Apr 22, 2014

Constitutional Faces: Griswold v. Connecticut

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Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.




Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.

Dr Lee Buxton and Estelle Griswold

Estelle Griswold Cornelia Jahncke Planned Parenthood League CT

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Apr 21, 2014

Prop1 Class 26 – Landlord-Tenant Relationships III

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The lecture notes are here and the live chat is here.

Here is the apartment at issue in Hilder v. St. Peter at 10 Church Street, Rutland, VT.


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This is Judge Richard Posner. He adjudicates in beast mode.


This is the other beast of the 7th Circuit, Judge Frank Easterbrook.


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Apr 21, 2014

Breyer – Most Important Right Is In Administrative Procedure Act

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During an event at Georgetown, Justice Breyer opined on one of the most important rights–hint its not in the Constitution.

Says the Justice who cited an unpublished book in his McCutcheon dissent.

Though SGB gave a shout-out to Magna Carta:


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Apr 21, 2014

Prop1 Class 23 – Landlord-Tenant Relationships I

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The lecture notes are here and the live chat is here.

This site explains detail the eviction process in Texas. Here is the section of the Texas code governing evictions and forcible entry.

In Texas, forcible entry without resort to judicial process is illegal. In other words, no self-help.

Sec. 24.001. FORCIBLE ENTRY AND DETAINER. (a) A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.

(b) For the purposes of this chapter, a forcible entry is:

(1) an entry without the consent of the person in actual possession of the property;

(2) an entry without the consent of a tenant at will or by sufferance; or

(3) an entry without the consent of a person who acquired possession by forcible entry.

Here is the process governing evictions:

Sec. 24.005.  NOTICE TO VACATE PRIOR TO FILING EVICTION SUIT. (a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001.

(d)  In all situations in which the entry by the occupant was a forcible entry under Section 24.001, the person entitled to possession must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit. The notice to vacate under this subsection may be to vacate immediately or by a specified deadline.

(e)  If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.

(f)  The notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door.

(g)  The notice period is calculated from the day on which the notice is delivered.

(h)  A notice to vacate shall be considered a demand for possession for purposes of Subsection (b) of Section 24.002.

(i)  If before the notice to vacate is given as required by this section the landlord has given a written notice or reminder to the tenant that rent is due and unpaid, the landlord may include in the notice to vacate required by this section a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice.

And here is a photo and video of the Pierre “Luxury” Apartments in Hackensack, NJ. A 1-bedroom apartment starts at $1845!


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Apr 21, 2014

RBG: “Founding Fathers would have agreed with” NY Times v. Sullivan “in the 1960s.”

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This is an interesting form of originalism by Justice Ginsburg:

She called the Times vs. Sullivan ruling a landmark during the civil rights era because it allowed the national media to freely report on the civil rights struggle across the South. The decision “is now well accepted,” she said. “I think the Founding Fathers would have agreed with it in the 1960s,” she said.

Is this some form of prospective originalism, that asks how the founding generation would view constitutional law if they lived in the present? I thought we were supposed to ask how the founding generation would have dealt with an issue like libel of public officials in 1791. Oh wait, we know the answer that question–see the Alien and Sedition Act.

This is keeping with RBG’s previous statements that she is an originalist.

“I consider myself certainly an originalist in this sense,” Ginsburg said. “The founders of our country were great men with a vision. They were held back from realizing their ideas by the times in which they lived. But I think their notion was that society would evolve and the meaning of some of the grand clauses in the Constitution, like due process of law, would grow with society so that the Constitution would always be attuned with the society that law is meant to serve.”


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Apr 21, 2014

Justice Stevens on PBS News Hour Tonight

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The JPS roadshow continues.

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Apr 21, 2014

Would Justice Stevens’s Amendment to the First Amendment Allow Congress to Ban Books?

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In a revealing interview with Adam Liptak, Justice Stevens is asked about the scope of his Amendment to the First Amendment. His answer suggests that Congress could prohibit banning the publication of a book (perhaps within 60 days of an election).

