Hello Reddit,

It's Constitution Day!


It's like any other federally recognized holiday (and it is federally recognized and yes, teacher's are supposed to teach the Constitution today) except that we don't get the day off (bummer).

But you know what's better than a day off for dorks like me? Getting to talk about the Constitution! I'm back for another round of Q&A about the Constitution and our legal system, so ask away Reddit - I should be around most of the day to answer questions.

Quick Background:

I'm a lawyer living and working in DC. My pet love my whole life has been the Constitution and constitutional law. I do not work as a constitutional lawyer for my day job, but I do write academically and colloquially about areas of constitutional law. I've worked in a public interest firm doing constitutional litigation in the past, so I can do some Q&A about how that process works but I no longer actively litigate.

My areas of specialization are the First Amendment and legislative procedure. Within the First Amendment I know mostly speech/press/election law issues and legislative procedure is all about our federal legislative system (so everything from item-line veto to the filibuster) are what I love to talk and write about.

I have a general knowledge of most other constitutional provisions, so ask away - I'll be as accurate as possible (and will point you to more knowledgeable folks if I can't answer your questions).

One caveat - I'm not great on national security law. I know the basics on issues of military tribunals, jurisdictional issues, war powers, and executive privilege but questions of indefinite detention, torture, GITMO, and drone strikes are pretty foreign to me.

As always, I highly recommend the Lawfare Blog for all national security law related interests. The writers there are fantastic and unbelievably knowledgeable.

Past AMAs

Obamacare Decision Day Q&A: http://www.reddit.com/r/politics/comments/vqncg/iama_constitutional_lawyer_verified_here_to/

First Q&A: http://www.reddit.com/r/politics/comments/v6mxy/iama_constitutional_lawyer_here_to_clarify/


Nothing contained herein is or should be construed as legal advice. This is purely informational and made for educational purposes. I'm here because I believe educating people about our system is the best way to engage folks in protecting and improving the system. I'm not here to be your lawyer, nor could I legally give you advice even if I wanted to.

Also, I do my absolute best to keep my politics out of my commentary and my answers. Where I am giving an opinion or my interpretation, I will note it as best I can. The law, like many things, has many interpretations - some good, some bad. Opinions on case law are diverse and I'm not here to present a single truth, in fact I will do my best to display the diversity of opinion around particular areas of law.

Update - 7:30PM EST

Heading home from work. Will be back to answer more questions this evening after dinner. Thanks for all the fantastic questions - it's refreshing to see so much interest in the meaning, history, and relevance of the Constitution. Keep them coming!

Update - 9:40PM EST

Answer a bunch more questions - heading to relax and sleep. Will be sure to double back tomorrow and pick up any stragglers - sorry if I missed you today! Happy Constitution Day!

Update - Day 2 - 8:00AM EST

Wooo, that Constitution Day hangover is always a killer. I'm back and answering questions today. Hope to get to many of the ones I missed yesterday. I have meetings scattered throughout the day, so my responses may be slow.

Comments: 773 • Responses: 51  • Date: 

Sepulchural74 karma

What should people know about Freedom of Speech? You hear people squawk about their "Freedom of Speech" being infringed upon, when they are banned on a blog or forum, or that someone got fired for mouthing off at the boss and they cry, "you cannot fire me, freedom of speech!"

Isn't there a line somewhere, wherein Freedom of Speech doesn't necessarily mean the same thing as freedom from the consequences of speech?

ConstitutionalLawyer169 karma

Freedom of speech protects you from the government, not from private actors. This means that if a private school or a private employer bans certain forms of speech, they are generally within their rights to do so.

Also, not all speech is considered “protected speech.” Certain kinds of speech such as libel, slander, obscenity, and "fighting words" are considered unprotected by the First Amendment and the government is given far greater leeway in limiting or restricting such speech. Other kinds of speech, like commercial speech and advertising, are protected but not as protected as political speech.

As for conceptualizing the First Amendment in general? Some key things to remember: the First Amendment protects the government from censoring your speech. It does not guarantee you a right to be a heard or freedom from the consequences of your speech. The government can't punish you for speech - your boss probably can.

Anomaly10030 karma

Hi there.

The First Amendment protects the government from censoring your speech

I see this does not include the Internet:-(

ConstitutionalLawyer67 karma

The Internet is very much an evolving medium for speech. Case law is far from settled and should be expected to change and evolve a great deal in the next decade or two.

bouncingsouls20 karma

As always, I'm late for the AmA. I hope you can still see this. Where does the Westboro Baptist Church fall in these categories? Aren't their hate protests and beliefs slander?

ConstitutionalLawyer36 karma

Probably not. Libel and slander have a pretty high bar to meet, specifically requiring the plaintiff to show special damages (not just emotional hardship) among other things (like negligence or reckless disregard for truth). Also, they aren't stating facts, but opinions, which makes it harder if not impossible in some cases to litigate.

Could you sue them for it? Sure, but you probably won't win.

Samsungasong65 karma

Thanks for doing this AMA.

My question relates to Article I Sect 10: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Whenever the State of California runs low on cash they issue "IOUs" (as they like to term it).

