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In Honor of Constitution Day….

WASHINGTON - DECEMBER 15: Ethan Kasnett, an 8th grade student at the Lab School in Washington, DC, views the original constitution. (Brendan Smialowski/GETTY IMAGES)

The Cato Supreme Court Review, edited by Ilya Shapiro, is published annually on Constitution Day.

Now in its fourteenth edition, the Review is the first scholarly journal to appear after each SCOTUS term ends and the only one grounded in the nation’s first principles, liberty, and limited governmentCATO-SCOTUS

The Review has built quite a reputation over the years, and has earned some high praise from notable SCOTUS experts:

“Cato, with its emphasis on limited government and individual rights, has weighed in with a book of essays by academics and practicing lawyers that manages to skewer liberal and conservative justices alike.”
Tony Mauro, Supreme Court correspondent, The National Law Journal and Legal Times

“Unquestionably, the definitive volume on the Supreme Court’s term.”
Tom Goldstein, founder of SCOTUSblog (and co-chair of litigation and Supreme Court practice at Akin, Gump, Strauss, Hauer & Feld LLP)

In this year’s issueShapiro and other leading legal scholars analyze the 2014-2015 Supreme Court term, specifically focusing on the most important and far-reaching cases of the year, as well as upcoming cases to watch.

Read this issue online, or explore the archive…..

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The Madison Paradox and Obama’s Constitution Day Stealth Comment: Referring to Our Constitutional Rights as ‘Privileges’

WASHINGTON - DECEMBER 15: Ethan Kasnett, an 8th grade student at the Lab School in Washington, DC, views the original constitution. (Brendan Smialowski/GETTY IMAGES)

Maybe James Madison was right. Maybe the Bill of Rights wasn’t just unnecessary, it was a bad idea, destined to be viewed in the distant future exactly the wrong way

For United LibertyJason Pye catches Obama’s shaded wording, and writes a welcome blast of corrective historical clarity. Though I can’t resist including my own comments in the margins, the piece stands as testament to the power of word choices. Pye writes:

…In his presidential proclamation marking Constitution Day, President Barack Obama offered some insight into how he views the Bill of Rights. “Our Constitution reflects the values we cherish as a people and the ideals we strive for as a society,” Obama said in the release. “It secures the privileges we enjoy as citizens, but also demands participation, responsibility, and service to our country and to one another.”

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“It secures the rights privileges we enjoy as citizens, but also demands participation, responsibility, and service to our country and to one another.”

Given that this White House is known for its expansive view of executive power, the assertion that the rights guaranteed and protected under the Bill of Rights, the fact that President Obama views these fundamental liberties to be “privileges” isn’t too terribly surprising. After all, President Obama treats the legislative branch — which, again, is supposed to be a co-equal branch of the federal government — as an afterthought as it arbitrarily changes statues and even refuses to founding-brosenforce laws.

[Check out Joseph J. Ellis’ “Founding Brothers” at Amazon.com]

But words matter. To say the rights secured by the Constitution are “privileges” implies that they can be revoked. Let’s put this another way: a high school-aged kid is given the privilege of taking their father’s car out to go hang out with friends, that is until they abuse it by getting caught speeding or into a car accident. The disappointed father would, no doubt, take away the privilege.

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Rights and liberties, however, are based on a solid foundation. They can’t be taken away by some paternalistic president. The view of the framers was that the rights protected under the Bill of Rights existed before the formation of the federal government under the Constitution. In short, they were natural rights.

In fact, James Madison believed that a list of specific rights was unnecessary.

editor-commen-deskThough we celebrate the ratification of the Bill of Rights, I can’t help but interrupt to expand on Jason Pye‘s oversimplification — Madison didn’t believe that a list of specific rights was unnecessary, Madison and others believed listing individual rights would set a dangerous precedent. As illustrated in my half-remembered reading of Joseph J. Ellis’ “Founding Brothers” the dissenters wisely understood that making a special top-ten list of rights could lead to a troubling misperception that individual rights are limited, reducible to a specific list. Which could then be used to mislead future generations into accepting false limits.

It’s federal powers that are finite, narrow, and limited. So limited you could number them. (enumerated powers) Individual rights, as conceived by the founders–aren’t limited, they’re virtually infinite. Not reducible to a list. Enshrining some of them in a list would lead to, well, exactly the misunderstanding that persists to this day. The argument resisting an enumerated “Bill of Rights” wasn’t perfect, but it had merit. It showed foresight.

