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Liberal groups are also concentrating on influencing the next generation of legal scholars.
Roderick Johnson, a 33-year-old African-American Navy veteran from a small town in rural Texas, didn't ask for it. Prison did it to him, and his life will never be the same.
In the 39 states that elect appellate judges, politicization of the
bench is growing.
"Tell me about the hash bars."
"OK, what do you want to know?"
"It's legal there, right?"
"It's legal, but it ain't 100 percent legal."
In a brief filed in connection with an appeal to the Supreme Court in a
gun possession case, the Bush Justice Department, breaking with sixty
years of jurisprudence, asserts that individuals have a constitutionally
protected right to own firearms. Seeking to quiet ghosts of gun debates
past as the November elections approach, the Administration tries to
reassure us that this proposed sea change in American law would, if
realized, leave law enforcement and gun laws unaffected. But in doing
so, it elevates sophistry and doublespeak to a new art form.
In the case in question, a lower court held that a provision of the 1994
amendment to the gun control act prohibited one Timothy Emerson from
possessing a Beretta pistol, since he was under a domestic-violence
restraining order obtained by his wife. Even after a court issued the
restraining order, Emerson used the pistol to threaten his wife and
daughter as they entered his office to retrieve the daughter's shoes. In
his appeal, Emerson claimed that the restriction abridged his Second
Amendment rights. The Justice Department, in its brief to the High
Court, departed from its historical position and agreed that Emerson did
possess an individualized Second Amendment right. But in a legal
high-wire act, it argued that this right was nonetheless trumped by his
misconduct and that, therefore, the indictment should stand.
Gun control advocates criticized the inclusion of the constitutional
assertion in the department's brief as gratuitous. But on this they miss
the point. The real goal of Justice's new strategy is not to throw a
bone to the gun lobby but to mount a backdoor attack on the very
legitimacy of gun laws it doesn't like but doesn't have the guts, in the
current political climate, to try to repeal legislatively. For as the
Administration knows, elevating gun rights into the rarefied sphere of
constitutional rights would create new, perhaps insurmountable, legal
hurdles for existing gun violence statutes.
Individual rights, such as freedom of speech and religion, to which the
Attorney General claims gun rights are analogous, occupy a unique area
of American law. The Court has repeatedly held that legislative
encroachments in these areas are presumptively invalid unless narrowly
tailored to meet compelling government interests. On this basis, the
Court has invalidated laws in the areas of affirmative action, free
exercise of religion and freedom of speech. Recently, in Ashcroft v.
Free Speech Coalition, it held that a law prohibiting virtual child
pornography was too broadly drafted, and the putative harm it sought to
prevent too speculative to pass constitutional muster. Were the Court to
embrace the Bush view on the Second Amendment, the likely result would
be to invalidate many federal and state gun laws, like the popular Brady
law and the ban on assault weapons.
In passing the 1993 Brady Act, which is applied to the general
population to screen out felons and other miscreants from buying
firearms, the House and Senate judiciary committees did not consciously
undertake the exactingly narrow drafting requirements necessary to
overcome the constitutional hurdles placed on such rights as speech or
religion. Rather, they acted under the authority of the Constitution's
commerce clause, which gives Congress broad legislative discretion. And
while Justice's brief, arguing that the prohibition on gun possession by
those with domestic-violence restraining orders could pass the "narrow
tailoring" constitutional test it seeks generally for gun laws, may be
correct, it is unclear, even improbable, that the broader purpose of
laws like the Brady Act (background checks for everyone) could survive
Similarly, because the ban on military-style assault weapons, intended
to remove the tools of many gang-type street massacres, was broadly
drafted to apply to everyone, that law could be invalidated on the
grounds that it is not sufficiently tailored to prohibit access by those
with criminal records. So, too, could scores of state and local laws,
such as the ban on handgun possession in the District of Columbia. The
new proposal by Senators John McCain and Joseph Lieberman to apply
background checks at gun shows could also be constitutionally dead on
arrival should the Administration view of gun rights become law.
Indeed, this is not the first time since September 11 that the Attorney
General has catered to gun owners. In October, responding to gun lobby
paranoia about gun registries, he refused to give the FBI access to
records that could help it determine if post-September 11 detainees had attempted to purchase weapons.
Each year we lose roughly 28,000 people at the wrong end of a gun
barrel, nearly ten times the number of people who perished on September
11. As the Violence Policy Center has documented, Al Qaeda terrorist
training manuals note the ease with which one can obtain firearms in the
United States--like the .50-caliber rifles that can with precision blow
a nine-inch hole in a concrete wall from 100 yards. At a minimum,
criminals and terrorists will benefit from new defenses that gun
prosecutions violate constitutional rights as envisioned by the Bush
Justice Department. Prior to his plea agreement, attorneys for the
so-called American Taliban, John Walker Lindh, had already indicated his
intention to invoke such a defense on his behalf.