The California Bankers Association has deemed IOUs to be negotiable instruments under the Uniform Commercial Code. Meaning an individual can deposit an IOU into a bank acount.

Source: http://www.redding.com/news/2009/jul/03/banks-say-they-will-accept-state-ious/

There are two problems with this. Either A) California is issuing bills of credit or B) banks are accepting "IOUs" which are basically promissary notes- mini loans to the account holder- of which the bank would need to offset their balance sheet and show these IOUs as liabilities (which they don't!).

Why are IOUs issued by California not considered Bills of Credit (and thus illegal)?

Bill of Credit as defined here: A bill of credit is some sort of paper medium by which value is exchanged between the government and individuals. Money is a bill of credit, but a bill of credit need not be money. An interest-bearing certificate that was issued by Missouri, and usable in the payment of taxes, was thus ruled to be an unconstitutional bill of credit.


ConstitutionalLawyer46 karma

This is an awesome question and I wish I knew enough to give you an answer. My gut bet is that the IOU's are defined as something that is not prohibited and are thereby allowed to survive. I'd have to read the case law around it to give a better answer than that.

Alternatively, it's totally unconstitutional and nobody has really called them on it (who would sue, the folks who are owed money? Why would they do that?)

Sorry I don't know more, this is actually a really fascinating question!

Self_Manifesto36 karma

1) Is it time for another constitutional convention?

2) In light of this story, what is your opinion on jury nullification?

ConstitutionalLawyer100 karma

1) Would I like to have one? Yes. Do I think we would improve our Constitution considering the current political climate? No. I think we need one, but I don't want one right now because I'm scared of how it would turn out.

2) I have always been a huge fan of jury nullification. I think it is absolutely vital. In my opinion, it should be a mandatory instruction from all judges (pipe dream lala land opinion, that is). Unfortunately, in most states its the opposite, with mention of jury nullification being grounds for a mistrial.

sew331 karma

Thank you for doing this AMA. Who do you think has the greater constitutional responsibility to create jobs for the American people, the President or Congress?

ConstitutionalLawyer185 karma

Constitutional responsibility? Neither. Technically speaking, from a more conservative reading, that job is primarily reserved to the states.

Under our modern (post New Deal) interpretation of the Constitution, definitely Congress. The President has no law-making power. He couldn't create jobs if he wanted to - anything he would want to do would have to get a stamp of approval from Congress - there's a reason Obama went on national TV to urge Congress to pass his jobs bill and the stimulus package.

The President is an administrator, not a lawmaker.

burnafterreading912 karma


I just corrected a constitutional lawyer

ConstitutionalLawyer3 karma

/hang head in shame

Warlizard31 karma

The 1st Amendment seems to be interpreted with enormous latitude, whereas the 2nd Amendment as narrowly as possible.

Do you agree with this assessment, and if so, do you think this is a good idea?

ConstitutionalLawyer48 karma

If the 2A was interpreted as narrowly as possible, DC v. Heller would have gone the other way and the militia clause would be binding.

I don't think either is interpreted particularly broadly or particularly narrowly. I think both could be more of one in certain situations and more of the other in alternative situations.

In terms of breadth of law, 1A questions are litigated much more often than 2A questions and SCOTUS reviews 1A questions much more often. Moreover, while the 2A only applies to "arms," 1A covers several rights (speech, press, free exercise, establishment, petition, association), so questions are bound to come up more often.

U_P_G_R_A_Y_E_D_D24 karma

First, thank you for taking the time to do this.

Can you explain how seemingly obvious violations of the Constitution are allowed? Gun laws, DUI checkpoints.. etc.

BolshevikMuppet60 karma

Specially speaking about DUI laws (or any apparent fourth amendment violations) it's because in Katz v. United States the Supreme Court traded the absolutism of being secure in our persons houses, papers, and effects for applying some protection to a broader set of potential rights.

Under a strict Fourth Amendment interpretation, wiretapping would never require a warrant, because once the phone signal leaves your house it's no longer covered. So, in Katz the Court said, basically "okay, but the Fourth Amendment is really about privacy, so we won't do "OMG it's in his house so it's absolutely inviolate" but we also won't do "it's not in his house so there's no way it could violate the Fourth Amendment."

DUI checkpoints are allowed because of the lower expectation of privacy, and the necessary safety concerns.

More worryingly (for some) is how broad the concept of a "consent" search has been taken. It's one thing if the police ask to come into your house and you say yes. In Colorado, the mere act of having a driver's license is consent to a breathalyzer or blood test if I'm pulled over and suspected of drunk driving.

But, I have no right to drive, so the state can put conditions on it. I have no right to fly, so I'm consenting to a TSA search when I go to the airport. The Fourth Amendment doesn't protect me from my voluntary waiver of the Fourth Amendment.

ConstitutionalLawyer23 karma

This, well summarized.

ConstitutionalLawyer42 karma

Gun laws - the "absolute" language of the Constitution (shall make no law, shall not infringe, etc) has had nuance read into it. Gun laws, speech laws, etc are the manifestations of that nuance.

