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Abstract:
The American tradition of free individual expression exists side-by-side with its Fourteenth Amendment commitment to equality. In the area of hate speech, the libertarian notion of free expression comes into tension with the aspiration of equal dignity. While it is evident that maintaining equality means that government has no power to treat the speech of similarly situated persons differently, potential interpersonal friction exists where the speech of one person threatens the rights or safety of another. With the expansion of the Internet, new regulatory challenges more frequently arise because of the global reach of hate propaganda transmitted from the United States, where it is legal, and streamed into countries, like France, where such communications are criminal offenses.

The global reach of supremacist ideology creates a challenge to world democracies. Societies committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others' safety and dignity. Consequently, as much as American society extols freedom of speech, there are many instances in which competing interests, such as retaining a good reputation in one's community, place restraints on public communications. Where one person wishes to express false statements about another, defamation law sides not with the desire for inaccurate catharsis but with the protection of reputation. The preference for an individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being.' Public policy favors the interest of libeled individuals over that of anyone wishing to intentionally or negligently spread fallacy. So too where words are likely to result in the immediate breach of the peace. The Supreme Court has found that the government has a countervailing social interest in order and morality that justifies some limitations on speech.

This Article opens with an analysis of hate speech in a democratic society. The first topic to investigate is the role of speech in our constitutional democracy. The current Supreme Court cases that affect the status of hate speech are then reviewed and critiqued. Finally, the Article contrasts the American approach to destructive messages with the European and Canadian models.

First Amendment, Hate Speech, Legal Theory, Free Speech, Freedom of Speech, Freedom of Expression, Constitutional Law, Comparative Constitutional Law, Democracy, Destructive Messages, Racism, Ethnocentrism

Abstract:
The Internet is a global network providing connections for many forms of speech. All the processes of message transmission occur in real space through a system of identifiable algorithms. The information is posted on the Web by individuals or groups intending it to be read by and to affect a limited or expansive audience.

The worldwide potentials for the Internet offer a mechanism for spreading democracy and commercial entrepreneurialship throughout the world. However, the Internet is also a breeding ground for hate groups who use it to expand their membership and to solidify their forces. The packages of information about how to instigate a racial war or to limit the opportunities for identifiable groups do not exist in a virtual world, absent from reality. False messages which are intended to stifle and exploit existing negative stereotypes impact individuals' lives and the societies where they reside. They strengthen the purveyors of racism, anti-Semitism, sexism, and gay-bashers. They also intimidate traditional scapegoats and limit their ability to exercise the full extent of their fundamental right to autonomy.

In this article, I argue that criminal penalties should be imposed on persons who intend harm and violence against identifiable groups. I begin with a technological explanation of the Internet. I next turn to the proliferation of Internet sites that spread messages promoting racial and ethnic hatred and oppression. I then demonstrate the harm to hate posses to egalitarian democracy. The next part discusses how Canada and Germany have managed to honor freedom of speech on the Internet while contemporaneously prohibiting hate propaganda. Finally, Part V considers whether it is appropriate to enact laws prohibiting the distribution of hate speech on the Internet, and if so, to what extent such expression may constitutionally be limited.

first amendment, free speech, hate speech, destructive messages, group defamation, cyberspace, internet

Abstract:
This 150th anniversary of the Dred Scott decision presents the opportunity to assess whether the Supreme Court continues to rely on notions of states' rights doctrine to thwart civil rights initiatives. Particularly suspect are recent findings that Congress abused its Fourteenth Amendment Section 5 authority in passing the Religious Freedom Restoration Act, the Violence Against Women's Act, and parts of the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"). While those decisions by no means treat victims as sub-humans, in the way that Dred Scott did blacks, they display a knee jerk rejection against federal efforts to protect individual rights for the common good.

This Article evaluates the extent to which congressional authority under the Thirteenth and Fourteenth Amendments, which were designed to overrule Dred Scott, extends to the protection of inalienable rights. The second part reflects on the universal rights Revolutionaries claimed were at the core of nationhood. That part also examines how the pragmatic, constitutional compromises they made for the sake of union sullied their achievements. The third part examines the extent to which Dred Scott distanced itself from the protection of universal rights that transcend state sovereignty. Part four discusses Reconstruction of the American conception of citizenship through both constitutional amendment and legislative initiatives. That section further considers how the Supreme Court undermined changes to the Constitution, gravitating back to the antebellum primacy of state authority over universally recognized rights. Part five discusses post-Reconstruction judicial interpretations of the Fourteenth Amendment. Part six then delves into some recent limitations on federal civil rights authority, which the Rehnquist Court predicated on state sovereignty, swinging the pendulum away from the Warren Court deference to legislative efforts on behalf of civil rights back to the Taney Court's narrow construction of federal powers.

