Beacon Broadside

Accountability vs. Retribution in Juvenile Justice

David Chura is the author of I Don’t Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. He has worked with at-risk teenagers for the past 40 years. For 26 of those years, he taught English and creative writing in community based alternative schools and in a county penitentiary. His writings have appeared in the New York Times as well as other scholarly and literary journals. He blogs at kidsinthesystem.wordpress.com.

This post originally appeared at Juvenile Justice Information Exchange. 

“You don’t care about the victims. All you care about are those kids.”

It was a comment I’ve heard in one form or another at book events, at juvenile justice talks I’ve given, or in response to pieces I’d written about our national policy of retribution towards troubled kids. I have to admit, though, this guy was a bit more, shall I say, challenging, as he stood up after my reading and made his comment.

I’d read several advice articles for authors on giving readings suggesting you have “pat answers” ready for the Q & A. It keeps things moving. It may be good advice, but I’ve found it doesn’t work for me. Juvenile justice is too potent a topic be “pat answered” away. Besides, I wrote I Don’t Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup about the young offenders I taught for 10 years in the adult county prison to get people thinking about this much-neglected issue. So I do my best to address each concern sincerely.

Fielding the man’s rather angry question, I talked about my belief that kids should indeed be held accountable for their actions; that they should learn that what they did affected not only their victims and their families and communities but also the young offenders themselves and their families and communities. What I couldn’t support was the punitive quality of that accountability as it is now practiced in our prison system.

I could tell that evening’s questioner was pretty disgusted. I was one more bleeding heart, one more knee jerk liberal, one more sucker taken in by “those kids.” He was gracious about it. He didn’t say any of that out loud. He didn’t have to. I’d heard it all before.

But his comment stayed with me long after the event: What did I feel about the victims?

I talk a lot about victims in my book. But the victims in this case are the locked up high school students I worked with for those 10 years. In telling their stories — stories of childhood neglect and abandonment; of sexual abuse; of violence in the home and on the streets; of parental addiction and disease — I wanted readers to at least be aware of the fertile ground of mistreatment in which these children grew up. From my challenger’s point of view I’m sure I do go on too much about “those kids” and not about the people who suffered because of their crimes. (It’s important to note, however, that many of the teens I came across in jail — and this holds true for prisons nationally — were serving time for victimless, nonviolent offences.) I was beginning to wonder if maybe the guy was right. Maybe I didn’t care about crime victims?

Like all good questions, this one stayed with me well afterwards. Yet despite the doubts he raised for me I knew that I did care deeply about the people hurt by crime; that, in an odd twist on the title of my book, “I don’t wish nobody” to have their lives damaged by the irresponsible acts of others, young or old. I turned the question over and over until finally I understood more clearly where I stood: the only way to protect society from youthful offenders and to prevent more crime was to protect the offenders themselves.

Study after study has shown that the harsh treatment of young people locked up in our nation’s jails has not only failed to reduce recidivism but has also created angrier, more bitter, more violent juvenile offenders. Lock a 14- or 15- year-old up in an adult prison with its toxic environment of noise and dirt; of abuse, intimidation and paranoia; of violence and aggression, and that kid will not leave jail with a heightened sense of responsibility towards society, ready to re-examine and change his or her behavior.

I know that my reasoning wouldn’t convince those who feel that any punishment for criminal actions is not harsh enough to give victims the justice they seek. But the more I think about it the more convinced I am of the wisdom — and commonsense, which wisdom often is — behind it: if we truly care about victims, if we want to shield people from the hurt of crime we must look at and change the way we bring juvenile offenders — all offenders, really — to true justice.

During my tenure as a jailhouse teacher and while I was writing my book, I always thought of the kids I taught as children of disappointment, children let down time and time again by the world of adults — parents, teachers, clergy, neighbors. Prison breeds disappointment, and as I did my own 10-year jail bid I watched many of my students come in as children of disappointment and leave young adults of disappointment.

That’s a transformation no one truly wants and protects no one.

Read more posts by David Chura

Confessions of a "Failing Teacher"

Keeping Locked-Up Kids and Their Families Connected

Making Connections to Help At-Risk Girls

CeCe McDonald’s Right to Self-Defense

Joey L. Mogul is a partner at the People’s Law Office in Chicago, Illinois, and Director of the Civil Rights Clinic at DePaul University College of Law.  Mogul’s practice focuses on representing individuals who have suffered from police and other governmental misconduct in civil rights cases, and defending individuals in criminal and capital cases. Mogul is co-author, with Andrea Ritchie and Kay Whitlock, of Queer (In)Justice: The Criminalization of LGBT People in the United States. 

On June 5, 2011, Chrishaun “CeCe” McDonald, an African American transgender woman, was assaulted by Dean Schmitz, a white heterosexual man, and his friends in a violent, racist, and transphobic attack. In the face of extreme violence causing her serious physical injury, CeCe defended herself. The Hennepin County Attorneys’ Office in Minneapolis refused to recognize her right to self-defense, and instead prosecuted her for two counts of second degree murder for the death of Mr. Schmitz.

On May 3, 2012, after a jury was selected and opening arguments were set to begin at trial, CeCe pled guilty to a reduced charge of second degree manslaughter in exchange for a recommended sentence of forty-one months imprisonment, as opposed to proceeding to trial where she faced a possible forty year term of imprisonment if convicted of second degree murder as originally charged.

The following text is adapted from a speech I gave at an event on April 22, 2012 organized by CeCe’s Support Committee at the University of Minnesota in Minneapolis, Minnesota.

CeCe’s sentencing hearing is scheduled for June 4, 2012.

Gay Pride Month and the Stonewall Rebellion 

In June of 2011, Gay Pride Month, CeCe McDonald, a Black transgender woman, was the victim of a vicious, racist, transphobic attack. It is sadly ironic that she is the one criminalized for exercising her right to self-defense.

Gay Pride month is more than just a month to party (although I have nothing against partying), and it is certainly more than a parade full of politicians and corporate sponsors who want you to vote for them or buy their products.

The Gay Pride Parade and Pride Month derive from a cherished moment in queer history - the Stonewall Rebellion.

The Rebellion occurred in June of 1969 when officers from the New York Police Department (NYPD) raided the Stonewall Inn, a private drinking establishment in the West Village of New York City. The purported justification for the raid was the enforcement of liquor law violations.

The raid was nothing new. Law enforcement officers frequently used pre-textual justifications, like liquor law enforcement, to raid gay bars nationwide in order to arrest, humiliate, and in many cases abuse, all those present. This time, however, people were fed up with these unjustified attacks, and in response to the homophobic onslaught and physical brutality, people resisted and defended themselves. Led by drag queens and butches, bar patrons yelled “Gay Power” and they threw shoes, coins, and bricks at the officers and clashed with the NYPD over the next three days.

We celebrate Gay Pride in June each year to mark the moment when queers fought back, defended themselves, and said no to the violence. Thus, it is tragically ironic that, at the beginning of Pride Month, CeCe McDonald is awaiting punishment for fighting back, defending herself, and protecting her life during Pride Month one year ago.

The Facts Regarding CeCe McDonald’s Prosecution for Murder

On June 5, 2011, around 12:30 a.m., CeCe and four of her friends, who were also young queers of color, were in South Minneapolis walking to Cub Foods when they passed the Schooner Tavern. According to witnesses, Dean Schmitz began yelling at CeCe and her friends, calling them rapists who were wearing women’s clothes, as well as a slew of racist, homophobic epithets, including “niggers,” “fags,” and “faggot lover.” Schmitz further verbally assaulted CeCe, denying her gender identity, yelling out that she was not a girl, and claiming she was tucking in her dick.

When CeCe and her friends verbally responded to Schmitz and his female companions – all of whom were white – the crowd began calling them “niggers” and “faggots” and “chicks with dicks.” A physical altercation ensued, when one of the white women with Schmitz smashed a liquor glass in CeCe’s face with such force that it shattered on impact, cutting CeCe’s cheek and requiring 11 stitches.

Witnesses at the scene reported that CeCe had turned away and was leaving the altercation, when Schmitz followed her in an aggressive, hostile fashion. Eventually, Schmitz was stabbed during the altercation with a pair of scissors in the chest and he bled to death at the scene. CeCe claims she acted in self-defense.

This was not the first time Dean Schmitz had expressed racist sentiments. Schmitz was a proud racist who had a swastika tattooed on his chest. Schmitz also had a history of violence, and had three prior convictions for assaulting his ex-girlfriend’s 14-year-old daughter, assaulting his ex-girlfriend, and getting into a physical fight with his ex-girlfriend’s father.

The Racist, Transphobic Hate Violence Endured by Transgender Women of Color in the United States

Schmitz’s assault on CeCe was not an isolated incident. Transgender women of color endure egregious violence every single day across the U.S. The National Coalition of Anti-Violence Programs (NCAVP) reported in 2010 that people who identified as either as transgender or people of color were twice as likely to experience assault or discrimination as non-transgender white individuals. NCAVP also reported that transgender women made up 44% of the 27 hate murders committed in 2010 despite being only 8% percent of the queer population (see http://www.avp.org/publications/reports/reports.htm).

Just this past month, 3 transgender women of color have been murdered. On Monday, April 16, Paige Clay, an African American transgender woman, was found dead in an alley on Chicago’s Westside with a bullet through her forehead. On April 3, CoCo Williams, an African American transgender woman, was murdered in Palmer Park in Detroit, Michigan. Her throat was slashed and her body was riddled with gunshot wounds. In March, Rosita, a presumably Latina trans woman, was found dead in her apartment in Miami, Florida, the victim of multiple stab wounds.

It was more than reasonable for CeCe to fear for her life, not only because of Schmitz’s own aggressive and violent behavior, but also because of the endemic and often deadly violence transgender women of color experience in this country on a daily basis. In light of nationwide trends, it is fair to ask what would have happened if CeCe did not defend herself. Would her name simply have been added to the too long list of names we recite at annual Transgender Day of Remembrance?

Is CeCe’s real crime that she lived?