DUI checkpoints - only upheld as legal in 1990, and only on a 6-3 vote. Basically, the court said that public roadways and public safety justify certain exceptions and, so long as police conduct a discussion to get some reasonable suspicion to breathalize, it's ok as far as the 4A is concerned. I'm not a fan and would have been in the minority if I was on the court.

U_P_G_R_A_Y_E_D_D16 karma

Thank you for the reply. How can a reading of "shall make no law" or "shall not infringe" be nuanced? Those lines, mto me at least, seem straight forward and immune to interpretation.

ConstitutionalLawyer51 karma

Because reading them in absolutes causes silly things like allowing the free trade of nuclear arms and making punishing perjury or fraud illegal.

I agree, it reads a certain way but, as my constitutional law professor once told me: "if you want to understand the Constitution, the absolute last thing you should do is read it."

U_P_G_R_A_Y_E_D_D12 karma

In that case, if it can be interpreted until it doesn't mean what it was meant to or infringed at will, whats the point of having it?

Reading this: "While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement." I'm left with the feeling that the Constitution is just a set of ambiguous guidelines that can be ignored at will by the government.

ConstitutionalLawyer37 karma

In that case, if it can be interpreted until it doesn't mean what it was meant to or infringed at will, whats the point of having it?

To keep people like me employed.

Relevant: http://i.qkme.me/35vqr1.jpg

Also, it's not quite THAT open-ended, but it is far more nuanced than a direct read would have you think. Try reading the 11th Amendment and then the case law that actually explains what it means. Rehnquist changed the language and meaning of the 11st Amendment without changing a single word. The Constitution is repelete with these kinds of "re-imaginings."

[deleted]24 karma

Do you like Gladiator movies?

ConstitutionalLawyer17 karma

Love 'em. I'm a big classical history nerd (Rome and Greece in particular).

rufusthelawyer23 karma

Do you play fantasy SCOTUS?

ConstitutionalLawyer3 karma

My friends keep telling me I should. I don't really see the point.

There is a gaggle of us dorks in DC that bet rounds on case outcomes and vote distributions, so that's kind of similar. All I know is that my friends on the judiciary committee HAVE to be cheating because I owe them a stupid number of drinks (they called Obamacare a month out, down to the reasoning).

KaseyB22 karma

Do you need a paralegal?

I kid, I kid.

Real Question: What would you change about the constitution if you were allowed to do a complete rewrite?

ConstitutionalLawyer45 karma

If you're interested in con law but don't have a legal degree, apply to internship/fellowship gigs at big public interest legal firms (ACLU, Institute for Justice, NAACP Legal Defense Fund, etc) - great experience for individuals interested in that stuff as a potential career.

Real answer to real question: Tough one. I'd definately update and expand the bill of rights to be more clearly protective of civil liberties. I think that the anachronisms and age of the Constitution gives a lot of wiggle room. In some places, this is good but in the area of civil liberties, I think it has caused problems, particularlyl around things like the Fourth Amendment.

I think the country needs a discussion about the First Amendment (money in politics anyone?) and the Fourth Amendment (drones?) and the Constitution could do well from having a clear update about what is and is not kosher.

Fun fact: our Constitution is one of (if not the) shortest in the world. The only thing making it relevant and still applicable today is centuries of common law.

KaseyB23 karma

Thanks for answering.

As a follow-up, do you think that if we modified the Bill of Rights to more specifically enumerate our rights, that eventually people are going to come by and claim that since we enumerated these freedoms with specificity, that we purposefully excluded other proposed freedoms?

ConstitutionalLawyer47 karma

Does a bear sh*t in the woods?

Nillix20 karma

Thank you for doing this AMA. As a police officer, constitutional law is near and dear to my heart (cue the hivemind bashing). My question is how do you see the fourth amendment evolving over the next twenty to thirty years in the weighing of personal freedom against our ability to apprehend criminals and do our jobs?

It seems like the interpretation of the constitution over the last ten years has been in the government's favor (warrant-less searches of cell phones incidental to arrest, warrant-less phone taps, "reasonable belief" doctrine, etc.). Do you see a swing going in the opposite direction in the future? Or the government becoming more restrictive and erring on the side of private citizens?

Also, how do you see the evolution of the fourth amendment over the past ten years?

Edit I'll always do my job under the restrictions I'm given. Just wondering, as a professional, both your opinions on the restrictions (or lack therof) and where you see the future of said restrictions.

ConstitutionalLawyer17 karma

Hey there - great questions.

First, thanks for your service!

Honestly, in terms of the reach of the 4A, I'd argue that it actually depends on the next two elections. The clearest liberal/conservative divide is honestly found on 4A cases and, if the court gains a liberal majority, I can see a lot of the 4A case law of the Rehnquist era get pushed back.

As for the evolution of the 4A, I'd say that breadth of Rehnquist's tenure had more to do with it than the last 10 years. He did a lot to set the foundation for, and carry out, the government-friendly shift in the 4A that we've seen in the last 20-30 years. I think a lot of it is still very hotly contested (he won most of his cases 5-4) and its still fresh enough to get some push back should a liberal majority take over.