His Amendment provides:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

The breadth of this Amendment is staggering. Adam asks Justice Stevens about it.

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates.

If the answer is anything but “No,” then there are serious problems with the Amendment. What was striking is that Justice Stevens did not have an answer at the ready. He had to think about it.

He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

heed-rising-voicesPerhaps we could change the fact pattern a bit, and consider whether a newspaper could be prohibited from accepting a paid advertisement endorsing certain political changes. Justice Stevens would seem to answer this question with a “Maybe.” That is really troubling, because these are the *exact* facts of New York Times v. Sullivan, which just celebrated its 50th anniversary. What if the “Heed Their Rising Voices” advertisement had called for the election of anti-segregationists in Alabama, instead of soliciting donations for civil rights organizations. Would Justice Stevens truly be okay with his Amendment permitting Congress to ban it?

It gets worse. Adam asks about whether the Amendment would permit Congress to ban books promoting the election of a certain candidate.

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far.

“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

Under the John Paul Stevens approach to free speech, Congress can ban books, maybe 60 days before an election cycle.

I was also struck by one other aspect of Adam’s interview:

But there was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers.

Stevens has long seemed to even-tempered and cool, but I discern a sense of frustration, and disappointment in himself. During his interview on This Week, he seemed to blame himself for not doing enough.

Stevens: Well, it’s awfully hard. It’s a series of individual important events. Some are terribly disappointing and some are gratifying. You mix them altogether, it’s really hard to pass judgment on the entirety, but I did the best I could. I didn’t do well enough on many occasions.

Based on my uninformed perception, he feels like he did not accomplish what he sought to during 34 years on the bench, and is frustrated now that he cannot continue building that legacy. That’s really sad.

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Apr 21, 2014

President Clinton Throwing A Dinner To Celebrate RBG’s Confirmation Would “strengthen his relations with the members of the court”

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The Clinton Archives released another SCOTUS-related gem: how to celebrate RBG’s confirmation. White House Counsel Bernie Nussbaum and adviser Ron Klain suggested a dinner at the White House with all of the Justices “and their wives” (I guess Justices O’Connor and Ginsburg would have to leave their spouses at home):

Second, the White House dinner: “Having the Supreme Court justices and their wives for dinner at the White House has been an occasional tradition: done sporadically through the years. David Gergen suggested that President Clinton have such a dinner, and Justice Ginsburg has embraced it with enthusiasm.

Interestingly, Nussbaum thought this would “strengthen” Clinton’s relations with the Justices:

“We endorse it as well. The dinner would be a courteous and informal way for the president to strengthen his relations with the members of the court—though, admittedly, the benefits of doing so are difficult to quantify.”

I wonder what that “relation” would be.

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Apr 21, 2014

Justice Kennedy Doesn’t Even Know What He Had For Breakfast

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It has long been a running joke that the meaning of the Constitution fluctuates depending on what Justice Kennedy had for breakfast on a given day. But now, we have reason to panic. During oral arguments in POM Wonderful LLC v. Coca-Cola Co, Justice Kennedy admitted what I have long suspected–not even *he* knows he had for breakfast!


JUSTICE KENNEDY: Don’t make me feel bad because I thought that this was pomegranate juice.


MS. SULLIVAN: Justice Kennedy ­­ Justice Kennedy, it’s pomegranate­blueberry­flavored blend of five juices. I’ve found that oftentimes ­­ well ­­

JUSTICE SCALIA: He sometimes doesn’t read closely enough.


MS. SULLIVAN: Yeah, pomegranate­blueberry­flavored blend of five juices. And the key point here ­­

If only he knew what was in his morning juice, all those 5-4 decisions may have gone the other way!

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Apr 21, 2014

I am quoted in Houston Chronicle on Ashby High Rise Hearing

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I was quoted in today’s Houston Chronicle about a hearing in the long-standing property dispute over the Ashby High Rise.

