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Abstract:
The principal point of this article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights, and to enforce or enlarge them as against the actions of the federal government. Congress exercised its power to protect the constitutional rights of American citizens when it enacted FISA, the federal law that requires the government to obtain a warrant from a special court before engaging in electronic eavesdropping for the purpose of obtaining foreign intelligence. In spite of this law, the National Security Agency has conducted a program of warrantless surveillance, called the Terrorist Surveillance Program. The Attorney General has made a nuanced and unique argument in support of the Terrorist Surveillance Program. He suggests that wiretapping for foreign intelligence is more central to the role of the President than it is to the role of Congress, and that therefore FISA, the federal statute which requires the President to obtain warrants, is unconstitutional. In response to this argument, the article contends that Congress has the power to enforce the Bill of Rights against the federal government, and that FISA therefore does represent an exercise by Congress of one of its core functions - to protect the rights of American citizens. Finally, the Attorney General also argues that FISA is unconstitutional under a broad reading of executive power called the theory of the "unitary executive." This article contends that this theory was rejected by Supreme Court in the case of Youngstown Sheet & Tube v. Sawyer. Justice Jackson, in particular, eloquently argued that the President is subject to the Rule of Law. This article also suggests that the opinion of Anthony Kennedy in Clinton v. New York is relevant. In that case Justice Kennedy made "individual liberty" the centerpiece of Separation of Powers analysis. The article concludes that both the Rule of Law and individual liberty are served by upholding the constitutionality of FISA.

Constitutional Law, Separation of Powers, Fourth Amendment, Eavesdropping, Wiretapping

Abstract:
The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose - the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build.

Two justices presently serving on the Supreme Court - Justice Antonin Scalia and Justice Clarence Thomas - oppose many of the principles established by the Roosevelt Court, and they wish to turn back the clock to the interpretation of Constitution as it was prior to 1937. The purpose of this article is to describe and defend the human rights revolution of the Roosevelt Court.

Roosevelt, Supreme Court, Constitution, Substantive Due Process, Equal Protection, Freedom of Expression, Freedom of Religion, Separation of Church and State, State Action, Commerce Clause, Justice Scalia, Justice Thomas, Justice Frankfurter, Justice Black, Justice Jackson, Justice Douglas

Abstract:
In November of 2004, the voters of the State of Ohio adopted Ohio Issue 1, an amendment to the state constitution providing that only a marriage between one man and one woman may be valid in or recognized by the state or any political subdivision, and that neither the state nor any political subdivision could create or recognize any legal status that approximates the design, qualities, significance, or effect of marriage. The purpose of this measure was to prohibit the recognition of same sex marriage, and to prevent the extension of the benefits of marriage to same sex unions by any governmental unit within the state. The author argues that Ohio Issue 1 is unconstitutional because it violates the fundamental right of marriage, and because it distorts the governmental decisionmaking process, creating different rules for different people who are seeking the adoption of laws or policies on their behalf. The author also identifies eleven arguments that the supporters of Ohio Issue 1 may make on its behalf, and rebuts each of these arguments.

Abstract:
The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In each case the Court perverted the meaning of the Constitution in ways that reverberate down to the present day.

In these cases the Court ruled upon several critical aspects of 14th Amendment jurisprudence, including (1) Whether the 14th Amendment prohibits the States from interfering with our fundamental rights; (2) How the equality of different groups should be determined; and (3) How much power Congress has to protect the civil and political rights of American citizens - in particular, whether the 14th Amendment authorizes Congress to enact legislation to prevent mobs or other private individuals from violating people’s fundamental rights. The Court narrowly construed the constitutional principles of liberty, equality, and the power of Congress to protect civil rights.

Constitution, Slaughterhouse Cases, Bradwell, Cruikshank, constitutional interpretation, Fourteenth Amendment, 14th Amendment

Abstract:
The Supreme Court has badly misread the purpose of the state action doctrine. The Supreme Court has stated: "Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." The fundamental value that is served by the state action doctrine is not "individual freedom" but rather "democratic choice." The Supreme Court has failed to recognize this, and as a result it has misinterpreted and misapplied the state action doctrine in a number of different contexts.

In the context of drawing the distinction between state action and private action, the Supreme Court's belief that the state action doctrine is designed to preserve individual freedom has influenced the Court to narrowly construe the concept of state action, thereby failing to properly control the exercise of state power. In determining whether particular actions being challenged were state action or private action, Chief Justice Rehnquist's strict adherence to atomized rules of state action, and his consequent neglect of the cumulative import of various elements of governmental involvement, has influenced both him and the Court to underestimate the necessity of applying constitutional norms to the exercise of combined private and state power.