Personally, I think the problem with many of the Rehnquist Court's opinions are that they depend on absolutely baseless assumptions (police dogs can't give false positives?) and that failing has pushed the 4A balancing test in favor of government and away from erring on the side of private citizens. The spirit of the decisions is understandable (cops need to be able to do their job) but the justification is lacking, in my opinion.

If we see a push back from a liberal majority, it will come based on cases that directly refute the Rehnquist court's assumptions that underlie the rightward shift in 4A jurisprudence.

As to the government erring on the side of private citizens? Not a chance, ever.

catsdanceonkeyboard19 karma

Is our Constitution really founded on "Christian" beliefs, like so many claim?

ConstitutionalLawyer55 karma

That's a question of politics and philosophy more than law. You can easily argue it both ways.

If we're talking our constitutional legal system, its mostly founded on the philosophy of John Locke and British Common Law more than anything else.

The Blackstone Commentaries will give more insight into the foundation of our legal system than any religious text will.

jephoria18 karma

I live in NYC, and I face (what I perceive to be) Fourth Amendment violations every day. How can any of the following be considered constitutional?


edit: formatting

ConstitutionalLawyer22 karma

"Stop and Frisk" policies get their constitutional legs from Terry v. Ohio. This obviously doesn't cover suspicionless stop and frisks, but that's a hard question to litigate.

In terms of just stopping to ask questions, that's perfectly legal (and you are within your rights to refuse to speak and be on your way). What comes of the conversation and whether it is sufficient to justify a frisk is a very hard question to answer.

Random bag screening - the short version is that public transit justifies a special exception to general 4A requirements (there are lots) and you can choose to avoid the search by not using public transit. You are coming to them and thereby consenting to the search - they aren't kicking in your door at night because you used the subway that morning. It's directly related to the government's job of protecting the public, etc, so the courts lean in favor of granting the exception (though judicial oks come on a case by case basis and future infractions of 4A rights can and are often litigated).

TSA TL;DR version = you consent to being searched by flying. Want to avoid the TSA? Don't fly.

plm98017 karma

Do you think we will ever see a return to more strict constitutional interpretation, or rather keep progressing away from such ideas?

ConstitutionalLawyer41 karma

That depends on what you define as "more strict constitutional interpretation."

Scalia, considered by many to be THE big proponent of strict constitutionalism, was exposed to be quite the hypocrite on this issue by Judge Posner of the Seventh Circuit.

I highly recommend reading it to see why arguing of the importance of "strict interpretation" can get silly.

Article here: http://www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism?page=0,2#

In the end, judges do what they need to do to achieve what they believe to be the proper, legal ends. Sometimes its driven by ideology, usually its driven by a legal philosophy. Arguing that one philosophy is the best is just an academic time-waster for the most part. No judge sticks to any one philosophy 100% of the time and no single philosophy will give anyone the desired result 100% of the time.

Remember, the activist judge is usually the one that rules against you.

tucsonraider4 karma

For anyone who likes legal debates, this one between Posner and Scalia is really interesting. According to Akhil Amar, one of the top con law profs in the US, Posner's TNR article was pretty sloppy in its criticism: http://www.volokh.com/2012/09/11/freedom-of-speech-in-americas-unwritten-constitution-with-some-thoughts-on-volokh-posner-and-scalia/

ConstitutionalLawyer2 karma

Great link, thanks - not sure how I missed this one consider I love me some Volokh.

schnuffs16 karma

This might be a weird one, but what to you think of the Canadian Charter of Rights and Freedoms vs. the Bill of Rights? Canada's Charter has (arguably) become more internationally prominent as a model for newly written constitutions. Much of this probably has to do with it being a far newer document (enacted in 1982) and the fact that it more clearly lines out civil and political rights for citizens of Canada. Do you think the Bill of Rights needs to be updated, or do you think that the lack of specificity is better because it provides ample wiggle room?

ConstitutionalLawyer28 karma

I'm a big fan of the Canadian Charter's language but don't know too much about its application (outside of some blurry memories of comparative con law class in law school).

I think how things are written and how things are applied is important. Scalia made a great argument at a hearing last year, noting that the USSR had a phenomenal bill of rights as written, but it was only parchment deep. Our bill of rights, while maybe not as broadly or articulately written as more modern constitutions, is still extremely protective as applied.

Do I think it needs updating? Yes. How far would I take it? I don't think I am (or will ever be) smart enough or experienced enough to answer that satisfactorily.

[deleted]16 karma


ConstitutionalLawyer27 karma

This is more a labor law issues than a constitutional issue (unless your employer is the government) and is determined by relevant labor laws.

I think we'll see a social media/employer question hit SCOTUS in the next decade, but for now its a fairly new area.

Histidine12 karma

What is your opinion (personal and constitutional) on "ceremonial deism?" While it makes some degree of sense, it also seems to argue against it's own existence.

ConstitutionalLawyer22 karma

Personal? Hate it. Goes completely against our founding ideals of not forcing religion on anyone.

