Memorial Wins 5-4

Miguel Schor mschor at suffolk.edu
Wed Apr 28 12:52:53 PDT 2010


I think you are setting an impossible task from the point of view of constitutional engineering.  We want judges who are independent and who are also "faithful" to the meaning of the Constitution.  You can't get there from here.  A system that relies solely on interpretive guidelines lacks checks and balances (other than the attenuated check of public criticism).  The "solution" to the political discord engendered by judicial review is not, I think, finding right thinking judges.   Reasonable people disagree as to the meaning of the Constitution.   I think your first point which questions whether judges ought to have such vast authority is quite right; the question underscores the problem of power without adequate checks and balances.  Miguel

On Apr 28, 2010, at 3:17 PM, Kemper, Mark wrote:

> This may be the way things are, but is it the way things ought to be? Should judges, and the legal profession in general, have such vast authority in our system of government? Should it be that five members of the Court can, with legitimacy, say that this is the outcome in this case because this is how the five of us think the world ought to look? That can’t be right. Shouldn’t we expect lawyers and judges to strive, in good faith and with intellectual honesty, to reach consensus as a profession that cases—even hard cases—should be decided based on certain factors external to their personal ideologies and psychological biases?  In constitutional cases, might not these factors be things such as original understanding, post-enactment historical practice and traditions, precedent, and even what the reasonable person in society thinks a particular governmental action endorses (and wouldn’t we want judges to look at empirical evidence on this last point as opposed to having a beer and pretzel conversation amongst themselves)?  Sure, deciding cases based on these factors give lawyers and judges significant discretion, but it would not be without limits. And we could call judges out when they seem to cherry pick from this evidence in ways that produce decisions that seem to systematically produce case outcomes in only one ideological direction.  In short, I think we can talk of “evidence” that a lawyers and judges can use with legitimacy to derive “right answers” about  what the law requires.
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
> Sent: Wednesday, April 28, 2010 2:38 PM
> To: Eric Segall; Earl Maltz; Doug Edlin; Malla Pollack
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: Memorial Wins 5-4
>
> I note for the record Dan Kahan's body of work, involving particularly (but certainly not only) the Second Amendment, that very few arguments are settled on the basis of "evidence," that, instead, what is inevitably being tapped is cultural values and basic ways of looking at the world.  So I think that Eric is right that "this case is not about law or facts but values."  The question that Kahan asks is, "so what else is new?"  What cases (about anything that people really care about) really can be said to rest on "law or facts"?
>
> sandy
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
> Sent: Wednesday, April 28, 2010 1:14 PM
> To: Earl Maltz; Doug Edlin; Malla Pollack
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Memorial Wins 5-4
>
> well, according to Justice Steven's dissent:
>
> "In its original judgment, the Court of Appeals found that a
> well-informed reasonable observer would perceive government endorsement
> of religion, notwithstanding the cross’ initial “placement by
> private individuals,” based upon the following facts: “that the
> cross rests on public land[,] … that Congress has designated the cross
> as a war memorial and prohibited the use of funds to remove it, and that
> the Park Service has denied similar access for expression by an adherent
> of the … Buddhist faith.”
>
> I don't believe for one minute that this fact will change Earl's or
> anyone's mind because, of course, this case is not about law or facts
> but values (to people on both sides). But since Earl brought it up "I
> don't believe that anyone was stopping people  from erecting distinctly
> Jewish, Muslim, or
> nontheistic monuments to war casualties," I though someone should
> mention it. I have not checked Stevens' statement.
>
> Best,
>
> Eric
>
>
>>>> Earl Maltz <emaltz at camden.rutgers.edu> 4/28/2010 1:49 PM >>>
> Well, precisely who is being demonized in this
> discussion depends on your perspective.  There's
> little point in continuing the discussion much
> further, but I want to make a couple of points before I go.
>
> First, I think that it is quite legitimate to
> focus on the practical significance of particular
> constitutional cases (or lack thereof) and to
> think about whether the courts and society as a
> whole ought to be spending scarce resources in dealing with them.
>
> Second, you don't seem to want to address the
> question of how religious freedom (the core free
> exercise value) or religious pluralism (the core
> establishment clause value) was threatened by the
> existence of the cross.  Subject to correction, I
> don't believe that anyone was stopping people
> from erecting distinctly Jewish, Muslim, or
> nontheistic monuments to war casualties.
>
>
>
> At 01:05 PM 4/28/2010, Doug Edlin wrote:
>> Hi Malla,
>>
>> I greatly appreciate your motivations here, but
>> you needn't worry.  It turns out that "nobody"
>> was bothered by this, except for the "zealots of
>> the ACLU" and "People for the American Way" or
>> those in "similar _____ groups."  The nice thing
>> is that we don't have to worry about demonizing
>> them, because their views have "no practical
>> significance."  Whew. Glad we settled that.
