'American Founding Son'

At times, I find his blogging a bit shallow, but Gerard Magliocca generally is fair and has an evenhanded mind about things, even if he self-represents as leaning somewhat right.

I enjoyed his past books and his John Bingham bio is pretty good. Still, at under two hundred pages (lots of notes), he could have added more detail at times. Bingham btw doesn't do originalism that much favors. He's rather opaque at times, others having changing, at times idiosyncratic views. He also is a flawed character when it comes to liberty. Perhaps, this human quality (politician too) appeals in the long run.

House votes to preclude feds from going after state-legal medical marijuana

It still was mostly a Democratic move (both sides are anti-drug warrior types, but one party has more dissenters), but this can be a "game changer." Plus, that is what is key in these matters -- some room for crossing party or ideological lines. We need to go further here especially with states with decriminalization out there. But, credit where credit is due.

"Academic Freedom Is Not Immunity From Robust Debate in the Marketplace of Ideas"

Prof. Hamilton is something of a strange animal -- an at least somewhat conservative leaning (supporter, e.g., of Bush v. Gore) strong supporter of the separation of church and state, someone in fact strongly critical of special privileges sought out by religious groups. She uses a dubious FOIA request to recover old ground. To quote again in response to an earlier (note title) such summary.

I share a lot of Prof. Hamilton's concerns but do think Yoder was rightly decided. There is a difference between such a general applicable law and something that targets religion though free exercise rights should in various cases protect individual claimants in both cases.

The Barnette pledge case, e.g., was decided as a free speech case, but three justices rightly saw it also as a religious liberty case. The essay here also does not really face up to Sherbert. It is correct that a general applicable law particularly should not be put to the strong test of RFRA but the "undue burden" test cited in Yoder is appropriate.

The Sherbert line of cases repeatedly cited the test in Yoder and it was used without the USSC voicing any disagreement (except in special cases like taxation, prisons and the like) until Smith (itself a shock even to the winning side) with the rule. RFRA in hindsight was overcompensation. But, I think she goes too far.

Sherbert was the unemployment case, which Smith carved out as an area where individualized discretion is possible. Yoder was in effect the one other case where the Supreme Court struck down an application of a general applicable criminal law (Smith avoided it by calling it a "hybrid" case, amusingly -- given this was Scalia -- the unenumerated parental rights component), which applied this rule: "A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." A rule found too unduly burdensome in Smith, leading us to RFRA, both local and federal.

There might be something to Yoder being particularly notable -- it in effect is in the same spirit as education cases like Meyer and Pierce. The raising of children in a certain religious tradition is a core aspect of free exercise. "Exercise" -- as Hamilton's old boss Justice O'Connor noted in her separate Smith concurring opinion -- means more than belief. A recent book on the formation of our constitutional religious freedom tradition cited recently on this blog noted the same thing. The provision also means more than some sort of equal protection security or a guard against coercion. It is questionable if this should solely be left to (careful) political discretion, RFRA being as suggested above not quite finely tuned, at least if applied how some wish. The "ministerial exemption" and some degree of institutional freedom in this area underlines the fact. I'd note to that Smith itself was actually an unemployment case, even if the people in question were denied benefits for breaking a criminal law. They weren't prosecuted. That is also how the state court treated the case. Smith was in effect reaching for a change of the law, a bit of judicial activism.

Yoder was careful to note that "philosophical and personal, rather than religious," are not covered by the "religious" liberty at issue, citing Thoreau, though his beliefs had religious overtones. I won't go through them again, but also other cases spoke of freedom of "conscience" as well. This ruling noted:

Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [n6] the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

The note cites a 1940s case that quoted a definition resting on theistic grounds, but by the time of the second case (1970), that would be too restrictive. It was already starting to be back then. As the concurrence cited noted: "a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is [not] within the power of Congress." Justice Harlan's concurrence (as his opinions often were -- see, e.g., Poe v. Ullman) as a whole is interesting reading.

He too notes "mere adherence to ethical or moral beliefs" is not within the constitutional definition of "religion" but accepts the statutory meaning provided by the main opinion of "religious" in the conscientious objector statute might. In effect, beliefs on the level of religion, of equal intensity (a mere religious exemption here to Harlan would violate the Establishment Clause -- cf. the range of charitable/religious/etc. tax breaks). To quote an earlier opinion:

"And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation."

Some argue the discussion of "religion" here should not just be seen as statutory application but guide our First Amendment understanding as well. The Supreme Court and others, as compared to some lower courts, have generally avoided deciding the question. As noted, the Supreme Court has spoke of "freedom of conscience" or "of the mind" from time to time in ways that make it unclear how much this matters. As Harlan noted:

That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that, for most individuals, spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.

