. Further I can guarantee none of those types of people are smart enough to discern what Americans of 1865 thought. They have no idea what Americans today think I don't want them straining to go back 150 years.
Hattip: Huffington Post
Tuesday, January 05, 2010
Justice Scalia Gives The President ( and the rest of us) Something To Think About
It is a new year here and first thing out of the box is a story about, Justice Scalia suggesting there are too many judges on the Supreme court.
Note I didn't say too many lawyers. (He is not advocating the promotion of non attorney's to the bench.)Scalia is actually saying what a lot of libertarians have been saying over the past 20 years, that is, there are not enough trial lawyers and other non-government lawyers on the bench and it is skewing the court to a position of over favoring the government at the expense of the individual.
Throughout history up until the last 20 years, there have always been non-judicial members of the court. Now most of the makeup of the SCOTUS are former prosecutors and government lawyers who then became judges pretty much right out of the government service without spending any real time in the well on behalf of an individual or company. The mindset of a person who works with the government their whole lives is that the government is always right. That was the antithesis of the fabric of our Constitution writers.
Scalia makes an excellent point that the court needs people on it who have spent a good portion of their lives defending the needs and rights of people.
One doesn't need to be a "Constitutional scholar" to be a good appellate court justice. Mr. President if you are looking for a few names for consideration that may share your sense of right wrong and and the American way, how about Professor Charles Ogletree from Harvard, Hon. Dennis Archer a former mayor of Detroit, Michigan Supreme Court Justice and recent past president of the American Bar Association (also the first president of the ABA of color.) or Judge Nancy Gertler a trial judge in the first circuit who spent much of her early career as a Criminal Defense lawyer?
Whom do you think would make a good Supreme Court Justice??
Hat tip: Law.Com
Edited to add hyperlink to posting and Hat tip.
Note I didn't say too many lawyers. (He is not advocating the promotion of non attorney's to the bench.)Scalia is actually saying what a lot of libertarians have been saying over the past 20 years, that is, there are not enough trial lawyers and other non-government lawyers on the bench and it is skewing the court to a position of over favoring the government at the expense of the individual.
Throughout history up until the last 20 years, there have always been non-judicial members of the court. Now most of the makeup of the SCOTUS are former prosecutors and government lawyers who then became judges pretty much right out of the government service without spending any real time in the well on behalf of an individual or company. The mindset of a person who works with the government their whole lives is that the government is always right. That was the antithesis of the fabric of our Constitution writers.
Scalia makes an excellent point that the court needs people on it who have spent a good portion of their lives defending the needs and rights of people.
One doesn't need to be a "Constitutional scholar" to be a good appellate court justice. Mr. President if you are looking for a few names for consideration that may share your sense of right wrong and and the American way, how about Professor Charles Ogletree from Harvard, Hon. Dennis Archer a former mayor of Detroit, Michigan Supreme Court Justice and recent past president of the American Bar Association (also the first president of the ABA of color.) or Judge Nancy Gertler a trial judge in the first circuit who spent much of her early career as a Criminal Defense lawyer?
Whom do you think would make a good Supreme Court Justice??
Hat tip: Law.Com
Edited to add hyperlink to posting and Hat tip.
Monday, June 08, 2009
Freedom of Speech Does Not Permit You To Break The Law
Ian Barry is a Seventeen year old who knowingly broke the law to make a point. Ian gave a speech as to why Marijuana ought to be legal to a High School class. During the speech, he lit a joint and by the end of the speech, ingested the joint. Police arrested him. He has been charged locally. He says in this article that he accepts responsibility for his actions and that he is ready to pay a penalty for his actions.
Ian points out that he had to break the law to bring any real attention to his cause. There he may be right. Many are calling his act a act of civil disobedience and claim that it ought to be protected from prosecution as freedom of speech. I think the kid understands free speech better than many lawyers do.
His act was not an act of free speech though it was an act of civil disobedience. He broke the law to prove a point; that the law is wrong. He may get attention to his cause, he may even earn jury nullification, which would go far in getting his point even more attention, but he is not protected from arrest prosecution and conviction for his act.
