Author Archives: lkosaki

Name That Tune

Many instructors will use music as a way to start a class session.  A short musical piece, played just before or right at the start of the lecture period, can be an effective means of relaxing students prior to the start of class.  And a relaxed student is one that is more open to the learning experience.

One other way that music can be used for teaching (or learning, for that matter)  is to set up a theme or point that might be explored during the lecture, or to use as a kind of mnemonic device for studying.   I’ve used music in this way during my constitutional law course.  Recently, Prof. Kevin McGuire (U of North Carolina- Chapel Hill) offered a link to his web page exploring linkages between the members of the Supreme Court and rock music: .  In that vein, I offer a partial list of songs that I think are useful and fun for constitutional law.

“Signed, Sealed, Delivered” by Stevie Wonder—Marbury v. Madison (This was actually suggested by a student—I also like “Mr. Postman” by the Marvelettes; alternate version by the Beatles)

“When I’m 64” by the Beatles—Steward Machine v. Davis

“Freight Train” by Elizabeth Cotten or any number of folks singers—discussion of the evolution of the Commerce Clause post-Civil War and the role of railroads in that expansion

“Bread and Roses” by Judy Collins or other folk singers for Muller v. Oregon

“You’ve Got a Friend” by Carole King (also version by James Taylor) for discussion of West Coast Hotel v. Parrish (the switch in time that saved nine)

“Love Potion Number 9” by the Searchers for NFIB v. Sebelius

“Don’t Stop Believin’” by Journey, for the reemergence of the expansive commerce clause interpretation in Garcia v. SAMTA

“Purple Haze” by Jimi Hendrix for Gonzalez v. Raich

I think you get the idea.  There are lots of ways to spin this and lots more songs to be used (certainly, more recent songs, but with so many covers of older pop songs, they can still work for today’s students).   And it’s a nice way to set a tone for class.


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Firearms and the FIRST Amendment?

NPR and The New Yorker have recently reported that Sen. Ted Cruz (R-TX) and Sen. Dianne Feinstein (D-CA) exchanged words on the Senate floor about Sen. Feinstein’s recently proposed legislation to restrict firearms.[1]  The legislation, sparked by the horrific shooting incident at Sandy Hook Elementary School, would ban assault rifles and certain ammunition clips.

Sen. Cruz criticized the legislation by making an analogy between the Second and First Amendments, and asked Sen. Feinstein if she would “consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

Sen. Feinstein’s initial response to the question and the coverage on broadcasts of the story on NPR focused on her defense of her understanding of the Constitution—as a senator of longstanding, she didn’t need a lesson on the Constitution.  Buried in her later remarks to Sen. Cruz’s remarks was the recognition that “there are different tests for different amendments.”  And I think this is a teachable moment.

To my hearing, Sen. Cruz’s comments reflected an understanding of constitutional rights that I think is also shared by the NRA and likely others as well—that rights articulated in the Bill of Rights are absolute, particularly as regards the Second Amendment.  But I think this understanding as a legal matter is incomplete.

As students of constitutional law are aware, no right is absolute.  Because individuals live in societies, reasonable regulations are imposed on individual behavior to prevent harmful actions by individuals who want to exercise their rights in unreasonable ways.  Is it okay for individual students to pray before a math test?  Yes.  Is it okay for the math teacher to lead those students in a state-mandated prayer before the math test?  Not so much.  Constitutional law is all about cases where the Court must balance the individual right in question against the state’s interest in reasonable regulation.  The question, of course, is what constitutes “reasonable” regulation.  Is a ban on assault weapons “reasonable,” or is it a serious restriction of an individual constitutional right that guarantees access to all weapons?  The answer to these questions rests on consideration of the importance and urgency of the government’s reason for the ban and the importance and nature of the individual’s right to bear arms.