The Supreme Court has also misconstrued the distinction between state action and state inaction, because it has failed to focus on the concept that the state action doctrine is intended to preserve the right of the people to decide for themselves the extent to which society will evolve beyond the constitutional baseline. The "no affirmative duty" doctrine stands for the proposition that the people, acting collectively, are not required to adopt social welfare programs. However, once protective laws have been enacted through the democratic process, and members of the executive branch have been elected or appointed to enforce those laws, state action exists, and constitutional norms govern the execution of those laws. In this context as well, the theme of "individualism" promoted by Chief Justice Rehnquist has led the Court to an incorrect analysis of the state action doctrine as applied to the obligation of the government to enforce protective legislation, and therefore DeShaney v. Winnebago County Department of Social Services is wrongly reasoned on state action grounds.

The only line of state action cases whose results are fully consistent with the principle of democratic choice is the Reitman/Romer line of authority, which authorizes "mere repeal" of antidiscrimination legislation, but which prohibits restructuring of the governmental process to the detriment of minority groups. This line of cases is not only consistent with the principle of democratic choice, it reinforces and protects the right of the people to democratically choose how individuals shall treat each other and what governmental benefits shall be distributed. The reason that these cases do not seem to "fit" with other aspects of the state action doctrine is that until now it has not been clear that the concept of democratic choice should be the motivating principle in all state action cases.

Finally, the principle of democratic choice suggests that the state action doctrine guarantees that the American people, acting through their state and federal elected representatives, have the discretion to determine whether and to what extent individuals and private organizations have the duty to observe constitutional norms. The state action doctrine was never intended to inhibit the power of Congress to protect against private invasions of fundamental right. That this is true is apparent from the legislative history surrounding the adoption of the Fourteenth Amendment and the enactment of civil rights laws directed at private conduct by the Reconstruction Congress. The Civil Rights Cases and all of the cases which follow in that line, including United States v. Morrison, are wrongly decided.

Critics from the left have also failed to appreciate that the purpose of the state action doctrine is to strengthen democracy, and as a result, they, like the Supreme Court, have also not comprehended the reason for the distinction between state and private action. The exercise of private power may be oppressive, but it is up to the people themselves, acting through the legislature, to determine the conditions under which and the extent to which private power will be regulated. The state action doctrine places principal responsibility upon the people to decide whether and to what extent the fundamental principles of fairness, tolerance, and equality should govern the actions of private individuals and organizations.

For this same reason progressive legal scholars also fail to appreciate the reason for the distinction between state action and state inaction. The state action doctrine stands for the proposition that the people alone have the final say in determining the nature and the degree of governmental services that they will support with their tax dollars. Social welfare policy is a matter of legislative grace, not constitutional right. The only governmental services that the government might be considered to have an affirmative duty to provide are education, so that citizens may have the opportunity to participate meaningfully in the democratic process, and the equal protection of the laws against acts of private violence.

Once it is understood that the state action doctrine serves and is controlled by the principle of democratic choice, the errors of both the Supreme Court and its critics become obvious, and the doctrine emerges as a rational and coherent building block of our democracy.

Constitutional Law, State Action, Fourteenth Amendment

Abstract:
This article describes and evaluates Justice Sandra Day O'Connor's constitutional jurisprudence. Part I of the article covers an early period on the Court when Justice O'Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O'Connor's attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O'Connor's respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule the case of Roe v. Wade. Part IV describes how her judicial philosophy evolved during her tenure on the Court in a number of areas, including abortion and the right to privacy, gay rights, affirmative action, the separation of church and state, procedural due process and the war on terror, federalism and civil rights. In the end, Justice O'Connor achieved a deep understanding and formulated a nuanced articulation of the fundamental American values embodied by the Constitution.

Constitutional Law, Equal Protection, Due Process, Federalism, Separation of Church and State

Abstract:
The constitutional calculus in freedom of expression analysis is the balance between the value of the expression and the harm that will result if the expression is permitted to go forward. A previous article described six factors affecting the value of an expression. This article describes four factors that courts take into account in assessing the harm that the government is seeking to prevent when it suppresses expression. These four factors are the speaker's state of mind, the likelihood that harm will result, the nature of the harm, and the gravity of the harm. The Supreme Court is increasingly turning to an empirical, fact-based assessment of these four factors in order the measure the weight of the governmental interest supporting laws that infringe upon freedom of expression.