It is oft said that one's rights come to an end at the tip of another's nose. In other words, you are free to do what you like until you interfere with someone else's right to do the same. In Ian's case, he is not free to break the law, only to criticize it. He moved on from that when he carried the joint to/or in school. Given the SCOTUS recent decision in the "Bong hits for Jesus" case, Ian is headed for a criminal record assuming he doesn't go to trial and convince a jury to nullify the law. He is also garnering a lot of attention for his cause.
I am not sure this is a call I'd like a teenager to make. He has no idea, despite his bravado, of the trouble he has caused himself in the future. He has however made the decision and will have to live with the consequences until the law catches up with the rest of the society's view of marijuana.
Ian points out that he had to break the law to bring any real attention to his cause. There he may be right. Many are calling his act a act of civil disobedience and claim that it ought to be protected from prosecution as freedom of speech. I think the kid understands free speech better than many lawyers do.
His act was not an act of free speech though it was an act of civil disobedience. He broke the law to prove a point; that the law is wrong. He may get attention to his cause, he may even earn jury nullification, which would go far in getting his point even more attention, but he is not protected from arrest prosecution and conviction for his act.
It is oft said that one's rights come to an end at the tip of another's nose. In other words, you are free to do what you like until you interfere with someone else's right to do the same. In Ian's case, he is not free to break the law, only to criticize it. He moved on from that when he carried the joint to/or in school. Given the SCOTUS recent decision in the "Bong hits for Jesus" case, Ian is headed for a criminal record assuming he doesn't go to trial and convince a jury to nullify the law. He is also garnering a lot of attention for his cause.
I am not sure this is a call I'd like a teenager to make. He has no idea, despite his bravado, of the trouble he has caused himself in the future. He has however made the decision and will have to live with the consequences until the law catches up with the rest of the society's view of marijuana.
Saturday, June 06, 2009
Judge to School District: "PISS OFF!!" & Let the Kids Play Chess!!
Sometimes I love writing the title of these pieces can you tell? :P
When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)
The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)
Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!
I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."
Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.
I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.
I could not find a copy of the decision to post, so if you know of one, pass it to me ok?
Thanks, TLD.
Hattip: Raw Story
When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)
The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)
Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!
I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."
Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.
I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.
I could not find a copy of the decision to post, so if you know of one, pass it to me ok?
Thanks, TLD.
Hattip: Raw Story
Thursday, January 01, 2009
Tony(c) Award for Best Criminal Law Blog for 2008 and an Honor: Professor Doug Berman Sentencing Law and Policy Blog
Thinking of words and phrases to describe out Tony(c) award winning Best Criminal Law Blog is easy: Informative, cutting edge, authoritative, well written, incisive, thought-provoking. The one I like the most is consistant.
The 2008 Tony(c)Award for Best Criminal Law Blog is Professor Doug Berman's Sentencing Law and Policy Blog. The reason for the award? This blog is consistantly the best place to go to begin to research the latest issues in Federal sentencing. Professor Berman is not only a blogger extrodinaire but his blog is cited to on a regular basis by courts and in briefs at the highest (read SCOTUS) levels of advocacy.
Doug is also a real giver. In addition to writing a blog that is a readers delight he also often authors briefs and amicus briefs on behalf of positions he believes in dealing with Sentencing law. Doug is generous with his time and is a frequent lecturer on all thing USSG and USSC. His insights have helped me over and over again in getting fair sentences for my clients. If a young practioner (or an old one for that matter) wants to learn the ins and outs of the USSG, get a copy of the USSG and then start reading the archives of Sentencing Law and Policy Blog.
An extra honor from me to Doug and his great Blog: This Tony(c)Award is being named for its winner. Hereinafter the Tony(c) Award for Best Criminal Law Blog will hereinafter be known as the "Prof. Doug Berman Memorial Tony(c)Award for Best Criminal Law Blog"
Thank you Professor for all you do.