The Criminalization of LGBTQ Targets of Hate Violence

CeCe is not the only queer of color to be physically attacked and forced to defend herself, only to be blamed for the violence and prosecuted in the criminal legal system. As my co-authors Andrea Ritchie, Kay Whitlock and I discuss in Queer (In)Justice: The Criminalization of LGBT People in the United States, LGBTQ people, particularly those of color, report that police often focus on them rather than their assailants when they are the victims of violence, questioning their accounts of the incident and/or blaming them for bringing the violence upon themselves.

This was the case with the New Jersey 7, which involved a group of seven Black lesbian friends who were confronted by Dwayne Buckle, a Black heterosexual man in the West Village of NYC. Buckle made a sexual advance towards one of the women, and when she responded she was not interested, he shouted “I’ll fuck you straight, sweetheart!” He then spit on this woman, and later grew physically abusive, pulling on one of the women’s hair and choking another woman. A physical struggle ensued, and two unknown men ran over to help the women. Buckle was stabbed during the altercation and he cried he was the victim of a “heterosexual hate crime.”

As my co-authors and I discussed in Queer (In)Justice, the police responded to the incident and they refused to see the women as victims. Instead, the police arrested and charged them with attempted murder, framing them as the perpetrators of “gang violence.” Ultimately, three of the seven women felt compelled to plead to get a reduced sentence, and four of the women were found guilty and sentenced to three and half to eleven years in prison.  (For more information: See INCITE! Women of Color Against Violence: Critical Lessons from the New Jersey 7.)

The same dynamic occurred in Monica James’s case, a Black transgender woman in Chicago in 2007. Monica was pursued by an unknown white, gay man who was yelling and screaming racists, transphobic epithets at her. A physical altercation ensued, and during the struggle she bit in him in self-defense and he knocked her unconscious. Both claimed to have acted in self-defense, but she was the one charged with a host of serious felonies. In Monica’s case, the white man who pursued her was an off duty Chicago police officer. She was charged with attempted murder, discharge of the officers’ weapon and aggravated battery on a peace officer.

Her claims of self-defense were also ignored and rejected. The State also rejected her claims that she was the victim of a racist and transphobic attack, arguing to the jury this could not be the case because the officer was gay.

While Monica prevailed and was found not guilty of the more serious charges, thanks in great part to the organizing efforts of the Transformative Justice Law Project, she was still found guilty of aggravated battery.

Why Is CeCe the Only Person Facing Charges from this Incident

Against this backdrop, it is fair to question the fairness and legitimacy of CeCe’s criminal prosecution, and there are several other unanswered questions regarding this prosecution. For instance, why is CeCe the only person charged with a crime as result of this incident?

It appears several people committed crimes that fateful night. The white, presumably heterosexual woman who hit CeCe with a beer mug committed battery (possibly aggravated battery), when she hit CeCe, causing her a severe injury requiring medical treatment. Why wasn’t she charged? Is it because the State is going to call her as a witness and rely her testimony to convict CeCe? Are the police and prosecutors crediting her testimony over that of CeCe’s based on her race and gender conformity?

This woman and another, along with Schmitz, were yelling out racist and homophobic slurs and accusing CeCe and her friends of setting out to commit heinous crimes of rape (both projecting on to CeCe and tapping into archetypes that have framed Black people as perpetrators of rape and sexual deviance since slavery and Jim Crow, archetypes that have been used to justify lynching). Is it fair to infer that Schmitz’s friends may be guilty of inciting a riot, stirring people to engage in violence against CeCe and her friends?

If CeCe was white and gender conforming would she be facing murder charges today? Or, would her case be dropped by the Hennepin County Attorney’s Office like that of three other white women who claimed they acted in self-defense?

Drop Prosecution of CeCe

Paige Clay, the African American transgender woman killed in Chicago was known for saying, “If you are quiet as a mouse, no one will hear you.” Well, CeCe was not quiet as a mouse, but instead she spoke up and defended herself. And we cannot be quiet like mice either. We cannot stand silent in the face of the racist, transphobic violence plaguing the nation that is silencing, harming and killing transgender women of color. And we cannot stand silent in the face of this unfair and unjust prosecution. I believe CeCe has the right to defend herself and I applaud the valiant efforts of the CeCe Support Committee in organizing on CeCe’s behalf and calling on the Hennepin County Attorney Mike Hennepin to drop the charges. Free CeCe.

Serious Business: President Bush and VP Cheney Should Take the Stand on War Lies

Cynthia L. Cooper is an award-winning journalist, author and playwright. She is the co-author of Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution – and What We Should Do About It (Beacon Press 2012), written with Elizabeth Holtzman. 

Nine years ago, I encountered a man from Ohio on a flight from LaGuardia to the Akron-Canton Airport just as the Iraq War was starting. I wish I could talk to him again.

While sharing armrests but diverging on political leanings, we had a rather heated tête-à-tête about war in Iraq. He was firmly in favor of the war, and, in fact, wanted all the shock and awe the U.S. could deliver. He reasoned that Iraq was linked to al Qaeda and 9/11, and we couldn't let them get away with it.

I was fresh from the massive anti-war marches in New York and questioned the truth of any connection between Iraq and al Qaeda, although President Bush and Vice President Cheney had drawn the association with regularity. My seatmate's whole body leaned over to the right -- literally. "I feel so sorry for you," he said. "How cynical you must be to think that the president would lie."

Now, nine years later, I feel sorry for all of us. If only, like the Beatles' Revolution 9, played backwards by disc jockeys of the day, we could rewind this tune. The false statements and lies that were used by President Bush and his team to drive the nation to war and occupation in Iraq have caused immeasurable heartbreak with thousands upon thousands of lost and damaged lives -- U.S. and allies' personnel, Iraqi civilians and military, international journalists and bystanders. The financial costs to the U.S. have reached $800 billion, according to the American Progress Center's Iraq War Ledger, and the ticker is still going.

Now we know that President Bush and his team lied repeatedly -- investigative researchers at the Center for Public Integrity documented 935 false statements about Iraq in the two years after 9/11 (memorialized in a song by Harry Shearer). More than mere harmless "pants on fire" posturing, these statements violate the federal criminal law.

In Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution - and What We Can Do About It, I and co-author Elizabeth Holtzman describe a prima facie case for prosecuting President Bush and Vice President Cheney for conspiracy to deceive Congress under Sections 371 and 1001 of the federal criminal code.

Now that Bush and Cheney are no longer in office, the law can reckon with them on this and other outrageous incursions, such as wiretapping without warrants and torture. And prosecuting is a mighty good idea if we are to have a robust democracy down the road.

President Bush deceived Congress in two direct ways -- one was a speech; the other was a letter sent to Congress, stipulating that he had met the prerequisites set by Congress in order to launch a war into Iraq.

The speech came on January 28, 2003 : the State of the Union message personally delivered to both houses of Congress. Two-thirds of the speech was devoted to Iraq, and much of what the president said was simply false. It was here that President Bush asserted that Iraq was buying the uranium needed to build a nuclear weapon from a country in Africa. The "sixteen words," later retracted, were known to be untrue. Their deceptiveness was unmasked when former Ambassador Joseph Wilson wrote that he had traveled to Africa before the war at the behest of the Bush administration and had reported back that Iraq was not buying uranium. (As told in Fair Game, Wilson's statements spurred a vicious White House reaction targeting his wife, CIA agent Valerie Plame.)

President Bush also said that Iraq was procuring aluminum tubes for nuclear weapons, but that matter had already been dashed as wrong by the International Atomic Energy Agency, noted Joby Warrick in theWashington Post. Finally, President Bush said, as my Ohio seatmate parroted, that "Saddam Hussein aids and protects terrorists, including members of al Qaeda," but those connections had been debunked immediately after 9/11 by counterterrorism expert Richard Clarke.

Things only got worse in the weeks after the State of the Union. Congress, as the branch of government charged with declaring war, had set stipulations in October 2002 that President Bush had to satisfy before a war could be launched in Iraq. Rather than meet them, the president flouted them. That is, he lied. On March 18, 2003, the president literally signed, sealed and delivered letters stating that a war in Iraqwas a "necessary" action against those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." Not only was war not necessary, Iraq had not aided in the attacks of 9/11.

The president's letter also certified that Iraq posed a "continuing" threat to the U.S. As the president knew, it did not -- it had no weapons of mass destruction (WMD) and none were in development. The president admitted this to Prime Minister Tony Blair before the war, according to leaked British memos obtained by international lawyer and author Philippe Sands.

Piling on the false statements, the president stated in the letters, untruthfully, that "peaceful means" would not protect the U.S. But weapons inspectors were peacefully in Iraq and, while they had found no WMD, they were willing to continue to look. In addition, the president blew off the UN Security Council andrefused to fulfill the requirement for a critical second resolution before going to war (it would have been vetoed). International lawyers objected vehemently to the rejection of this diplomatic process, and this has become an ongoing scandal in Britain, where the Iraq Inquiry has been taking testimony, much of it damning, on the start of the Iraq war.

Lying to the U.S. Congress is a federal crime under Section 1001 of the federal code, and working in concert with others to lie to Congress is prohibited by conspiracy laws under Section 371. These are not mothballed laws, but ones that are being used regularly to charge others with crimes. Former Yankees pitcher Roger Clemens was criminally charged for making a false statement to Congress in denying any use of steroids. The American League's 2002 Most Valuable Player Miguel Tejada pleaded guilty in 2009 to making a false statement to Congress about his knowledge of other players' use of banned substances. Of Tejada, Assistant U.S. Attorney Steve Durham said, "People have to know that when Congress asks questions, it's serious business. And if you don't tell the truth -- and we can prove you haven't told the truth -- then there will be accountability." Tejada was placed on probation, ordered to do 100 hours of community service and required to pay a fine of $5,000.

