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Congressional Subpoenas and Contempt of Congress

By Wilson Huhn Published: July 31, 2008

     This morning a federal district court judge ordered Harriet Miers to respond to a subpoena from the House Judiciary Committee and to respond to questions posed by the Committee.  Yesterday the House Judicary Committee voted to hold Karl Rove in contempt for failing to appear to testify before the Committee.  These devopments raise a number of fascinating constitutional questions.

     First, does Congress have the power to issue subpoenas to witnesses in the first place?  This power is nowhere mentioned in the Constitution, although it has been routinely exercised by Congress for centuries.  It can be argued that the power to compel government officials to testify and to produce evidence is necessary for Congress to perform its oversight function.

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Woman Sues for Broken Engagement...and wins!

By Tracy Published: July 31, 2008

A woman sued her ex-fiance for a broken engagement and was awarded $150,000 by the court.  She also gets to keep the 2 carat diamond, which she says she intends to sell.   Her former boyfriend is left footing the bill, along with $30,000 he says he previously loaned her to pay off her debts.

It is relatively unheard of in this century to sue for a broken engagement.  Such lawsuits were, however, quite common in the 19th century.  These so-called "heart balm" suits allowed a woman (but not a man) to sue for the loss associated with a broken engagement.  In those days, marriage for a woman was akin to an employment agreement because it provided for her economic livelihood.  Without marriage, a woman had few legal rights and little economic opportunity.  If a fiance renege on a promise to marry, the woman would lose her future security and often jeopardize any other opportunities to marry (as damaged goods, so the thinking went).  These heartbalm suits were later abolished most places as an unenforceable promise.  In law school, we teach that such suits are non-existent as a matter of blackletter law.  Ms. Shell proved this rule of law wrong.

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The Supreme Court at the Tipping Point: Gay Rights

By Wilson Huhn Published: July 28, 2008

     Gay rights cases may be arranged in four categories that fall along a spectrum according to the level of hardship that the law imposes. The most serious cases involve criminal laws or legal disabilities that are imposed upon gays and lesbians; less serious, but no less significant, are laws that deny equal benefits to gays and lesbians.  These penalties and denials of equal benefits include the following kinds of laws.

     (1) Laws that make same sex intercourse a crime. In 1986, in the case of Bowers v. Hardwick, the Supreme Court upheld a Georgia statute that made "sodomy" a crime, but in 2003, in the case of Lawrence v. Texas, the Supreme Court ruled that a similar Texas statute was unconstitutional.

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Latest Revealed Torture Memo Calls Into Question Whether Earlier Torture Memo Was Really Withdrawn

By Wilson Huhn Published: July 25, 2008

     In recent days the A.C.L.U. has released three more Bush administration memos relating to the torture of prisoners.  The third memo raises a serious question regarding whether the Bush administration secretly continued to rely upon a legal opinion which it had publicly repudiated.

     Each of the newly released memos is heavily redacted.  They are:

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Voter fraud! Ohio U. student votes twice in primary

By Stewart Published: July 24, 2008

Here's an interesting story about a Hudson resident and Ohio University student who mistakenly voted twice in this year's primary election, and ended up pleading guilty to a fifth-degree felony, election falsification.  Did new Voter I.D. laws save the day?  Not exactly.

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3d Circuit Voids FCC Penalty for Super Bowl Halftime Naughtiness - Upholding Fairness and Reasoned Decisionmaking, Not Nudity on TV

By BillJ Published: July 23, 2008

You may remember the halftime show at the 2004 Superbowl, in which Justin Timberlake ended a suggestive duet by tearing the covering off of Janet Jackson's breast. Her breast was revealed for "nine-sixteenths of one second," but the result was outrage. The FCC, which received 542,000 complaints, imposed an "indecency" penalty of $550,000 on CBS - the maximum penalty of $27,500 for each station owned by CBS. On Monday, July 21, 2007, the Third Circuit Court of Appeals struck down the FCC's action, much to the dismay of those concerned about protecting family values. It's not that the court supports TV nudity. Instead, it was concerned with fairness and reasoned decisionmaking - and with protecting private actors against the awesome power of the government.