Jason Pye continues:

Thankfully, George Mason and others, to ensure ratification, convinced Madison to come up with proposals, ten of which were passed by Congress and approved by at least three-fifths of the states. Read the rest of this entry »


The 10 Worst Colleges for Free Speech: 2013

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Greg Lukianoff writes:  College is where inquisitive minds go to be exposed to new ways of thinking. But on some campuses, the quest for knowledge is frustrated when administrators censor speech they would prefer be kept out of the marketplace of ideas.

To close out the year, we at the Foundation for Individual Rights in Education (FIRE) want to highlight some of the worst colleges for free speech since March 2012 — the last time we published this list. (Our first list, from 2011, is here.)

Most of the schools we include in this year’s list are public colleges or universities bound by the First Amendment. But some of them are private colleges that, though not required by the Constitution to respect student and faculty free speech rights, nonetheless promise to do so. (As we said last year, if you’re looking for schools like Brigham Young or Liberty University to appear on this list, you’ll be disappointed. Students who attend those schools know what they’re getting themselves into.) One of the institutions listed isn’t even a college, but still deserves special mentioning for the profound effect it had on campus expression this year.

Of course, a “top 10” list cannot include all the colleges that violated free speech rights over the last nearly two years. Two notable colleges that are not on the list include Modesto Junior College (MJC), where, earlier this year, a student was ordered to stop handing out Constitutions on Constitution Day. It was a huge case and would have made the list if not for a recent decision by the college to dramatically improve its policies. MJC dropped some of the worst features of its original policy and have pledged to adopt a permanent policy change that respects the First Amendment. FIRE is optimistic, but will monitor the situation closely, so stay tuned.

The other college is the University of Kansas (KU), which just announced a highly restrictive social media policy for all staff and professors in the wake of a controversial tweet by a journalism professor. We just wrote to the school and want to give KU the chance to respond and/or reform the policy.

For those interested in learning more about the the fight for student rights, check out my book, Unlearning Liberty: Campus Censorship and the End of American Debate. In the book, I highlight even more examples of egregious free speech violations from my 12-year fight for basic liberties at colleges across the country.

  • The State University of New York College at Oswego

    The State University of New York at Oswego (SUNY Oswego) earns its rightful place on this list for nonsensically suspending a student who asked rival hockey coaches for their thoughts about his school’s coach in order to complete a class assignment. Because he simply informed the coaches through email that they did not have to say only positive things about their SUNY Oswego counterpart, student Alex Myers was alleged to “defame, harass, intimidate, or threaten another individual or group.” As a result of the charges, Myers was placed on interim suspension and forced to vacate his campus residence. After intense public pressure from FIRE and media outlets like Gawker, the university eventually dropped Myers’ suspension and allowed him to return to campus—but only after the school sent a destructive message to student journalists about asking tough questions.

  • Harvard University

    In George Orwell’s <em>1984</em>, one of the methods that the government of Oceania used to control its population was constant surveillance. Citizens were afraid to speak their minds because they never knew when they were being monitored by “Big Brother.” If you’re a member of the Harvard University community, you might have that same uneasy feeling after it was revealed earlier this year that the administration violated school policy in covertly accessing 16 residential deans’ email accounts. The search was undertaken to determine the source of a leak to the media about a high-profile cheating scandal on campus. The deans, who also serve as lecturers within the school, weren’t notified that their email accounts were accessed until months after it occurred. As Harvard’s student newspaper The Crimson reports, the effect of the covert search has been a chilling effect on faculty speech. Though an official university investigation into the affair concluded that the search was conducted in “good faith,” the administrator responsible for ordering the search has resigned. The question remains: how safe are Harvard students and faculty from future snooping efforts? (Also: Check out other censorship, free speech, and rights issues at Harvard over the last decade)

  • University of Alabama

    The University of Alabama earns its place on this year’s list through its bureaucratic assault on common sense and the Constitution. In April 2013, the Alabama Alliance for Sexual and Reproductive Justice (AASRJ) student group was blocked from mounting a peaceful counter-demonstration to a Bama Students for Life “Genocide Awareness Project” display that featured graphic abortion-related images. When AASRJ students tried to hand out their materials near the display, they were told by a police officer that without a grounds use permit, they could face arrest. Why not get the permit? For one, Alabama’s grounds use policy requires applicants to apply for a permit 10 working days in advance. This put groups like AASRJ—which had less than 24 hours to plan its counter-demonstration—out of luck. But that’s almost beside the point: It’s absurd that students at any public university should ever have to request permission from their colleges to exercise basic free speech rights, like handing out literature in the campus’ public spaces. Although Alabama slightly revised its policy in response to pressure from FIRE, concerns still remain. Administrators still enjoy far too much discretion in approving permit requests, and the fact remains that spontaneous events—a common feature of college life—are still unduly restricted Read the rest of this entry »