Constitutional? I think it's unconstitutional but, like many things to do with Christianity, we've had exceptions created for generally harmless and traditional applications of faith to government. I don't like it but there are bigger battles to fight.

BolshevikMuppet5 karma

The problem is that Lemon allows for a lot of support of religion so long as the government doesn't say "OMG everyone has to be Christian now."

ConstitutionalLawyer16 karma

True. There's a reason that 5 of the sitting Justices have, at some point or another, said that we should get rid of Lemon, they've just never done it together.

The best quote on Lemon ever comes from everyone's favorite Justice, Scalia:

"As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."

jacobe710 karma

Care to clarify for people the notion of "freedom of religion" and what the constitution actually says regarding religion?

ConstitutionalLawyer28 karma

The 1A prohibits the gov from passing or enforcing laws that would help or hurt any particular religion (or all religions).

However, there is nothing in the Constitution that prohibits religious individuals from passing religiously inspired laws in the United States, so long as they don’t infringe on any other religion’s free exercise or establishment.

Interestingly, prohibiting passage of laws based on religious ideology would almost certainly violate both the free exercise and establishment clauses of the 1A, because it would effectively discriminate against religion.

In that sense, the separation between church and state is a one way street more than it is a true "separation."

Fun fact: separation language comes from T. Jefferson's private letters, not the Constitution.

BolshevikMuppet8 karma

I'd distinguish only one thing.

It's not about "helping" or "hurting" religion, it's about whether it encourages or discourages adherence to any particular religion, or even religion in general.

If there were a tax break for belonging to a religion, it'd probably violate Lemon because it explicitly encourages adherence to a faith over nonbelief. Making the religious organizations themselves tax exempt doesn't do that.

ConstitutionalLawyer9 karma

Right you are, thanks for the clarification.

I was paraphrasing it in a user friendly way. The precise language is whether the legislation "advances" or "inhibits" any particular religion.

jimbo8317 karma

The 1A prohibits the gov from passing or enforcing laws that would help or hurt any particular religion (or all religions).

Why then are religious institutions able to be tax exempt? Does that not help all religions?

Interestingly, prohibiting passage of laws based on religious ideology would almost certainly violate both the free exercise and establishment clauses of the 1A, because it would effectively discriminate against religion.

What do you think then of a law such as the one in Oklahoma that bans Sharia Law? Does that not fall into this group and do you think such a law would be overturned by SCOTUS?

ConstitutionalLawyer10 karma

Why then are religious institutions able to be tax exempt? Does that not help all religions?

The answer is basically that taxing them would hurt them and entangle government with them in such a way as to violate the First Amendment. If there are two options, and one violates the Constitution more, then you do the other one. It's not perfect, but that's con law.

SCOTUS' answer is basically "tradition."

In Walz v. Tax Commission, SCOTUS said that the church's “uninterrupted freedom from taxation” has “operated affirmatively to help guarantee the free exercise of all forms of religious belief.”

Basically, the power to tax is the power to destroy and giving that power to the government over religion violates the 1A.

What do you think then of a law such as the one in Oklahoma that bans Sharia Law? Does that not fall into this group and do you think such a law would be overturned by SCOTUS?

Textbook unconstitutional. Sharia law, by definition, is unconstitutional, since it imposes religious laws in a way that violates the free exercise of religion, so banning it is just a practice in futility.

However, were Oklahoma to try and pass such a ban in a way that would prohibit an individual from subjecting themselves to a sharia court (voluntarily, etc), then that would get struck down immediately as a violation of the 1A.

pandafox1310 karma

Do you think the LGBT community should receive intermediate scrutiny under equal protection? Do you think they should be considered a quasi suspect or suspect class?

ConstitutionalLawyer27 karma

Personal opinion, not law

It's tough. Me, personally, I lean towards treating them as a suspect class under the "discreet and insular minority" argument. I'm always for things that are unchangeable being protected (race, etc). In the case of homosexuality or people born with hermaphroditic characteristics, that's a pretty clear cut case of being genetic in my eyes (therefore protected).

But what about people who have sex-changes? Technically, I can understand the genetic argument, but it's changeable, right? Then again, we protect religion (which is perfectly changeable).

Personally, I'd treat them as at least intermediate (since that's what sex gets, and that can be changed). If I was applying my personal politics, I'd probably make it strict for the time being and then bring it back to intermediate down the road.

pandafox139 karma

Amen. I'm writing a paper for my upper level writing requirement about how this question should be decided under privacy instead of trying to jam sexuality into the same boxes as race and gender. I'm always interested as to what practicing lawyers think about this issue. In the paper, I'm trying to dismantle the need to show immutability, using Kinsey's studies and arguing that the 4th am. should also cover sexual preferences. I'm curious about what is gonna happen now that Holder has told congress he thinks DOMA is bullshit, the white house is in favor of gay marriage, and all these states are having a blast voting on people's rights (which I think is awful).

Thanks for the reply!!

ConstitutionalLawyer12 karma

The other thing to look at is not just immutability, but the other things that have been extrapolated from the "discrete and insular minority" footnote. Things like voice in government, representation, ability to participate in the process, etc.