Happy New Years to all of my readers.
TLD.
Follow me on Twitter and get updates througout the day of the best legal blog posts and news articles addressing the criminal law, law practice management and Constitutional law on and around the blogosphere.
The 2008 Tony(c)Award for Best Criminal Law Blog is Professor Doug Berman's Sentencing Law and Policy Blog. The reason for the award? This blog is consistantly the best place to go to begin to research the latest issues in Federal sentencing. Professor Berman is not only a blogger extrodinaire but his blog is cited to on a regular basis by courts and in briefs at the highest (read SCOTUS) levels of advocacy.
Doug is also a real giver. In addition to writing a blog that is a readers delight he also often authors briefs and amicus briefs on behalf of positions he believes in dealing with Sentencing law. Doug is generous with his time and is a frequent lecturer on all thing USSG and USSC. His insights have helped me over and over again in getting fair sentences for my clients. If a young practioner (or an old one for that matter) wants to learn the ins and outs of the USSG, get a copy of the USSG and then start reading the archives of Sentencing Law and Policy Blog.
An extra honor from me to Doug and his great Blog: This Tony(c)Award is being named for its winner. Hereinafter the Tony(c) Award for Best Criminal Law Blog will hereinafter be known as the "Prof. Doug Berman Memorial Tony(c)Award for Best Criminal Law Blog"
Thank you Professor for all you do.
Happy New Years to all of my readers.
TLD.
Follow me on Twitter and get updates througout the day of the best legal blog posts and news articles addressing the criminal law, law practice management and Constitutional law on and around the blogosphere.
Sunday, December 07, 2008
Revisionist History Lesson: Mauro on the Nixon Library Releases Tape of Nixon-Burger Phone Call
When I was in College, I had a Professor named Parkman. He was a phenomenal teacher. Right out of central casting. He could just as well have been at the Louisiana Purchase as written about it. He had to be 115 years old (or so it seemed to me as an 18 year old Freshman).
Anyway Professor Parkman wasn't one to get excited about much. The one thing he was excited about however were the "Revisionists". A "Revisionist" was someone who looked at history but through the light of how he wanted it to be and not report it in the light it was created. (check out Wikipedia's links for a more complete look at "revisionism" both positive and negative)
I can hear Parkman "railing" as I read this post on the release of a taped conversation between President Richard Nixon and then SCOTUS Chief Justice Warren Burger (who Nixon appointed to the high court as CJ.) It seems that Tony Mauro could not help but to express that Nixon and Burger were engaged in a conversation that would be "frowned upon". They were discussing the Miller v. California 413 U.S. 15 (1973) case which set up the "community standards test" for obscenity.
In fact, not until after Watergate would it be frowned upon. At the time of the phone call, both men led separate branches of our government. It was not even "frowned" upon for POTUS prior to President Ford to speak to SCOTUS Justices, especially the Chief Judge, for opinions about how certain initiatives would fair if brought before the court.
Listen to the conversation, it doesn't seek to nail Burger down on the issue although Burger himself opines that he is "coming down hard on it". It is a general conversation about the work that the judicial branch is involved in. Nixon being a lawyer, and a bit of a gossip, wanted to talk shop with a colleague. He had worked with Burger during the campaign in 1952 and was there when he was appointed by President Eisenhower to the bench. Nixon elevated him to the Chief Judge's spot. Is it hard to believe that they had a professional friendship? Nixon had argued a first Amendment case in 1966 before the SCOTUS. It was an area of law both men felt was important from an academic as well as a political point.
After Watergate, the court took on a more important role in everyday politics, hitting what I hope was its zenith in Bush v. Gore. Until then the Court generally stayed above the political fray though individual justices were always political beings. I agree that for better or worse, this type of conversation would be frowned upon. I am of the opinion it is for the worse. Nevertheless, to place 21st century mores on a 20th century conversation and suggest something nefarious where such conversation was de rigeur strikes me as not only unfair, but dare I say..."Revisionist".
