May 2011

  • May 25, 2011

    The Associated Press has provided new details about a push by the nation’s largest Tea Party umbrella group to teach the Constitution in public schools using materials from an organization that promotes the Constitution as a divinely inspired document.

    As originally reported by Mother Jones, the Tea Party Patriots are encouraging public schools to participate in “Constitution Week” in September by utilizing teaching materials from the National Center for Constitutional Studies, a group that ACS Executive Director Caroline Fredrickson called so outside the mainstream that even the conservative Federalist Society would object to its materials.

    Mother Jones’ Stephanie Mencimer participated in a daylong seminar with NCCS last year, and reported:

    If its public school curriculum resembles anything like what I witnessed, it has no place in the nation's classrooms. Among other things, NCCS uses materials written by [Cleon] Skousen suggesting that Anglo-Saxons are descended from a lost tribe of Israel; Skousen claimed this meant the Constitution may have been inspired by God, who intended for America to be a Christian nation. The very same bogus history has been perpetuated by the white supremacist movement.

    The Associated Press report reveals that the public school materials will include a DVD entitled “A More Perfect Union,” which suggests, among other things, that "Americans' confidence in republicanism stemmed largely from their shared commitment to Christianity." The organization is also providing an accompanying teacher’s guide, a poster, and a pocket-sized copy of the Constitution.

    Bill Norton, who is leading the Tea Party Patriots’ “Adopt a School” program, told AP he’d like to reclaim the Constitution from secular scholars.

    "They're eliminating God out of the whole political discussion 100 percent, which is going to the other extreme," Norton said.

    The American Constitution Society has been participating in Constitution Week for years, by sending volunteers to classrooms with lesson plans that focus on the Constitution’s Bill of Rights. Classes feature the Sixth Amendment right to an attorney, students’ free expression and freedom of religion rights under the First Amendment, and the Fourth Amendment right against unreasonable search and seizure.

    To meet the growing need for Constitution Week instruction, ACS is expanding its own Constitution in the Classroom program. To learn more or sign up, click here.

  • May 25, 2011

    State lawmakers pushing measures to prohibit courts from citing religious or international laws in controversies before them are fueling anti-Muslim fervor and revealing great disdain for the U.S. Constitution, write Daniel Mach and Jamil Dakwar in an article for Religion News Service (RNS).

    Mach, director of the ACLU’s program on Freedom of Religion and Belief, and Dakwar, director of the ACLU’s Human Rights Program, note that Oklahoma is not the only state that is trying to constrain courts’ ability to do their jobs. It may be one of the worst, however. The state’s constitutional amendment barring judges from citing Islamic, or Shariah, law and international law in their opinions has been temporarily block by a federal court, the two note.

    Mach and Dakwar write:

    The Oklahoma law, and others like it, contains prohibitions on “international law” and foreign law,” nonsensically conflating Shariah with foreign law. Other states, preferring not to wear their bigotry on their sleeves, don’t mention Shariah law per se, instead referring only to bans on “international law.” There intent, however, is unmistakable.

    In addition to the ugly implication that anything Islamic is inherently un-American, these efforts are rooted in baseless idea that U.S. Muslims wish to impose Islamic law on American courts. Proponents of these misguided measures, which have been introduced in a 25 states so far, clearly seek to ride the recent wave of anti-Muslim bias in this country.

    The two point out, however, that the U.S. Supreme Court has long held that “the domestic law of the United States recognizes law of nations.” They continue, “Legislation that forbids courts from considering international or foreign law raise serious questions about the separation of powers and the independence of courts and judges.”

    They conclude in their article, “If supporters of these measures genuinely wish to protect the Constitution, they would do well to trust the framers’ respect for international law and religious freedom – and not trade away our most precious values for political advantage.”

    Also see a recent report from the ACLU called, "Noting to Fear: Debunking the Mythical 'Sharia Threat' to Our Judicial System."

    Earlier this year, Northeastern University School of Law Professor Martha F. Davis and Loyola University New Orleans College of Law Assistant Professor Johanna Kalb examined the impact of such state efforts in an ACS Issue Brief. In a guest post for ACSblog, Davis observed, “Since citations of Shariah law and international law are hardy rampant in state courts – indeed, no Oklahoma court has ever relied on Shariah law – legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.”

    The ACS Issue Brief, “Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives,” is available here.

  • May 24, 2011
    Guest Post

    By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law and a Researcher at the Employment Policy Research Network (EPRN).


    Legal procedure professors who taught current members of Congress must be pulling their hair out. Lately their former students sound more like the Queen of Hearts with their threats to execute the National Labor Relations Board (NLRB) by defunding it and taking away the power of the NLRB’s General Counsel to enforce the National Labor Relations Act (NLRA).