First amendment, freedom of expression

Abstract:
This article proposes that the Supreme Court is moving towards the adoption of a balancing test in place of a categorical approach to solving freedom of expression problems. This balancing test - a constitutional calculus - is described by the following formula:

EXPRESSIVE VALUE (content, character, context, nature, and scope)

COMPARED TO

PROOF OF HARM (scienter, causation, nature and degree of harm)

Standard First Amendment doctrine follows a categorical approach that requires the courts to determine whether the law is content based or content neutral. Because content based laws are analyzed one way and content neutral laws are analyzed another way, under current doctrine it is crucial to be able to tell the difference between them. However, it is not always possible to classify a law as purely content based or purely content neutral. Many laws regulating expression are both content based and content neutral. For example, zoning laws that disperse sexually-oriented businesses, campaign finance reform laws that limit the amount of money a person or a political party may contribute to a candidate, policies and regulations restricting access of religious groups to public schools and universities, laws prohibiting electioneering at polling places on the day of an election, laws requiring specific media to give equal time or a right of reply to those officials or candidates who are attacked, and laws that regulate indecent or pornographic speech over specific media are both content based and content neutral on their face. In addition, there are many laws which are content neutral on their face, but which are content based in fact. These include laws and injunctions limiting protests at health care facilities, public nudity laws as applied to nude dancing establishments, laws prohibiting draft card burning, flag burning and cross burning, laws requiring cable television operators to carry broadcast stations, and laws governing the publication or broadcast of stolen or intercepted communications.

The Supreme Court is in the process of replacing the categorical approach that relies upon an absolute distinction between content based and content neutral laws with a constitutional calculus under which a number of factors which Justice Stevens calls content, character, context, scope, and nature are used to adjust the government's burden of proof up or down, affecting the quantum of evidence that the government must adduce to establish the constitutionality of the regulation of speech.

In easy cases the distinction between content based and content neutral laws will continue to be essentially outcome-determinative. But in difficult cases the categories that are drawn in First Amendment cases will become elements to be balanced rather than determinants of a specific standard of review. Under this balancing test, the higher the total value of the ideas and opportunities for expression that are restricted by a law, the more evidence of harm that the government must offer to prove that the law is justified.

freedom of speech, freedom of expression, categorical approach, balancing approach

Abstract:
The Supreme Court's recent decisions in Lawrence v. Texas and Grutter v. Bollinger are the most significant cases decided under the Fourteenth Amendment in the last 30 years. Lawrence makes a number of fundamental changes to the doctrine of substantive due process, while Grutter works equally important changes in equal protection doctrine. This article identifies the changes wrought by Lawrence and Grutter, describes the relation among those changes, and summarizes the underlying jurisprudential revolution that these decisions represent.

Justice Kennedy's opinion in the Lawrence case makes the following changes in the interpretation of the Due Process Clause:

- The Right to Privacy is not defined by reference to specific American traditions, but rather by reference to society's "emerging awareness" of the effect of laws on people's private lives.

- The Right to Privacy includes "certain intimate conduct" not because the sexual act itself usually occurs in private, but because of the central importance of sexual relationships in people's lives.

- The Court will look to legal developments in other nations, in particular decisions of the European Court of Human Rights, in defining our fundamental rights.

- Morality, standing alone, is not a sufficient basis for prohibitory legislation. Instead, the state must explain how behavior is harmful before it can make it unlawful.

Justice O'Connor's opinion in the Grutter case, as well as her concurring opinion and Justice Kennedy's majority opinion in Lawrence, make or confirm the following changes in the interpretation of the Equal Protection Clause:

- The level of scrutiny that the Court applies in evaluating the constitutionality of laws under the Equal Protection Clause varies with the context. Neither strict scrutiny not rational basis is applied the same way in all cases.

- Laws that intentionally stigmatize groups are scrutinized more strictly than laws that do not.

- Laws that inhibit people's personal relationships are scrutinized more strictly than laws that do not.

- Moral disapproval of a group or its actions standing alone is not a sufficient reason for legislation that discriminates against the group.

- Race-based affirmative action in university admissions is constitutional because it is necessary to train leaders from all segments of society.