By the way I think it is interesting that Ron Howard's Frost Nixon(link is for the trailer) is coming out this month. I have no idea what to expect, but I cannot wait to see it.
Hattip: Law.Com
PS Thanks to the Nixon Library for a link to the tape and to Findlaw for the Miller case, and LII for the link to Bush v. Gore.
Anyway Professor Parkman wasn't one to get excited about much. The one thing he was excited about however were the "Revisionists". A "Revisionist" was someone who looked at history but through the light of how he wanted it to be and not report it in the light it was created. (check out Wikipedia's links for a more complete look at "revisionism" both positive and negative)
I can hear Parkman "railing" as I read this post on the release of a taped conversation between President Richard Nixon and then SCOTUS Chief Justice Warren Burger (who Nixon appointed to the high court as CJ.) It seems that Tony Mauro could not help but to express that Nixon and Burger were engaged in a conversation that would be "frowned upon". They were discussing the Miller v. California 413 U.S. 15 (1973) case which set up the "community standards test" for obscenity.
In fact, not until after Watergate would it be frowned upon. At the time of the phone call, both men led separate branches of our government. It was not even "frowned" upon for POTUS prior to President Ford to speak to SCOTUS Justices, especially the Chief Judge, for opinions about how certain initiatives would fair if brought before the court.
Listen to the conversation, it doesn't seek to nail Burger down on the issue although Burger himself opines that he is "coming down hard on it". It is a general conversation about the work that the judicial branch is involved in. Nixon being a lawyer, and a bit of a gossip, wanted to talk shop with a colleague. He had worked with Burger during the campaign in 1952 and was there when he was appointed by President Eisenhower to the bench. Nixon elevated him to the Chief Judge's spot. Is it hard to believe that they had a professional friendship? Nixon had argued a first Amendment case in 1966 before the SCOTUS. It was an area of law both men felt was important from an academic as well as a political point.
After Watergate, the court took on a more important role in everyday politics, hitting what I hope was its zenith in Bush v. Gore. Until then the Court generally stayed above the political fray though individual justices were always political beings. I agree that for better or worse, this type of conversation would be frowned upon. I am of the opinion it is for the worse. Nevertheless, to place 21st century mores on a 20th century conversation and suggest something nefarious where such conversation was de rigeur strikes me as not only unfair, but dare I say..."Revisionist".
By the way I think it is interesting that Ron Howard's Frost Nixon(link is for the trailer) is coming out this month. I have no idea what to expect, but I cannot wait to see it.
Hattip: Law.Com
PS Thanks to the Nixon Library for a link to the tape and to Findlaw for the Miller case, and LII for the link to Bush v. Gore.
Monday, October 06, 2008
The First Monday in October: SCOTUS OPENS ITS NEW TERM
I have mentioned this before, but I love the First Monday in October. I used to love going to the Supreme Court of the United States as a student at Tufts. Catch the train or drive at an un-Godly hour; sleep as much as possible; walk from Union Station in the October air; stand in line to get in, and watch the 9 most important men (it was all men then) in law take their seats and begin to work.
The day before the First Monday in October is the Red Mass. It is a Catholic Mass said for the judges and lawyers. It is solemn and filled with Pomp and Circumstance. Prayers are said for these men and women that they will find the knowledge, justice and mercy that makes for good lawyering and judging.
Tomorrow the term begins. The big issue on the calendar so far is "Preemption". Are the states preempted by federal law from entering into certain areas that the feds now say are theirs? It is not an easy concept to grasp but it is important in for conservatives who believe in state's rights and are fighting the ever growing intrusive role of the federal government into what had formerly been states province.
The Associated Press (AP) gives us a rundown of some of the issues coming in front of the judges this year in an article here
As previously noted Scotus Blog has a rundown of the criminal cases the court faces. These include what an enterprise consists of in a Civil or Criminal RICO suit; Speedy trial delay; and issues surrounding the taking and use of Confessions and admissions at trial when arraignments have been delayed; or when someone gives police a statement without waiving his right to counsel, and it is used against him when he later takes the stand in his own defense. (In other words, if the confession was taken in absence of the waiver, it cannot be used on the Government's case in chief. The question is should it come in if the defendant takes the stand and says something other than what he told the police when Police took his statement without getting the defendant to properly wave his rights).