Josh Blackman, assistant professor at the South Texas College of Law, said the case is unusual because in all other respects, the building is considered legal. He said the judge’s instruction to the jury to determine whether the building was “abnormal and out of place” was also not a standard part of nuisance law.

“If, in fact, Ashby is a nuisance, the judge can’t permit them to build it,” said Josh Blackman, assistant professor at South Texas College of Law, who specializes in property law.

He said no matter the outcome, both sides will likely appeal.

“There’s no way ground will be broken on Ashby anytime soon,” Blackman said.

I’ll have more thoughts after the hearing, which is going on right now.

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Apr 21, 2014

I am quoted in Cincinatti Enquirer Article on Mike Carvin and Susan B. Anthony v. Driehaus

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In advance of oral arguments in Susan B. Anthony List v. Driehaus , the Cincinnati Enquirer ran a feature on counsel of record for SBA, Mike Carvin. I got to know Mike well while writing Unprecedented, as he was one of the attorneys who argued on behalf of NFIB in the Obamacare cases.

When asked how to describe Mike, this was the best I could come up with.

“Most lawyers who litigate in the Supreme Court have a very refined, laid-back, conservative manner. Mike is not that at all,” said Josh Blackman, a law professor at South Texas College of Law and author of “Unprecedented,” an account of the legal challenge crafted by Carvin and other lawyers to the Affordable Care Act.

“He is very much willing to go big,” with bold arguments that push the envelope, Blackman said.

If you know Mike, I think you’ll find this is pretty accurate.

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Apr 21, 2014

Justice Breyer Weighs In On Guantanamo

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For what feels like the first time in forever, a Justice actually weighed in on the situation in Guantanamo. In a statement respecting denial of certiorari in ABDUL AL QADER AHMED HUSSAIN, PETITIONER v. BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES, Justice Breyer alone wrote to stress that just because someone was part of Al Qaeda or the Taliban does not mean they were actually “engaged in an armed conflict against the United States.”

In this case, the District Court concluded, and the Court of Appeals agreed, that petitioner Abdul Al Qader Ahmed Hussain could be detained under the AUMF because he was “part of al-Qaeda or the Taliban at the time of his apprehension.” 821 F. Supp. 2d 67, 76–79 (DDC 2011) (internal quotation marks omitted; emphasis added); accord, 718 F. 3d 964, 966–967 (CADC 2013). But even assuming this is correct, in either case—that is, irrespec- tive of whether Hussain was part of al Qaeda or the Tali- ban—it is possible that Hussain was not an “individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” 542 U. S., at 516 (emphasis added).

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, deten- tion on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.

In other words, Breyer would expand the inquiry. No longer would it be enough for the government to prove they were part of these groups. Now, it would need to be shown that they took up arms. Note no one else joined Breyer here.

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Apr 21, 2014

Constitutional Faces: Buck v. Bell (And A Diagram Of All Three Generations of “Imbeciles”)

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This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.


This is Carrie Buck with her mother, Emma Buck.


This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics. James_H_Bell This is the  courthouse in Amherst County, Virginia where Buck’s case was first “heard”:

This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.


Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.


Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:

The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.

In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”

LaughlinNaziDegree Here is Carrie Buck shortly before she died.


Here are several pieces of American propaganda about Eugenics.

This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”eugenics_display2

This piece of propaganda says “Eugenics is the self direction of human evolution.”


Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”


Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:

It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”


In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll. Vivian died at the age of 8 due to intestinal diseases.


Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.


25 year after William’s death, Buck married Charlie Deatmore. buck-husband-2nd Here is Carrie Buck shortly before she died.


Here is a sign in Virginia to commemorate Buck v. Bell.

