I write at Cato about the accomplishments of Ida Wells (1862-1931), who after being born into slavery in Mississippi became the leading voice documenting the horrors of lynch law in late nineteenth century America, as well as a free speech heroine (a mob in Memphis attacked and destroyed her printing press). Wells is also the subject of today’s Google Doodle. And as I learned from Nicholas Johnson’s post last year at Volokh, she was a notable figure in the history of the Second Amendment as well.
Live now: The Goldwater Institute has filed a multi-sided challenge to the operation of the Indian Child Welfare Act. AD v. Washburn; website at EqualProtection.org; investigative report Death on a Reservation; Goldwater policy paper. More updates will follow.
Related: in Minnesota, a Twin Cities couple represented by attorney Mark Fiddler has filed suit saying that ICWA violates their constitutional rights by requiring that they notify the Mille Lacs Band of Ojibwe before proceeding with plans to allow a non-Indian couple to adopt their infant. [Minneapolis Star-Tribune] Also: Johnston Moore, Children Deserve Families.
- Supreme Court grants certiorari (as Cato had urged) in Friedrichs v. California Teachers Association, on First Amendment rights of individual public employees against unions, potentially major sequel to Harris v. Quinn (our coverage) and Knox v. SEIU (our coverage). More: Jason Bedrick, Cato;
- More First Amendment: On same day, high court says Texas can turn down Confederate-flag license plates but that town of Gilbert, Ariz. impermissibly took content into account in regulating roadside signs [Lyle Denniston; Eugene Volokh on Gilbert and earlier, and on license plates] Ilya Shapiro has a wrap-up of other end-of-term cases;
- Paging judicial-independence buffs: study finds Obama stands out for aggressive comments on pending SCOTUS cases [W$J via Jonathan Adler]
- Abercrombie v. EEOC followup (earlier): If Thomas’s dissent has the courage of its convictions, maybe it’s because he was longest-serving chairman in EEOC history [Tamara Tabo] “SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case” [Jon Hyman] Yes, employers can still have dress codes, but read on for the caveat [Daniel Schwartz]
- “Illinois Uses Racial Preferences for No Good Reason,” Seventh Circuit take note [Ilya Shapiro and Julio Colomba, Cato]
- Feds can refuse to register a “disparaging” trademark. Consistent with the First Amendment? [Shapiro, Cato]
- More from Ilya Somin on anniversary of eminent domain Kelo v. New London decision [one, two, more]
King and government do not exercise absolute power but are themselves bound by law: the Magna Carta’s 800th anniversary is today. Marking the sealing of the “Great Charter of Liberties” agreed to by King John, the Cato Institute held a panel discussion June 4 featuring Richard Helmholz (U. Chicago), Roger Pilon (Cato), Tom Palmer (Atlas Network, Cato), Richard Pipes (Harvard), Swaminathan Aiyar (Cato), and Juan Carlos Botero (World Justice Project), moderated by Ilya Shapiro and Ian Vasquez (Cato).
More: Carrie-Ann Biondi, The Objective Standard (“a profound development on the road to a civilized, rights-based society… toward properly limited government.”), Sheldon Richman (a study in unintended consequences and spontaneous social evolution), Roger Pilon (“We’re back in the fields of Runnymede, importuning our government for relief from its assumption of plenary power.”), Deepak Lal (India and Hong Kong have benefited enormously from it; mainland China, Egypt, and Russia feel its lack). [Slightly edited to add new introduction.]