>>
>> Earl, if this was your attempt at altering the
>> tone of your discourse, you might need to try again.
>>
>> Doug
>>
>> Malla Pollack wrote:
>>
>>> Dear List Members,
>>>   In advance tribute to our unfortunately
>>> soon to depart list-manager, as well as for
>>> other good -reasons, would you all please not
>>> continue down the emerging  path of demonizing
>>> opposing view-points and the holders of such view points.    Malla
>>>
>>>
>>> On Wed, Apr 28, 2010 at 11:43 AM, Earl Maltz
>>> <emaltz at camden.rutgers.edu <mailto:emaltz at camden.rutgers.edu>>
> wrote:
>>>
>>>    Ok, let me make my point more clearly.  The cross was bothering
>>>    nobody and was not preventing anyone from expressing their
>>>    beliefs, practicing their religion, etc.  However, the IDEA
> that
>>>    such a cross exists and that people were using it as a focus
> for
>>>    prayer was anathema to the zealots of the ACLU, People for the
>>>    American Way and similar (fill in the blank) groups.  So they
>>>    literally made a federal case out of it.  Quite understandably,
>>>    those who had been using the cross as the focus for entirely
>>>    inoffensive observances felt themselves under assault so we
> spend
>>>    years of litigation and millions of dollars in scarce resources
>>>    over what I would describe as constitutional trivia.  And as
> Chip
>>>    has observed, it is not over yet.
>>>
>>>    In doctrinal terms, the best way to handle this would be to
> change
>>>    the standing rules so that plaintiffs like Buono couldn't get
> into
>>>    court.  But that's not going to happen, so we're going to
> continue
>>>    to have litigation like this, which has no practical
> significance
>>>    other than to inflame the passions of those who have every
> reason
>>>    to resent the assault on their beliefs and values.
>>>
>>>    At 12:08 PM 4/28/2010, Doug Edlin wrote:
>>>
>>>        What a wonderfully sensitive way of characterizing or
> ignoring
>>>        the concerns of those who recently participated in the
>>>        exchange on the list about this issue.  This should
> definitely
>>>        improve our understanding of these issues.
>>>
>>>        Doug
>>>
>>>        Earl Maltz wrote:
>>>
>>>            A cross to honor war dead in the middle of the
>>>            Mojave Desert?  Clearly, a big step toward Taliban
> control
>>>            of American society.
>>>
>>>            At 11:40 AM 4/28/2010, Ira (Chip) Lupu wrote:
>>>
>>>
>>>                Not so fast -- the case is not over.  There is a
>>>                remand to the district court on the question of
>>>                whether the land transfer cures the problem, as
>>>                measured by the endorsement test.
>>>
>>>                Ira C. Lupu
>>>                F. Elwood & Eleanor Davis Professor of Law
>>>                George Washington University Law School
>>>                2000 H St., NW
>>>                Washington, DC 20052
>>>                (202)994-7053
>>>                My SSRN papers are here:
>>>
>>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>>>
>>>
>>>                ---- Original message ----
>>>
>>>
>>>                    Date: Wed, 28 Apr 2010 08:11:02 -0700 (PDT)
>>>                    From: conlawprof-bounces at lists.ucla.edu
>>>                    <mailto:conlawprof-bounces at lists.ucla.edu> (on
>>>
>>>                behalf of Rick Duncan <nebraskalawprof at yahoo.com
>>>                <mailto:nebraskalawprof at yahoo.com>>)
>>>
>>>
>>>                    Subject: Memorial Wins 5-4
>>>                    To: "'conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>'"
>>>                    <conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>>
>>>
>>>
>>>                From Yahoo news:
>>>
>>>
>>>                    "The Supreme Court said Wednesday that a
> federal
>>>                    court went
>>>                    too far in ordering the removal of a
>>>                    congressionally endorsed
>>>                    war memorial cross from its longtime home in
>>>                    California.
>>>
>>>                    In ruling the cross could stay, the justices
> said
>>>                    federal
>>>                    judges in California did not take sufficient
>>>                    notice of the
>>>                    government's decision to transfer the land in a
>>>                    remote area
>>>                    of California to private ownership. The move
> was
>>>                    designed to
>>>                    eliminate any constitutional concern about a
>>>                    religious symbol
>>>                    on public land.
>>>
>>>                    The ruling was 5-4, with the court's
> conservatives
>>>                    in the
>>>                    majority.
>>>
>>>                    The Veterans of Foreign Wars erected the cross
>>>                    more than 75
>>>                    years ago atop an outcropping in the Mojave
> National
>>>                    Preserve.