Sen. Cruz’s remarks suggest that access to weapons is like access to books—implicit in his comments is that since access to books is not restricted under the First Amendment, access to firearms of all types shouldn’t be restricted either.  Yet, the Court has not provided an absolute protection for access to books; for example, school boards under Pico may remove books from a school library if they find that the books are “pervasively vulgar” or not suitable for educational purposes.[2]  This limitation would be consistent with the recognition of the importance of access to ideas as part of the educational function, balanced against the need for school boards to shape curricula for the development of young minds.  Can one draw an analogy to access to assault weapons, arguing that since the purpose of the right to bear arms is  self-protection, banning one type of weapon doesn’t significantly diminish that purpose, and thus, determining the government’s purpose in imposing this restriction would be crucial in determining the constitutionality of the legislation

[1] Eyder Peralta, “’I Am Not a Sixth Grader’: Sens. Feinstein, Cruz Spar on the 2nd Amendment,” The Two Way: Breaking News from NPR, 3/14/2013; (accessed 3/15/2013); Amy Davidson, “Feinstein and Cruz Fight About Guns,” The New Yorker, 3/14/2013; (accessed 3/15/2013).

[2] Board of Education v. Pico, 457 US 853, at 871.  Discussed in Claire Mullally, “Banned Books,” First Amendment Center, 9/13/03,; accessed 3/15/13.

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Forty Years and Counting….

This past January saw the 40th anniversary of Roe v. Wade.  As folks protested and demonstrated about the decision at the Court, you had to share a little feeling of déjà vu; a little sharing of Justice Stewart’s reaction as described by Linda Greenhouse in her New York Times blog entry for the day: “I don’t understand.  We’ve decided that.”[1]

Except, of course, that the abortion issue continues to come back, like a bad penny or that tune that you can’t get out of your head.  On Wednesday, NPR blogged that the Arkansas legislature had just approved the most restrictive abortion law in the US, over the veto of its Democratic governor.  The bill requires abortion providers to perform an abdominal ultrasound that will allow the detection of a fetal heartbeat.  If there’s a heartbeat and the pregnancy is at 12 weeks or more, then no abortion can be performed; the bill allows exceptions to preserve the mother’s life, in cases of rape or incest, and in cases of medical emergency.  Mike Beebe, the Arkansas governor, claimed that the bill is not constitutional.   The bill’s major sponsor, State Sen. Jason Rapert, was “grateful that [the Arkansas Legislature] has continued to stand up for the bills that have passed.”[2]

Since the Court’s decision in Roe, the Court has had to struggle over the question of abortion rights.  Greenhouse’s January blog entry is a worthwhile read for the history of this issue in the Court and for the symbolism of the issue over its 40 year life.  Greenhouse argues that the case’s meaning for the justices was not about women’s rights, but about the ability of doctors to practice their profession without fear of criminal prosecution.  Thus, the issue for them was about policy, not about political ideology.  It was the ensuing conflict about abortion, and the use that political parties made of the issue, that caused it to become the hot button issue that it is.  And the current partisan alignment of abortion stances with the two parties, the increased partisanship of elections, and the close electoral divide make it likely that abortion will continue to be an issue.

Which leads me back to Greenhouse’s blog.  Greenhouse ends by pointing to a recent Wall Street Journal poll that found that 70% of respondents felt that Roe v. Wade should not be overturned.  This result, along with the recent 2012 election, leaves her feeling hopeful:

Until recently, I shared the sense of doom that pervades the abortion-rights community. But as the history of the last 40 years shows, elections matter, and the 2012 election matters a great deal. Those looking for signs of “regime change,” as my colleague Jack Balkin at Yale Law School puts it, can find them in unexpected places. The decision last week by Arizona’s governor, Jan Brewer, to accept the Medicaid expansion that she and other Republican governors had fought as part of their lawsuit against the Affordable Care Act was, I believe, an underappreciated portent of shifting tectonic plates….
On one of New Haven’s main streets, a few blocks from my office, is a building that houses the local Planned Parenthood affiliate. Its clinic provides a full range of women’s health services, including contraception and abortion. I grew up about five miles from that location – not then a Planned Parenthood clinic, of course. At the time I graduated from high school, a year before the Supreme Court decided Griswold v. Connecticut, not only was abortion still illegal in my home state, but so was birth control, even for married couples. Every time I drove by the building, and especially this week, I think to myself that despite all the worries and perturbations of the last 40 years, there’s progress.[3]