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Contraception as Abortion

By Wilson Huhn Published: July 22, 2008

     The Bush administration's Department of Health and Human Services has drafted a a proposed rule that would redefine certain forms of contraception as "abortion."  According to the New York Times:

   Senator Hillary Clinton of New York and Senator Patty Murray of Washington have sent a letter to Michael Leavitt, Secretary of Health and Human Services objecting to this proposed federal regulation on the ground that it would allow health care institutions or individuals to refuse to provide birth control despite state laws that guarantee access to these forms of medical services.  Furthermore, they state that the rule "could jeopardize federal programs like Medicaid and Title X that provide family-planning services to millions of women."

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How Did Accused Twinsburg Cop-Killer Have a Concealed-Carry License?

By Stewart Published: July 21, 2008

One fact to emerge from last week's tragic shooting death of Twinsburg Police Patrolman Joshua Miktarian is that the shooter, Ashford Thompson, held a valid Ohio license to carry a concealed handgun. Despite the incredibly small sample-size of this data point, Thompson's licensed status was sure to cause a great deal of angst in the blogosphere, as one argument that has been made in favor of concealed carry is that license holders are considerably less criminally-inclined than the public at large.

It has also been reported that Thompson has in recent years had several brushes with the law, including citations for speeding, tinted windows, and loud music, a conviction for drunken driving, and an arrest for disorderly conduct/threatening and carrying a concealed weapon.

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The 160th Anniversary of the Women's Rights Movement

By Tracy Published: July 18, 2008

July 19 is the 160th anniversary of the Declaration of Sentiments, a document signed by 68 women and 32 men at Seneca Falls, New York at the first women's rights convention.  The Declaration, written by feminist Elizabeth Cady Stanton as a take-off on the Declaration of Independence, was the launching point for the women's rights movement in the United States.  Stanton spent over fifty years advocating for women's rights under the law, in society, and in the family.  Her ideas are strikingly modern and continue to ring true in our time.  

Cady Stanton was married to abolitionist and lawyer Henry Stanton and raised seven children.   Despite her education and wealth, she experienced the legal and societal barriers to women of her times.  In the Declaration of Sentiments, Cady Stanton expressed her frustration with her own experience and sought equality of rights for women in all aspects of society including education, employment, voting, and marriage.  Ken Burns produced an excellent PBS documentary series several years ago that traced the lives and work of Stanton and her business partner, Susan B. Anthony.  While Anthony is more familiar to us today, Cady Stanton was the one who was nationally known and respected at the time, with Anthony playing a role behind the scenes.   

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Privity in Peril

By Frank Published: July 18, 2008

When it comes to potential malpractice liability, lawyers in Ohio have had a smaller bulls-eye on them than lawyers in many other states.   However, a recent decision by the Ohio Supreme Court signaled that advantage may disappear.

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Akron Law to Hold Open House on July 26

By Diana Published: July 17, 2008

Prospective law students can learn about The University of Akron School of Law at an open house from 1 to 3 p.m. on Saturday, July 26.

The program will include an admissions and financial aid session; a mock law class; and a student and alumni panel discussion. Prior to the open house, guided tours of the law school will be available beginning at noon.

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The Great Lakes Compact - Now It's Up to Congress to Prevent the Water Wars

By BillJ Published: July 16, 2008

At long last, the eight states of the Great Lakes Basin and two Canadian provinces have all agreed to the Great Lakes-St. Lawrence River Water Resources Compact. Unlike the fast-growing regions of the South and Southwest, we are blessed with the single largest source of fresh water in the world - the Great Lakes. As something of a trade-off, we are also blessed with lots of rain and grey skies. We can't change the weather, but we could lose a lot of that water if Congress doesn't approve the Compact. Arizona, New Mexico, California, even Georgia and Tennessee all face critical water shortages even as their populations continue rapid expansion. If Congress doesn't act soon, the Great Lakes region may lose the political power to protect its most important resource.