Not even that modest level of accountability has been applied to President Bush. Lying about knowledge of steroids is obviously a blip on the scale compared to lying about 9/11, WMD and the need for war. We still have had no clear explanation of why President Bush and his team drove the nation to war and occupation in Iraq; in fact, in his book, Decision Points, the former president said that he had no apologies even though no WMD were found, and he thought the world was better off for the war. He was completely oblivious to the suffering of so many who lost loved ones or were injured, displaced, tortured and permanently harmed.

We need to put any future president on notice -- now -- that lying to Congress about the need for war is serious business. Prosecution under the criminal laws of the United States is the best way to hold President Bush accountable. I'd like to find that man from Ohio; I think he'll agree -- we can't let him "get away with it."

Beacon Authors on Trayvon Martin and "Stand Your Ground" Laws

In the Boston Globe, Nancy Gertner (In Defense of Women) finds fault not only with stand your ground laws, but with the way Florida's law is being applied to George Zimmerman:

Whatever the justification for the 911 call – and it was thin – nothing justified what happened afterwards, not even under Florida’s infamous “Stand Your Ground” law. Zimmerman fatally shot Trayvon Martin. Florida has led the nation with its “Stand Your Ground’’ law, despite the opposition by prosecutors and law enforcement groups. Palm Beach State Attorney Barry Krisher opposed the law “because it encourages people to stand their ground .. when they could just as easily walk away. To me that’s not a civilized society.” Paul Logli, the president of the National District Attorneys Association said that these laws “give citizens more rights to use deadly force than we give police officers and with less review.” Despite the opposition, many other states followed Florida’s bad example. Indeed, such a law has recently been proposed in Massachusetts by Senator Stephen Breyer and Representative George Peterson. [Read more]

At Colorlines, Kai Wright (Drifting Toward Love: Black, Brown, Gay, and Coming of Age on the Streets of New York) looks at the cultural demonization of young black men like Trayvon.

Sadly, it’s necessary to point out that there isn’t an imaginable scenario in which an armed man can shoot an unarmed child to death and it be okay. But set that obvious fact to the side. Trayvon Martin did in fact have it coming. He was born black and male in the United States and was thus marked for death. The cruelness of our economy and of our criminal justice system isn’t reserved for men or for black people. But there is a particularly gendered and particularly racist way in which black men are set upon in this country, most acutely those who don’t have the resources to push back. And it has a very long, still relevant history.

For the entirety of American history—from the first African captured and enslaved to the moment Geraldo Rivera opened his mouth to pimp Martin’s death for ratings—black men have been relentlessly caricatured as menaces to society. We were dangerous, so chattel slavery was necessary, and a nation’s wealth was born. We are still dangerous, so a police state is necessary in black neighborhoods all over this country, and the wealth of a prison-industrial complex flourishes. This is what Trayvon Martin’s murder is about. It’s not about his high school suspension. It’s not about his hoodie. It’s not even about Florida’s Kill at Will law, at least not at root. It’s about the enduring, dark fantasies to which America still clings, in order to justify a society in which more black men are locked up or on parole today than were enslaved in 1850—to pick just one of many indicators of the scale at which black men are battered. But we’re menaces; we’ve got it coming. [Read more]

At his Inheriting the Trade blog, Tom DeWolf examines the different consequences for black people and white people in our criminal justice system:

If a young black man had been walking around his neighborhood with a gun, encountered a white man, and said he felt threatened and shot him to death, he would be in jail; yes, even in Florida with the “Stand Your Ground” law in place. Throughout history, black-on-white crime has generally been investigated and prosecuted far more vigorously than has white-on-black crime. [Read more]

At CNN.com, Sherrilyn Ifill (On the Courthouse Lawn) calls for us to "Stand with Trayvon's mother for justice":

The teenage rites of passage that thrill our white counterpoints send fear down a black mother's spine. When your child is old enough to walk to a friend's house in the neighborhood, it can mean the first of many stop-and-frisk encounters with the police. When they turn 18, they can now be arrested and charged as an adult for being in the wrong place at the wrong time. A new driver's license and car opens the door to driving-while-black stops. Just having a flat tire in the road can end with a senseless murder, like the death of Camille and Bill Cosby's son Ennis on the Los Angeles freeway in 1997. [Read more]

The Heckler's Veto at School

David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.

Dissenting opinions obviously don’t have the force of law that majority opinions do. But that doesn’t mean they aren’t better reasoned. Recall that Justice John Marshall Harlan (the first one) was known as “the Great Dissenter” in part for his solitary dissent in the abhorrent Plessy v. Ferguson (1896), in which the Court sanctioned segregation and the noxious separate-but-equal doctrine.

Judge Rosemary Pooler’s March 22 dissent in the student-speech case Cuff v. Valley Central School District from the 2nd U.S. Circuit Court of Appeals may not rise even close to that level of prominence. Yet it brought some much-needed perspective to an area of law in desperate need of it.

The case involved a class assignment in 2007 for fifth-graders at Berea Elementary School in Montgomery, N.Y., to color in a picture of an astronaut and write anything on it they wanted. The teacher allegedly told the class: “When I mean anything you want, anything. You can write about missiles.”

Hearing this, 10-year-old B.C. — in juvenile cases often only initials are used — wrote on his picture that he wanted to “blow up the school with all the teachers in it.” He showed the picture to his classmates and they laughed.

It was no laughing matter to the teacher, and B.C. received a six-day suspension. His parents sued on his behalf, alleging a violation of his First Amendment rights. When the case reached the 2nd Circuit, the three-judge panel ruled 2-1 in favor of school officials.

Judge Ralph Winter reasoned that school officials must have broad authority to handle student-speech issues in order to prevent violence or a substantial disruption of school under the U.S. Supreme Court’s famous decision in Tinker v. Des Moines Independent Community School District (1969).

“Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence,” he wrote. “The threat of substantial disruption was aggravated by B.C.’s sharing of his ‘wish’ with fellow students, an act reasonably perceived as an attention-grabbing device.” The reasoning was that other students might engage in distracting copycat behavior that would interrupt education at the school.

Judge Pooler disagreed with this line of reasoning, noting that Tinker requires at least a forecast of a substantial disruption. To Pooler, B.C.’s act created only a “minor disruption.”

She also warned that the majority opinion allows a speaker’s First Amendment freedoms to be determined entirely by listeners. She didn’t use the term, but the majority opinion sanctioned the idea of a heckler’s veto on speech.

“The First Amendment’s protection of free speech cannot hinge entirely on the reaction of a listener to a person’s speech,” she wrote. “If that were the case, the First Amendment would be only as strong as the weakest, or at least the most thin-skinned, listener in a crowd.”

Pooler did not say that the student should win the case. Disputed factual issues, such as the meaning and relevance of B.C.’s past drawings, required the case to go to jury, she said.

The majority seemed to declare that any student expression with violent themes justifies school punishment. Pooler dug deeper and questioned such unrestrained deference to school officials by the majority.

Her opinion brings to mind Justice Abe Fortas’ warning in Tinker: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

‘Catch Me If You Can’: How Bush and Cheney Attempted to Protect Themselves, But Failed

Today's post is from the authors of Cheating Justice, Cynthia L. Cooper, an award-winning journalist and lawyer, and Elizabeth Holtzman, a lawyer, former prosecutor and former member of Congress who served on the House committee that investigated Watergate.

This post originally appeared at ACSBlog. 

When President George W. Bush and his team left office, mounds of misdeeds were left to fester. Some of their transgressions in office were so shocking – lying to Congress in order to embroil the nation in war and occupation, illegally wiretapping Americans without warrants, authorizing torture that had been outlawed by U.S. and international law – that he and Vice President Cheney probably should have been impeached and removed from office.

Instead, they completed their terms and sped away. Even though Bush publicly announced in his 2010 memoir that he had personally authorized waterboarding, a recognized form of torture  -- “Damn right,” he is quoted as saying – hardly a peep was heard about seeking accountability. But how can that be? Key to preserving our democracy is the concept that no person is above the law.

In order to ignite a national conversation on the topic, we set out to show how and why the president and vice president should be held accountable – especially, how they can be prosecuted. That meant looking at the available evidence, investigating precisely what laws are implicated and determining, as best as possible, whether a prima facie case could be made. We found enough to make a courageous prosecutor sit up and take notice, although the statute of limitations is ticking in some areas. We found clear problems under laws related to the conspiracy to deceive Congress, foreign intelligence surveillance and U.S. anti-torture laws – each of which needs prosecutorial attention.

Along the way, we found something else disturbing, too: a repeated pattern by which Bush and Cheney took extraordinary efforts to protect themselves from the sting of the law. In Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution – And What We Can Do About It, we look at both: how the ex-president and vice-president can be held personally accountable, but, also, how they tried to manipulate the system from inside to keep themselves from being held to account.

Perhaps the most startling example of their extraordinary actions was the gutting of the War Crimes Act of 1996. This law was a healthy, robust and muscular law when President Bush took office. It had a proud history -- introduced in Congress by a Republican from North Carolina, passed by a bipartisan majority, signed by a Democratic president. The law implemented the Geneva Conventions for the U.S. and prohibited U.S. personnel from torturing detainees, and banned degrading treatment, cruelty, acts of humiliation and outrages against personal dignity.

To understand how far the president and vice president strayed from the War Crimes Act means facing what happened to some detainees. For example, at Guantanamo, Mohammed al Qahtani, a Saudi, was detained under blinding continuous light and extreme isolation, interrogated 20 hours a day, threatened by an aggressive dog, led around on all fours with a leash, exposed to life-threatening cold temperatures, subjected to beatings, forced nudity, forced enemas – and more. Other “approved” techniques included locking a detainee in a closed box and dropping in an insect. The pictures that eventually emerged from Abu Ghraib were only a sliver of the story.

The evidence shows that the president and vice president authorized and personally approved a scheme of cruel and inhuman treatment of detainees. But when the 2006 Supreme Court decision in Hamdan v. Rumsfeld said that the Geneva Conventions could not be summarily erased, Bush and Cheney knew that they might be held criminally liable under the War Crimes Act. They went into high gear to protect themselves, slipping a series of loopholes into another law, the Military Commissions Act of 2006, under the deceptive sub-heading of “implementation of treaty obligations.”