- Widely discussed new Charles Murray book, By the People: Rebuilding Liberty without Permission, includes extensive discussion of failures of law and litigation system [Carlos Lozada WaPo review, Cato’s Letter, podcast and related post, J.D. Tuccille/Reason]
- Rare and welcome book-length work on state attorneys general, Paul Nolette’s Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America, I’ll have more to say about it in due course [Liberty and Law, discussion with author]
- The Libertarian Mind: A Manifesto for Freedom by my Cato colleague David Boaz, a revised and updated edition of his earlier Libertarianism: A Primer, includes chapter on law and the constitution as well as much related discussion; boasts blurbs from John Mackey, Peter Thiel, and Richard Epstein;
- Arnold Kling on Political Realism, new free e-book from Jonathan Rauch; also, Kling reviews a recent talk at Cato by Michael Shermer on his book The Moral Arc: How Science and Reason Lead Humanity toward Truth, Justice, and Freedom;
- “We will fight for a fair contract!” proclaimed then-N.J. Gov. Jon Corzine to government workers, neat trick if you accept assumption that he was on opposite side of negotiating table from them [Michael Toth on new Daniel DiSalvo book on public sector unionism, Government Against Itself: Public Union Power and Its Consequences]
- In the mail: Akhil Amar, The Law of the Land: A Grand Tour of Our Constitutional Republic, on how the idiosyncrasies of particular states, regions, and localities have shaped our understanding of the U.S. Constitution;
- And: Jay Cost, A Republic No More: Big Government and the Rise of American Political Corruption [related Cato event]
- And: Diana Furchtgott-Roth and Jared Meyer, Disinherited: How Washington Is Betraying America’s Young;
- And: Jack C. Fisher, Silicone on Trial: Breast Implants and the Politics of Risk [Sager Group]
- Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
- “A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
- David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
- Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
- Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
- Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
- Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]
Per Ilya Somin, there might be: “In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians ‘to direct the upbringing and education of children under their control.'” Meyer struck down a ban on instruction of students in foreign languages before eighth grade, while Pierce struck down a ban on private and religious school education. While authorities presumably have wider leeway to regulate pedestrian activity on public streets than instruction that may take place within private homes, churches, or schools, a degree of regulation that forcibly substitutes the state’s judgment for parents’ on debatable issues of child-rearing might cross a line.
The idea of a Constitutional right of parental autonomy appears to be alive and well on both conservative and liberal sides of the Court, but some may be surprised at which current Justice has written most critically of the idea: Antonin Scalia, because of his dislike for “substantive due process” theory and in general its protection of individual rights not enumerated in the Constitution. In a 2011 article I haven’t had a chance to read, David Wagner traced the Scalia-Thomas conflict and apparently also looked at whether Scalia continues to count as a holdout given what might be a softening of his views on the issue.
- Please, someone: you can’t just donate money to the Tulsa police and get full deputy powers, can you? [Tulsa World via @RayDowns]
- Illinois bench-‘n’-bar buzz angrily at Gov. Rauner who broke rule re: not mentioning lawyers’ campaign cash to judges [Chicago Daily Law Bulletin]
- “New York’s Asbestos Court Mulls Changes After Sheldon Silver Scandal” [Daniel Fisher] “‘Judicial malpractice’ not to probe court tied to Silver: Judge” [New York Post]
- Let’s all panic about arsenic in wine, or maybe let’s all not [Nick Farr, Abnormal Use (“The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada”), and more on class action lawsuit]
- “Tennessee Sacrifices Property Rights On The Altar Of ‘Gun Rights'” [Doug Mataconis, Outside the Beltway; earlier here, here, and here]
- Odd that while we make wedding cake bakers and florists common carriers, the old “cab-rank” (any paying client) rule for lawyers has come to seem almost unthinkable [Adam Liptak, NYT on big law firms’ avoidance of representing clients on the unpopular side of major gay rights cases] Similarly: Paul Karl Lukacs, L.A. Daily Journal. Related: “maelstrom of criticism” directed at Harvard lawprof Laurence Tribe over his Supreme Court representation of coal company against EPA [Orin Kerr]
- Just for fun: the preamble to the U.S. Constitution, in license plates [my post at Cato at Liberty]
Boycotts by one state directed against another seem to me to be a tactic best reserved for impending scenarios of civil war, although who knows, if my social media stream is any indication, perhaps the United States is soon to reach that point. Gerard Magliocca, who teaches law at Indiana, wonders whether the Constitution would provide any legal remedies if, for example, one state closed its public university system to applicants from another state to show disapproval for that second state’s policies. (For those who came in late, Governors Dannel Malloy of Connecticut and Andrew Cuomo of New York issued orders, now rescinded, barring travel by “non-essential” state employees to Indiana during the several-day furor over that state’s Religious Freedom Restoration Act (RFRA).)
Very Cato-centric this time:
- Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
- New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
- “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
- Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
- With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
- On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
- A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
- “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]