    Wild claims – without any basis in fact – are being made that the NLRB has already made a decision that Boeing violated the law and that the NLRB is going on a rampage against “right to work” states. If you listened to Congress’ version of events, you would think that the NLRB has become the major threat to the economic life of this country. Think a fire-breathing Godzilla administrative agency smashing businesses with its mighty tail.

    Of course, none of this is true. In fact, it is just Plane Nonsense

    Meanwhile, Congress does nothing to discipline the banks and speculators who actually did destroy millions of jobs, savings, lives, and hope for the future. These real villains are not only free but are again being rewarded for risky behavior.

    None of this is true, and the facts could have been easily learned. Not only has the NLRB posted the complaint on its website, it has also posted memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB’s “crime” of doing its job.

    Just the Facts

    The Boeing case began when the Machinists Union in the State of Washington filed a charge with the NLRB alleging that Boeing had retaliated against its Washington employees for past strikes by moving work to South Carolina. The right to strike is protected by law, and an employer’s retaliating against employees for exercising their legal rights violates the NLRA, the law the NLRB enforces.

    After the charge was filed, the NLRB’s regional office in Washington investigated the case. That investigation involved taking sworn affidavits from witnesses and collecting other relevant evidence. Boeing had the right to present its evidence during the investigation. The evidence included public statements by Boeing officials – and reported in the Seattle Post Intelligencer Aerospace News and the Seattle Times – that they were angry that Boeing employees in Washington had gone on strike in the past. Boeing officials also said that they would, therefore, move work that was originally going to be done in Washington to a plant in South Carolina. This evidence, if credited by the judge at trial, supports a finding that Boeing violated § 8(a)(1) and (3) of the NLRA.

  • May 24, 2011
    Guest Post

    By Inimai M. Chettiar, Policy Counsel at the American Civil Liberties Union. Ms. Chettiar serves as national legislative counsel to achieve smart criminal justice reform in states across the country. She has published scholarship on the use of economic analysis to promote laws advancing social welfare.


    Yesterday’s Supreme Court opinion in Brown v. Plata is controversial only to those who do not understand the magnitude of the overincarceration epidemic in this country. The high court upheld an order mandating California to reduce prison overcrowding to remedy systemic constitutional violations. The opinion in no way mandates the blanket “early release” of prisoners; instead, it encourages the state to use prisons only when doing so would be cost-effective and increase public safety. It finds that California's prisons are so overcrowded that they violate the standard of decency required by the Constitution's ban on cruel and unusual punishment.

    Unfortunately, the Plata dissenters use alarmist language that would make readers believe Harold Camping predicted the Rapture a little too early. According to the dissenters, “three army divisions” of bloodthirsty “convicted felons” - “who have developed intimidating muscles pumping iron in the prison gym" - will soon descend upon California’s neighborhoods, leaving behind “a grim roster of victims” with “terrible things sure to happen” to us all.  

    But in their over 30 pages of opinion, the dissenters neglect to mention several key facts.  Foremost, reducing prison overcrowding will actually lead to less crime and safer neighborhoods. Our extremist sentencing policies have bloated our prisons so severely that not only are they unsafe, unhygienic, and unconstitutional, but also excessively costly and actually a detriment to public safety. The majority notes (quoting former California Governor Schwarzenegger) that “’overcrowding causes harm to people and property, leads to inmate unrest and misconduct . . . and increases recidivism as shown within this state and in others.’” California’s communities must then absorb individuals returning from prison who are often more dangerous than when they left. Improving prison conditions makes us all safer.

  • May 23, 2011
    Guest Post

    By Giovanna Shay, an Associate Professor of Law at Western New England College School of Law


    Today in Brown v. Plata, the Supreme Court in a 5-4 decision affirmed a three-judge court’s order requiring the California Department of Corrections to reduce its prisoner population to within 137.5% of the design capacity of its facilities.  Plata makes clear that the restrictions placed on prisoner release orders by the Prison Litigation Reform Act (PLRA) do not tie judges’ hands when they are faced with unconstitutional conditions that cannot be remedied by other means. 

    The California conditions described in the Plata decision were inhumane by any standard.  Justice Kennedy described them as “exceptional.”  Prisoners were housed in a system that was at 200% of capacity for over a decade.  Because medical and mental health systems could not function due to over-crowding, prisoner deaths were all too common. 

    The remedy in Plata was necessary.  However, the type of over-crowding described in Plata requires, not just conditions litigation, but a criminal punishment overhaul.  Simply put, California needs to lock up fewer people, as does our nation more generally. The Court describes various methods of reducing the prisoner population by releasing prisoners who are not a safety threat. This is a good goal, and in a time of budget crunch, one shared (at least in part) by others across the political spectrum (check out Right on Crime).

    But the big question is how to change our criminal punishment policies to shrink our nation’s network of prisons, the world’s largest.