In all it may be a quieter year, but it holds some really important decisions ahead.
Sunday, April 27, 2008
Scalia on 60 Minutes: The Rock Star Speaks
It was a great interview. Nino starred. His sense of humor and his actual humility came through. I am not going to go around and look for ways that he is either a hypocrite or even wrong. I think for the first time since Justice Douglas, we have an erudite well spoken and well read judicial hero. He may not be universally liked, but he stated his case for originalism well. I only wish Stahl had asked questions about federalism's reach and what if any limits there may be.
Originalism is not a dead constitution, it is for letting the constitution stand for what it says and for laws to stand for what they stand for. It is the reason that the constitution gets amended when the country believes there is a reason for it. It is the reason that it requires so many votes to amend it.
I like the way Scalia spoke about how he would do away with all abortion or have thrown the flag burner in jail if it were up to him. How his belief in the constitution does not allow for personal opinions to take the sway.
I did think he parsed words a bit too much when it came to using the cruel and unusual punishment language in the discussion about torture. I agreed with Stahl that the 8th amendment to the constitution would not allow for the use of torture and torture is just as easily a punishment for one's beliefs or race etc. as it can be viewed as an instrument of interrogation. The point is that I think Scalia asks the correct questions, in that the first question he must ask himself is, does the issue present a question that implicates the constitution as the forefather's wrote it. Where he and I may disagree comes down to understanding what is taken in by the meanings. He is broader than I in some places, and I broader than he in others. I also may take a more narrow view of how expansive a law is. In interpreting law, I am one who believes in looking at the actual words of a law and not giving meanings to them that either restricts or expands them beyond the words the legislature uses. I would also say that I would have to look hard at legislative history in interpreting many laws. I think he uses too little of that in his writings.
I also wish Stahl had asked him how he uses Presidential (or executive) signing statements and what if any effect he thinks they should be viewed by a judge when interpreting statutes.
Getting back to his originalist views, I am glad to hear him explain that if a case (like Roe) is found to be outside the constitution by the court, then go back to the public or their leaders and ask them to change it. Make a new law, or amend the constitution, either way, it is a republic and the majority's interests must often be upheld. Yes that view may hurt me a lot on a lot of cases, Yes it is the way a judge and a citizen should look at the Constitution.
Originalism is not a dead constitution, it is for letting the constitution stand for what it says and for laws to stand for what they stand for. It is the reason that the constitution gets amended when the country believes there is a reason for it. It is the reason that it requires so many votes to amend it.
I like the way Scalia spoke about how he would do away with all abortion or have thrown the flag burner in jail if it were up to him. How his belief in the constitution does not allow for personal opinions to take the sway.
I did think he parsed words a bit too much when it came to using the cruel and unusual punishment language in the discussion about torture. I agreed with Stahl that the 8th amendment to the constitution would not allow for the use of torture and torture is just as easily a punishment for one's beliefs or race etc. as it can be viewed as an instrument of interrogation. The point is that I think Scalia asks the correct questions, in that the first question he must ask himself is, does the issue present a question that implicates the constitution as the forefather's wrote it. Where he and I may disagree comes down to understanding what is taken in by the meanings. He is broader than I in some places, and I broader than he in others. I also may take a more narrow view of how expansive a law is. In interpreting law, I am one who believes in looking at the actual words of a law and not giving meanings to them that either restricts or expands them beyond the words the legislature uses. I would also say that I would have to look hard at legislative history in interpreting many laws. I think he uses too little of that in his writings.
I also wish Stahl had asked him how he uses Presidential (or executive) signing statements and what if any effect he thinks they should be viewed by a judge when interpreting statutes.