I wish I could share her optimism.  Legislatures have been adopting many restrictions on abortions in the past year and states are continuing to consider further restrictions.  Presumably, these restrictions have public support, belying the Wall Street Journal results.  That is because, despite the 70% support for upholding Roe, the same survey shows that Americans continue feeling ambivalence about abortion.  In the same poll, 23% of the respondents agreed that abortion should be legal “most of the time;” 35% agreed that the procedure should be illegal with some exceptions.  When combined with the 9% that support a total ban on abortion, this led to the conclusion that “Almost 7 in 10 respondents say there are at least some circumstances in which they don’t support abortion.”[4]

The ACLU has announced that it will challenge the Arkansas ban.  As other challenges are filed in other states, as they will, and make it to the Court, as I imagine they will,  I wonder how the Court will read public opinion after this past election.  If they truly “follow th’election returns,” which 70% will they see?

[1] Linda Greenhouse, “Misconceptions,” New York Times, January 23, 2013;; accessed Mar. 6, 2013.

[2] Bill Chappell, “Arkansas Legislature Embraces Strictest US Abortion Law,” The Two Way: Breaking News from NPR, Mar. 6, 2013,, accessed March 6, 2013.

[3] Greenhouse, Ibid.

[4] Louise Radnofsky and Ashby Jones, “Support Grows for Roe v. Wade”, Wall Street Journal, January 22, 2013; accessed March 7, 2013.

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The Power to Tax….

With all the attention being paid to the federal budget and the sequester, tax policy has come under scrutiny.  One issue that briefly received attention was the possibility that Congress would end the federal income tax deduction for the state income tax.  The New York Times and NPR commented on the impact of such a change in policy.[1]  In brief, the repeal of the deduction would not only reverse a tax policy that has existed as long as the federal income tax, but would impose greater burdens on residents in states with high income tax rates.  It could be argued that this policy change would threaten state policies that support the needy; it could also weaken state autonomy to determine state policy.

As was noted by both NPR and the Times, the basis of the state income tax deduction is to exempt the portion of individual income that was paid in taxes from being taxed as income—in effect, to avoid double taxation.  States that impose an income tax on its residents find it easier to get acceptance of the taxes since they are exempt.  But the exemption also amounts to a subsidy from the federal government to the states.  What’s more, this subsidy is larger for those states that impose higher taxes to fund programs that provide more support to the needy.  In other words, the subsidy is greatest for those states that believe in the effectiveness of a strong government. [2]

The problem is that the state income tax deduction is estimated to cost the federal government about $70 billion a year.  In the search for more sources of revenue, both Congress and the President have suggested that the state income tax exemption could use another look, either by capping federal tax deductions, which would impact more people in high tax states, or by repealing the exemption.

However, repealing or limiting the exemption could increase pressure to reduce state tax rates, limiting the ability of states to fund many state programs.  As the Times argues,

The deduction is Washington’s way of supporting states that support their most vulnerable citizens and neediest cities. The seven states that account for 90 percent of state and local tax deductions (including sales and property taxes) — New York, New Jersey, California, Pennsylvania, Maryland, Illinois and Massachusetts — generally do a better job of providing for the health and welfare of their citizens, and are more willing to pay for institutions that are good for society as a whole.[3]


As such, it could be argued that repealing the exemption would have a deleterious effect on the states’ abilities to adopt and shape their policies.  The policy also reflects a “balance between the federal government and the states.”[4]  After all, as the Chief Justice Marshall so famously noted, “the power to tax is the power to destroy.”   So could repeal of the state income tax deduction be challenged as an unconstitutional infringement on the state’s powers and the federal system?