These changes shredded the War Crimes Act. Conduct that was previously illegal was suddenly made legal. For example, crimes of “cruel and inhuman treatment” were eliminated from the law in an apparent effort to legalize beatings, sensory deprivation, and the like. Even more astonishing, the law was made retroactive to 1997 -- something that may be unprecedented in U.S. history.

These examples of legal hocus-pocus are windows into the extent of the Bush efforts to create buffers of personal protection from the law. But, even in this area, other laws may still come into play, especially the U.S. anti-torture law and international human rights protections.

The actions of Bush and Cheney sully our democratic heritage and stain our constitutional system. If they are allowed to “get away with it,” nothing will be able to stop any future president or high official from similarly trampling on our rights and violating other criminal laws. It’s not too late, and people of conscience can make a case, knowing that the country as a whole will suffer if Bush and Cheney remain uninvestigated, unprosecuted and unaccountable.

Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution--and What We Can Do About It

“Here at last is a book for everyone who is outraged—or just bewildered—that Bush, Cheney and other top officials escaped prosecution for their many flagrant violations of the law. Will there really be no consequences for the men who lied us into war, compromised our civil liberties, and made "waterboarding" and "Guantanamo" household words? Passionately, clearly and concisely, Elizabeth Holtzman lays out how it happened, how the Bush Administration secretly sought to immunize itself from prosecution, and how we can still hold the perpetrators accountable.” —Katha Pollitt, author of Subject to Debate

“This book makes a vital contribution to addressing the abuses of power of the Bush administration. Unfortunately today, nearly three years after the end of the George W. Bush administration, our nation still labors under the many excesses of that era. Holtzman’s book offers a cogent and elaborate account of that time period and important insights into how we can prevent those from recurring.”—John Conyers Jr., author of The Constitution in Crisis

"Elizabeth Holtzman, who helped bring President Nixon to justice in the Watergate hearings, now takes on the bigger, deeper and even more crucial task of investigating—and exposing—exactly how President George W. Bush and Vice President Cheney started an illegal war, subverted civil liberties, human rights and the law itself, and then used the national trauma following 9/11 to cover it up. Start to read Cheating Justice, and you won't be able to put it down."— Gloria Steinem, co-founder Ms. Magazine, writer and feminist activist

Buy from Beacon Press | Independent Bookstore | Amazon | Barnes and Noble | Powells

Despite the many misdeeds of and abuses of criminal law by the Bush administration, there has been no accountability. Former U.S. representative Elizabeth Holtzman pairs with lawyer and journalist Cynthia L. Cooper to explain why we can't "just move on." They lay bare how the Bush-Cheney administration broke a multitude of laws and betrayed American values, and exactly why and precisely how we, the people, must bring them to justice for their crimes, their cover-ups, and their deceit.

Backed by strong evidence gleaned from "astounding" research, Holtzman and Cooper argue that the Bush administration not only violated various U.S. laws but also changed many laws to escape prosecution for their crimes later. The authors demonstrate how a failure to hold George W. Bush and Dick Cheney accountable would set a dangerous precedent for the future leadership of America.

Bush and Cheney deceived Congress and the people to drive us into a war in Iraq; they claimed the right to wiretap illegally and to eavesdrop on citizens; and they authorized torture, upending laws and breaching international treaty obligations. Yet, both Bush and Cheney are boldly unabashed about their offenses. In his memoir, President Bush makes no apologies for his decision to start a war in Iraq, though no weapons of mass destruction, the ostensible reason for the war, were found there. And once out of office, Bush proudly said, "Damn right," about his approval of waterboarding, a clear violation of the Geneva Conventions and U.S. law. Recent revelations about the extent and depth of their crimes, catalogued in detail here, make the need for accountability imperative.

As a member of Congress and part of the committee that investigated and held hearings on the conduct of President Richard Nixon in the Watergate scandal, Elizabeth Holtzman condemns Bush's adoption of Nixon's claim that he acted in the interest of national security. Using Watergate-era reforms as a model, Holtzman details the steps necessary to undo the damage that the Bush-Cheney administration inflicted and explains how we can establish new protections to block future presidents from similarly abusing the law. Cheating Justice is not only a call to empower the American people, and a firm insistence that the nation's leaders are not above the law; it is also a blueprint by one of America's top legal minds for bringing Bush to justice and protecting the future of our democracy. 

Read the Kirkus Review of Cheating Justice.  

Read the Introduction to Cheating Justice on Scribd.

Odd Clauses Watch: How Do the States Stack Up In the First-Ever (We Think) Original Jurisdiction Standings?

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston Globe, Spy, Mental Floss and McSweeney's. This post originally appeared on his blog.

One of my favorite constitutional provisions that I talk about in my book The Odd Clauses is the so-called Original Jurisdiction Clause of Article III, which says that “In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” Usually (by which I mean almost always, maybe 99% of the time), the Supreme Court hears cases under its appellate jurisdiction, which means that it hears a case that has already been heard by lower courts, and its role consists of reviewing the decisions of those courts. But when the Supreme Court exercises its original jurisdiction, it is the first and only court to hear the case. This is very strange, because the Supreme Court is not set up, as is a trial court, to hear evidence and witnesses and make factual determinations and the like; usually all it does is decide pure legal issues.

Although the Constitution provides for a few different kinds of cases that the Court can hear in its original jurisdiction, Congress has provided by statute that almost all of these kinds of cases can also be heard by the federal trial courts. As a result, even almost all of the cases that would fall under the Court’s original jurisdiction end up being heard in the first instance  by a lower court. As it turns out, then, pretty much the only cases that the Supreme Court ever considers in its original jurisdiction are cases in which one state sues another state (or states). For these state vs. state cases, the Supreme Court is the only court that has the objectivity necessary to provide for a fair hearing to both states. If Nebraska were to sue Iowa, for instance, over where their border should be drawn, where else would it sue? It wouldn’t want to sue in Iowa. And Iowa wouldn’t want it to be able to sue in Nebraska. The framers understood this problem, and so they gave the Supreme Court original jurisdiction over these difficult cases to prevent interstate conflict and even war, which at least at the time of the founding, was by no means an impossibility.

Every year the Supreme Court hears somewhere between zero and three of these cases; the cases don’t, in other words, make up much of the Court’s docket. The Court has yet to list an original jurisdiction case for this term yet, for instance. Last term the Court decided one case, a water rights dispute between Montana and Wyoming. The most notable thing about the opinions in that case was Justice Scalia’s attempt to rename the people of Wyoming, a stunt that led me to open up a poll asking readers to vote on their preferred moniker for Wyoming citizens. (The winner was “Wyomans.”)

Most original jurisdiction cases involve some type of border or water rights dispute. Some involve tax issues of some sort of another. A few involve interstate pollution issues, like when Missouri sued Illinois at the turn of the 20th century, claiming that Illinois’ decision to reverse the flow of the Chicago River had spread disease downstream to St. Louis (Missouri lost). The most famous recent original jurisdiction case involved New York and New Jersey arguing over who owns Ellis Island. The Court, much to the dismay of many New Yorkers, held for New Jersey.

Although the Supreme Court could, if it wished, hold actual trials in these cases, in which presumably the justices would decide as a group on the thousand nitty gritty issues of evidence and whatnot that come up during your average trial, it almost never does this (I think maybe it’s done it three times in its history). Instead it appoints somebody called a “Special Master” to sort through the evidence, hold a trial, and issue a report that makes recommendations about what the Court should do. The Court then reviews those recommendations and decides whether to adopt them. Special Masters are generally chosen from the elite bar. I, for example, am unlikely to be appointed as a Special Master.  

In my book, I explain that I love these State vs. State cases in part because their names (Oklahoma v. Texas, Arizona v. California, etc.) sound like college football games. I also mention that while writing the book I had considered analyzing all these cases and reporting on the win-loss records of all the states, to see which states have fared the best and the worst in these interstate disputes. Also in the book I mention that I did not have time to actually do this because I have a “family” and because my editor was a real stickler with her deadlines, etc. etc.

I am happy now to announce, however, that over this past summer, my crack team and I (by which I mean my very smart and conscientious research assistant Dave Hatton, working under my haphazard and oft-distracted supervision) completed this important, shall I say pathbreaking research (yes, I shall), by looking at every original jurisdiction state versus state case decided since 1900 (we had to leave some further research to those who follow in my scholarly footsteps) and coming up with the win-loss records of each state. Now, I should make a couple of disclaimers before reporting on the data. For one thing, some of these cases are hard to call, and reasonable minds may differ as to who won and who lost. We simply made the best judgment we could. For another thing, I explicitly told Dave that his other tasks were more important and that he shouldn’t knock himself out analyzing the cases, and that if he missed something or otherwise got sick of trying to get to the bottom of something, he should just make a decision and get on with it because, let’s face it, none of this makes any difference.

