Author: sjhurr

District of Columbia v. Heller was a landmark decision of the U.S. Supreme Court. The case was the first case to conclude that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.  The case consisted of a police officer who wished to have a gun at home “only when needed for self-defense”. The first of the two D.C. laws in question banned possession of handguns by citizens, with few exceptions, while the other demanded all firearms to be either always unloaded and disassembled or trigger-locked. The Heller majority concluded that the first two regulations are in fact unconstitutional and that the Second Amendment does protect the right to keep and bear arms unconnected with service in a militia and to use these arms within one’s home for “traditionally lawful purposes, such as self-defense within the home”. The Heller decision did however leave unaddressed whether the individual right to keep and bear arms for self-defense extended outside of one’s home.

The Second Amendment of the United States Constitution reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” According to the Heller majority, this clause renders unconstitutional a blanket prohibition on possessing a functional handgun in one’s home at any time. The Court did emphasize in their decision, that the opinion should not be read as casting doubt on some well-established prohibitions regarding the possession of firearms “by felons and the mentally ill”; laws which prohibited carrying firearms in “sensitive places” such as schools or government buildings or laws establishing conditions for the “commercial sale of firearms”. 

The Heller case left some uncertainty as to the scope to which the extension of constitutional rights in Heller was to be enforceable against the states. Thus, the same day Heller was decided, a suit was filed against Chicago (McDonald v. City of Chicago) arguing that the individual right to keep and bear arms in one’s home established in Heller must be enforced against state and local action. The case was heard in front of the Supreme Court and the Court ruled that the individual right established in Heller is in fact incorporated against the states.

The Supreme Court in the New York State Rifle & Pistol Association v. Bruen, scheduled for mid-2022, might render unconstitutional a restriction in New York State related to bearing hidden handguns in public places. This type of ruling – if in favor of the plaintiffs, which includes an affiliate of the National Rifle Association – could take down regulatory schemes regarding gun possession in several U.S. states. Thus, if the Court does strike down the New York law, Americans should expect an increase in the amount of people bearing lawful firearms in communities. Followers of the Court agree that there are three possible outcomes in regards to the Bruen case. The Court could respect the New York law, strike it down or reach some sort of middle ground such as issuing a narrow verdict which covers big questions regarding restrictions of firearms in the future. As the court has a 6-3 conservative supermajority, the likeliest outcome would be one of the latter options. 

Heller has had a huge impact on gun regulation in the U.S. as the Court had stayed silent on the individual right to possess firearms up to that point. The case was viewed as an astounding victory for the gun rights lobby. Much like the reality of the bench is today, in 2009 the Court had a 6-3 supermajority of Republican nominated justices. With gun rights as an issue most pressing on the political right, with the U.S. electoral system and structure of the U.S. Senate (the only political institutions getting a say in the nomination of justices) heavily favoring the Republican party and the gun lobby getting ever louder, there will no doubt be an ever growing presence of judicial activism regarding gun rights. As a testament to this, only a mere decade after the individual right to possess firearms within the home was established, the Court will most likely expand that right to be protected and enforced nearly everywhere. Aside from the speculation and analysis, one thing is clear: the effects of Heller will remain to loom large and far into the future.

The Lawslingers

The American culture has always been strongly linked to religion. It has also been widely present in education, though judicial reforms have made sure to build a wall to separate the state and religion, also known as the Establishment Clause of the First Amendment. While the court prefers to say that the jurisprudence, in respect to the religious schools and governmental aid, has remained consistent for decades now, the 2002 Supreme Court case Zelman v. Simmons-Harris 536 U.S. 639 (2002) takes a new turn in the debate.

In 1995, the state of Ohio established a Ohio Scholarship and Tutorial Programme, which attempted to tackle the ongoing educational crisis of weakened public school performances. The idea of the scholarship was to offer the students from low-income families an alternative choice between public and private education by providing them financial aid. In attempt to provide true freedom to choose between all available schools, the programme also included the secular and religious schools within the district.

Religious schools financed by scholarships, which are paid by tax-payers? A definite way to start a debate on constitutionality of the programme. The case was brought into the court on the basis that tax-payer money should not be used on religious education. The supporters of the programme, however, argued that under Supreme Courts previous cases, namely Witters v. Washington Dept. of Servs. for Blind 474 U.S. 481 (1986) and Mueller v. Allen 463 U.S. 388 (1983), the programme is constitutional because it offer true private choice to the parents to decide on their children’s education. 

The petitioners argued that there is a two-leveled criteria of neutrality principle to determine the constitutionality of the programme. Firstly, the students that were chosen to apply to the programme needed to reside in the school district. The second thing to consider was the family income. As was mentioned before, the programme was aimed to aid those families whose financial situations would not allow alternative choices of education, namely private schools. 

