the incredible shrinking constitution

[Scott Gerber]

I think it's a testimony to the importance of the crim pro amendments 
that there's a separate course about them in most law schools.  The 
Supremes forgot their importance, apparently.

Scott Gerber
Law College
Ohio Northern University


michael curtis wrote:


>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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>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
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posted; people can read the Web archives; and list members can (rightly 
or wrongly) forward the messages to others.
>

--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/