This "great intensity" or some inner core of belief is what is protected by religious freedom and beyond. One thing Prof. Hamilton rejects, however, is the application of RFRA's "least restrictive means" test, which as with the attempts in the Hobby Lobby case (cf. U.S. v. Lee) is not "restoring" old law, but expanding individual discretion. Justice O'Connor again cites the old rule:

[W]e have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

Past analysis shows a lack of "substantial" burden in the Hobby Lobby case, but even so, there are compelling state interests and they are "narrowly tailored" -- the "least restrictive means" rule is a lot harder. And, if nothing else, dubious when the government passes a general law that by chance burdens religious practice in some fashion as lots of things do. It especially is troubling when very important matters are involved such as child abuse, a particular concern of Hamilton's.

Anyway, as I said upfront, free "exercise" does warrant some protection even when general applicable laws are involved, but some sort of lower bar should be in place. Likewise, though the "hybrid" analysis seems results orientated, there is something to that. The Supreme Court has rejected some "core" religious concern test, but somehow some cases seem easier here -- be it rules regarding religious instruction or "exercising" what amounts to ritual experiences. Such is why I think N.Y. not allowing Universal Life Church ministers to marry people is clearly a free exercise problem. Realize just what is a "sacrament" can be hard to determine though a private v. public division (such as the public sphere of employment in the Hobby Lobby case) can help.

Hamilton might overcompensate, but she provides important balance all the same.

Caught in a TRAP

Judge Richard Posner asked why—if requiring admitting privileges was truly a public health measure—the state targeted abortion clinics, rather than regulating outpatient clinics that do procedures with higher complication rates. “Why did they start with abortion clinics? Because it begins with the letter ‘A’?” Posner asked.

Yup. Non-generally applicable health care rules to me is a constitutional problem here.

"From 'Rain Man' to a Taste of 'Honey,' Valeria Golino on Her Directorial Debut"

“Whatever you think of my movie, it resembles me,” Golino told THR. “It's a concentration, a perfume, of me. It has my scent.”

I have yet to seen it, but sounds like a great first effort from someone shined in both comedy and drama, in the U.S. and Italy. And, other places, probably!

"Newspaper Writes Blistering Editorial On McConnell's Shift On [ACA]"

"Kynect is the Affordable Care Act is Obamacare — even if Kentuckians are confused about which is which," the editorial continued.

Kentucky paper has it right. Darn, I hope this guy loses.

Mets Update

After the team blew the team game (again) for a young arm (the "Harvey treatment"), the hitting coach was fired and who I call "Papa Oh Vey" was DFA'ed. As a movie character noted, "things we could have done YESTERDAY," before the guy blew the game. Poor clutch hitting helped too. Good luck Lamar Johnson, Vic Black (new reliever) and maybe a new bat? Ha ha.

"A Separate Concurrence on the Kinsley Review"

I think at least much of this is on point and also think Kinsley's review fairly sensible. I say this as someone who long was tired of GG's schtick and wary about the outer limits of his views on this point. For an alternative view that thinks MK is a tool.

Supreme Court: Tribal Sovereignty

The surprise of the day (going by SCOTUSBLOG live blogging at least) was a 5-4 tribal sovereignty case. Native American legal matters is an area of interest for yours truly. As that blog noted (as here, in effect, it is seen as a limited win for the tribes):

The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.

Justice Kagan wrote the opinion on precedent/judicial restraint grounds (Congress has power over Indian affairs), Scalia dissented separately to admit error in joining a key precedent, Thomas wrote the primary dissent and Ginsburg briefly noted she was joining with the proviso that she thought state immunity has gone too far too. I'm sympathetic, but as Sotomayor notes, it isn't really fair to only have one. If immunity is on the table, let's be consistent -- both sides should have it. And, congressional discretion provides a balancing of interests that the alleged constitutional state immunity bar does not so readily provide.

In the earlier case cited, Stevens (with Ginsburg/Thomas) criticized the immunity provided to tribes on three grounds -- it was a wrong-minded common law rule, it should be left to Congress and off reservation* activity should not be covered. As shown in his proposed amendments (see comments; though criticism has noted consistency would apply it to the federal government too), he wants to end broad constitutionally based immunity largely on fairness grounds:

Third, the rule is unjust. This is especially so with respect to tort victims who have no opportunity to negotiate for a waiver of sovereign immunity; yet nothing in the Court’s reasoning limits the rule to lawsuits arising out of voluntary contractual relationships. Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.

The provision here is congressionally imposed. The opinion notes states have ways to avoid the immunity bar. As to innocent victims, it also noted in a footnote:

We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.

As to the off reservation immunity aspect, bad policy or not, Congress can balance various concerns here. Justice Sotomayor provides the Native American voice, so to speak here, including this argument:

Tribes are ever to become more self-sufficient, and fund a more substantial portion of their own governmental functions, commercial enterprises will likely be a central means of achieving that goal.

The previous ruling offered the other side:

There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance.

