Erwin Chemerinsky

  • July 21, 2014
    Guest Post

    by Erwin Chemerinsky and Catherine Fisk. Chemerinsky is Dean and Distinguished Professor of Law and Fisk is the Chancellor’s Professor of law at the University of California, Irvine School of Law.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    The fiftieth anniversary of the enactment of the Civil Rights Act of 1964 is an occasion worth celebrating. On July 2, 1964, President Lyndon Johnson signed into law the first major civil rights law adopted since the end of Reconstruction. Its provisions prohibit racial discrimination in some crucial areas of society.

    Title II forbids hotels and restaurants from discriminating based on race, ending a form of racial separation that existed throughout the United States and especially in the South.  Title VI prevents recipients of federal funds from discriminating on the basis of race, a provision that was crucial in forcing many school systems to desegregate. Title VII prohibits employment discrimination based on race, sex, or religion. Initially this was limited to private employers, but Congress quickly expanded its coverage to government entities.

    The enactment of the Civil Rights Act of 1964 was a political triumph for Lyndon Johnson. He appealed to the nation’s collective guilt over the assassination of President Kennedy and urged the enactment of the law as a tribute to the slain leader. A Southerner and a former Senate majority leader, Johnson was able to persuade opponents to end their filibuster and allow a vote in the Senate, which then joined the House of Representatives in passing the bill. Over two-thirds of the members of each house of Congress voted in favor of it.

    But what is often forgotten is that the opposition to the Act was not based solely on racism. Those who disagreed invoked the principle of freedom of association: owners of businesses should be free to do business with and employ whomever they want. The claim was that the owner of a hotel or a restaurant should be free to refuse service on any basis to anyone, including race. Similarly, the argument was that employers should be able to choose who they want to associate with in the workplace. Thus, opponents of the Act claimed that owners should be free to use their property however they want and it was wrong for the federal government to restrict their choices by prohibiting discrimination.

  • May 13, 2014
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society. 

    The sixtieth anniversary of the decision in Brown v. Board of Education, on May 17, is an occasion for celebrating what it accomplished and reflecting on how it failed. Brown began a social revolution that ultimately ended the apartheid and Jim Crow laws that segregated every aspect of life in the south and in many other places as well. Brown was a crucial part of the foundation for the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the most important federal civil rights laws since Reconstruction.

    Yet, it is a mistake to think that Brown brought about an end to the enormous racial inequalities in American society. The most recent census data indicates that 9.7 percent of whites live below the poverty line, compared with 25.6 percent of Latinos and 27.22 percent of African–Americans. Seventeen percent of white children are in families below the poverty line, compared with 32.5 percent of Latino and 35.3 percent of African-American children. This is the legacy of slavery and Jim Crow laws and the racism that has existed throughout American history.

    It also is a reflection of the historic and continued inequality in American public education. The profound irony is that schools, the focus of Brown, are the area where racial segregation most persists. The tragic reality is that American public schools remain separate and unequal and are becoming ever more so.

  • December 5, 2013
    Guest Post
    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law and ACS Faculty Advisor, University of California, Irvine School of Law
     
    United States v. Apel, which I argued in the Supreme Court on December 4, involves the right to protest outside of a closed military base. Vandenberg Air Force Base, located in California, is surrounded by a fenced perimeter and entering requires going through a gate with an armed guard. About two hundred yards from the perimeter the military has painted a green line on the ground. Just outside this green line is Highway 1, Pacific Coast Highway. The military has given an easement to California for Highway 1, which is a fully open road with no signs to even indicate that it is part of the base. On the edge of Highway 1, on the public side of the green line, there is a designated protest zone.
     
    My client, Dennis Apel, has been protesting outside of Vandenberg Air Force Base for the last 17 years. In 2003, right before the Iraq war, he threw blood against the wall, just inside the green line, which says, “Vandenberg Air Force Base.” He was convicted of vandalism and spent a short time in jail. He was issued a bar order keeping him from the base. In 2007, he went into the base in violation of his bar letter and was given a letter permanently barring him from entering Vandenberg.
     
    On several occasions in 2010, he went to protest at Vandenberg. He always stayed on the public side of the green line in the public protest area on Highway 1. Military officials said that he was on base property in violation of the bar letter and ordered him to leave; when he refused he was prosecuted and convicted for violating 18 U.S.C. §1382, which prohibits entering a military base after a person has been barred.
     
    The United States Court of Appeals for the Ninth Circuit reversed his conviction holding that §1382 applies only if the United States has exclusive possession of the area. This is in accord with the approach followed for decades, in the Ninth Circuit and courts throughout the country.
     
    The United States government sought certiorari and argued that §1382 applies to all of the area owned by the United States and that national security was jeopardized by the Ninth Circuit’s approach.  There were two questions before the Supreme Court: first, does §1382 apply to this public protest zone? Second, if so, does the First Amendment protect a right to engage in peaceful protest?
  • September 20, 2013
     
    During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
     
    As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
     
    There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
     
    Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
     
  • September 16, 2013

    by Jeremy Leaming

    It’s hardly news that Justice Antonin Scalia does not much care for the term living constitution. In late 2011 before a U.S. Senate Committee, he went on a bit of a rant over methods of constitutional interpretation and ended by saying that he was “hopeful the living constitution will die.”

    Longtime Supreme Court correspondent Tony Mauro, opting for an event featuring the increasingly predictable justice at a George Washington University instead of say ACS’s annual Supreme Court Preview, found Scalia once again championing so-called originalism and deriding a serious approach to interpreting the broad language of the U.S. Constitution.

    Mauro reported that Scalia “urged everyone to celebrate the birthday of the U.S. Constitution tomorrow – except those who think the document is an ‘empty body’ whose meaning can be filled in by an activist judge. In that case, Scalia said in his best New York accent, ‘Fugget about the Constitution!’”

    In a post today for ACSblog’s symposium on Constitution Day, which runs through this week, Erwin Chemerinsky, dean and distinguished law professor at the University of California, Irvine, explains why originalism, the method on constitutional interpretation trumpeted by Scalia, is inherently wobbly.

    It’s obvious, Chemerinsky writes, why originalism has not been embraced by a majority of Supreme Court justices: “it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”

    During that 2011 testimony before the Senate, Scalia was joined by Justice Stephen Breyer, who after listening to Scalia; urged the senators to remember John Marshall’s words, “It is a Constitution we are expounding.” According to Breyer, Marshall understood that the framers were thinking about a document that would endure for generations to come.

    Scalia will likely continue to pine for the death of a living a constitution, but as Chemerinsky and many other constitutional law scholars have noted time and again the document contains, broad language for a purpose, one that eludes Justice Scalia.