If, when the Attorney General is proclaiming about the need to restrict
Americans' civil liberties, he seeks to expand constitutional liberties
for gun owners, he should at least be straight with the American people
about the likely legal consequences and what it could mean for safety on
Vice President Dick Cheney has spent most of the past year in hiding, ostensibly from terrorists, but increasingly it seems obvious that it is Congress, the Securities and Exchange Commission, th
The essential case for the abolition of capital punishment has long been complete, whether it is argued as an overdue penal reform, as a shield against the arbitrary and the irreparable or as part of the case against "big government."
Packing the judiciary with right-wingers like Priscilla Owen.
When the New York City Board of Education called on public schools to
bring back the Pledge of Allegiance in the wake of 9/11, my daughter, a
freshman at Stuyvesant High, thought her big chance to protest had
finally come. Have you thought about what you'll say if you have to
justify not reciting it? I asked. "Sure," she replied. "I'll say,
there's such a thing as the First Amendment, you know--separation of
church and state? I mean, under God? Duh!" Judge Alfred Goodwin
of the Court of Appeals for the Ninth Circuit, meet my Sophie, future
president of the ACLU if the punk-rock-guitarist plan doesn't work out.
Virtually every politician in the country has issued a press release
deploring Judge Goodwin's ruling that the words "under God" constituted
a coercive endorsement of religion. "Ridiculous!" said the President.
Tom Daschle led the Senate in a stampede to condemn the ruling 99 to 0,
after they recited the pledge together. The Times editorial
expressed the standard liberal line, mingling world-weariness and fear:
"under God" is a trivial matter, so why arouse the wrath of the mad
Christians? You can turn that argument around though--if it's so
trivial, why not do the right, constitutional thing? Let the
nonbelieving babies have their First Amendment bottle! The very fact
that the vast majority of Americans believe in God counts against
inserting expressions of religious faith into civic exercises for
kids--civil liberties are all about protecting unpopular minorities from
being steamrollered by the majority. The history of "under God" is not
very edifying or even very long: It was added to the original
pledge--written in 1892 by Francis Bellamy, a socialist--by Congress in
1954 as a means "to deny the atheistic and materialistic concept of
communism." If that was the purpose, it worked. The new Evil Ones,
however, have no quarrel with being "under God"; it's the "liberty and
justice for all" they disapprove of. If we really want to drive them
nuts, we should change "under God" to "with equality between men and
women." Or better yet, retire the pledge as an exercise in groupthink
unbefitting a free people.
Something tells me we haven't seen the last classroom invocation of the
divine umbrella--Judge Goodwin has already stayed his own ruling--but
even if the decision is upheld, it's unfortunately the least significant
in a number of recent rulings about education. The Supreme Court
decision upholding the Cleveland school voucher program is a real,
nonsymbolic triumph for organized religion, which stands to reap
millions of dollars in public funds, taken directly from the budgets of
the weakest school systems. Theoretically, your tax dollars can now
support the indoctrination of every crackpot religious idea from
creationism to stoning, with extra credit for attending rallies against
legal abortion and for the retention of "Judea" and "Samaria" as God's
gift to the Jewish people. What happened to e pluribus unum?
(Interestingly, as David Greenberg notes in Slate, e pluribus
unum was replaced as the national motto in 1956 by... In God We
Trust!) And what about that pesky First Amendment? Writing for the 5-4
majority, Chief Justice Rehnquist argues that separation of church and
state is preserved because it is the parent, not the state, who actually
turns the voucher over to the religious school. By the same logic, why
not a health system in which patients get vouchers good for surgery or a
ticket to Lourdes?
The same day brought the Court's decision upholding random drug testing
of students who want to take part in after-school activities. Now
there's a great idea--take the kids who could really use something
productive to do with their afternoons, kids who, whatever mischief
they're up to, actually want to run track or sing in the chorus or work
on the yearbook, and don't let them do it! God forbid some 16-year-old
pothead should get a part in the drama club production of Arsenic and
Old Lace. The harm of the ruling isn't just that kids who do drugs
will now have yet more time on their hands and yet more reason to bond
with their fellow slackers, it's that everyone gets a lesson in
collective humiliation and authoritarianism--stoned or straight, the
principal can make you pee in a cup. Consider too that one-third of
schools now offer abstinence-only sex education, in which kids are told
that contraception doesn't work and having sex before marriage is likely
to be fatal--if the kids don't go to parochial school, apparently,
parochial school comes to them.
The prize for the worst school-related decision, though, has to go to
the panel of New York State appeals court judges that reversed Justice
Leland DeGrasse's brave and noble ruling invalidating the state's school
funding formula, which gives less money per child to New York City
schools despite the fact that city schools have disproportionate numbers
of poor and non-English-speaking children. According to Justice Alfred
Lerner, author of the court's majority opinion, the state is required to
provide its young only the equivalent of a middle-school
education--enough for them to sit on a jury, vote and hold down a menial
job. Anything more is optional and can be distributed at will. (Why not
let kids drop out after eighth grade, you may ask? Well, then they'd
miss abstinence classes and drug tests and reciting the Pledge of
Allegiance!) The world needs workers at the lowest levels, the judge
observes, so let the black and Hispanic kids of New York City be the
hewers of wood and drawers of water and flippers of burgers. Somebody's
got to do it--and it's a safe bet it won't be the judges' children.