>>>
>>>                    It has been covered with plywood for the past
>>>                    several years
>>>                    following the court rulings. Court papers
> describe
>>>                    the cross
>>>                    as 5 feet to 8 feet tall.
>>>
>>>                    "Here one Latin cross in the desert evokes far
>>>                    more than
>>>                    religion. It evokes thousands of small crosses
> in
>>>                    foreign
>>>                    fields marking the graves of Americans who fell
> in
>>>                    battles,
>>>                    battles whose tragedies are compounded if the
>>>                    fallen are
>>>                    forgotten," Justice Anthony Kennedy wrote.
>>>
>>>                    In dissent, Justice John Paul Stevens agreed
> that
>>>                    soldiers
>>>                    who died in battle deserve a memorial to their
>>>                    service. But
>>>                    the government "cannot lawfully do so by
> continued
>>>                    endorsement of a starkly sectarian message,"
>>>                    Stevens said.
>>>
>>>                    Six justices wrote separate opinions and none
>>>                    spoke for a
>>>                    majority of the court. The holding itself was
> narrow,
>>>                    ordering lower courts to look again at the
>>>                    transfer of land
>>>
>>>
>>>                    from the government to private control.
>>>
>>>
>>>
>>>                    Lower federal courts previously ruled that the
> cross'
>>>                    location on public land violated the
> Constitution
>>>                    and that
>>>                    the land transfer was, in effect, an end run
>>>                    around the
>>>                    constitutional problem."
>>>
>>>                    Rick Duncan
>>>                    Welpton Professor of Law
>>>                    University of Nebraska College of Law
>>>                    Lincoln, NE 68583-0902
>>>
>>>                    "And against the constitution I have never
> raised a
>>>                    storm,It's the scoundrels who've corrupted it
> that
>>>                    I want to
>>>                    reform" --Dick Gaughan (from the song, Thomas
> Muir of
>>>                    Huntershill)
>>>
>>>                    --- On Fri, 4/23/10, Volokh, Eugene
>>>                    <VOLOKH at law.ucla.edu
> <mailto:VOLOKH at law.ucla.edu>>
>>>                    wrote:
>>>
>>>                    From: Volokh, Eugene <VOLOKH at law.ucla.edu
>>>                    <mailto:VOLOKH at law.ucla.edu>>
>>>                    Subject: RE: FW: descriptive scholarly accounts
> of
>>>                    religious identityandjudicial behavior?
>>>                    To: "'conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>'"
>>>                    <conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>>
>>>                    Date: Friday, April 23, 2010, 2:24 PM
>>>
>>>                               I agree that if one person’s
>>>                    Establishment
>>>                    Clause rights are violated, that one person can
>>>                    sue, even
>>>                    if he’s the only one whose rights are
> violated.
>>>
>>>
>>>
>>>                               But the question still remains:
> When
>>>                    are that
>>>                    one person’s Establishment Clause rights
>>>                    violated?  If
>>>                    the answer is “whenever the government uses a
>>>                    symbol that
>>>                    the one person perceives as religious,† then
> the
>>>                    government may not use A.D., B.C., the city
> names
>>>                    Sacramento, Las Cruces, and Corpus Christi and
> a
>>>                    vast range
>>>                    of other speech.  I’m not sure whether
> that’s what
>>>                    Prof. Hoffman is calling for, but, if it is,
> that
>>>                    strikes
>>>                    me as quite the wrong rule (and I suspect that
>>>                    even those
>>>                    who disagree with me on memorial crosses would
>>>                    share my
>>>                    view on that).
>>>
>>>
>>>
>>>                               A possible response, of course, is
> to
>>>                    say that
>>>                    the symbol is tested by the standard of the
> reasonable
>>>                    observer.  That’s what the Court seems to
> have
>>>                    done.  But
>>>                    that suggests that it’s not enough to say
> “one
>>>                    person
>>>                    perceives this symbol as religious†; the
> belief
>>>                    has to be
>>>                    the belief of the reasonable observer, who I
> take
>>>                    it is a
>>>                    standin for some fairly substantial body of
> people who
>>>                    believe that.  If that’s the test, then I’m
>>>                    not sure
>>>                    how “And no, Eugene, the establishment clause
> is not
>>>                    aimed at accommodating the sentiments of the
>>>                    majority.  If
>>>                    the speech caluse can protect one person, why
>>>                    can't the
>>>                    establisment clause?† really advances the
> analysis.
>>>
>>>
>>>
>>>                               Eugene
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>                    From: Daniel Hoffman
> [mailto:guayiya at bellsouth.net
>>>                    <mailto:guayiya at bellsouth.net>]
>>>                    Sent: Friday, April 23, 2010 1:59 PM
>>>                    To: conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>; Volokh,
> Eugene
>>>                    Subject: Re: FW: descriptive scholarly accounts
> of
>>>                    religious identityandjudicial behavior?