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Apr 21, 2014

Scalia and Ginsburg on Amending the Constitution, and Why An Amendment to the Second Amendment Would Strengthen It

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After my post on why it was inappropriate for Justice Stevens, a sitting Supreme Court Justice, to propose constitutional amendments, a few people reminded me to comments Justice Scalia made in New York Magazine last fall, indicating that he would amend the Article V amendment process.

Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.

During a recent event at the National Press Club, Justices Scalia addressed a similar question, and spoke about the amendment process. Scalia gave an almost-identical answer (if you’ve seen the Justices on the Circuit, you will start to get bored to hear the *same exact answers and stories* over and over again):

In a televised conversation at the National Press Club on Thursday, Justices Antonin Scalia and Ruth Bader Ginsburg were asked what amendment they would make to the Constitution if given the opportunity. Scalia said he would amend the amendment provision to make amendments easier. Ginsburg said she would add the equal rights amendment.

“I certainly would not want a constitutional convention,” Scalia told moderator Marvin Kalb. “Whoa! Who knows what would come out of it?” But, he explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. “It ought to be hard, but not that hard,” Scalia said.

Does this rub me the wrong way like Stevens’s proposal. Somewhat, but not as much. First, he isn’t highlighting and focusing on a specific case that didn’t come out his way, as is this case for all 6 of Stevens’s amendments. Second, he is speaking towards a broader structural element of how our Constitution could be changed by the political process (read, not by Judges). Here, he and Stevens are on the same page.

Third, he isn’t focusing on any particular part of the Constitution that needs changing. I haven’t see Scalia say he would amend any specific substantive provision of the Constitution, or use an Amendment to change a case he doesn’t agree with (If anyone finds that, please send it to me and I’ll update this post). He has certainly said the Court has intrpreted provisions of the Constitution incorrectly (due process) but I don’t think he has suggested the charter itself be changed. In fact, he routinely cites the Flag Burning case of Texas v. Johnson as an example where he really doesn’t agree with his own opinion, but that is what the First Amendment, as an originalist matter compels.

Justice Ginsburg focused on the Equal Rights Amendment, which was never ratified:

The failure of the push to add the equal rights amendment, Ginsburg noted, was an example of how difficult the amending process is. That amendment, she added, “means that women are people of equal stature before the law. I think we have achieved that through legislation but legislation can be repealed, altered. But that principle belongs in our Constitution. It is in every constitution written since the second world war.”

I would disagree with Justice Ginsburg. This change hasn’t been achieved only through legislation, such as Title VII, or FMLA, or Title IX. Instead, it was achieved through the evolution in the Court’s Equal Protection jurisprudence concerning gender discrimination. Cases stretching from Frontiero to Craig v. Boren (which RBG herself argued) to VMI (which RBG wrote) effectively amended the Constitution in much the same way as the ERA did. So is it really necessary to have a formal amendment?

And this conclusion illuminates one of the main difficulties I have with Justice Stevens’s book. Stevens isn’t actually calling for 1, let alone 6 Amendments to the Constitution. He is openly advocating for one vote on the Court to flip to switch the 5-4 in Heller the other way around. He is merely using the Amendment process as a convenient forum to rehabilitate his dissents in the hope that one day they will become majority opinions.

 If popular sentiments are any indication, an amendment to the Constitution to strengthen, not weak gun rights, would have a higher likelihood of success today. The overwhelming majority of Americans (73%) agree with Heller. That’s almost enough for a super-majority to amend the Constitution.


I discuss many other trends towards popular support for laxer gun laws, even following mass shootings, in this article.

Perhaps Justice Stevens should be relieved that it is not easier to amend the Constitution. It likely would not turn out in his favor, and his Heller dissent would remain just that.

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Apr 21, 2014

ConLaw Class 25 – The First Amendment – Speech I

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The lecture notes are here. The live chat is here.

The First Amendment – Speech I

  • The Addition of the Bill of Rights (43).
  • Amemdment Process – Article V (817-818).
  • Amendments Outside Article V (821-822 notes 14 and 15).
  • Barron v. Baltimore (48-53).
  • The BIll of Rights (827-831).
  • The First Amendment (831-839).
  • New York Times v. Sullivan (853-861).
  • Chaplinsky v. New Hampshire (880-884).
  • Categorical exclusions (885-887).