Getting back to his originalist views, I am glad to hear him explain that if a case (like Roe) is found to be outside the constitution by the court, then go back to the public or their leaders and ask them to change it. Make a new law, or amend the constitution, either way, it is a republic and the majority's interests must often be upheld. Yes that view may hurt me a lot on a lot of cases, Yes it is the way a judge and a citizen should look at the Constitution.
Tuesday, July 10, 2007
STIFLE HIM ARLENE: Senator Spector Introduces a Bill to Ban the Use of Presidential Signing Statements in Court Decisions
Does any elected official in Washington DC actually read the US Constitution???
Senator Arlene Spector (R-Pa.) has introduced a bill to ban Courts from using Presidential signing statements to reflect part of the history of any law.
You can access a copy of the proposal here. It's only 2 pages long and worth the read.
Far be it from me to not understand where the good Senator is coming from. I hate Bush's stupid self serving signing statements too. Screwing with the delicate balance of Powers set up by the US Constitution is not the way to fix it however.
The bill is of course DOA when it hits the oval office. Moreover, it should be.
This is an example of over-kill and it is Constitutionally unexceptable.
First it says that the Supreme Court (hereinafter SCOTUS) actually all courts, are banned from referencing Presidential signing statements or relying on them in determining cases. The Constitution does not require that and it is not a good precedent to allow one branch of government to officially silence another branch of government.
Secondly the bill would give Congress the right to expedite matters in the courts and to file amicus briefs through the House or Senate Counsel offices. These briefs must be accepted by the court. Nope, the cases in controversy in the courts belong to the litigants. Amicus approval should in the first instance be up to them. If they unreasonably withhold that approval, or the court thinks it would help reach a better determination if other parties weigh in, then it may ask for or accept these briefs.
Finally, Congress now also wants the right to file a clarifing statement to any case where a court wants to interpret the law. It will come up with a statement and if it passes by a majority vote it will be used to clarify what Congress meant when it passed the law. Now that should really leave laws in limbo.
The purpose of law and precedent is so people can rely on the law in making everyday decisions. Can you imagine what would happen if everytime Congress changed hands, they could "clarify" what the Congress that passed a law meant when it passed the law. Besides isn't that what the court does. Doesn't the fact that there are no judicial terms mean in part that courts is the branch with longevity? Isn't that one of the purposes of life terms?
When a court interprets a law, it can use legislative history to help interpret what Congress meant when the law passed, and it should likewise have the benefit of the President's thoughts on the matter, at the time the law was enacted. The court does not have permission to check its brain at the door however. It must use these tools as it sees fit. Litigants can site to them and they too should be able to cite the statements of Congressmen and Senators as well as Presidents. What are we saying to our courts when we tell them they can cite foreign law and cases but not the words of our own popularly elected President???
Some scholars have been bothered that when President Bush signs a Law, his signing statements are often orders to his executive branch as to how he wants the law enforced. His statements often cherry pick the things he likes about the bill while objecting and trying to accept himself from the parts he doesn't like. I agree with these scholars that the President is wrong to do that. He should enforce all the laws. The remedy however should not be to ban his ideas about a piece of legislation. It is instead to Impeach him if they think he is failing to do his job.
That is not an easy thing to do, but it is the appropriate check on Presidents that refuse to enforce the law. Trying to take back power through unconstitutional means is both overkill and bad make that lazy lawmaking.
Senator Arlene Spector (R-Pa.) has introduced a bill to ban Courts from using Presidential signing statements to reflect part of the history of any law.
You can access a copy of the proposal here. It's only 2 pages long and worth the read.
Far be it from me to not understand where the good Senator is coming from. I hate Bush's stupid self serving signing statements too. Screwing with the delicate balance of Powers set up by the US Constitution is not the way to fix it however.
The bill is of course DOA when it hits the oval office. Moreover, it should be.
This is an example of over-kill and it is Constitutionally unexceptable.
