Tag: Constitutional Law

Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment – Article by D. Carolina Nuñez

From Volume 85, Number 1 (November 2011)
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 As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established “substantial connections” to the United States. Lower courts have relied on Verdugo’s holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the “substantial connections” test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States.
 

This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court’s treatment of aliens’ constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court’s evolving approach to membership and highlights Verdugo’s pivotal role in the development of that approach. This Article suggests that the Court’s increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging “post-territorial” approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo’s progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo’s post-territorial mandate by failing to evaluate the claimant’s substantive indicators of membership.

 

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Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes – Note by Molly A. Gerratt

From Volume 85, Number 1 (November 2011)
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In 2009, Marc and Claire Headley sued the Church of Scientology International and its affiliate, Religious Technology Center, for violating the Trafficking Victims’ Protection Act (“TVPA”) and for forcing Claire to undergo two abortions. The case was thrown out at the summary judgment phase because the Headleys were considered “ministers” of the Church of Scientology. Under the judicially created “ministerial exception”—an exemption never explicitly endorsed by the U.S. Supreme Court—ministers are barred from suing their religious employer for disputes arising during the course of their employment. Because of the ministerial exception, the Headleys’ accusations have gone uninvestigated, potentially allowing the Church to continue to inflict horrific treatment on other “ministers” in its ranks. This Note begins by analyzing the current state of the exemption and its limits. Utilizing Headley as a case study, this Note concludes that the current limits on the ministerial exception are inadequate and proposes that courts consider the “harm principle” as a limiting doctrine on the exemption. This limiting principle would force the courts to consider physical and societal injuries caused by religious institutional behavior in the ministerial employment relationship in their constitutional inquiries. During the production of this Note, the U.S. Supreme Court heard argument and decided a case concerning the ministerial exception. A brief epilogue addresses the decision and its implications on the limitation set forth in this Note. 

 

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Graffiti and the Constitution: A First Amendment Analysis of the Los Angeles Tagging Crew Injunction – Note by Kelly P. Welch

From Volume 85, Number 1 (November 2011)
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In 2008, a group of taggers known as the Metro Transit Assassins (“MTA”) painted a giant “MTA” tag in the Los Angeles riverbed that was visible from downtown office buildings and freeways. The three-story-high tag extended for half a mile along the riverbed and used an estimated four hundred gallons of paint. The government projected that it would cost $3.7 million to clean up the tag, including taking the necessary precautions to contain the toxic paint and runoff during cleanup. A graffiti historian explained that the tag was “definitely a statement, . . . [t]o do something that big and bold it takes organization.” Seven alleged MTA members were arrested in 2009 for the tag. During the arrests and ensuing searches, law enforcement found specialized tools that enable such large-scale, logistically difficult tagging: high-pressure fire extinguishers filled with paint.

In response to the riverbed tag and a multitude of other MTA graffiti vandalism throughout Los Angeles, the Los Angeles City Attorney filed a complaint in July 2010 seeking a civil injunction against MTA and its members. If granted, the injunction would, among other things, prohibit possession of graffiti tools, prohibit public association with other members of MTA, prohibit profiting from graffiti, and impose a curfew on MTA members. First Amendment challenges to the injunction have already begun: in May 2011, the American Civil Liberties Union (“ACLU”) filed defense motions containing First Amendment challenges to the injunction, but they were denied by the Los Angeles Superior Court. In August 2011, the California Court of Appeals denied defense motions challenging the Superior Court ruling.

 

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Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment – Note by Chelsea Norell

From Volume 84, Number 4 (May 2011)
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This Note will propose a new categorical exclusion from the First Amendment for speech that specifically details how to commit a crime and, –as a whole, lacks serious literary, artistic, political, or scientific value. This exclusion–the crime plans exclusion–may be tailored in various ways to reflect an accommodation of free speech principles and government interests. Ultimately, this Note will advocate a two-plank definition of crime plans speech requiring (1) that the speech be sufficiently specific so that a reasonable person who has never committed the described crime could follow the instructions and expect to carry out the crime or conceal evidence, and (2) that the speech, “as a whole, lacks serious literary, artistic, political, or scientific value,” which will be referred to collectively as “redemption value.”

While this Note will advocate a new categorical exclusion, it will also suggest that crime plans speech can be denied First Amendment protection under traditional strict scrutiny analysis. Moreover, when crime-facilitating speech does not fall into the crime plans exclusion, it still may be denied First Amendment protection under strict scrutiny analysis if the state’s compelling interest in prohibiting that speech outweighs the individual’s free speech interest. Though strict scrutiny analysis can often yield the same result as a categorical exclusion, categorically excluded speech does not have presumptive constitutional protection and is subject only to the minimal rational basis test. Thus, the argument structure of the categorical exclusion conveys a message that specific crime-facilitating speech that has virtually no noncriminal redemptive value is undeserving of First Amendment protection.

In addition to a categorical exclusion, this Note will propose that specific crime-facilitating speech that poses dangers of catastrophic magnitude should be subject to prior restraints. Such restraints are constitutionally permissible so long as they implement procedural safeguards to combat standardless discretion.