Anyway, without any further ado, I present the following two lists–the first is an alphabetical list of all the states with their win-loss records, and the second is a list of all states judged to have participated in five or more cases, in order of their winning percentages. As you’ll see, the big winners here are Minnesota and Michigan. The states that have fared the worst are Tennessee and Louisiana. Here is the first list:

Alabama	1-2
Alaska	no cases
Arizona	2-6
Arkansas	1-5
California	6-3
Colorado	8-9
Connecticut	0-1
Delaware	3-0
Florida	1-3
Georgia	0-1
Hawaii	no cases
Idaho	2-1
Illinois	3-6
Indiana	1-1
Iowa	2-0
Kansas	4-4
Kentucky	2-4
Louisiana	2-7
Maine	0-1
Maryland	2-1
Massachusetts	3-2
Michigan	6-1
Minnesota	5-0
Mississippi	3-5
Missouri	2-4
Montana	1-2
Nebraska	4-2
Nevada	3-2
New Hampshire	1-1
New Jersey	3-3
New Mexico	7-3
New York	7-4
North Carolina	3-1
North Dakota	1-1
Ohio	4-1
Oklahoma	3-4
Oregon	1-1
Pennsylvania	5-3
Rhode Island	1-0
South Carolina	1-1
South Dakota	1-0
Tennessee	0-5
Texas	6-8
Utah	3-0
Vermont	1-2
Virginia	4-4
Washington	1-1
West Virgina	3-5
Wisconsin	5-2
Wyoming	7-5

And here is the second list:

Minnesota	5-0 (winning percentage 100%)
Michigan	6-1 (86%)
Ohio	4-1 (80%)
Wisconsin	5-2 (71%)
New Mexico	7-3 (70%)
California	6-3 (67%)
Nebraska	6-3 (67%)
New York	7-4 (64%)
Pennsylvania	5-3 (63%)
Massachusetts	3-2 (60%)
Nevada	3-2 (60%)
Wyoming	7-5 (58%)
Kansas	4-4 (50%)
New Jersey	3-3 (50%)
Virginia	4-4 (50%)
Colorado	8-9 (47%)
Oklahoma	3-4 (43%)
Texas	6-8 (43%)
Mississippi	3-5 (38%)
Washington	3-5 (38%)
Illinois	3-6 (33%)
Kentucky	2-4 (33%)
Missouri	2-4 (33%)
Arizona	2-6 (25%)
Arkansas	1-5 (17%)
Louisiana	2-7 (22%)
Tennessee	0-5 (0%)

There you have it, folks. The first ever, as far as I know, original jurisdiction standings. Of course, there’s a lot more to be done with this data, for those so inclined. Like, maybe breaking up the analysis into how well states do when they are plaintiffs as opposed to defendants, for example. Or devising a board game called State versus State where the goal is to successfully sue as many states as possible to increase your borders, access the most water, and get the most tax revenues. In any event, I’m happy to take questions on how I got these numbers if anyone cares, and I’m definitely happy to adjust the numbers if it turns out I mischaracterized a decision or missed a decision or whatever. Until then, enjoy.

That Cup of Hot Coffee? Don't Believe What McDonald's Would Like You to Believe.

Today's post is from Jay M. Feinman, Distinguised Professor of Law at Rutgers School of Law. He is an authority on contract law, tort law, and legal education, and is the author of Un-Making Law: The Conservative Campaign to Roll Back the Common Law.

If most Americans know about any single piece of litigation, it is likely not to be Marbury v. Madison, which established the Supreme Court’s power of constitutional judicial review, or the civil rights landmark of Brown v. Board of Education. Instead, it involves the more ordinary circumstances of Stella Liebeck, the 79 year old victim of a coffee spill at a McDonald’s drive-thru. The story became a staple of attacks on the civil justice system as an example of frivolous litigation, runaway juries, and activist judges who were denying personal responsibility and threatening American business.

As I describe in Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Beacon, 2004), the facts are different than the legend. Liebeck suffered third-degree burns that required skin grafts and a week of hospitalization because McDonald’s served its coffee thirty degrees hotter than its competitors, too hot to drink but hot enough to burn. Prior to Liebeck’s case, McDonald’s had received over 700 complaints about the temperature. Even then, the jury reduced Liebeck’s compensatory damages by twenty percent because she was partly at fault, and the judge cut the jury’s punitive damage award from $2.7 million (the jury’s estimate of how much McDonald’s made from two days’ coffee sales) to $480,000.

Liebeck’s story has been retold in a documentary film, Hot Coffee, that premiered at film festivals and on HBO this year and is now available on DVD. Susan Saladoff, a successful Oregon trial lawyer, gave up her law practice and devoted two years to making the film. Hot Coffee graphically portrays Liebeck’s story, showing her as an ordinary senior citizen, not a greedy plaintiff, and shows in grisly detail the effects of her burns.

The film also gives a broader picture of corporate America’s attempt to transform the civil justice system. For example, it presents the story of Oliver Diaz, Mississippi Supreme Court Justice who was opposed by the U.S. Chamber of Commerce in a heavily financed smear campaign that was fictionalized in John Grisham’s novel The Appeal. It attacks mandatory arbitration clauses through which workers and consumers are denied access to the courts, using the story of Jamie Leigh Jones, a Halliburton employee in Iraq whose allegations of gang rape were blocked from litigation by her employment contract.

Hot Coffee and Un-Making Law tell related versions of the same story. My book describes the conservative transformation of tort, contract, and property law in historical perspective and great detail. As a visual medium, the film is visceral. And both end with a call to action that is echoed in the Occupy Wall Street movement—it’s time to reclaim law as a progressive force for the benefit of ordinary people.

First the Good News: At-Risk Kids (May) Get Some Justice

David Chura is the author of I Don’t Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. He has worked with at-risk teenagers for the past 40 years. For 26 of those years, he taught English and creative writing in community based alternative schools and in a county penitentiary. His writings have appeared in the New York Times as well as other scholarly and literary journals. He blogs at http://kidsinthesystem.wordpress.com/.

There’s been some good news in the media lately for anyone who cares about kids and justice. Federal statistics show that the number of juvenile offenders in jail has dropped by at least 25%. Along those same lines, the New York Times recently reported that New York Chief Judge Jonathan Lippman has called for moving most juvenile cases from criminal court to family court, where kids will get more help than punishment, thus adding his voice to the excellent work of the New York Center for Juvenile Justice. In the Boston Globe, criminologist James Alan Fox wrote that the Massachusetts law that requires all juveniles convicted of first-degree murder to be sentenced to life without parole “has not reduced juvenile murder”—and he has the numbers to prove it. And, supporting all these concerns, the Annie E. Casey Foundation’s No Place for Kids: The Case for Reducing Juvenile Incarceration hits hard at the waste of both taxpayer money and human potential when states lock up young offenders.

Good news, right? So why with all this good news and media attention do I still get cranky about kids in adult jails? Because the 1962 New York State statue setting the age for criminal responsibility at 16 is still law. It is still law even though it was supposed to be a temporary measure until research was conducted (the research was, of course, never done). I'm still cranky because in Massachusetts 59 people are serving life sentences with no chance of ever getting out for crimes committed when they were too young to vote, some of them when they were too young to drive. Because a recent Gallup poll found that two-thirds of Americans think crime is worse than it was last year despite data showing the opposite. Because lawmakers respond more to the electorate’s fears than to commonsense and compassion.

But I’ll give you an even better reason why I’m cranky. I’ve seen firsthand what happens to young people caught up in the criminal justice system. Meanwhile, studies are conducted (or not), reports are written, and statistics analyzed; pundits study the issues and experts testify before commissions.

For ten years I taught kids locked up in an adult county jail and watched how the penal system corrupted and eroded their humanity. That’s easy to do when you take away people’s identity. Give them a number instead of a name; call them “criminal,” “inmate,”  “thug,” and you take away their dignity—and their rights—the way we do when we label people “illegals.” Suddenly it’s okay to stop someone and demand their “papers,” to deny their families medical care, their children an education and the protections of the law.

The locked-up kids I taught were forced to eat food banned in public schools years earlier. To go without eyeglasses they needed to read, to navigate safely in a perilous environment, eyeglasses they had when they were booked and somehow never got back to them.  Worse yet, many of these young people went without the psychotropic medications they had been on for such conditions as depression, bipolar disorder, attention deficit, and psychosis. When those untreated conditions made them hard to handle they were punished, thrown into solitary confinement, where, with no human interaction or mental health treatment, things only deteriorated.

I had students come to class with jaws swollen, and not from some brawl on the block the way you might expect would happen when you lock up together 40 or so teenage boys. The swelling was because of an abscessed tooth, and there was no dentist to take care of it because he only came every other week, or because the sick call form I helped them fill out somehow “got lost.”

Other medical treatment, when it was available, was often perfunctory and inadequate. One young man I worked with, Toro, a young Guatemalan who was always respectful to anyone in authority, received 30 day lockdown—23 hours alone in a cell with a half hour to clean up and a half hour to do PT—because he refused to take the unidentified pills the nurse was giving him. “All I wanted to know was what the pills were for,” he told me. “I didn’t know. I’d never taken them before and nobody would tell me.”

None of us, no matter what conditions we’re forced to live in, easily gives up our humanity, and the young men and women I saw at the county penitentiary were no different. But their resources—family, education, community, health, spirituality—the kind of resources that help all of us hold firm to who we are, were meager even before they were incarcerated. Maintaining even a kernel of humanity in the face of such daily deprivation was near to impossible.

If it all sounds bleak that’s because it is. But I say let the good news roll—the reports, the endorsements, the calls to action—but let’s do something about the harsh, demeaning, counterintuitive prison conditions we force young people to live in while insisting that they grow and change. Until then, whether it’s the 45,873 16- and 17-year olds arrested in New York last year or the 59 juvenile offenders serving life without parole in Massachusetts, or just one kid locked up somewhere in the country, I guarantee I’ll be cranky, very cranky. 

Image from ABN2 on Flickr. Used under Creative Commons. 

Occupy Wall Street, the Guarantee Clause, and Separation of Powers

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston Globe, Spy, Mental Floss and McSweeney's. This post originally appeared on his blog.

As I discussed a while back on my Odd Clauses Watch blog, one of the reasons I wrote The Odd Clauses the way I did was to sort of take back the Constitution-- the whole Constitution, not just bits and pieces like the 4th Amendment-- for us liberals. For some reason, it seems that these days conservatives have claimed (and have gotten away with claiming) that the Constitution is mainly theirs. They are, after all, the ones who insisted on reading the whole thing on the House floor after the last election, and if you look around and see who is writing about the various odd clauses of the Constitution, it turns out that they are mostly conservatives. Maybe it has something to do with how conservatives like to read dusty texts in the basements of old libraries, or something, I don’t know. The Tea Party movement certainly has invoked the Constitution to support is radical views about limited government and taxation. But of course the Constitution belongs to all of us.