At this point, it is important to have a break and truly think about the effectiveness of these criteria. Considering the fact that private school institutions have tuitions, which the Ohio scholarship will not cover completely, poor families would not be able to cover private education any way. Public schools do not have tuitions and do not therefore fall under the scholarship category. If students were to choose a public or community education within the programme, they would receive tutoring aid – an amount of money which is surely lower than an actual scholarship. Now when we look into the expenses of religious schools, the scholarship offered to cover the tuition would cover it completely. 

Now, the petitioners also added that in order to decide on the consitutionality of the programme, the court should also recognise the fact that it was aimed for all-comers. It was clearly stated that the programme was not to discriminate any student based on their race, religion or ethnicity. Therefore the programme would not favour any student of their own faith. 

While the above section is a great and important addition in any context, we cannot help but wonder whether the circumstancial factors of religious schools were considered during the argument? The religious school education is based on the theological ideology and values, which are present in the educational processes whether we try to minimise them or not. This being said, we cannot truly put religious schools in the same category as the “traditional” public and private schools. So, why where they included in the scholarship options? 

Again, we need to look back into the reason behind the establishment of the programme: to give disadvantaged, low-income children an alternative choice instead of letting them continue in the failing system. However, as was commented in the case [24], the biggest irony is that the parochial religious schools generally have a better reputation than other schools. If we make the correct comparisons between all available schools, it is clear that you choose a religious school if you want to provide your child with the best education. Does this truly represent the true, free choice? Additionally, if the reason was to make this programme a solution to an existing problem, why did they only give the scholarship to such a small percentage (something close to 10%) of students – why not give it to everyone? Now it seems that the programme was supposed to be an attempt to save “the poorest of the poor”, which sounds like the low-income children are some sort of charity case who do not have any other option than succumb to religious education in order to achieve the best life has to offer. 

Admittedly, the arguments from the respondents are quite airy, and as stated in the Rebuttal argument [68], all of them have been rejected by the court during the past two decades before this case was submitted. This being said, even if the legal arguments against the programme do not bring out strong emotions, we should still think about the deeper, personal level of the issue: the issue is not merely consitutional but also about the debate on how we are supposed to educate the students of new generations? Do we allow the public perception, which may or may not be presented here, that religious schools offer “more” and parents would choose them even without financial incentive? [37-38]

The issue is not only about the legal facts, but also about the political stance. News articles counted the result of Zelman v Simmons-Harris as a victory for the conservatves – a victory for the christian values that are deeply rooted into our western culture. While it can be admitted, that author has biases and lack of knowledge about how the education is truly managed by the religious schools, we can agree with Justice  John Paul Stevens’ comments about the result being “profoundly misguided”. Church and state should stay separated, and religion shouldn’t be combined with current day education. 

It’s clear that by putting money up to religious schools we threaten the pluralism of the society. Would the decision have turned out the same if the programme included another type of school, let’s say a school for idigenous people? And, do the religious schools truly accept all students, even if the students do not live up to the religious values? While there’s generally no issue about the existence of religious schools, is the establishment clause fulfilled if public funds are used to cover the functioning of particular religious faith? [684] If we want to built education and scholarship system on the principle of neutrality, that means that schools should be neutral and not base their methods on any kind of ideologies.

By Double S – PKAK

Should tax money be used for a devotional theology scholarship, or should it be excluded from public funding? The United States Constitution has a long history with keeping the state and the church as two separate entities. Before the Declaration of Independence of the United States in 1776, the Anglican church in the southern states and the Puritans in New England had established religious taxes. However, in the formation of the Constitution there was a consensus that no national church should be established. This is because the early Americans had a large variety of religious beliefs, and no one wanted their beliefs to be overruled by another religion. It is for this reason that the Establishment clause of the first amendment was drafted. Nowadays it is largely agreed that the states should not interfere with the religious establishments. However, it is heavily contested whether state funding should be used for religious organizations.  

The case of Locke v. Davey is focused on the Promise Scholarship Program that was established by Washington state. The scholarship´s aim is to assist gifted students with their post-secondary expenses, but this financial aid cannot be used for a devotional theology degree according to the Washington State law. The respondent Davey was awarded with the scholarship and chose to attend a private church-affiliated university, Northwest College, that was eligible under the scholarship program. However, the major that Davey opted for was pastoral ministries, which is undeniably considered to be a devotional program and as such, does not meet the requirements. Therefore, the student did not qualify for the grant of the scholarship. Davey brought his claim to the court, asserting that by withdrawing his scholarship, the state had violated the Free Exercise Clause. In this case, the Supreme Court held that Washington’s exclusion of the devotional theology degree from its scholarship program does not violate the United States Constitution. 