Congress pursuant to its power over Indian commerce has the power here to balance things out. As the majority (joined by Roberts and Kennedy) noted: "We ruled that way for a single, simple reason: because it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity." "Fundamentally" doesn't mean "completely," so perhaps there is some wiggle room there. But, as Kagan said when using a gambling reference against the state's claims, the argument for the courts to strike down discretionary partial immunity here "comes up snake eyes."

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* Justice Ginsburg joined Thomas' (yes, she didn't use the second "s"!) dissent with one "reservation" and noted that she does not think the majority's opinion should have "staying power."

Supreme Court Watch: Criminal Justice

First off, intriguing argument about addressing "small scale" violence better to deal with gun violence overall, including the mass shootings of the sort that get the most press.

As noted here, with multiple later posts (see also SCOTUSBlog) on the 5-4 ruling on proper standards for determining mental impairment in capital cases. In the view of one blogger:

But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida's standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The "nose counting" here is done basically to address the "unusual" part of cruel and unusual, in part because of the argument that both criteria must be met. Does this mean that if the rack somehow became "usual" again, it would not violate the 8A, even if patently cruel? The term "unusual" has often been largely ignored as an independent criteria as noted in Trop v. Dulles in lieu of some general principle such as the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

The word "unusual" should have some meaning, yes, but especially taking the Constitution as a whole, it ultimately has limited bite. [An interesting take is discussed here.] We saw this in the lifetime without possibility of parole for minors case, e.g., where the fact that it wasn't overly rare wasn't enough to save the procedure at issue. Common practice is perhaps a rebuttable presumption of some sort. At any rate, as noted above, basic "fairness" might require striking down a punishment. This due process laden sentiment does not rest on nose counting. That is but a supporting argument. And, the mixture of reasons for not executing the mentally impaired is a case in point: both dignity and procedural fairness are covered. Finally, the opinion should not be stereotyped -- e.g., it did not merely rest on medical judgment.

Meanwhile, a few other cases of a criminal nature (one was more of a First Amendment case involving protestors), including a per curiam striking down something on double jeopardy cases via a bright line rule. Basically, putting aside the latter, we dealt with bad fact situations that were losers for the defendants, even if there was some reason to be concerned. Ginsburg/Breyer didn't join all of Alito's opinion in a deadly force case, but Ginsburg's opinion in the 1A case was fact specific (see, e.g., the SCOTUSBlog summary*). No big surprises in this area today.

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* OTOH, see discussions cited here, especially one pretty upset with the ruling. I admit to only briefly looking over it and think it's unclear how a closer case would be decided.

"Sleep is good, he said, And books are better." ― George R.R. Martin

The inspiration.

Bomb Girls Movie

Memorial Day is an apt day for the U.S. premiere of this satisfying conclusion (if it is) of the series many fans thought ended too earlier & surely on an unsatisfactory note regarding at least one subplot. It concerns some women working at a bomb factory during WWII in Canada, one who is now a spy. Basically everyone returns -- rebroadcast on Reelz on June 1st.

"Is nitrogen gas the best modern execution alternative to lethal injection?"

As I note in comments, curious how this new "solution" is never used. Is it the connotation of "gas" in general? Or, as suggested, its connection to euthanasia? Problem with "unusual" punishments? Something else? Also, "best" doesn't mean the punishment is substantively acceptable. But, if it exists, the best possible means should be used. What is the goal there?

Belle

The Wikipedia entry notes this (an overall enjoyable film about a mixed race girl raised by Lord Justice Mansfield of Somersett case fame -- not referenced here in part for dramatic effect given another case involved) is a work of "historical fiction" though there is a "based on true story" (or the like) notice. Yes. But, not only for lack of info, as I saw from a glance of her actual bio. Understand though why change a key point of the painting?!

Delancey

I referenced this book about a young couple opening a pizzeria in Seattle earlier. It's decent, nothing special, and a bit forced in trying to find "life lessons." Also, the recipes basically are filler, if at times connected to the goings on. Pleasant enough read though.

"Applying ‘Brown’ To Void the Debt Ceiling"

I'm sympathetic to this lawsuit (if not supportive of everything said) to void the debt ceiling though made it known in the past that I think the issue somewhat complicated. The "private attorney general" concept is one that I support too, if more so than many judges these days.

Professor Talks About "Trigger Warnings"

Interesting. Per one thing she said, they are fairly common on television etc.

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

[O]ur disagreement is not just with Justice Kennedy’s interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

See more here. His failure to engage with the dissent didn't help.

I see (expression) of dead people ...

I have been thinking that literature or art could be a route into a more persistent presence of the dead. Mary Favret, a literature scholar at Indiana, gave a brilliant paper at Emory last year on soldiers and suicide. She explored the topic through close analysis of 18th and 19th C paintings, and suggested that "if something cannot be articulated in language, it might nonetheless be made visible." -- Mary L. Dudziak

The question then becomes "will those who see, perceive?" [that's me, no extra charge]