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.


This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.


Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.


Here is a transcript of the advertisement.

The New York Times

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
- New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.


Here is Sullivan talking with police officers.


Here is Sullivan with his family in 1962.


Chaplinsky v. New Hampshire

Are these fighting words?


Walter Chaplinsky, a Jehova’s Witness, would often preach in Rochester, New Hampshire’s Central Square.






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Apr 20, 2014

I’m Quoted In Houston Chronicle About Google Gag Order — And I Defend Google!

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For reasons I can’t possibly fathom, a judge in Galveston issued a gag order, ordering Google to “erase all mention of those accusations from the entire Internet including other websites.” Google is currently appealing this order to the 1st Court of Appeals in Houston. I am quoted in the Chronicle discussing how outlandish this order is:

Josh Blackman, a constitutional law professor at South Texas College of Law, described the order and similar ones cropping up around the country as “blatantly unconstitutional.”

“You get these kinds of cases all the time, where a lawyer gives a judge an order and throws in, ‘and Google too,’” Blackman said. “They have no authority to tell Google to delete this from the Internet.”

Expunging court records, he said, does not include Internet records, especially search results.

“I feel for those people, but the remedies are unconstitutional.” Blackman said. “You can’t mandate that someone censor a search engine.”

Fellow Houstonian Mark Bennet is also quoted:

Mark Bennett, a criminal defense attorney who has helped several clients get information taken off websites, said he sympathizes with people who want their information off the internet, but predicted Google will win the legal argument.

“This person will eventually lose,” Bennett said. “He can’t get Google to do something without giving them an opportunity to respond and, second, the First Amendment protects what Google is doing.”

Google is a service that indexes information, he said. It does not own it.

He said a better strategy is to approach each website with the content and ask that it be removed or changed to reflect the outcome.


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Apr 20, 2014

Key Kennedy Question in Hobby Lobby Transcript Modified: “Delegation of Power Rules are somewhat” Moribund, Not More Abundant

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Following oral arguments in Hobby Lobby, I drew attention to a key question posed by Justice Kennedy concerning the relationship between the First Amendment and the Non-Delegation Doctrine–can we let administrative agencies decide the scope of the First Amendment?

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.  But when we have a First Amendment issue of ­­ of this  consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

I explained, “In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.” Adam White also took notice of this question in a cool piece in the Weekly Standard.

But it seems this wasn’t exactly the question Justice Kennedy posed. Adam White, from Lyle Denniston, alerted me to a change in the transcript. The change is in the second sentence above. The words “more abundant” became “moribund.”

Here is the original transcript (p. 56):


I’ve learned that it is the Court’s practice to check with chambers when these questions arise, and in this case the decision was made to change the transcript from “moribund” to “more abundant.” You can see it in the updated transcript (p. 56).

This makes Kennedy’s point even stronger. It wouldn’t make much sense for the non-delegation doctrine rules to be “more abundant” in this Court. It was largely abandoned during the New Deal. But “moribund” makes even more sense.

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat moribund insofar as their enforcement in this Court. But when we have a First Amendment issue of ­­ of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

Here is the revised question: If you read this corrected sentence in the context of the entire question, he suggests that notwithstanding it’s moribundity, this doctrine should get stronger enforcement in the context of the First Amendment. The nondelegation doctrine, long delegated to the trashcan of constitutional history, has a place when administrative agencies are making decisions that implicate the First Amendment.

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Apr 20, 2014

Should A Justice Consider Who Will Appoint His Successor? And If So, Should The Justice Admit Everyone

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During his interview on This Week, Justice Stevens said that a Justice should consider who is appointing his successor, but that he didn’t. Here is the full transcript, which I did not have before:

Reporter: When justice Stevens retired in 2010, he was replaced by Elena Kagan. A solid vote on the court’s liberal bloc. And Ruth Bader Ginsburg is resisting calls from liberals who want her to step down this year. Is that something that you think justices should consider as they’re making that decision?