In both Lawrence and Grutter the Supreme Court focused on the effect that its decisions would have on society and on the lives of individuals. This represents a shift away from reliance on tradition and towards consequentialist analysis in the interpretation of the Constitution. In my opinion the doctrinal and jurisprudential changes in Lawrence and Grutter are a welcome development that will help unlock human potential.

due process, equal protection

Abstract:
The book "Free Speech: The People's Darling Privilege" by constitutional historian Michael Kent Curtis describes the conflicts over freedom of speech that engaged Americans throughout the first half of the 19th Century. These controversies over free speech for the most part were not undertaken in the courts. Throughout the antebellum period the federal courts largely failed to enforce the First Amendment against actions of the federal government, and in 1833 the Supreme Court held that the provisions of the Bill of Rights were not applicable against the States. Freedom of expression, which the author says "had to be struggled for again and again and again," was not won in the courts, but was gained in election campaigns, in the legislatures, in community meetings, on the battlefield, and on the streets. Curtis uncovers the roots of popular American beliefs on freedom of speech, and thereby contributes to our understanding of the original meaning of the First Amendment.

Curtis traces the "struggles for freedom of expression" in three contexts: the adoption and ultimate rejection of the Sedition Act of 1798; the attempt to suppress anti-slavery agitation between 1830 and 1860; and the military suppression of anti-war views in 1863 under the Lincoln administration. The primary focus of the book describes the attempts by northern mobs and southern legislatures to silence the antislavery movement. This portion of the book contains a number of compelling stories, describing, for example, the persistence of John Quincy Adams fighting the gag rule in the House of Representatives, the courage of Elijah Lovejoy pressing the anti-slavery message at the risk of his life, the emancipation debate of 1832 in the Virginia legislature, and the trials of William Lloyd Garrison and Daniel Worth. Curtis concludes that as a result of these conflicts many Americans came to recognize that the free speech rights of all citizens must be respected, and that this recognition would "light the way for future generations."

The book review suggests how Curtis' book could be used in teaching First Amendment law. The review identifies a number of lessons applicable to teaching the First Amendment that may be drawn from the history that Curtis relates. It lists sixteen topics including the public forum doctrine, the rule against viewpoint discrimination, the counterspeech doctrine, the distinction between speech and conduct, and the enhanced protection for discussion of matters of public concern, and identifies the passages of Curtis' book that relate to these and other aspects of First Amendment doctrine.

"The People's Darling Privilege" reinforces the fundamental principle upon which this nation was founded - that governments are instituted by the people to secure their inalienable rights, and that all just powers of government are derived from their consent. The stories that Michael Curtis tells drive home the lesson that to make these self-evident truths manifest it is necessary that all persons be free to fully express themselves on matters of public concern. Without freedom of speech, democracy is impossible.

first amendment, freedom of speech, freedom of expression, constitutional law

Abstract:
The law uses three frameworks to regulate genetic technology: (1) Individual Rights and Duties; (2) Scientific Regulation by Administrative Agencies; and (3) Legislative Preemption. Each framework is invoked by a different decisionmaker, and each imposes a different level of scrutiny over genetic technology.

Actions to enforce Individual Rights and Duties are initiated by individuals. This framework involves the lowest level of government oversight over genetic technology. The core of this approach is to establish legal rights for individual citizens under the traditional sources of law: the common law, specific remedial statutes, and the Constitution. Under this framework people are free to act unless and until they harm others. The law makes no attempt to prevent harm other than to deter it by acknowledging the right of an affected person to sue for damages.

Scientific Regulation is conducted by administrative agencies, and results in a higher level of scrutiny over genetic technology. This is currently the most common form of regulating the biotechnology industry in the United States. However, our national experience has not resulted in a very strict level of administrative oversight. Administrative regulations take years to develop, the agencies bear the burden of justifying the regulations in court, and agency policy is subject to reversal by each new Presidential administration. Adding to the difficulty is that administrative agencies in the United States have had to act under existing laws that have not been amended to deal with the novel challenges of genetic technology.

The highest level of oversight, Legislative Preemption, is essentially hostile to genetic technology, and would severely restrict the application of this new science. The fundamental precept of this framework is "safety first" - the precautionary principle. Under this regulatory framework the government - usually the legislative branch - forbids or severely limits the development and application of new technology until it is proven safe. But because we do not yet know all of the consequences of genetic technology - because it cannot be proven safe in advance - this type of precautionary legislation often operates as a virtual ban.

Each legal framework plays a critical role in regulating genetic technology. Individual rights must be protected, industries must be regulated, and exploitative or dangerous practices banned. Furthermore, observers have identified a number of reforms that should be adopted within each framework. The law must enhance individual autonomy by more clearly recognizing rights to genetic privacy and nondiscrimination. A more comprehensive regulatory framework should be adopted, with stricter controls over the applications of genetic technology, and stronger protections for human safety. Finally, legislative bans should be considered against exploitative and dangerous experiments.

law and genetics, bioethics