The Court motivated its decision firstly by stating that there is no precept in the Washington Constitution that seems to be indicating animus towards religion. The First Amendment of the United States Constitution states the following: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  Interpreting the meaning of this amendment, the Court declares that while some states’ actions can be permitted under this clause, they do not necessarily have to be required. The Court motivated its argument by stating that some early State Constitutions explicitly excluded just the Ministry from receiving funding from the state. Because Davey motivated his claim with the precedent of Lukumi Babalu Aye, Inc. v. Hialeah, the court also took this precedent in the front. The Court stated thatfollowing this precedent in the case at hand would be a stretch. In the present case, no criminal or civil sanctions are granted as was done in the Lukumi-case. In addition, the Court also underlines that a student is not required to choose between their religious benefit or receiving the scholarship. 

Although prevailing, this was not the only opinion stated in the Supreme Court. Two of its members left a dissenting opinion, claiming that the Washington policy was discriminatory and as such, unconstitutional. These two justices claimed that the Court did not succeed in motivating its decision due to the fact that no animus towards religion was found in the Washington Constitution. Justice Scalia claims that according to its own precedent an intention of the state should not be considered. The only thing that should be considered is whether someone’s constitutional rights have been violated. As an example, Justice highlights how a racially unjust state policy does not need to have hostility for it to violate the Constitution. While I appreciate Justice Scalia’s position, I cannot really consider racist segregation and the exclusion of a devotional theology program from a public scholarship as comparable in any possible way. Since they are however being compared in Justices writing it is important to point out that when examining the Washington Constitution, the Court never seeks the original intention of the state, but instead studies the writing and afterwards concludes that the text does not include any hostility towards religion from an objective standpoint. I doubt that the same could be statedwhen objectively examining the articles that promoted racial segregation. 

However, I tend to agree with Justice Scalia in some sense. When talking about the individual liberties, the only thing to be considered should be if someone´s rights have de facto been violated. If that is the case, no excuse can be made, and the policy should be deemed as unconstitutional. However, specifically excluding a devotional degree from a public scholarship can also be seen to guarantee freedom of conscience; a way in which no one is forced to fund a system of beliefs they don’t agree with. I would be curious to know if the people pushing for the scholarship to be extended would feel differently if that tax money would be used for pagan practices or Islamic teaching.  Freedom of religion and conscience is a priceless right and should be protected in every way possible. The best way to do it, in my opinion, is to keep the funding of any religious activity private and by doing that to assure that anyones freedom of religion is not being violated. 

By Double S – PKAK

Espinoza (2020) is a landmark U.S. Supreme Court case in which the Court ruled against Montana Department of Revenue that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status under the Free Exercise Clause of the Constitution. 

In Espinoza the question was whether a state law that allows for funding for education generally while prohibiting funding for ‘religious schools’ violates the Religion Clauses or the Equal Protection Clause of the federal Constitution.

The Supreme Court ruled for Espinoza in a 5-4 majority decision that the state court’s interpretation of the Montana Constitution violated the U.S. Constitution, which protects the free exercise of religion. The Court decided that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against ‘religious schools’ and the families whose children attend or hope to attend them in violation of the Federal Constitution’s Free Exercise Clause which protects people who are religious from being treated unequally, as well as from laws that discriminate based on religion.

In Espinoza the Court also made a distinction between ‘religious [status of] schools’ and ‘religious use’ (i.e. religious education or instruction) but it did not resolve whether a state may exclude families and schools based on the ‘religious use’ to which a student’s aid might be put at a school.

Previously, in Zelman v. Simmons-Harris (2002) the Court has decided that the Ohio program did not violate the Establishment Clause of the First Amendment even if the vouchers could be used for private, religious schools. However, in Locke v. Davey (2004) the Court has ruled that there was nothing “inherently constitutionally suspect” in the denial of Washington public funding for vocational religious instruction, such as a degree in devotional theology.

In conclusion, Espinoza implies that ‘religious schools’ cannot be excluded from state funding for private schools. The Espinoza decision will likely have significant impact on subsequent rules in the 38 states with Blaine amendments that prohibit taxpayer funding of religious entities in their state constitutions.

By Double S – PKAK

Mr. Palka was convicted of second-degree murder and sentenced to life imprisonment. The prosecutor appealed, claiming mostly procedural errors, and the appellate court sent the case back for a new trial. This time, Mr. Palka was convicted of first-degree murder and sentenced to death. Now Mr. Palka appealed, asserting his constitutional right against “double jeopardy”, according to which one should not be prosecuted twice of the same act. The U.S. Supreme Court held that Palka’s renewed trial by the State judiciary was okay by the Constitution and Mr. Palka could be executed.