Stevens: Well, I didn’t consider it.

Reporter: You didn’t?

Stevens: Lot of people think you did, no politics at all in your decision? My decision wasn’t made for any political reason whatsoever, it was the concern about my own health.

Reporter: [Is that] Something that justices should take into account?

Stevens: I think so. I think it’s an appropriate thing to think about, your successor not only in this job, I just finished Reading the book by former secretary Gates, he thought a lot about his successor. You’re interested in the job and the kind of work that’s done, you have to have an interest in who’s going to fill your shoes.

Reporter: If she [Justice Ginsburg] asked for your advice?

Stevens: I would say, she doesn’t need my advice. She really doesn’t.

Reporter: Very wise.

Stevens: It’s interesting, because she asked my advice when she became the senior associate justice. And I gave her the same answer.

This bit was picked up by AP. I was stunned by Stevens’s forthrightness on the political nature of his retirement (though he claims that did not motivate him). On Facebook I was reminded that Justice Scalia made similar comments during an interview:

WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?

SCALIA: I don’t know. I haven’t decided when to retire.

WALLACE: But I mean, does it go through your mind, if I retire, I’d like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view, as in your book “Reading Law”?

SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I mean, I shouldn’t have to tell you that. Unless you think I’m a fool.

Did Scalia and Stevens say the same thing? Nino somewhat dodged the question, but I think they are on the same wavelength here.

Also, I’ve read that Justice O’Connor wanted to ensure a Republican replaced her, and that Justice Souter wanted to wait out President Bush.

The appointment process is politicized enough as it is. We don’t need the Justices adding to that perception.

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Apr 20, 2014

Justice Stevens on This Week

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Justice Stevens sat down with George Stephanopoulos to talk about his new book on This Week.  The softball interview, about five minutes long, didn’t include any tough questions. His speech was somewhat slurred–similar to his delivered dissent in Citizens United–but was coherent. Stevens, when asked if he became a radical said, “I think every one of my proposals is a moderate.” And he genuinely believed that all of these amendments would pass. The host basically laughed at that suggestion.

On the Second Amendment, Stevens insisted that the Second Amendment only protected the right of the state militias (even though his amendment would do NOTHING to restore this incorrect original meaning). He told the host that nothing in the Constitution should place limits on guns.

The host actually asked about the Gerrymandering amendment, and said it was “pretty subjective.” Stevens replied that it doesn’t take a genius to find gerrymandering. Stephanopoulos, somewhat incredulous, said this was like Potter Stewart’s test for obscenity,”You know it when you see it.” Stevens seemed pleased by that comparison, and said Potter Stewart would agree with me about gerrymandering.

The most interesting potion of the interview came at the end when Stephanopoulos asked if a retiring Justice should consider the political party of the President who would appoint his or her replacement. Stevens insists he did not consider what President would replace him. He focused on concerns about his own health. It is widely rumored that Justice Souter stuck it out long enough for a Democrat to replace him, and Justice Stevens didn’t want two retirements in one year.

But then, Stevens said it was appropriate to think about President who appointed his replacement. “You have to have interest in who will fill your shoes.” That statement was stunning. 

Then, Stephanopoulos asked about Justice Ginsburg. “I’d say Justice Ginsburg doesn’t need my advice.” But RBG did ask advice when she became senior associate justice.

In closing, Stephen said he did the best he could, but I didn’t do good enough. I get the sense that he really feels like he didn’t shape the law in the way he wanted, and is using his post-retirement writings to pursue that goal.

Expect many more softball interviews.

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Apr 19, 2014

Justice Stevens Will Be On “This Week” with George Stephanopoulos On Sunday

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This should be interesting.

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