Crime-facilitating speech is any speech that abets crime or provides information that may be useful in a criminal endeavor. Such speech can take various forms, ranging from one-on-one conversations to electronic publications disseminated throughout the world. Crime-facilitating speech makes some crimes achievable that would not otherwise be possible, such as divulging social security numbers to facilitate identity theft. This speech also makes some crimes easier to commit or harder to detect and thus harder to deter and punish.

 

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Book Review: Integrating into a Burning House: Racial- and Identity-Conscious Visions in Brown’s Inner City – Article by Anthony V. Alfieri

From Volume 84, Number 3 (March 2011)
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On March 27, 1968, Reverend Martin Luther King, Jr., exhausted by a day of antipoverty rallies in New Jersey, and frustrated by the Southern Christian Leadership Conference’s poverty campaign in Washington, D.C. and Memphis, Tennessee declared: “We may be integrating into a burning house.” The story of the failed integration of America’s “burning house”–its schools, neighborhoods, and workplaces–begins for many with the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education. Fifty-six years later, on March 8, 2010, at the Edmund Pettus Bridge in Selma, Alabama, U.S. Department of Education Secretary Arne Duncan invoked both King and Brown in announcing the renewed commitment of the department to civil rights enforcement in schools across America. Standing at the historic site of Bloody Sunday in Selma, a critical battle ground in the civil rights movement, Duncan outlined a series of new enforcement initiatives–guidance letters, compliance reviews, data collection, and monitoring–intended to redress school-based inequities in urban communities of color. Espousing “the cause of equal educational opportunity,” he asked: “How do we maximize freedom and opportunity in schools and communities where low-income black and brown children, and students with disabilities, still are treated unequally?”

Duncan’s modern invocation of Brown, his commitment to educational opportunity and racial justice in new contexts of inequality, and his search for alternative pathways to ensure community equity invites a contemporary reassessment of Brown in America’s inner-city public schools and impoverished neighborhoods. Martha Minow’s superb new book, In Brown’s Wake: Legacies of America’s Educational Landmark, presents a sweeping appraisal of the landmark status and mixed legacy of Brown in the field of public education, here and abroad. The dean of Harvard Law School and an international leader in law reform and educational policy, Minow embraces Brown as an enduring, fruitful resource for civic reformers engaged in law, social science, and social justice movements. Her purpose in revisiting Brown stems from an academic and activist sense of dismay over the bleak tenor of the fiftieth anniversary celebration of that ground-breaking decision in public and scholarly discourse, a widely circulated discourse that “stressed the failures of the decision.” To her credit, Minow offers In Brown’s Wake as a useful corrective, duly acknowledging her own “disappointments” in Brown and its legal-political progeny while exploring its “unexpected legacies” for the nation and the international community.

 

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Reverse Incorporation of State Constitutional Law – Article by Joseph Blocher

From Volume 84, Number 2 (January 2011)
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State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous issues under those constitutions. Such issues are common because the documents were modeled after one another and contain many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal Constitution. In McDonald v. City of Chicago, to take one recent and high-profile example, the Court declined to adopt the state courts’ near-unanimous conclusion that the proper standard of review for regulations of the “individual” right to keep and bear arms is a form of “reasonableness” review.

In an age of growing international comparativism, this lack of intranational borrowing is striking, especially since state constitutions served as the template for the federal Constitution and generally protect the same rights as are found in the federal Bill of Rights. In a constitutional system that claims to be committed to federalism and respect for the states, why is it that state constitutional law has had such a slight impact on federal constitutional doctrine? This Article seeks to answer that question, and suggests that in certain circumstances federal courts should look to state constitutional law when faced with analogous federal constitutional controversies.

 

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Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter – Postscript (Comment) by David Orentlicher

From Volume 84, Number 1 (November 2010)
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Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.

To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. Thus, once you decide to purchase health care insurance, the government can regulate the terms of your insurance policy. However, you cannot be forced to purchase the policy in the first place. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.

 

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Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test – Note by Douglas A. Wick

From Volume 83, Number 6 (September 2010)
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On a crisp January night, a SWAT team descends on a house in Pullman, Washington. Onlookers can only imagine what type of crime warrants such a response. Was it a hostage situation? Were they trying to subdue a psychotic killer? Maybe there was a violent drug cartel operating out of the house? No. On January 21, 2009, a SWAT team raided a Washington State University fraternity house because some college students may have been drinking alcoholic beverages before their twenty-first birthdays. 

The National Minimum Drinking Age Act forced states to raise their drinking age to twenty-one, or lose federal highway funds. The negative side effects of that law—illustrated by the extreme example above—are leading many to call for its abolition. The American Recovery and Reinvestment Act of 2009 will dole out $144 billion to ease fiscal pressures on state and local governments, but instead of allowing them to spend the money based on their best judgments, Congress attached unattractive conditions to the grants. The No Child Left Behind Act of 2001 grants money to states conditioned upon school districts meeting federally imposed education standards. The result is bad education policy the states cannot afford to abandon, lest they lose much-needed federal aid. Congress could not enact any of these policies directly. Instead, Congress used its spending power to indirectly regulate these state and local matters via conditional grants.

 

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