[1] For the stories, see NPR, “Day 8 of 12 Days of Tax Deductions,” and New York Times,  “Keep the State Tax Deduction, “

[2] To see a nice map of the relative value of the state income tax deduction, see  accessed 2/28/13

[3] NPR, “Day 8”

[4] New York Times, “Keep the State Tax Deduction”

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Free exercise and corporate personhood

Rorie writes…

On January 20, 2013, the Washington Post published a story about a series of lawsuits challenging the contraceptive provision of the Affordable Care Act.[1]  The challenges use Citizens United as a starting point.  Citizens United continued to recognize corporations as persons under the law and provided them with the right of free speech.  Now some corporations are also seeking protection for their right of free exercise.  The ACA requires that most employers covered by the law provide contraception as part of the insurance plan.  However, some owners of privately held companies contend that providing employees with such coverage violates the tenets of their religion.

Two cases have already made it to the courts of appeals and the circuits have split on the issue.  The 7th circuit sided with the employers and the 10th with the government.

These cases raise interesting questions for discussion.  If a company can refuse to provide contraception coverage because it infringes on their personal constitutional right to religious liberty,  is that any different from firing an employee for the posting anti-gay messages on a cubicle in direct conflict with company policy?[2]  The courts have allowed infringement of employee rights to promote a sanctioned end (tolerance and diversity), but doesn’t the reverse also hold?  The implications of the 7th circuit ruling are that it does.  If an employer’s religious tenets constitutionally supersede the ACA, do they also supersede the Civil Rights Act?

Do federal policies mandating nondiscrimination in hiring homosexuals or women also become a matter of religious freedom in this analysis?  If your religion dictates that a woman’s place is in the home, can you discriminate against women?  Fire or fail to hire any homosexuals because it violates the tenets of your religion?  Fire workers for getting pregnant out of wedlock or taking the Lord’s name in vain?  How far do the rights of a corporate person extend?  Can the rights of a corporate person be distinguished from the rights of an individual?

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Purple Haze

Over the course of the past year, two issues have emerged that highlight policy dilemmas generated by the federal structure of the US.  One dilemma will be addressed by the Supreme Court when it hears oral argument in the case of Windsor v. US.  This case deals with the tension between a federal law that refuses to recognize gay marriages, and state laws that recognize those marriages as legal.

The second dilemma involves the contradiction between federal and state drug policies.  Several states—California and Colorado among them—have legalized the use of marijuana.  California allows marijuana to be used for medical purposes since the drug seems to relieve some of the symptoms of certain diseases or various painful side effects of therapy.  The dilemma is that although states may allow the use of marijuana, federal drug policy still makes production, sale, possession and use of the drug a criminal offense.

In 2005, the Supreme Court handed down a decision in the case of Gonzalez v. Raich.[1]  Despite the fact that California law allows the medical use of marijuana, the federal Controlled Substances Act (CSA) makes the production and use of marijuana illegal.  Angel Raich and Diana Monson were two Californians who were using marijuana under physician’s supervision to counteract the effects of a brain tumor and severe back pain, respectively.  Federal agents seized and destroyed six marijuana plants that Monson was growing for her own use.  Both Raich and Monson sued, claiming that the enforcement of the CSA prevented them from having access to a legal medical treatment.  The federal government argued that the CSA was a valid exercise of the federal power to regulate interstate commerce.

In their argument challenging the law, it seemed that Raich and Monson had the upper hand.  Not only was their marijuana produced locally, it was also provided free to those who needed it.  Thus it was argued that the production, distribution and use of the plant were not part of the stream of interstate commerce.  The medical use of marijuana also seemed to be a subject that fell squarely within the bounds of state police powers.  In response, the federal government argued that the commerce power extends to economic activity that substantially impacts interstate commerce, using Wickard v. Filburn as precedent.