About a week ago, Yale law bigwig and constitutional provocateur Jack Balkin wrote a post on his Balkinization blog arguing that the Occupy Wall Street movement, while not openly claiming any link to constitutional values, nonetheless does embody the key constitutional notion that our government is supposed to be responsive to all citizens, not just one small tiny itsy bitsy rich faction (and I use that word purposefully) of the population. He argues that in fact, this notion is encapsulated in the Guarantee Clause, which provides that “The United States shall guarantee to every State in this Union, a Republican Form of Government.” I mention this clause briefly in the introduction to my book (and even make the same joke he does about how the clause has nothing to do with the Republican party), but it’s not one of my main clauses. Other prominent blogs have reported on Balkin’s suggestion. William and Mary’s Timothy Zick has issued something of a retort to Balkin. Back at Balkinization, Jason Mazzone has raised questions about the meaning of the Guarantee Clause.

I am sympathetic with Balkin’s suggestion. I do think there’s something constitutional going on with the OWS movement. I would add that indeed OWS is fighting back against what has become the newest manifestation of the framers’ biggest fear–-a concentration of power in a small faction of American citizens that threatens the goodwill of the citizenry as a whole. The framers were terrified of concentrated power. They fled a political system that featured just such a concentration, and they insisted when writing the Constitution on splitting up powers in all sorts of ways-- state and federal, legislative and executive and judicial, House and Senate, church and state, etc.-- to protect against the emergence of such concentrated power in the new Republic. To the extent that OWS is claiming the mantle of the 99% against the 1%, it is claiming that our constitutional system, shaped by questionable decisions like Citizens United, has failed to protect us against the concentrated power of an economic elite that has furthered its agenda at the expense of everyone else.

So, yes, go and claim the mantle of the Constitution, OWS. The Guarantee Clause, Separation of Powers, the First Amendment, and all the rest of it.

 

Free Speech in Schools: Interview With David Hudson

The American Booksellers Foundation for Free Expression is the bookseller's voice in the fight against censorship. Founded by the American Booksellers Association in 1990, ABFFE’s mission is to promote and protect the free exchange of ideas, particularly those contained in books, by opposing restrictions on the freedom of speech; issuing statements on significant free expression controversies; participating in legal cases involving First Amendment rights; collaborating with other groups with an interest in free speech; and providing education about the importance of free expression to booksellers, other members of the book industry, politicians, the press and the public.  

The ABFFE Book of the Month for September is Let the Students Speak! A History of the Fight for Free Expression in America's School by David L. Hudson. The ABFFE interviewed Hudson for their website. 

This week is Banned Books Week! The ABFFE is holding a benefit auction to help support the organization's efforts to protect the First Amendment Rights of young readers. Beacon Press is hosting a giveaway to raise awareness of Banned Books Week. Find out about other Banned Books Week activities here. 

ABFFE: How did you become interested in student free-speech rights? 
Hudson: Much of it comes from my daily work at the First Amendment Center. One of the best parts of my job is getting to travel to different middle and high schools and speak to students and teachers about First Amendment issues in the schools. My interest began even before my employment at the Center, as I had a personal experience with censorship in high school (being punished for "inappropriate" speech). 

ABFFE: What was something that surprised you in your research about the history of student expression? 
Hudson: I was surprised at the sheer number of early student speech cases. They are not often talked about, mentioned or even cited in most modern student-speech cases or secondary-source literature (with a few notable exceptions). The stories of Earl Wooster, Pearl Pugsley, Camilia Booth and other early student litigants are interesting to students - and hopefully will be interesting to readers of the book. 

Read the rest of the interview here. To read about other Book of the Month selections, click here.

 

Troy Davis: Why Poster Boys Don't Matter

David R. Dow, the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor at Rice University, has represented death row inmates for more than twenty years. His books include Executed on a Technicality and The Autobiography of an Execution.

There were hundreds of protestors outside the prison. From the sky the streets looked tiled with satellite dishes. There was live coverage on CNN, and a front-page story in The New York Times. The national conversation about capital punishment had finally begun. 

That’s what I wrote ten years ago, talking about two executions in Texas: Karla Faye Tucker, who was guilty but repentant; and Gary Graham, who was unrepentant but almost certainly innocent. Troy Davis was like Gary Graham all over again, but with an additional decade of internet connectivity. Where a few hundred people wrote the Texas Board of Pardons and Paroles urging clemency for Graham in 2000, upwards of half a million wrote the Georgia Board urging that Davis’s life be spared. Nobody was tweeting during the Graham execution, and Karla Faye Tucker, for all her photogenic appeal, did not have a Facebook page. 

Over at Slate, the always insightful Dahlia Lithwick thinks the Davis case is the tipping point, but I don’t think so. I think the Davis case only tells us what we already know: that a solid minority of Americans oppose capital punishment, and that some capital punishment supporters believe we should not be executing someone if there is uncertainty about his guilt. 

The problem with the former group is that they are, to repeat myself, a minority. The problem with the latter group is that they don’t really believe what they say; if they did they’d be against virtually all executions. I’ve been a death penalty lawyer for more than twenty years. I know a lot of executed offenders who might have been innocent. Because most death penalty cases are not DNA cases, some degree of uncertainty is the norm. States have been trying for decades to perfect the machinery of death and insure that only the guilty get convicted and only the worst of the worst sent to the gurney, but both quests run headlong into one simple ineradicable fact: human beings err. Every inmate who has been exonerated was sent to prison because twelve people were sure about his guilt. 

Death penalty supporters endorse an immoral punishment, but they are not morons. They know human beings make mistakes. If someone (a) knows human beings err, and (b) supports the death penalty anyway, we can safely say that person has determined that the cost of taking an innocent life every now and again is a price worth paying. 

Be careful about rising too fast to argue with that calculus, because at some level we all believe it.  That’s why we support the building of interstate highways, space exploration, and search for alternative fuels, not to mention urban warfare in Afghanistan, even though we know with actuarial certainty those government programs will cause innocent people to lose their lives. What’s different about the death penalty? Morally speaking, the answer is probably nothing. 

Troy Davis is just the newest chapter in the quixotic abolitionist effort to end the death penalty on the shoulders of a single prisoner. The problem is, no matter how many “I am Troy Davis” t-shirts you print, the only people who wear them are people who were already against the death penalty before they’d heard of Troy Davis. Rick Perry and his supporters don’t think they are Troy Davis. You can ask them, What if you were the innocent prisoner caught in this snare? And their answer will be, Airplanes crash, but I fly anyway. 

People do not abandon the death penalty because they suddenly realize human beings make mistakes (see, for example, Gary Graham), or because a single death row inmate strikes them as redeemed (see, for example, Karla Faye Tucker). People abandon the death penalty because they realize it is an obscene waste of resources, or because they acknowledge quite simply that it is wrong for the state to kill. 

Perhaps a few people, bombarded for weeks by the Davis media spectacle, reached one of those conclusions or the other. But four hours before Davis was put to death Texas executed Lawrence Brewer, and the day after Davis died Alabama executed Derrick Mason. Davis didn’t save either of them, and his death won’t save anybody else either, because you can’t change a death penalty supporter’s mind with posterboys.  America will indeed abandon capital punishment, but it won’t happen until the majority believes that killing even an unquestionably guilty murderer is wrong.  

Photo of Mentalgassi, “Making the Invisible Visible," from Marie A.-C. on Flickr. Used under Creative Commons.

Judge Nancy Gertner Retires From the Bench

Today marks the first day of the Honorable Judge Nancy Gertner's retirement from the United States District Court, where she has served since her nomination to the bench by President Clinton in 1994. Don't worry--she's not going to take up quilting or zip off to a deck chair in Boca: the illustrious judge has been appointed a Professor of Practice at Harvard Law School, where Dean Martha Minow said upon her appointment:

"Nancy Gertner's brilliance as a legal advocate did so much to advance civil rights, criminal law, and the rule of law for two decades even before her appointment to the federal bench. As a distinguished federal judge for the past 17 years, she has brought keen intelligence, deep learning, and rigorous investigation of facts and law while also serving as an inspiring teacher and scholar. She has shared her searching questions, rich experiences, and uncanny ability to bridge theory and practice with students at Harvard Law School and elsewhere, and I could not be more delighted that she will now join our community as a Professor of Practice." (link)

She ended her tenure with a several noteworthy decisions. We wish Judge Professor Gertner well in her new academic digs, and can't wait to read her next memoir. 

In honor of her retirement, here are some videos of her talking about her legal career, including her first case as a lawyer and how she became a judge. 

 

 

 

Slumber Parties and Student Speech: Judge Rules That School Can't Punish Girls for Racy Pics

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools which will be released tomorrow, August 16th, by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

“Not much good takes place at slumber parties for high school kids, and this case proves the point.” Despite that observation, U.S. District Judge Philip P. Simon found that Indiana school officials exceeded their authority when they punished two high school girls for posting provocative pictures of themselves online.

In 2009 during summer vacation, 16-year-old T.V. and 15-year-old M.K. posed for photos during a sleepover then posted them in what the court called a “saucy online display.” The court noted that several photos featured the girls pretending to lick a penis-shaped lollipop and wearing lingerie with money stuck in “stripper-style.”

The girls did not bring the images to school and all the activity took place off-campus. However, another parent brought printouts of the photos to Steve Darnell, superintendent of Smith-Green Community School Corp. The parent claimed that the images were causing divisiveness on the volleyball team — a squad which included T.V. and M.K.

Darnell took the photos to Austin Couch, principal of Churubusco High School. Couch suspended the girls from several volleyball games for violating the school’s “Extra-Curricular Code of Conduct” and student handbook. The handbook states: “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year.”

Couch also said the girls were suspended because their online photos had the potential to cause disruption at school.

In October 2009, the girls, represented by the American Civil Liberties Union of Indiana, sued in federal court, arguing that school officials violated the First Amendment by punishing them for purely off-campus conduct.

Judge Simon agreed with the students in his Aug. 10 opinion in T.V. v. Smith-Green Community School Corp.

The school defendants initially argued that the online photos were not expression and therefore did not trigger First Amendment protections. Simon disagreed, writing: “The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images.” In other words, the photos were speech that conveyed a particularized message sufficient to trigger First Amendment protections.