First it says that the Supreme Court (hereinafter SCOTUS) actually all courts, are banned from referencing Presidential signing statements or relying on them in determining cases. The Constitution does not require that and it is not a good precedent to allow one branch of government to officially silence another branch of government.
Secondly the bill would give Congress the right to expedite matters in the courts and to file amicus briefs through the House or Senate Counsel offices. These briefs must be accepted by the court. Nope, the cases in controversy in the courts belong to the litigants. Amicus approval should in the first instance be up to them. If they unreasonably withhold that approval, or the court thinks it would help reach a better determination if other parties weigh in, then it may ask for or accept these briefs.
Finally, Congress now also wants the right to file a clarifing statement to any case where a court wants to interpret the law. It will come up with a statement and if it passes by a majority vote it will be used to clarify what Congress meant when it passed the law. Now that should really leave laws in limbo.
The purpose of law and precedent is so people can rely on the law in making everyday decisions. Can you imagine what would happen if everytime Congress changed hands, they could "clarify" what the Congress that passed a law meant when it passed the law. Besides isn't that what the court does. Doesn't the fact that there are no judicial terms mean in part that courts is the branch with longevity? Isn't that one of the purposes of life terms?
When a court interprets a law, it can use legislative history to help interpret what Congress meant when the law passed, and it should likewise have the benefit of the President's thoughts on the matter, at the time the law was enacted. The court does not have permission to check its brain at the door however. It must use these tools as it sees fit. Litigants can site to them and they too should be able to cite the statements of Congressmen and Senators as well as Presidents. What are we saying to our courts when we tell them they can cite foreign law and cases but not the words of our own popularly elected President???
Some scholars have been bothered that when President Bush signs a Law, his signing statements are often orders to his executive branch as to how he wants the law enforced. His statements often cherry pick the things he likes about the bill while objecting and trying to accept himself from the parts he doesn't like. I agree with these scholars that the President is wrong to do that. He should enforce all the laws. The remedy however should not be to ban his ideas about a piece of legislation. It is instead to Impeach him if they think he is failing to do his job.
That is not an easy thing to do, but it is the appropriate check on Presidents that refuse to enforce the law. Trying to take back power through unconstitutional means is both overkill and bad make that lazy lawmaking.
Sunday, July 01, 2007
What is the State of The First Amendment in Schools?
As most of you know by now, the Supreme Court ruled in favor of the school district in Fredrick v. Morse (or in the Supreme Court case Morse v. Fredricks A/K/A the "BONG HITS FOR JESUS" Case)the SCOTUS ruled that students free speech rights could be curtailed when their message inspires drug use (See dissent by Stevens.)Now here is the interesting thing: The majority opinion does not specifically limit the language to illegal drug use. Hence a student rally to raise funds for NORML could conceivable run afoul of the majority opinion... STOP RIGHT THERE!!
Justice Alito, recognizing the right students have to Political Speech, along with Justice Kennedy filed a concurrence that says that the speech has to advocate illegal drug use. Presumably if the issue were so framed then Alito would have been in the majority as well with the 3.5 dissenting votes (see Justice Bryers decision) his and Justice Anthony Kennedy.
A few thoughts. First, I wrote that I would have allowed the speech because I did not feel it was a school matter. If the issue had been framed that it was a school matter, then I would have ruled the speech unprotected because "BONG HITS FOR JESUS" is a nonsensical phrase and conveys no thought (which was admitted by Fredrick's who was just looking to get on TV and to piss off principal Morse.)In a large sense then, while I wouldn't get on the 9th circuit, maybe I am qualified to be on SCOTUS!!
Secondly does it bother anybody that Justice Thomas cannot find any precedent for TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) in the constitution. Damn. The First Amendment says "Congress shall make NO LAW...abridging the Freedom of Speech..." and the Fourteenth Amendment applies it to the states. I don't like reading things into the Constitution but I don't like reading them out or ignoring them either. I do not buy that just because 19th century American schools didn't think to enforce speech rights doesn't mean that someone construing the Constitution didn't think the rights existed. The issue never faced the SCOTUS.