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The War Powers Consultation Act of 2009

By Wilson Huhn Published: July 15, 2008

     In 1973, in an attempt to prevent the executive branch from involving the country in undeclared wars, Congress enacted the War Powers Act over the veto of President Richard Nixon. Many of our nation's leaders and legal scholars have criticized the War Powers Act as either unconstitutional or unenforceable or both.  Recently, columnist David S. Broder authored an editorial praising the work of  the National War Powers Commission, co-chaired by James Baker (Secretary of State under President George H.W. Bush) and Warren Christopher (Secretary of State under President Bill Clinton), and including former Congressman Lee Hamilton, former National Security Advisor Brent Scowcroft, Judge Abner Mikva, and former Attorney General Edwin Meese, as well as other distinguished individuals. This group recently released a report that addresses the shortcomings of the War Powers Act. The Commission proposes the adoption of a new law, the War Powers Consultation Act of 2009, to replace the War Powers Act. The new law represents an attempt to force Congress to vote whether to approve any military action which may be initiated by the President. The core reasoning of the Commission explaining their approach is contained in the following two sentences of the Report.

     Section 3(A) of the proposed law defines "significant armed conflict" broadly:

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The Supreme Court at the Tipping Point: Abortion

By Wilson Huhn Published: July 15, 2008

     The "right to privacy" is the right of the individual to make intimate and personal choices. One of the most intimate, personal choices that we make in our lives is whether to have children. If the government were to adopt a law that limited the number of children that people may have or if it ordered people to be sterilized, most Americans would agree these laws would be unconstitutional. Similarly, most Americans would agree that people have the constitutional right to use birth control. Laws that would force a woman to become pregnant and bear a child would involve a grave invasion of her right to control her own destiny.    

     On the other hand, unlike most forms of contraception that prevent fertilization or implantation, abortion involves the destruction of an embryo or a fetus. There is no doubt, medically, that embryos and fetuses are alive.  There is also no doubt that historically neither an embryo nor a fetus were treated as "persons" under the law. At common law, a child was a person and could inherit property or sue someone for injuries, but neither an embryo nor a fetus had those rights. Furthermore, neither the law nor religion treated a fetus as alive until "quickening," that is, when the baby began to move. At that time people simply didn't know the facts of fetal development, and accordingly neither the law nor religious doctrine prohibited abortion prior to quickening.

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What is a "natural born Citizen"?

By Brant Published: July 11, 2008

Law professor Gabriel "Jack" Chin from Senator John McCain's home state University of Arizona has concluded that Senator McCain is not eligible to become President of the United States. You see, Senator McCain was born in 1936 in the Panama Canal Zone.

Article 2 of the Constitution (Section 1, Clause 5) gives the qualifications for the office of President of the United States:

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The Presidential Candidates on Gay Marriage

By Tracy Published: July 9, 2008

The presidential candidates agree on some things on the issue of gay marriage. Both say they are against gay marriage. Both voted against the proposed Federal Marriage Amendment that would have amended the U.S. Constitution to permit marriages only between one man and one woman. But their agreement ends there. John McCain said on the Ellen DeGeneres show that he supports legal agreements or contracts between gay partners so they can get insurance. Barack Obama supports civil unions and legal recognition of gay partnerships. The candidates disagree adamantly on amendments to state constitutions to ban gay marriage. McCain has supported the recent ban proposed in California and says gay marriage is a states' rights issue, as long as the state preserves traditional marriage. Obama opposes the California ban and other such "divisive and discriminatory efforts.' So what does this all mean? Are the candidates flip-flopping among all this nuance?

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The Supreme Court at the Tipping Point: The Right to Privacy

By Wilson Huhn Published: July 7, 2008

     If additional justices who share the views of Justices Scalia and Thomas are appointed to the Supreme Court, one of the most significant changes that is likely to occur is that the Court will restrict or perhaps even completely abandon the concept of "the right to privacy." A bit of constitutional history can place this subject in context.