inalienable rights, unalienable rights, constitutional theory, Dred Scott, U.S. v. Morrison, City of Boerne v. Flores, Board of Trustees v. Garrett, Kimel v. Florida Board of Education, judicial power

Abstract:
This report is prepared at the request of the Attorney General of Canada to address the impact of hate speech on a pluralistic society. After careful examination of legal, historical, and sociological sources, this report concludes that the prohibition of hate speech addresses a pressing and substantial concern relating to the general welfare purposes of civil society. The prohibition of hate speech through laws such as section 13 of the Canadian Human Rights Act is rationally connected to this goal. Such laws minimally impair free speech needed to maintain a tolerant democratic society since hate speech has no truth value. The salutary effect of a law regulating the use of hate propaganda protects individual rights at an extremely minimal cost to the fundamental value of free speech.

first amendment, hate speech, free speech, speech, destructive messages, bias speech, biased speech

Abstract:
This article claims that congressional authority over civil rights is linked to an American rights-based tradition. It traces that tradition from the Revolution, through Reconstruction, and onto today.

Contrary to scholars like Rogers Smith and Larry Yackle, I claim that a fairly stable national ethos, which can be traced to the founding documents, has played a vital role in centuries of civil rights development. The principle of liberal equality, lying at the core of the Fourteenth Amendment, is essential to developing national civil rights policies.


Part II of the article discusses the concepts of liberty and equality during the revolutionary period. Emphasis is given to the early understanding of the national statements of purpose in the Declaration of Independence and the Preamble to the Constitution. That part also discusses the constitutional compromises that failed to achieve the stated ends of national government. Part III turns to several abolitionist views on the existence of a national obligation to protect rights. Those constitutional theories became influential during debates on the ratification of the Reconstruction Amendments, which granted Congress the power to pass laws securing rights intrinsic to national citizenship against arbitrary abuses. Debates on the Thirteenth and Fourteenth Amendments, the subjects of Part IV, made the principle of equal rights enforceable through federal statutes. As Part V recounts, the Court variously restrained the reach of new congressional powers. The article concludes, in part VI, with a critique of recent Supreme Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, which have further limited congressional civil rights authority.

legal history, history, legal theory, Constitution, constitional doctrine, constitutional law, civil rights, legislative authority, congressional authority, neo abolitionism, Reconstruction Amendments, Thirteenth Amendment, Fourteenth Amendment, individual rights, fundamental rights, rights

Abstract:
This is an encyclopedia entry dealing with the various facets of the antislavery movement. It distinguishes the Garrisonian, radical political abolitionist, and moderate antislavery perspectives on ending slavery. The essay quotes and cites original sources to illustrate the groups' core arguments.

antislavery, abolitionism, constitutionism, emancipation

Abstract:
The origins of the Thirteenth Amendment are found as much in the period of American reconstruction, when states ratified it into the Constitution, as they are in the American Revolution. During both eras Americans emphasized the human value of liberty. This chapter explores the notions of liberty that informed congressional debates on the proposed Amendment. It first reflects on revolutionary notions of liberty and then demonstrates how abolitionists relied on them. The chapter next turns to how abolitionist principles animated House and Senate debates about the proposed Thirteenth Amendment. It concludes with an explanation of why the Amendment proved to be inadequate to achieve radical Reconstruction.

Thirteenth Amendment, civil rights, legal history, history, constitutional history, constitutional theory, revolutionary ideology, abolitionism

Abstract:
This article evaluates the extent to which hate speech is a catalyst for discrimination, persecution, and other forms of oppression. Furthermore, it analyzes whether hate speech facilitates persecution of insular minorities. If hate speech breeds prejudice and limits an identifiable out group's ability to participate in the democratic process, then they pose a true threat and are not protected by the First Amendment. At issue are not abstract sayings, but expressions calculated to indoctrinate listeners with a set of beliefs justifying and advocating the use of force and persecution against out groups. Restrictions should be enacted against hate speech that is intended to elicit persecution or oppression when such results are significantly probable.

This article suggests that hate speech is not only dangerous when it poses an immediate threat of harm, but also when it is systematically developed and thereby becomes part of culturally acceptable dialogs. Part II of this article summarizes Supreme Court precedents dealing with hate speech. Part III evaluates what role anti-Semitic speech played in Germany in creating circumstances that made the Holocaust possible. Part III then analyzes whether racist speech contributed to the development of Black slavery and the ruthless destruction of many Native American tribes in the United States. Part III also contains a brief overview of the more prevalent current racist vitriol and its consequences. Part IV criticizes the Supreme Court's hate speech doctrine because it is not based on empirical evidence, but rather on a relativistic theory of law that potentially poses a threat to democracy. Part IV also considers legislation enacted by some Western democracies, like Germany and Canada, prohibiting certain forms of hate propaganda. Part IV then evaluates democratic institutions and the danger that hate speech poses to them. Finally, Part IV discusses policy considerations lawmakers should address in formulating statutes prohibiting the promulgation of speech aimed at instigating racial and ethnic violence.