I also find that while historically one could point to the in loco parentis doctrine, that has been withered away by exactly the process Thomas advocates, the votes of parents. Today's parents have shot down a lot of rules including dress and even speech rules through both litigation and election of like minded school boards. Critical thinking in education (which requires that students think and object and support points etc) are all part of today's social studies curriculum . The hodgepodge of thinking on 1st Amendment issues that Thomas J. objects to, is far more possible under his standard than that of the Tinker standard. To the extent that Justice Thomas sees a need to amend the Constitution to include School speech in the phrase Congress shall make no law... I do not think that it either is anti originalist nor inappropriate to state that NO meant NO even in the 19th century, even though SCOTUS was not asked.
Finally, as if to put an exclamation point to Justice Alito's concurrence, SCOTUS on Friday issued a rebuke to a school that banned a shirt worn by a student that had pictures of Cocaine, and a martini glass and referred to President Bush as a coke snorting, weed smoking, alcoholic. (See this story and this post) The Second Circuit had ruled against the Vermont School district and the SCOTUS refused to review the decision. The case is Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied sub nom. Marineau v. Guiles, 75 USLW 3313 (U.S. June 29, 2007) (No. 06-757).
So to sum up my opinion of the law on School speech, Tinker is still good law. Just make sure your message is political speech and can easily be understood to be political, and keep the nonsense to a minimum.
Justice Alito, recognizing the right students have to Political Speech, along with Justice Kennedy filed a concurrence that says that the speech has to advocate illegal drug use. Presumably if the issue were so framed then Alito would have been in the majority as well with the 3.5 dissenting votes (see Justice Bryers decision) his and Justice Anthony Kennedy.
A few thoughts. First, I wrote that I would have allowed the speech because I did not feel it was a school matter. If the issue had been framed that it was a school matter, then I would have ruled the speech unprotected because "BONG HITS FOR JESUS" is a nonsensical phrase and conveys no thought (which was admitted by Fredrick's who was just looking to get on TV and to piss off principal Morse.)In a large sense then, while I wouldn't get on the 9th circuit, maybe I am qualified to be on SCOTUS!!
Secondly does it bother anybody that Justice Thomas cannot find any precedent for TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) in the constitution. Damn. The First Amendment says "Congress shall make NO LAW...abridging the Freedom of Speech..." and the Fourteenth Amendment applies it to the states. I don't like reading things into the Constitution but I don't like reading them out or ignoring them either. I do not buy that just because 19th century American schools didn't think to enforce speech rights doesn't mean that someone construing the Constitution didn't think the rights existed. The issue never faced the SCOTUS.
I also find that while historically one could point to the in loco parentis doctrine, that has been withered away by exactly the process Thomas advocates, the votes of parents. Today's parents have shot down a lot of rules including dress and even speech rules through both litigation and election of like minded school boards. Critical thinking in education (which requires that students think and object and support points etc) are all part of today's social studies curriculum . The hodgepodge of thinking on 1st Amendment issues that Thomas J. objects to, is far more possible under his standard than that of the Tinker standard. To the extent that Justice Thomas sees a need to amend the Constitution to include School speech in the phrase Congress shall make no law... I do not think that it either is anti originalist nor inappropriate to state that NO meant NO even in the 19th century, even though SCOTUS was not asked.
Finally, as if to put an exclamation point to Justice Alito's concurrence, SCOTUS on Friday issued a rebuke to a school that banned a shirt worn by a student that had pictures of Cocaine, and a martini glass and referred to President Bush as a coke snorting, weed smoking, alcoholic. (See this story and this post) The Second Circuit had ruled against the Vermont School district and the SCOTUS refused to review the decision. The case is Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied sub nom. Marineau v. Guiles, 75 USLW 3313 (U.S. June 29, 2007) (No. 06-757).
So to sum up my opinion of the law on School speech, Tinker is still good law. Just make sure your message is political speech and can easily be understood to be political, and keep the nonsense to a minimum.
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