>>>
>>>
>>>
>>>                    A puzzling question.  I can't think of any
> other
>>>                    area of
>>>                    personal rights jurisprudence where the
> existence
>>>                    vel non
>>>                    of a violation depends on the number of persons
>>>                    objecting,
>>>                    or the number of persons who approve of the
> alleged
>>>                    violation.  It takes exactly one person to
> allege a
>>>                    violation.   Few of such allegations succeed,
> but
>>>                    surely
>>>                    the outcomes are not supposed to depend on
> opinion
>>>                    polls.
>>>
>>>                    The gravest flaw of EC jurisprudence is that
> the
>>>                    Court can
>>>                    make a symbol--or a purpose--secular simply by
>>>                    calling it
>>>                    that.  This move makes intolerance the guiding
>>>                    norm.  I
>>>                    contend that this particular question--not the
> entire
>>>                    case--should be determined from the standpoint
> of the
>>>                    complaining party, much as sexual harrassment
> law
>>>                    considers
>>>                    (or should) the outlook of a reasonable woman,
> I
>>>                    would do
>>>                    the same with free exercise claims, but
> obviously
>>>                    erecting
>>>                    religious symbols on public land is not an
>>>                    instance of free
>>>                    exercise.  A totally secular public sphere would
> not
>>>                    infringe free exercise and would not, by
> definition,
>>>                    establish any religion.
>>>
>>>
>>>
>>>                    Daniel Hoffman
>>>
>>>
>>>
>>>                    --- On Fri, 4/23/10, Volokh, Eugene
>>>                    <VOLOKH at law.ucla.edu
> <mailto:VOLOKH at law.ucla.edu>>
>>>                    wrote:
>>>
>>>                     From: Volokh, Eugene <VOLOKH at law.ucla.edu
>>>                    <mailto:VOLOKH at law.ucla.edu>>
>>>                     Subject: FW: descriptive scholarly accounts of
>>>                    religious
>>>                     identityandjudicial behavior?
>>>                     To: "conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>"
>>>                     <conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>>
>>>                     Date: Friday, April 23, 2010, 2:28 AM
>>>
>>>                                    What exactly would it mean for
> the
>>>                     Establishment Clause to "protect one person"?
>>>                     Does it
>>>                     mean that if one person, for instance, objects
> to
>>>                    the use
>>>                     of A.D. or B.C. in government documents, he
> can
>>>                    get that
>>>                     enjoined?  If one person objects to crosses on
>>>                    the seal
>>>                     of Las Cruces, he can get the seal changed?  If
> one
>>>                     person objects to the name of Las Cruces, he
> can
>>>                    the name
>>>                     changed?
>>>
>>>                                    Eugene
>>>
>>>                     From: Daniel Hoffman
>>>                    [mailto:guayiya at bellsouth.net
>>>                    <mailto:guayiya at bellsouth.net>]
>>>                     Sent: Thursday, April 22, 2010 8:09 PM
>>>                     To: 'conlawprof at lists.ucla.edu
>>>                    <mailto:conlawprof at lists.ucla.edu>'; Volokh,
> Eugene
>>>                     Subject: RE: descriptive scholarly accounts of
>>>                    religious
>>>                     identityandjudicial behavior?
>>>
>>>                     I am sorry, but the cross does not refer to "a
> large
>>>                     group of people."  It refers to Jesus.
>>>                     I attended a parochial high school where we
> were not
>>>                     allowed to sit with our legs crossed.
>>>                     A cross is a cross is a cross..
>>>                     And no, Eugene, the establishment clause is
> not
>>>                    aimed at
>>>                     accommodating the sentiments of the majority.
> If the
>>>                     speech caluse can protect one person, why can't
> the
>>>                     establisment clause?
>>>
> _______________________________________________
>>>                     To post, send message to
>>>                    Conlawprof at lists.ucla.edu
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>>>            _______________________________________________
>>>            To post, send message to Conlawprof at lists.ucla.edu
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>>>
>>>        --
>>>        Douglas E. Edlin
>>>        Associate Professor
>>>        Department of Political Science
>>>        Dickinson College
>>>        P.O. Box 1773
>>>        Carlisle, Pennsylvania 17013
>>>        717.245.1388
>>>
>>>
>>>    _______________________________________________
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>>
>> --
>> Douglas E. Edlin
>> Associate Professor
>> Department of Political Science
>> Dickinson College
>> P.O. Box 1773
>> Carlisle, Pennsylvania 17013
>> 717.245.1388
>
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