hate speech, first amendment, history, historical analysis

Abstract:
I argue in this article that children should not be confined to mental institutions without first being afforded the right to intermediate judicial scrutiny under the Due Process Clause of the United States Constitution. First, I discuss how some judicial decisions have determined what procedural rights children have under the United States Constitution. I primarily focus on the key Supreme Court decision, Parham v. J.R., about the mental institutionalization of children. Secondly, I consider the degree to which juveniles in mental institutions are deprived of their liberty and evaluate the reliability of psychiatric diagnoses of children. Finally, I present a perspective on the reasons behind the increase in juvenile commitment and what legal steps should be taken to curb abuse of the juvenile mental health system.

mental health, children, mental institutionalization, institutionalization, juvenile, adolescent, mental illness, Szasz, Parham v. J.R., due process, intermediate scrutiny

Abstract:
This article proffers statutory guidelines designed to improve the quality of life for homeless persons. Part I analyzes laws directed at homeless populations as well as the differing common law opinions about their effectiveness and validity. Part II evaluates social contract theory and the right of citizens to a sustainable quality of life and then argues that it is in the general interest of society to provide homeless citizens with the opportunity to rise out of their destitute circumstances. Finally, Part III outlines the Homeless Vocational Training Program, which is a detailed statutory scheme for a nationwide residential training program.

homelessness, poverty, training, destitution, law

Abstract:
During the preceding decade, the Rehnquist Court significantly limited Congress's Commerce Clause and Fourteenth Amendment authority over civil rights. The new trend in judicial oversight first appeared in United States v. Lopez, where the Supreme Court invalidated a statute because Congress failed to show the law congruently and proportionately regulated behavior with a substantial effect on the national economy. In several cases, the Court relied on this congruency test to reduce Congress's ability to enact civil rights legislation. On another front, beginning with City of Boerne v. Flores, the Court reduced Congress's ability to enforce Fourteenth Amendment due process and equal protection rights. Boerne interpreted the Fourteenth Amendment to be a responsive, rather than a proactive, federal empowerment. This means Congress cannot "determine what constitutes a constitutional violation" in order to secure fundamental rights; it can only prevent judicially identified unconstitutional behavior. The Court thereafter reiterated this remedial interpretation in United States v. Morrison, finding that Congress overstepped its Fourteenth Amendment authority in enacting a civil cause of action for gender-motivated violence committed by private individuals as opposed to state actors.

Interestingly, the Rehnquist Court has not similarly reduced Congress's authority under the Thirteenth Amendment, making it an alternative source for federal civil rights statutes. This Article develops an approach that sidesteps the Court's recently placed obstacles to national civil rights initiatives. The Thirteenth Amendment differs from the Fourteenth Amendment because it lacks a state action requirement.

Similarly, it differs from the Commerce Clause because the Thirteenth Amendment's central concern is liberal equality rather than economic transaction. The Thirteenth Amendment's framers drew from antislavery and abolitionist writers to develop a constitutional provision for protecting individual rights essential for the common good of citizens.

Thirteenth Amendment, Fourteenth Amendment, civil rights, legal history, history, constitutional history, constitutional theory, revolutionary ideology, abolitionism

Abstract:
The Supreme Court recently limited Congress's ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states' sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court's restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that all three branches of government are responsible for protecting individual rights for the general welfare.

This Article examines the central principles of American governance. It first analyzes the role of liberty and equality in the founding generation's legal thought. It then reflects on how abolitionists adopted these principles and argued for their universal applicability. Abolitionist theories then entered the Constitution through the Reconstruction Amendments, which granted Congress the power to secure the privileges and immunities of national citizenship against arbitrary abuses. Since the late nineteenth century, however, the Court has diminished the potential uses of these amendments. Several Rehnquist Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, are indicative of the continuing constraint on legislative civil rights authority.

constitutional law, legal history, legal theory, constitutional theory, governmental powers, separation of powers, standard of review, civil rights, human rights, rights, principles in government, Declaration of Independence, Preamble to the Constitution, Due Process Clause, Equal Protection Clause

Abstract:
This essay surveys the underlying justification for bias crime laws from the perspectives of retributive and consequentialist theories.

Retributivist theory justifies punishment in terms of its relationship to past acts. Retributivists believe that punishment should be both deserved by an offender for his or her wrongdoing and proportionate to the offense which was committed; it should inflict pain against convicted wrongdoers in return for the suffering they caused. A primary implication of this theory is that it advocates punishing criminals irrespective of (or at least ambivalent to) whether that course of action is useful for achieving broader social goods.