The school defendants then argued that they had the power to discipline the students under the U.S. Supreme Court precedent Bethel School District v. Fraser (1986) — a case in which school officials suspended a student for his sexually laced speech at a school assembly. The Fraser standard provides that school officials can punish students for lewd and vulgar speech. The defendants in the Indiana case argued that because the girls’ photos were lewd and vulgar, they should evaluated under Fraser. Simon disagreed, finding that Fraser did not apply to off-campus student speech.

Simon then addressed the seminal student-speech standard from the Supreme Court’s black armband case Tinker v. Des Moines Independent Community School District (1969). Under the Tinker standard, school officials can prohibit or punish students for speech if they can reasonably forecast that the student speech will cause a substantial disruption of school activities.

“Defendant’s showing of actual disruption is extremely weak,” the judge wrote. “In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds.”

Simon concluded that “no reasonable jury could conclude that the photos of T.V. and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption.”

He also ruled that the school policy which permits school officials to punish students for any conduct “that brings discredit or dishonor” on the school or student is too broad and vague.

Ken Falk, the ACLU of Indiana’s legal director, told the First Amendment Center Online: “The students and parents are very happy that the court recognized that there is a clear line beyond which a school cannot go in punishing students for expressive conduct.”

W. Erik Weber, an attorney for the school district, told the Associated Press that he believed the school officials were justified in their actions in this “unsettled area of the law.” He said it was too soon to determine whether the district would appeal because the judge did not rule on whether the school corporation was immune from damages under the 11^th Amendment, which often prohibits citizens from suing states for monetary damages.

 

A Cross or a Crossbeam?

Frederick S. Lane is an author, attorney, expert witness, and lecturer who has appeared on "The Daily Show with Jon Stewart," CNN, NBC, ABC, CBS, the BBC, and MSNBC. He is the author of six books, including The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court, American Privacy: The Four-Hundred-Year History of Our Most Contested Right and the just-released Cybertraps for the Young.

As any sports fan will tell you, even the best umpires and referees sometimes blow a call. Every Red Sox fan over the age of 40 remembers the name Larry Barnett and can tell you how his inexplicable failure to call Ed Armbrister for interference helped cost the Sox the '75 series. But hey, blown calls are part of the game. Regrettably, as in sports, so too in punditry.

There are few members of the media that I admire more than Jon Stewart. For the past 15 years, he has nearly single-handedly waged war against the forces of ignorance and stupidity that have all but overwhelmed the so-called mainstream media, Washington, and much of American society. Even better, he was kind enough to invite me on his show in August 2006 to discuss my third book, The Decency Wars: The Campaign to Cleanse American. For a struggling and (still) largely unknown writer, that's the equivalent of a Papal benediction; even five years later, it's usually the first thing that people mention when they introduce me to a lecture audience.

As a smart, passionate, and unabashedly scatological moral arbiter of American society, Stewart calls 'em like he sees 'em, and to this resident of the People's Republic of Burlington (VT), his accuracy is pretty impressive. But during his show on August 4, 2011, he made a mistake of Joycean proportions. In a segment labeled Culture War Update, Stewart lambasted the American Atheists organization for filing a lawsuit to prevent the installation of a cross-shaped fragment of steel beams at the 9/11 memorial at Ground Zero in lower Manhattan. Here's the beginning of his diatribe:

"[A]theists, why do you give s**t? That cross is an artifact. It was found at Ground Zero. It has come to mean something to people who view it as a symbol of comfort. If it really bothers you, why not just think of it as a metal t-shaped thingy? Or purely in architectural terms: it's not a cross, it's a crossbeam. Don't think of it as an ode to Jesus, the Christian savior; think of it as an homage to Jesus, the Canaanite with the relatively unsuccessful carpentry business. But you know what, that's fine, that's fine. That's our system. You can file lawsuits. Just because there's a lawsuit doesn't mean that it will be successful. Everyone's entitled to their day in court. It's not like the atheists are being total dicks about it. [Segue to Fox News clip featuring an inflammatory quote from American Atheists president David Silverman.]"

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Any one who has watched Stewart regularly over the years knows that he feels particularly strongly about issues surrounding the events of 9/11. He has been heroic in his advocacy for medical coverage and compensation for the city's first responders, and I couldn't agree more. To paraphrase one his more poignant lines, I don't care if a first responder spends the rest of his or her days sipping asbestos martinis while sitting unsunscreened on frayed vinyl chloride beach chairs downwind from a nuclear plant, all the while using copies of Silent Spring to put a nice dark char on their hormone-laden t-bone steaks -- if they get sick, they deserve full medical coverage regardless of the cause.

But Stewart's reaction to the atheist lawsuit against the Ground Zero cross demonstrates the peril of allowing emotion, however justified, to trump logic and reason. It's precisely the same impulse that led Congress to hastily pass the Patriot Act, which in turn has led to secret and unchallengeable domestic surveillance, FBI raids on library records, and invasive TSA pat-downs of senior citizens and toddlers (all of which Stewart and his colleagues at the Daily Show, needless to say, have ruthlessly and justifiably mocked).

I'm not an atheist (I'm actually more of an agnostic tree-hugging polytheist with a fondness for Yiddish), but having studied these issues in depth for my book The Court and the Cross, I think I can answer Stewart's fundamental question.

Atheists give a s**t because in matters of religion (or race, gender, national origin, creed, etc.), our government is not supposed to take sides or express a preference.

The very first clause of the First Amendment makes this perfectly clear: "Congress shall make no law respecting an establishment of religion, OR prohibiting the free exercise thereof ..." There were no professional sports teams kicking around in the late 18th-century, but the Founding Fathers implicitly understood this basic premise: the arbiters of society -- whether referees, umpires, judges, or even bureaucrats -- are supposed to neutral and even-handed.

Stewart seems to be arguing that the atheists should simply figure out a way to ignore the seventeen-foot-high, multi-ton cross, much in the same way that the Supreme Court has ordered them to ignore the use of the phrase "under God" in the Pledge of Allegiance, "In God We Trust" on our currency, or the daily benediction that (somewhat futilely) opens Congress each day.

I'm closer to the absolutist end of the First Amendment spectrum than not, but I don't have much of an issue with a little benign deism in American political life. When I was chair of the Burlington School Board, I cheerfully led the Board and attendees in the Pledge of Allegiance. And every Fourth of July, I re-read Jefferson's magnificent Declaration of Independence, including the optimistic phrase "with a firm reliance on the protection of Divine Providence." Just as the rebels did then, we need all the help we can get right now.

The Supreme Court's tolerance for the use of "God" in the pledge and on currency stems in part from the fact that the word is open to interpretation. When we pledge that we are "one Nation, under God," each of us can can insert our own working definition of "God." (Atheists are SOL because of the historical practice argument -- since our nation has invoked a higher power in one form or another for two centuries, the Court says, it's part of the fabric of our lives.)

As Stewart's own comments make clear, however, a cross is not a benign symbol of a inchoate national Deism opposed by only the most cantankerous First Amendment absolutists. His own description of the so-called "artifact" underscores the precise problem that atheists and most other non-Christians have with the installation of crosses on government property. It's not just a t-shaped metal thingy, and it's not merely a crossbeam (after all, it's not as if a "+" sign, or an "x" would generate as much enthusiasm). Regardless of whether one views the cross as a enduring symbol of one man's martyrdom on behalf of a sinful humanity, or merely as a homage to the world's most-quoted rabbi, it is still intended to represent Jesus Christ, the central figure of one religion.

By its very nature, the installation of a cross at the Ground Zero memorial is an exclusionary act, one that implicitly suggests that the sacrifices of some victims deserve more recognition than those of others. Nearly 150 years ago, when President Lincoln spoke at the dedication of the Soldier's National Cemetery at Gettysburg, Pennsylvania, he closed his remarks by noting that the sacrifices made there were to insure that "government of the people, by the people, for the people, shall not perish from the earth." He did not say "of Christians, by Christians, for Christians."

If the Ground Zero memorial is truly intended to honor all of the individuals who died on that tragic day, then it should reflect our highest ideals -- equality, fairness, liberty, and justice for all. The Supreme Court has made it clear (and I agree) that our government does not have to be faithless, but it can't favor one faith over all others. Let's find a new, non-governmental home for the cross, and let each visitor to Ground Zero bring their own personal beliefs to honor the dead and find increased devotion to the task of making this a more just and tolerant nation.

The First Amendment and Student Speech Online

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

A former Connecticut high school student punished for speech critical of school officials on her public Internet journal has asked the U.S. Supreme Court to hear her appeal. If the Supreme Court takes Avery Doninger’s case, it could offer much-needed guidance on when or whether school officials can punish students for online speech created off campus.

Doninger, the former class secretary of Lewis S. Mills High School in Burlington, became upset with Principal Karissa Niehoff and Superintendent Paula Schwartz in 2007 over the cancellation of a proposed student event called Jamfest. In an online message, Doninger referred to Niehoff and other school officials as “douchebags.” As a result of the message, Niehoff barred Doninger from running for re-election for student office. Later the principal also prohibited students from wearing “TEAM AVERY” T-shirts.

Doninger sued in state court, contending that the principal violated the First Amendment by punishing her for off-campus, online speech and for censoring the T-shirts. The defendants had the case removed to federal court.

In a protracted battle in the lower federal courts, the 2^nd U.S. Circuit Court of Appeals sided with school officials on both the Internet free-speech claim and the T-shirt issue. The 2^nd Circuit ruled that the principal and other school officials were entitled to qualified immunity.

Now Doninger takes her case to the high court. “This case presents important and compelling first amendment issues which impact millions of students and thousands of school officials,” reads her cert. petition in Doninger v. Niehoff.

The petition points out that the 2^nd Circuit’s decision conflicts with a pair of en banc decisions issued last month by the 3^rd U.S. Circuit Court of Appeals —Layschock v. Hermitage School District and J.S. v. Blue Mountain School District. In those decisions, the 3^rd Circuit ruled that school officials exceeded their authority in punishing students for off-campus, online speech that did not cause a substantial disruption.

