Want to learn Constitutional law? Let's interview the man on the street...
Howard discusses the recent pledge ruling from the Ninth Circuit and comments about the press coverage:
"One of the most interesting aspects of yesterday's television coverage of the ruling was when reporters took to the street to interview the average person. Those interviews suggest to me that it would be quite amusing for television stations to take to the streets regularly to ask the people what they think about having the Constitution enforced in ways that are not favored by the majority."
I agree that these sorts of interviews are amusing. Whenever I see this, it reminds me of how simplistically television portrays reality. The assumption is that the viewing audience will appreciate getting the views of the "man on the street" about the Constitution. You really have to think about this for more than a moment to appreciate the vast irony here.
Okay, you've got people who know almost nothing about Constitution and the body of law interpreting it (i.e. the media) explaining a legal ruling, and doing so in simplistic terms so that their target audience (i.e. people whose information about world events is at a 10th grade level at best) can understand it. Then, after they've explained it at a level just above the moron level, they go out to find out what people on the street think about constitutional law. This is pure parody.
At my law school we spent a whole year learning the basics of constitutional law. But you could spend two months on the cases that involve the "establishment clause" and the "free exercise" clause alone. Apparently all that time would be wasted. If the legal question is a hot button issue (i.e. like abortion, or free speech, or religious freedom) then apparently you don't have to know any law if you want to appear on television. I'm not a doctor, but, for example, I could throw together some half-baked ideas about infectious disease (preferably after seeing some quick clips on CNN) and then I'd be ready to speak to the nation about important medical issues. I'll be waiting by the phone...
5:26:58 PM
Will the Ninth Circuit hear the Pledge case en banc?
Eugene Volokh gives some good reasons why they won't. Still, I disagree (admitting that I don't know the internal political ecosystem of that court). I think that, even if a majority of judges on that court would uphold the panel opinion (on which point I defer to Professor Volokh's analysis), I think certain forces will militate in favor of full review by the Ninth Circuit.
First, the panel opinion is a 2-1 opinion (and the lack of unanimity weakens the force of the opinion). Second, there is a lot of concern these days about "patriotism" in the wake of 9/11, and I think that the Ninth Circuit (assuming a majority of judges agree with the panel opinion) will not want to leave their two colleagues on the hot seat. Third, there is no guarantee that the U.S. Supreme Court will take the case (although they probably would), and so that tilts a bit in favor of the Ninth Circuit agreeing to take the case en banc.
And frankly, the Ninth Circuit would be doing the US Supreme Court a favor by taking it en banc. If they do, and uphold the decision (which actually is a reasonable decision from a purely legal standpoint) then the Supreme Court could deny review and let the issue be semi-unresolved. The fact of the matter is that leaving this issue unresolved is not going to plunge the Country into anarchy (although there are obviously people who act as though it will).
9:45:21 AM
Equal Treatment is Not Establishment of Religion
Eugene Volokh makes this point in a blog post, and in an article of the same name. I'm sure the media is going to be getting everyone all worked up about the recent school voucher decision, and it's a shame that we all can't read articles like this before we pretend to have a deep understanding of the legal underpinnings of Constitutional law.
9:29:50 AM