If anything, the LGBT(Q) community is more engaged than ever - if they get more engaged and are better represented but still fail to secure protections, is that their problem or should "discrete and insular minority" status still apply?

intravenus_de_milo9 karma

Are there any legitimate reasons why the Obama Administration should be appealing the recent NDAA ruling that strikes down the provision for indefinite detention? It seems to conflict with his signing statement which calls the practice a "break with our most important traditions and values as a Nation."

ConstitutionalLawyer24 karma

The Executive is supposed to uphold and defend all laws, since they are presumed constitutional. Theoretically, he should appeal it as a matter of duty, but DOMA sort of set that aside, so that question isn't as clear cut as it used to be.

Past Presidents have refused to appeal things, etc - technically its usually a legal strategy call (no way we'll win, not worth the time investment, etc) - heavily political questions make the legal calculus much more difficult. In the end, the final call is with the AG, who can be directed by the President.

BicycleCrasher2 karma

I'm sorry, you just said legal calculus. You just blew my mind. What is it, where can I learn about it, and does ConLaw involve a lot of it?

ConstitutionalLawyer4 karma

It's a term we lawyers use to justify the fact that none of us (save patent attorneys) can actually do math.

Litigation is expensive, so decisions on what to pursue have to take economics into account.

Moreover, different judges in different courts have different philosophies. The government has to pick and choose its battles carefully or it risks setting unfavorable precedent that will hurt them in the future. No case is appealed on accident.

Wargazm9 karma

  1. What are your thoughts on the "is money speech" debate?

  2. What possible pitfalls do you see in a "revoke corporate personhood" amendment that some political groups are talking about?

  3. How is the ninth amendment used in modern times? Could it, for example, be used to argue that state bans against gay marriage are unconstitutional?


ConstitutionalLawyer13 karma

1 - I do believe that money can be speech. If I give you money to publish an ad, I am speaking. If you choose to not run my ad, that's fine. If the government prohibits you from running it or me from buying it, that's a problem. The problem comes from BIG money, which can and should be limited. I, personally, think that the best angle for a legal limitation is proving the corrupting influence of dollars in a legally sufficient way so as to justify contribution limits (like we have with direct contributions to candidates and parties).

Pragmatically, the best immediate step is mandating transparency for all SuperPACs/PACs/527s.

2 - There are a ton - revoking corporate personhood sounds great but translates terribly. Corporate personhood is a legal fiction that exists to facilitate efficient business transactions and business creation. The liability and protections that corporate personhood gives are absolutely vital to a vibrant and efficient economy. If you pull corporate personhood, then every person invested in, or working for a corporation (to an extent) becomes potentially liable for anything anyone in the corporation does, even if the costs bankrupt them and take their home.

Sure, people will cheer for that when some asshole CEO loses houses 1-5, but what about the hundreds of thousands of people who will lose their job? The reality is that it will shut down business through even the slightest threat of litigation and grind growth and innovation to a halt due to liability concerns.

The corporate veil has existed for centuries for a reason, and it isn't to "buy off" government (especially since it was created originally by order of the monarchy).

If corporations aren't legal entities protected by law do they no longer get due process rights? Can they have judgments entered against them arbitrarily? Are they not accountable for crimes committed? How do you manage investment/liability risk?

Corporate personhood doesn't mean corporations are people. It means that people can get together to form a business entity that is legally treated the same as any other legal entity (person, government, or business) for purposes of being protected by the rule of law and facilitating more efficient business transactions.

3 - 9A isn't really invoked all that often these days (at least not by the courts).

DNAsly9 karma

First amendment law! I love that.

I have a question: Why the hell did the Supreme Court make first amendment (speech) so freaking difficult?

ConstitutionalLawyer24 karma

Law is not clear cut. If it was, we wouldn't need judges or a judicial system.

The First Amendment is complicated because the concepts of speech and expression of ideas are complicated. The Court has evolved in its views on the First Amendment (for example, commercial speech only became protected in 1980, it was unprotected before then) and will continue to do so.

Trust me, you want the First Amendment to have nuance - it allows MORE speech to be protected in the long run.

rednail648 karma

The birther crowd is always screaming about how the definition of Natural Born Citizen is different for the office of the President, and they love to cite Wong v. Ark. Do you have an interpretation of this or of the larger question?

Thanks for doing this!

ConstitutionalLawyer3 karma

Not sure what they're digging for. Natural Born Citizen means birth in a US jurisdiction or to US parents. I don't really see what they're yelling about - Obama qualifies under either, so regardless of what the case law says, he's qualified.

zuluthrone8 karma

Has there even been a case concerning the 3rd amendment?

ConstitutionalLawyer7 karma

Yep. Not at the SCOTUS level but it did make it to the 2nd Circuit.

Engblom v. Carey

AIpwns7 karma

How do you think Fisher v. University of Texas will turn out?

Also, how do you feel about the Supreme Court's decision not to extend the power of the Commerce Clause under the recent healthcare decision?

ConstitutionalLawyer13 karma

Fisher is THE case on my radar for this term, I can't wait to hear those arguments (hopefully in persona) and read that opinion.