The petition adds that school officials, students and others need guidance in this area of student online speech: “The lack of guidance by this Court to address students’ internet speech, or indeed any kind of off-campus speech, combined with school officials’ inflated fears of school violence, have resulted in improper punishment of many students for otherwise protected off-campus speech.”

Tshirt from Cafe Press.

Odd Clauses Watch: Cars 2, Knighthood, and the Constitution

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston Globe, Spy, Mental Floss and McSweeney's. This post originally appeared on his blog.

[Editor's note: SPOILER ALERT! In the post that follows, renowned legal Scholar Jay Wexler reveals important plot points from Disney Pixar's Cars 2. Because we care deeply about your enjoyment of family-friendly entertainment, if you have not yet seen this movie consider yourself warned and do not read any further, but do go out and pre-order your copy of The Odd Clauses.]

Hi there. If you have kids and are interested in obscure aspects of the Constitution, then perhaps you are wondering whether it was constitutional for Mater the goofball tow truck from Cars to be knighted by the Queen of England car at the end of Cars 2, following how Mater saved the world and everything. Doesn’t the Constitution say something about titles of nobility, and doesn’t that maybe prevent US citizens from becoming knights and dukes and what have you?

First of all, of course, it might not be the case that the U.S. Constitution governs these cars. How the hell do I know what legal system these automobiles live under? In the first movie, Doc Hudson presided over a court that sentenced Lightning McQueen to fix the road that he ruined when he fell out of Mac and lost control on his way into Radiator Springs. Then again, Doc Hudson also presided over what seemed to be something of a prostate exam on the police car, so who knows what’s going on? It does seem, however, that there is law in Cars land, and Cars does seem to be set in a world that looks almost exactly like our own, only that there are no people and only cars. I think it’s a fair assumption that the Constitution applies. I suppose we could get into the question of whether to assume that if the world of Cars is governed by the Constitution, the founding car fathers also substituted the word “cars” for “persons” whenever that would have been appropriate. What good would a Constitution that refers to “persons” be in a world where there are no persons, right? In any event, I think I’ll just let you stew over that one yourself.

Assuming that the U.S. Constitution applies to these cars, however, it would still have been okay for the Queen car to knight Mater, because although the Constitution prohibits active “officers” of the United States from generally accepting titles of nobility, and although it also prohibits the U.S. federal government or any of the states from granting titles of nobility, it does not prohibit a regular old citizen from accepting a foreign title of nobility. That’s why it has always been okay for various non government officials like Jerry Lewis and Bob Hope to accept foreign titles and lordships and legions of honor and what have you. It doesn’t, of course, explain why French people think Jerry Lewis is funny, but at least he didn’t violate the Constitution. And neither did Mater. Phew.

For more about the Titles of Nobility Clauses, I hope you’ll check out my book when it comes out in the fall, because there’s a whole chapter in there about them.

Impending Default, the Public Debt Clause, and the Odd Clauses

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston Globe, Spy, Mental Floss and McSweeney's. This post originally appeared on his blog.

Listen to Jay Wexler on the Brian Lehrer Show

If you’ve been following the news lately, you know that the U.S. government is heading toward defaulting on its public debt by the August 2nd unless something happens, like Congress raises the 14.3 trillion dollar debt limit that it has imposed on executive  branch borrowing. In the past week or so, there’s been a lot of hubbub in the blogosphere and elsewhere about whether section 4 of the 14th Amendment would allow President Obama to ignore the debt limit and issue new debt to pay the old debt, thus avoiding default, which everyone seems to agree would be catastrophic for the world’s economy. The Public Debt Clause says: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” I am talking about this issue today (at 11:25 am) on WNYC and won’t go much into the substance of the issue here (I’ll post a link to the interview if one becomes available UPDATE: click here to listen), except to say that I don’t think this provision gives the President any authority to issue new debt above the debt limit, because it is not a grant of power to the President. The only grant of power in the Constitution regarding debt is in Article I, section 8, which gives Congress the authority to borrow money on the credit of the United States. Congress has delegated that power to the President, but consistent with its authority, it has also cabined that delegation through the debt limit. The President has no independent authority to exercise power beyond the limits of Congress’s initial delegation. If you’re interested in the merits of the issue, I’d start with this post and the links in there, and then you might also check out this or this post and those links.

Myself, I’m fascinated by the hubbub here more than the substance of the hubbub because it goes directly to why I wrote The Odd Clauses in the first place. I wrote the book to point out that although we talk about the Constitution a lot in the United States, we usually talk only about a few of the big time clauses like the First Amendment or Fourth Amendment or the Equal Protection Clause, while in fact the document is filled with all sorts of things that rarely if ever get talked about, at least until there’s some issue that comes up once in a decade or century that makes us wonder what the Constitution has to say about it. This happened recently with the hullabaloo over whether the President could sign the Patriot Act extension with an autopen, and here we have the phenomenon happening again, this time with even higher stakes. The Constitution is a fascinating document for all sorts of reasons, and we can only understand it by paying attention to all of its various seemingly obscure and even just plain weird, but (as this dispute shows) incredibly important provisions. Nearly nobody had mentioned the Public Debt Clause for about 140 years until about a week ago, and now it’s the center of constitutional argument in the United States. Next week (or the week after, or on August 3, but soon), most likely, it will fall silent again. But who knows, maybe September will witness some other odd clause’s resurgence.  If so, Odd Clauses Watch will be there.  Because I’m always there for you. I love you.

Ahem, sorry. By the way, read that Public Debt Clause again. Notice how it’s written in the passive voice. “Shall not be questioned.” What in the world does that mean? What if I right here say “I question our public debt”? Have I violated the Constitution? Boy I hope not. But what a weird way to write a constitutional provision! I question our public debt, I question our public debt, I question our public . . . [enough]

Here’s another thing I’ve been wondering. In the book, I analogize many of the odd clauses I write about to odd animals. In other words, maybe the First Amendment is a lion, and the Fourth Amendment is a grizzly bear, but the Letters of Marque and Reprisal Clause is like an Egyptian Plover (because, like the plover, who eats bits of food out of a crocodile’s teeth, the M & R Clause is really interesting because of its relationship to another part of the Constitution–the Declare War Clause–rather than being interesting for itself). Or the Third Amendment is a potential coelocanth (a prehistoric fish that scientists thought was extinct until they found one in 1938) because although right now it does nothing, maybe one day it will suddenly be found again and prove to be important. So, anyway, if the Public Debt Clause were an animal, what animal would it be?  I’m not sure. Love to hear your thoughts though. 

Time For a New Thurgood Marshall on the Supreme Court

Michael Avery is a Professor of Constitutional Law at Suffolk University School of Law.

Saturday, July 2, was Thurgood Marshall’s birthday, and it is high time President Obama remembers who Marshall was and what he meant to the struggle for civil rights and social justice in this country. Obama should announce now that at the first opportunity he intends to appoint someone to the Supreme Court with the experience, vision, courage and integrity that made Marshall such a great lawyer and great justice. 

The son of a railroad porter who was born in 1908 in Baltimore, Maryland, Marshall endured racism first-hand. The future Supreme Court Justice was barred from the University of Maryland School of Law in 1930 because it was segregated. Marshall addressed that problem soon after graduating from Howard Law School, joining Charles Hamilton Houston in persuading the Maryland courts to order the school integrated in 1936. Marshall argued: “What’s at stake here is more than the rights of my client. It’s the moral commitment stated in our country’s creed.” In 1980 when the school named the law library after Justice Marshall he refused to attend the dedication ceremony, declining to be used as a vehicle for the school to salve its conscience.

As a lawyer, Marshall literally risked his life to argue for civil rights. He traveled through the Jim Crow South in a 1929 Ford, writing papers on a manual typewriter in his car, representing common people who had the courage to challenge the prevailing order. He sat in their homes, listened to their stories, felt their pain and then told truth to power, taking their cases to the highest court in the land. He worked for the NAACP for twenty-five years, twenty-three as lead counsel. He won 29 of 32 cases he argued in the U.S. Supreme Court, including of course, Brown v. Board of Education.  

President George H.W. Bush replaced Thurgood Marshall on the Supreme Court with the conservative Clarence Thomas, whose principal civil rights “contribution” had been undermining the mission of the Equal Employment Opportunity Commission as its chair. When George W. Bush ran for office he promised to appoint conservative justices like Thomas and Antonin Scalia, and, as president, he did, making John Roberts the chief justice and putting Federalist Society stalwart Samuel Alito on the court. President Obama should have campaigned on the promise he would find a worthy replacement for Justice Marshall.

My argument is not that Obama needs to appoint an African-American justice. It is that he needs to appoint someone who has a visceral understanding-- based on repeated exposure and opposition to injustice-- of what the Constitution promises and how those promises have been broken. 

Many such lawyers exist. Stephen B. Bright, senior counsel at the Southern Center for Human Rights, is a brilliant lawyer, author and professor who has devoted his life to fighting racial discrimination and representing poor people accused of crime, particularly in death penalty cases. If the president wanted a somewhat younger person with the promise of a longer tenure on the court, he could choose Bryan Stevenson, the executive director of Equal Justice Initiative. Stevenson, recipient of a MacArthur Fellowship and a professor at NYU Law School, has represented capital defendants and death row prisoners in the South for more than 25 years. Mary Bonauto has been the civil rights project director at Gay & Lesbian Advocates and Defenders since 1990. She argued the Massachusetts case where the Supreme Judicial Court held that prohibiting marriage to same-sex couples is unconstitutional.   As a principal architect of the campaign for marriage equality in New England, she evokes the experience of Thurgood Marshall, Charles Hamilton Houston and the NAACP in overcoming state-sponsored apartheid.  All three are widely respected, and any of them would be a worthy heir to Justice Marshall. It is time for the president to honor his memory by promising to nominate a civil rights veteran to the Supreme Court.