Consequentialist theories of punishment, by contrast, justify punishment in terms of its potential to deter, incapacitate, and rehabilitate perpetrators-its potential to produce good consequences. Within the context of criminal justice, the good consequentialists seek is public safety, and laws must employ techniques which are most likely (or at least as likely as any other) to improve crime prevention. Policymakers and adjudicators can gauge the appropriate severity of punishment by determining its likelihood to reduce crime.

I think a mixture of these two theories best explains why enhanced punishments for bias crimes are legitimate. The differences between retributivist and consequentialist theories can be bridged by legislation which expresses social disapprobation with bias crimes Retributivism appeals to the sense that guilty individuals should be punished, while consequentialism reflects government's obligation to design a criminal justice system which assures citizens' security. A mixed theory integrates these theories to best express the greater social disapprobation with violence committed to instigate intergroup conflict.

legal theory, hate crimes, civil rights, motive, retributivism, consequentialism, rule consequentialism, deontology v. consequentialism

Abstract:
Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning, at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, including anti-Semitism, without running afoul of [established First Amendment principles].” On the other end of the spectrum, are authors who argue that hate speech attacks individuals’ Fourteenth Amendment right to equality, which outweighs any cathartic desire to degrade people because of their race, ethnicity, sexual orientation, and religion. This line of thinking, recognizes the fundamental right to free speech but argues that it can be restrained when used to intrude on others’ dignity rights. The advocates of campus hate speech codes claim that a college’s mission to further intellectual freedom is not undermined by restricting intimidating speech on campus; consequently, some scholars argue that curbing racist and xenophobic speech would not undermine the core purpose of higher education, the acquisition of truth. Both factions have relied on the Supreme Court’s First Amendment precedents to bolster their separate claims. Opponents of university hate speech regulations have often based their arguments with R.A.V. v. St. Paul, in which the majority found a municipal ordinance against cross burning to be unconstitutional. Following the rationale of that case, libertarians and several lower federal courts have asserted that university administrators lack the authority to prevent the spread of vitriol, no matter how racist, xenophobic, or sexist. Eleven years later, in a quiet coup, the Court upheld a more rigorously drafted cross burning statute than the one struck down in R.A.V. The later decision, Virginia v. Black, defined the scope of legitimate limitations on destructive messages. This article adds a fresh perspective to this decades-old academic tempest of intellectual disagreement about First Amendment theory. It first discusses the current problem of hate speech on college campuses. It then turns to a survey of United States First Amendment jurisprudence that is relevant to the regulation of hate speech on campus. Then it provides a comparative analysis of International and European regulations of hate speech. The section compares and contrasts international approaches to that of the United States. In the final portion of the article, I analyze the narrow and broad implications of the Supreme Court’s rational in Virginia v. Black to develop two forms of college hate speech regulations that are likely to withstand First Amendment challenges.

Hate Speech, First Amendment, Constitutional Law, Campus speech, Intimidation, Virginia v. Black

Abstract:
This article develops a pragmatic proposal for passing federal civil rights statutes pursuant to the Thirteenth Amendment. It begins with an analysis of Supreme Court precedents and turns to the amendment's contemporary applications. I am particularly concerned here with developing a legislative approach that will cautiously build on Supreme Court jurisprudence to identify the scope of congressional enforcement authority.

The Thirteenth Amendment provides the federal government with the power to enact legislation that criminalizes certain private acts of discrimination. Congress may pass necessary and proper laws that can reasonably be expected to end subordinating infringements against individual rights. In significant circumstances, several of which are discussed here, the Thirteenth Amendment covers anti-social behavior that is beyond the scope of the Fourteenth Amendment and Commerce Clause, even though these two are more commonly relied on for civil rights enforcement.

Given the sparseness of Thirteenth Amendment precedents, broadening its reach is more likely to succeed through incremental policymaking. This step-by-step strategy is analogous to the NAACP’s successful approach to litigation in the Fourteenth Amendment area. If this initial, pragmatic effort succeeds in the courts, Congress can later be more expansive in passing laws against discrimination targeting a range of identifiable groups.

Legal History, Thirteenth Amendment, Fourteenth Amendement, Anti-Discrimination, Congressional Authority, Commerce Clause

Abstract:
This essay provides a brief historical study of the public reaction to several Supreme Court nominees who faced cultural prejudices. It covers the nominations of Chief Justice Roger Taney, who became the first Roman Catholic Justice; Justice Louis Brandeis, the first Jewish member of the Supreme Court; Justice Thurgood Marshall, the first black Justice; and the first Latina to join the Supreme Court, Justice Sonia Sotomayor. The essay concludes with some reflection about how the justices personal backgrounds play into their decisionmaking.

Supreme Court nominations, Supreme Court nominees, prejudice, society, objectivity of judicial judgments