I think this Court will declare the Texas program unconstitutional, reasoning that if there is a fair and race-neutral program that is delivering desired results, then the inclusion of a race-focused program is unnecessary. I think they'll write it narrowly so as to leave Bollinger alone.

As for Obamacare, I think I answered that question in the Obamacare AMA, but basically i'm glad it went the way it did. I think extending it under commerce would have given the government effectively unlimited power in a way I wasn't comfortable with.

rs1816027 karma

If there were a tie in the electoral college vote as counted on the first day of the new congress, I understand that the house elects the president on a state by state basis and that the senate elects the VP on an individual member basis, leaving the possibility of a 50-50 tie. Who has the tiebreaking vote? Joe Biden is the president of the Senate now, but does he remain so if there is an electoral tie? If he loses his bid for senate re-election for example, is he still even a member of the senate to vote? Does he have a conflict of interest? What is the procedure for resolving this issue in the unlikely chance it happens?

ConstitutionalLawyer14 karma

Biden votes. He is President of the Senate as VP until January 20, not Nov 6. Election day changes who will take over when the term ends, it's not the actual end of term.

Also, conflict of interest is not relevant here, since it was written into the Constitution.

and1813777 karma

Let's say you're solicitor general of the United States. How would you if challenged in court defend the actions of the Obama administration (drone strikes, Guantanamo bay, the kill list, etc) and the alleged NSA file on every American?

ConstitutionalLawyer15 karma

How would I what? I think you accidentally a word.

Edit: Got it, punctuation.

Honestly? I'd probably argue executive privilege left and right just to get it out of court. Executive privilege is an absolute privilege (meanings the judges don't even get to review it before determining if its elligible) so I would push that as hard as possible before turning to anything else.

In terms of defending any specific action, it would depend on the action. I don't know enough about the area to make a good legal argument, but I would probably couch most of them in the fact that we are at war and therefore war powers cover this stuff.

Note: If you're interested, the oral arguments and briefings for the big terror cases argued before the Supreme Court are publicly available. I'd start with Hamdan v Rumsfeld and Boumediene v. Bush to hear how the SG defended military tribunals and no habeus for detainees.

blatherer5 karma

I your opinion, how does Citizen United compare to Marbury vs Madison as as a historical power grab than.

ConstitutionalLawyer21 karma

They aren't comparable.

Many legal scholars argue that Marbury wasn't a power grab so much as a reaffirmation of concepts the Constitution's authors were perfectly familiar with.

Citizens United was a simple question about political speech, namely asking whether the government met the burden of explaining why it prohibited certain kinds of political speech at certain times relative to an election. While I think the "corruption" angle got short-shrift by Kennedy, I can't argue that the case was wrongly decided. Citizens United was a fairly simply free speech case that the government would have lost on 9/10 times.

If you're talking about money in politics, money as speech, etc, that case law goes back 40+ years before Citizens United and is a whole separate discussion (still not comparable to Marbury because SCOTUS didn't gain any "new power" under Citizens United).

Megatron_McLargeHuge2 karma

How is it that we end up with "free speech zones" for protesters, as well as permit and sign requirements, but we can't meaningfully restrict campaign spending?

ConstitutionalLawyer9 karma

Tangible v. intangible problems, IMO.

Protesters make you late for work thanks to traffic. SuperPACs make you skip reading newspaper articles. One is much more tangible than the other.

Remember that a bare majority is truly politically engaged - way less are politically educated thanks to rational ignorance. Less people know or care about campaign spending, period.

VANICK3574 karma

I am a recent university graduate, and I have always wanted to go to Law school and practice . Unfortunately, the market seems saturated by underemployed law grads at this time judging from student lawsuits against their own schools for fudging employment data.

How would you recommend a prospective law student gain entry into the law profession after graduation other than acing the LSAT and getting into a top 10 school? This is assuming a rebound is way off in the future.

ConstitutionalLawyer8 karma


Personally, I'd tell everyone considering law school in this economy to think really hard and either get a full ride, have a job already setup, or know beyond a shadow of a doubt in their heart of hearts that a law degree is what they really want.

Zaelan3 karma

This came up back in my undergrad days at state university, so I'm curious about your input. One of the organizations (heavily university affiliated) sponsored a performing artist but included in the contract terms (that were agreed to by the artist prior to performing, obviously) that the artist not perform things pertaining to subject matter X. Performer goes on to perform subject matter X and does a whole free speech spiel.

What's your take on it?

ConstitutionalLawyer12 karma

This is a pretty deep and interesting area of case law known as content v. viewpoint discrimination.

Schools can discrminate based on content in certain situations but cannot discriminate based on viewpoint.

Let's take your example and adjust it for illustrative purposes.

Let's say the university had a prohibition on discussing drug use on campus. This means that whether you were the editor of High Times, the chief of D.A.R.E. curriculum, or the head of the university hospital you could not talk about drug use. This is content based discrimination and is OK in certain situations so long as it is applied across the board.