Maybe the critical legal theorists are right and the law is merely a
form of words into which can be poured whatever meaning the ruling class
wants it to have. It's hard to understand in any other way the court's
willful misunderstandings of the actual conditions of city public
schools, so that they could respond to plaintiff's evidence of schools
with decades-old outmoded science textbooks by harrumphing that there's
nothing wrong with libraries full of "classics."
Saving the worst for last, on the final day of the term the Supreme
Court issued 5-to-4 rulings on school vouchers and drug testing that
blow a huge hole in the wall of church-state separation and shrivel the
privacy rights of students.
Since 1996 Ohio has provided tuition aid for Cleveland grade school
students to attend private schools, special city or suburban public
schools and individual tutoring classes. In the 1999-2000 school year,
96 percent of the students in this program went to religious schools.
Nevertheless, the Supreme Court approved the voucher system (Zelman
v. Simmons-Harris). Writing for the Court, Chief Justice William
Rehnquist noted that the tuition aid went initially to the parents, who
then endorsed the check over to the school. Because the parents could
have chosen one of the public school programs, the "incidental
advancement of a religious mission," wrote Rehnquist, is not
attributable "to the government, whose role ends with the disbursement
On its face, this is nonsense. The "achievement of a religious mission"
is directly attributable to the state, which actually pays the funds to
the religious institution; the parent is only a conduit who directs
where the money will go. The declared purpose of these schools is
religious indoctrination of students. The curriculums include prayer,
and all subjects are taught in a religious framework. Providing the
tuition money that makes it possible for these schools to enroll their
students puts the government squarely in the business of achieving a
Formally, the program was neutral, but in practice it was not. The
amount of aid was too little for nonreligious private schools but more
than enough for the low-cost religious schools, where the program paid
for the full tuition. The overwhelming proportion of this money thus had
to go to religious schools, which, of course, the Ohio legislature had
to know. Moreover, if formal neutrality is the test, a program will pass
muster even if all the money and students go to religious schools, so
long as it has some secular purpose. Since such a purpose can always be
produced, the door is wide open for massive state support of
fundamentally religious activity.
The focus on choice ignores the point of the Establishment Clause of the
Constitution. That clause is not designed to promote a choice between
religious and nonreligious institutions, nor is there any right to such
choice at state expense. The intent of the Establishment Clause is to
avoid spending taxpayer money in a way that promotes religion and thus
encourages sectarian rivalry. We had a great deal of such strife before
1787, and the clause was adopted to prevent this. Also, as Jefferson
explained, no one should be "compelled to...support any religious
worship, place, or ministry whatsoever...[even a] teacher of his own
religious persuasion"; Madison, the father of the Bill of Rights, shared
The decision will probably not result in many more voucher programs.
There is a lack of state money for education and strong allegiance to
public schools; studies by the government and other organizations do not
support the claim that voucher programs substantially improve academic
achievement. The decision will, however, produce many bitter religious
fights. As soon as the decision came down, state and federal legislators
introduced voucher legislation. There will also be conflicts over other
programs, including challenges by religious groups to the more stringent
provisions on church-state separation in state constitutions.
The Court's drug testing decision is also more important for what it
portends than for its immediate result. In 1989 the Vernonia, Oregon,
school district instituted a drug testing program for student athletes.
In 1995 the Court approved the program but stressed the special
circumstances of the case: Vernonia had a serious drug problem in which
athletes were the leaders of the drug culture; missed football plays and
serious sports accidents had been attributed to drug abuse. The Court
cautioned, however, "against the assumption that suspicionless drug
testing will readily pass Constitutional muster in other contexts."
That caution disappeared, however, when the Tecumseh, Oklahoma, school
district found drugs on the campus, heard students talk about drug use
and decided to test all middle and high school students who wanted to
participate in competitive extracurricular school activities. Lindsay
Earls, a member of the choir, the marching band, the Academic Team and
the National Honor Society objected but, after winning in appeals court,
lost in the Supreme Court (Board of Education of Independent School
District No. 92 of Pottawatomie County v. Earls).
Writing for the majority, Justice Clarence Thomas ignored all the
special circumstances of the Vernonia case and dismissed the absence of
a demonstrated problem of drug abuse as unimportant. Because (1)
students have a reduced expectation of privacy, (2) the intrusion is
"negligible," (3) the sanction (exclusion from extracurricular
activities) is minor and (4) drug abuse is a bad thing, the program is
acceptable. Any effort to link drug abuse to choir singing, the marching
band or the Academic Team would have been ludicrous, and Thomas didn't
even try. On his reasoning, as long as the sanctions are minor, all
students may be subjected to drug testing because the other factors he
mentioned always exist.
Although the decision is far-reaching, its immediate impact is likely to
be modest. Few schools routinely test even their athletes, and
widespread testing is expensive. The decision underscores once again,
however, that for the Supreme Court, the rights of young people are
shredded when they walk through the schoolhouse gates.
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