April 4, 2014

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/4, we began by going over Wednesday's Supreme Court decision in McCutcheon v. FEC regarding limits on campaign contributions to politicians. We then finished our discussion of the Caperton case regarding campaign contributions to Judges. I went over the views of the dissenting Justices in Caperton. I then discussed a case that involved legal ethics for lawyers, Board of Overseers v. Warren, in which the Maine Supreme Court dealt with a lawyer's ethical obligation to report another lawyer who is a thief. We moved to Chapter 3 of the text, and began our discussion of Gonzales v. Raich by going over the parties, the claims, and the defenses raised in the case, as well as the constitutional limits on Congressional power. We will continue with Gonzales v. Raich on Monday, picking up with the question of how this California born and bred marijuana might be part of interstate commerce. The assignment for Monday 4/7 is to brief the case (for yourselves).


POS 384 CIVIL LIBERTIES
In class today, Friday 4/4, we began with a look at the interplay between legislative advocacy like that of the NRA, and constitutional challenges like D.C. v. Heller. We talked about events like Shay's rebellion that may have influenced the Constitutional grant of federal power over militias. We went over the handout distributed on Wednesday that argued that the reason for the Second Amendment was to ensure that Congress did not use its Constitutional power over the arming of the militias to disarm those militias, since those militias were necessary to the security of a slave state. We then looked at the Miller case, first in terms of why the case was a tax case about sawed-off shotguns, and then its view about what rights and what arms are protected under the Second Amendment. We waded into D.C. v. Heller, following Scalia's flow chart of starting with the middle of the sentence (the operative clause), and looking at how Scalia disagreed with Miller on both the nature of the right protected (individual v. collective) and the kind of arms covered (military v. non-military). We will pick up with Scalia's #3 (p. 393) on Monday. The assignment for Monday 4/4 is to review D.C. v. Heller, focusing on who needs protection against whom.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 4/4, I distribute one handout, Assignment #3, reproduced below and due Friday 4/11. We went over the assignment. I went over a RLUIPA case, Cutter v. Wilkinson, that held that accommodating to religious exercise did not constitute an Establishment of religion. We then returned to Hobby Lobby, going over the government's claims of what constituted a compelling interest, and Hobby Lobby's response to those claim, both in the briefing and the oral argument. We have yet to look at the least restrictive alternative argument, which is something that we'll continue with on Monday. The assignment for Monday 4/7 is to begin work on Assignment #3, below:

Good news! You did so well in your last assignment as the 10th Justice that you’ve been given new, unprecedented powers. You’re the Decider in Matters of Constitutional Interpretation. The only thing that binds you is the Constitution itself: no RFRA, no precedent, no founding fathers; it’s just you and the words and principles of the Constitution.

The particular portion of the Constitution that we’re concerned with here says that “Government shall make no law prohibiting the free exercise of religion” (there’s also a “No Establishment of Religion” clause, but that’s not one you’re called upon to explicate here).

Your assignment is to lay out a coherent method of analyzing free exercise questions. It should be an analysis that makes some realistic sense, in terms of a fostering a society that makes us grateful to be Americans with this particular Constitutional protection.

So, for example, are the words of the Constitution to be taken literally? If so, are you ready to live in a world with child sacrifice. because there’s a religion that wants to practice that. Would you be grateful to be an American (really) with a Constitutional protection of child sacrifice?

Here are six specific examples of governmental requirements to which various religions have objected or might object, and which your analysis will need to deal with:
forbidding the practices of 1) child sacrifice, 2) bigamy, 3) kosher and halal butchering, 4) hallucinogenic drug use, and mandating 5) employer’s health insurance coverage that includes the use of M.D.s (which the religion sees as sinful), and 6) employer’s health insurance coverage for employees that includes contraceptive methods (that the religion sees as murder) Unlike the real Hobby Lobby case, assume that there in our little world no choice to pay a tax in lieu of providing health insurance coverage.

In all cases, government (reflecting the consensus of our society, through the democratic process) has either said that people must do certain things (pay Social security taxes, provide the health insurance coverage) or refrain from doing things (child sacrifice, etc). You need to deal with these six specific examples, but you are encouraged to include more examples if they give a fuller picture of your analysis of the Free Exercise Clause. To the extent that you need clarification of any religious practice or governmental restriction, just state what assumptions you are making about the practice or restriction.

Here are three other questions that you need to include in your analysis:

1) The Constitution says that government can’t “prohibit” free exercise. Does it make a difference if government is “prohibiting” something, versus “mandating” something? Does a “prohibition” need to be an absolute prohibition, or is it enough that there’s a “burden” on religious practice? Does a “burden" need to be “substantial”? Would the religious objector get to declare, without oversight, whether there was a burden, and if it was substantial?

2) Is there to be a general test by which restrictions are judged? It could be some like: Does government need to have a “compelling” interest in the restriction? ...an “important” (if not “compelling”) interest? Is it enough justification if government just has a neutral law of general applicability (i.e., not a rule targeted against a particular religious practice)? Does it make a difference if there are alternatives methods of achieving the governmental interest? Or should there be some other general rule? Or no general rule at all?

3) Does it make a difference if third parties (who have not given their consent) are affected by the religious practice (e.g. the child who is being sacrificed, the employee who’s not getting coverage)?

And here are two questions that you do not need to address (unless you wish to):

1) Does anyone get to look over the shoulder of the religious objector to determine the “sincerity” of the objector’s views? And does anyone do that regarding the degree of “complicity” that the objector is sincerely willing to undertake?

2) Is a for-profit corporation covered by the Constitution’s Free Exercise clause?

You should assume that your analysis makes the loser (religion or government) unhappy, and you should explain specifically why the loser’s view doesn’t carry the day.

The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, April 11. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you evaluate the issues, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.