     The Preamble of the Constitution and the Fifth and Fourteenth Amendments protect the "liberty" of the people, and the Ninth Amendment states that the Bill of Rights is not an exclusive list of our fundamental rights - that there are other "unenumerated" rights. In 1897 Louis Brandeis wrote an article entitled "The Right to Privacy" in which he argued that people have a constitutional right to make certain decisions without governmental interference. In the 1920s the Supreme Court recognized the existence of one significant unenumerated fundamental right - the right of parents to direct the education of their children by sending them to private schools or allowing them to study a foreign language. After President Franklin Roosevelt's judicial appointees took office in the late 1930s and early 1940s, the Court vastly expanded its understanding of our unenumerated rights. In 1942, in the case of Skinner v. Oklahoma, Supreme Court struck down an Oklahoma law that allowed the State to sterilize convicted felons. Speaking for a unanimous Supreme Court, Justice William O. Douglas stated, "Marriage and procreation are fundamental to the very existence and survival of the race," and when a prisoner is sterilized, "He is forever deprived of a basic liberty." Since Skinner the Supreme Court has recognized a number of rights as belonging to what Douglas called "the right to privacy," including the right to marry, use contraception, to live with members of your extended family, and to refuse lifesaving medical treatment.

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Voter ID's and Voter Fraud - Political considerations rise to the fore

By Stewart Published: July 7, 2008

Yesterday, Doonesbury weighed in on the issue of voter fraud.

In the strip, radio host Mark Slackmeyer elicits this statement from supposed GOP consultant Doug Chumley:  "By mandating strict ID requirements, we can disenfranchise the poor, the infirm, students, minorities -- anyone who can't be counted on to vote responsibly!"  Mark replies:  "Fascinating!  So instead of making your tent bigger, the strategy now is to make the Democratic tent smaller?"  "Right."  The NY Times recently staked out a similar position on recent Republican-led efforts at stricter voter-ID requirements, in an editorial entitled "The Myth of Voter Fraud."

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The Faith-Based Initiative and the First Amendment

By Wilson Huhn Published: July 2, 2008

     Traditionally, religious organizations have not qualified for public funding because it is forbidden by the first words of the First Amendment: "Congress shall make no law respecting an establishment of religion."  The framers had experienced the dangers of entwining church and state.  In 1786, one year before the Constitution was drafted, James Madison and Thomas Jefferson prevented the State of Virginia from imposing a tax to pay the salaries of clergymen who served as teachers.  Instead, they persuaded the Virginia Legislature to adopt Jefferson's Bill for Religious Freedom, which prohibited the state from using public funds to underwrite religion.  The prohibition on government subsidization of religion is one of the chief purposes of the Establishment Clause.

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Deference to military judgement

By Brant Published: July 1, 2008

Yesterday a federal appeals court released unclassified portions of its decision in Parhat v. Gates. Here's the lead from the New York Times:

Huzaifa Parhat is a Chinese citizen of the ethnic Uighur Muslim minority in Western China. What's the connection between him and a retired Japanese American sociology professor? Let's review:

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Boumediene v. Bush: Habeas Corpus at Guantanamo

By Wilson Huhn Published: July 1, 2008

       As to the first point:  The Constitution states:  'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.'  Habeas Corpus is the right to be free from arbitrary imprisonment.  If the government detains or confines you, you have the right to go to court and require the government to prove why your confinement is lawful.  In our legal tradition this right dates back to at least the year 1215, when the aristocracy forced King John to sign Magna Carta, which placed certain limits upon the powers of the King.  The framers of the Constitution regarded habeas corpus to be the most basic right of all.  It was included in the original Constitution before the Bill of Rights was adopted.   

 

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The Supreme Court at the Tipping Point: How the 2008 Presidential Election Could Change the Meaning of the Constitution

By Wilson Huhn Published: July 1, 2008

     The citizens of the United States, slowly and steadily over time, write and rewrite the Constitution as we vote in Presidential elections.  At a time of great social and political ferment when the Supreme Court is evenly divided along political and ideological grounds, a single Presidential election can result in revolutionary changes to the meaning of the Constitution.  The 2008 Presidential election is the fulcrum upon which the Supreme Court now rests, and the outcome of this election will determine how the Constitution will be interpreted for another generation.

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