the incredible shrinking constitution

[michael curtis]

I have been watching for a few days now to see if the Court's decision not 
to exclude evidence obtained after a police entry that violates the knock 
and announce rule would produce any comment on the con law list.  It has 
not.  From one perspective, this is really pretty odd.  The 4th Amendment, 
like the rest of the Bill of Rights (much of which is devoted to the rights 
of those accused of crimes) is a central part of the American plan of 
liberty and of the Constitution.  The exclusionary rule which 4 members of 
the Court seem ready to get rid of, is a central part of the current system. 
Not a word.  The answer of course is obvious: the Canon of Constitutional 
Law. The way we divided up courses structures the way we think of 
"constitutional" questions.  The 4th Amendment is not part of the con law 
canon.  It is therefore no where near the center of the constitutional 
universe.  In fact it is in some other galaxy, and these developments do not 
produce discussion on the "con law" list, though they no doubt get mention 
on a criminal procedure list.  This is a striking example of how tails wag 
dogs.  So far free speech still gets attention on the con law list.  But 
since it has also been exiled to specialty courses, I wonder if it will 
follow the 4th Amendment into the realm of those items irrelevant to the 
Constitution as teachers of constitutional law teach and discuss it.

Michael Kent Curtis

----- Original Message ----- 
From: "J. Noble" <jfnbl at earthlink.com>
To: "Greg Magarian" <magarian at law.villanova.edu>; 
<CONLAWPROF at lists.ucla.edu>
Sent: Sunday, June 18, 2006 1:56 AM
Subject: Re: Political appointee fired for comment on gays


> At 8:19 PM -0400 6/17/06, Greg Magarian wrote:
>
>>>But the
>>reason the issue wouldn't have arisen is that no one would have known
>
> Let's assume everyone did know -- the Governor announced the appointment 
> of Jones, adding that Smith was his first choice, and far and away the 
> most qualified person for the appointment, but that he refused on 
> principal to appoint anyone who expressed the view that homosexuality was 
> deviant behavior. Assume it's captured on tape by all three networks. 
> Think you have a 1A claim?
>
> Take the same approach to the librarian's announced refusal to acquire 
> books that depict homosexuality as other than loathsome. Is that a 1A 
> violation; or is he, as well as the librarian who "de-accessions" books 
> that depict homosexuality as part of human nature, presenting a political 
> choice -- fire me if you don't like the way I do my job; or tell me how to 
> do my job, and I'll quit if I can't live with it.
>
> In both cases, it seems that the "reason the issue wouldn't have arisen," 
> is that the courts have no way to justify an affirmative, as opposed to 
> prohibitive injunction. The court might enjoin the banning of John Rechy's 
> "City of Night," but it can't order the librarian to buy a copy.
>
> What is the constitutional difference between tossing a book and refusing 
> to buy it? -- It's a banned book either way. And what is the difference 
> between refusing to hire and firing people who express views that the 
> governor disagrees with? It seems like it is due to more than the fact 
> that the passed-over plaintiff doesn't know he has a claim.
>
> John Noble
>
> At 8:19 PM -0400 6/17/06, Greg Magarian wrote:
>>I don't think we can conceptualize an aspect of an elected official's
>>power as a "right of association."  The Governor as Governor has powers
>>and prerogatives of office; he has no greater constitutional rights than
>>any other citizen.  As John notes, those prerogatives include various
>>kinds of authority to punish or reward constitutionally unprotected
>>behavior, but protected speech is a different matter.  John is also
>>right to emphasize that the Governor could have declined, based on
>>Smith's antigay views, to appoint Smith to the position in the first
>>place, and that wouldn't have raised a First Amendment issue.  But the
>>reason the issue wouldn't have arisen is that no one would have known
>>about the Governor's (in)action.  The same dynamic defines the
>>difference between a library's decision to ban a book and a decision not
>>to buy the book in the first place: we can't correct what we can't see.
>>There may or may not be good reasons for such an act-omission
>>distinction in constitutional law, but the distinction certainly has
>>practical importance.
>>
>
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