Palko v. Connecticut 302 U.S. 319 (1937) is a relatively old case and it was even overruled later in Benton v. Maryland, 395 U.S. 784 (1969). So why is Palko still worthwhile? The case clarifies, very well I think, why it may be that different general principles apply to the States and to the Federal government. Based on this structural feature, the case furthermore illustrates something that is perhaps more thrilling: the philosophy of rights that seems to be inbuilt to the U.S. Constitutional law thinking. It seems to me that this thinking is the real stake in the controversies going on in the U.S. Supreme Court just now, in the spring 2022.

Two main sets constitute the Bill of Rights. The first set derives from the late 18th century and runs through Amendments I–X. What these contain is mostly familiar to us Europeans as well, such as the freedom of speech and right to fair trial, but there are also some rather strange things, such as the right against “quartering of troops”. The second set is the result of the Civil War (1861–1865) and it consists of the Amendments XIII, XIV and XV. The Thirteenth Amendment abolished slavery in the Southern States and the Fifteenth established citizenship for everyone born in the U.S.A.

The historical context of the Fourteenth Amendment, too, is the abolition of slavery and the Civil War. However, its evidently enormous significance leaves that context behind entirely. The Fourteenth Amendment becomes pervasive to the entire Constitution. This needs to be understood first from a structural point of view. There the peculiarity is that whereas the first set of rights was originally binding only on the Federal Government, the second set was expressly and especially directed against the States. This difference is what Palko case, too, is concerned with. So let us have a look.

The Fourteenth Amendment’s so-called due process clause says that the States may not restrict the life, liberty and property of individuals without “due process of law”. Now the question that seems to control Palkocase is whether the Fourteenth Amendment’s due process clause incorporates (“absorbs” or “embodies”) the Fifth Amendment right against double jeopardy. In other words, is that right an important chunk of the notion of “liberty” that is given in the Fourteenth amendment? The effect of such incorporation would be that the right against double jeopardy becomes binding, not only against the Federal Government, but against the States as well. 

According to the Court, the right against double jeopardy was, in the Palko circumstances at least, not important enough to be incorporated by the Fourteenth Amendment. Therefore, it was not binding against the States in the way that, for example, the freedom of speech and right to a fair hearing were. What is it that made the difference between those rights and the rights that were not incorporated?

Let us analyze a little the ways in which Justice Cardozo explains, in Palko, how the said difference has been made. Cardozo’s first question seems to have been rather sweeping. He asks whether “right-minded men” would consider some limitation of a right “repugnant to the conscience of mankind” (323). If not, then the right in question is perhaps not exceedingly important.

However, certain rights are more important than others because they may “be found to be implicit in the concept of ordered liberty” (325). Such rights have been regarded as incorporated by the Fourteenth Amendment, said Cardozo, and therefore valid against the States. It is not enough, however, that these rights simply have some “value and importance” — according to Cardozo, they need to be more like “the very essence of a scheme of ordered liberty” (325).

Citing another case, Cardozo next refers to something such as the “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (325). If the rights in question were fundamental in this way, they should be regarded as incorporated, because “a fair and enlightened system of justice would be impossible without them” (325). So, there is a link between what is fundamental by people’s conscience and tradition, on the one hand, and what seems to stand as the condition of possibility of a system of justice, on the other hand. At the core of the latter, if not both, is the concept and scheme of an “ordered liberty”.

However, certain rights might very well be lost “and justice still be done” (325), says Cardozo. “Justice”, he thought, does not have to “perish” (326) altogether, even if some of the rights binding on Federal Government were not binding on the States. But then, how does one find out whether justice can be done, or rather perishes, without fully materializing the right in question? This requires a study of “the meaning, the essential implications, of liberty itself”, says Justice Cardozo (326). 

One might get a feeling that the argument starts to repeat itself in circles here, but never mind. Cardozo’s broader point appears to anyway be that “we reach a different plane of social and moral values” (326) when considering a particular right as incorporated by the Fourteenth Amendment. The Court’s Justices have regarded some rights this way more important than others, says Cardozo, because of their “belief that neither liberty nor justice would exist if they were sacrificed” (326).

On this plane of social and moral values, we could perhaps say, borrowing the words of Cardozo, that the facts of the case should present “a hardship so acute and shocking that our polity will not endure it” (328). Likewise, the norms against which these facts are evaluated should stand for the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (328).

It is a well-known problem of legal philosophy whether all legal rights are given in “positive” law, or whether some rights are “natural” in the sense that they exist regardless of an express provision of law. Cardozo’s discourse represents a very modern solution to that dilemma: some rights may be seen as the necessary preconditions of the system that intends to establish an “ordered liberty” and moreover connected with “our people’s traditions and conscience”. These rights are neither “natural” nor “positive”, but inbuilt to and implied by the cultural system of the law.

Freddie Freeloader