Viewpoing discrimination, is if I allow discussion of drug use BUT ONLY if you are AGAINST drug use. So I would let the DARE officer come in, but someone advocating drug use would be banned from speaking. This would be viewpoint discrimination and would be unconstitutional.

As far as your actual situation, if that clause in the contract is in ever contract for individuals performing/speaking, it is content discrimination and, so long as it is a limited public forum (which any performance venue on a campus almost certainly is), then content discrimination is constitutional for so long as it is evenly applied. If the university made one exception, the artist could sue for violation of his speech rights under viewpoint discrimination.

Make sense?

SJfakinger3 karma

TIL there's a Constitution Day and it's on my b'day.

This is extremely cool.

On 9-11-01, as we all know, something happened that makes a mere birthday, a week later even, disappear off of everyone's map. My older sister and I literally said to each other, over email, "Hey, wasn't there a birthday a couple of months ago?" "Oh yeah, I guess there was..." It's not much, but 9-11 kind of wiped my birthday off of our map; the year 2000 was the last year I got a present, etc.

Well now I feel like I have it back. It's Constitution Day!

ConstitutionalLawyer2 karma

Happy RL CakeDay and Constitution Day!

trustbuster3 karma

Any recommended reading for an aspiring constitutional lawyer? (I am a college freshman)

BolshevikMuppet16 karma

The best advice the OP or any other attorney (myself included) can give you would be to understand that the "constitutional lawyer" jobs are pretty rare, and "aspiring constitutional lawyers" are a dime a dozen in law school. A huge number of law students are there because they want to litigate constitutional issues, but outside of the criminal procedure amendments and the defense lawyers who litigate them, there aren't many jobs focused on constitutional law.

That's not to say that you shouldn't follow your dream, but if I had a dollar for every "aspiring constiutional lawyers" who works in civil litigation and hates it, I'd have my law school loans paid off.

ConstitutionalLawyer9 karma

This too.

I like you.

ConstitutionalLawyer10 karma

See if your law school offers intro to law courses for undergrads. Mine did and it helped a great deal at piquing my interest in law.

Beyond that, I'd read some books about SCOTUS (G. Toobin's "The Nine" is a good, easy read).

If you want to dig into actual con law without reading yourself into a coma, try Con Law: Principles and Policies by Erwin Chemorinsky (http://www.amazon.com/Constitutional-Law-Principles-Policies-Introduction/dp/073555787X)

It was, and is, the Con Law bible for law students. It's heavy on legal concepts but its written well enough that its readable by anyone. I have my copy sitting right next to me on my desk right now. I can't tell you how good this book is for constitutional law 101 type information.

KungFuPuff3 karma

Thank you for this AMA. I love many of your responses.

Are you going to give your Arms a good cleaning today? Its only fair to do so!

ConstitutionalLawyer17 karma

More like a grooming, right?

SisterRay3 karma

Why is the 3rd Amendment not the most awesome part of the Bill of Rights? I've joked around with friends about going back to get an LLM in Constitutional Law solely for the purpose of teaching a 3rd Amendment seminar.

What place does it have in our legal system today? Should we create more awareness of it?

ConstitutionalLawyer4 karma

It's about as relevant as the piracy clause in Article 1, Section 8, or the Guarantee Clause in Article 4. There's some goofy stuff in the Constitution but it all has a historical reason for being there - I think that's part of the interesting side of studying it.

Pick_Zoidberg2 karma

What qualifies as "reasonable suspicion" to allow a terry search?

Does a crime in the area have to be committed, or does the person just have to look suspicious?

ConstitutionalLawyer2 karma

Acting suspicious, in an articulable way, is generally what's required.

In Terry for example, the defendants were walking back and forth in front of a store, peering in, discussing, and apparently casing the place. The Court said those facts are not to justify a stop and frisk. It's a fact-based inquiry that varies from case to case.

nmhunate2 karma

Do you think that it is proper and right that the protections found in the Bill of Rights now apply to the states?

It is my understanding that the 1A was only applied solely to the Federal Government and not to the governments of the individual states. Passing the 14th Amendment seems to have an influence that wasn't intended... that the states now must follow the Bill of Rights and things like that...

Obliviously, we all like that the State of New Mexico cannot pass laws regarding political speech, but was that what Jefferson wanted?

ConstitutionalLawyer6 karma

The point of being able to amend the Constitution is so that we wouldn't be bound by what Jefferson wanted. I think the 14A is a clear indication that we, as a country, wanted the BoR to apply to the states.

Goodspellr2 karma

About the freedom of speech thing: Am I allowed to cuss someone out, or can I be arrested for that? Let's assume I'm not threatening the person - just calling them names. Like, if I said: "In my opinion, you are a stinking, no good, god damned, mother fucking piece of shit, and I wish that you would die." Can I say that kind of thing to someone?

ConstitutionalLawyer3 karma

Can you say it? Sure. Can you be punished for it? Maybe. Other areas of law like harassment may come into play, but generally you're perfectly allowed to cuss some out or flip the cops the bird.

That doesn't mean the cops will make life easy for you - it just means that, in the end, a court will say they weren't supposed to do whatever they did do to you.