Although the lower courts agreed with Raich and Monson, the Supreme Court reversed.  Despite the fact that two cases—Lopez (1995) and Morrison (2005)—had indicated that the Court was sympathetic to restrictions on the breadth of the commerce clause, the Court voted 6-3 that the situation here was much like that in Wickard.  In that case, the Court determined that the Commerce Power could be used to regulate agricultural production that was purely for personal use, on the ground that this production in the aggregate could affect the interstate demand for a product.  As was the case in Wickard, the Court in Raich determined that the national market for marijuana, even if an illegal market, could be regulated under the Commerce Power.  Chief Justice Rehnquist and Justices O’Connor and Thomas were the only justices to agree with Monson and Raich that their use and production of marijuana was not an economic transaction, much less one that impacted interstate commerce.

Raich is prelude to an interesting prosecution taking place now.  The New York Times reports that a California businessman, Matthew Davies, has been indicted for growing and producing marijuana for medical use.[2]  Davies has established a medical marijuana supply business that is perfectly legal in California, complying with all employment and commercial requirements.  Records documenting the medical need for the drug are meticulously kept and the business only supplies marijuana for health reasons, with detailed records to back that claim.  Despite President Obama’s comments that the Justice Department has more important things to do than prosecute individuals for the use of medical marijuana, the US attorney for the area argues that Davies is a major “commercial marijuana trafficker.”  He has offered a plea deal that could put Davies behind bars for a mandatory minimum sentence of five years.  Davies, who appears to be a respectable citizen with no criminal record and is the father of a young family, is fighting the indictment.

Given the outcome of Raich, it would seem that Davies’ business would definitely be subject to federal regulations under the Commerce Power.  Although Justice Thomas’s dissent in Raich argued that simple use of locally produced and donated marijuana was not economic activity; in this case, Davies’ business is clearly production for profit.   But the case squarely presents a tension between state and federal policy, highlighting the problem of federalism, and this question is addressed in Justice O’Connor’s dissenting opinion.  As she noted, an important function of federalism is to provide “spheres of state sovereignty” that “promot[e] innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.’”[3]   If this is so, then what is to be done when the federal government tries to enforce a national social and health policy that contradicts a popular state policy?  It will be interesting to see whether more cases like this one emerge, whether the Court will eventually address the question, and how it will resolve this dilemma.

[1] Excerpted in Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 7th ed., pp. 456-464.

[2] Adam Nagourney, “In California, It’s US vs. State Over Marijuana,” January 13, 2013; accessed 1/14/2013.

[3] Epstein and Walker, p. 462.

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Gay marriage and federalism

Followers of this blog have no doubt read the timely and interesting piece by my co-author on the blockbuster decision on gay marriage by the 2d Circuit Court in Windsor v. US.  The elevation of gay rights as an area subject to the same level of legal scrutiny as gender discrimination makes it less likely that laws restricting gay rights will be upheld, and that, as my colleague notes, is a real game changer.
There will no doubt be a lot of discussion about the case and legal pundits are now all but certain that this issue will have to be addressed by the Supreme Court.   I will just add an observation about what I see as another important issue in the case: Federalism.


As Judge Jacobs notes in his opinion in Windsor, one of the questions in this case involves the ability of Congress to enact a federal standard for the definition of marriage.  This is an especially important issue since the “Regulation of marriage is ‘an area that has long been regarded as a virtually exclusive province of the States.'” [1] Judge Jacobs goes on to note: “It has for very long been settled that ‘[t]he State… has the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.'”


One of the purposes used at argument to justify DOMA was that the federal government has “’unique federal interests’ in…a consistent federal definition of marriage.”  As Judge Jacobs notes, this justification raises questions because federal law has always recognized marriage as the “virtually exclusive” province of state government. [2]  After discussions of the “unprecedented intrusion” into state regulation, the failure of DOMA to address other diverse restrictions and regulations of marriage among states, and the “inefficiencies” created, the court concluded that, “Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”


If Windsor is accepted by the Supreme Court and the decision to strike down DOMA is upheld, one can imagine that there will be relief amongst many who have been adversely affected by this federal policy.  It’s important not to forget that the impact of that decision would still leave the definition of marriage to the states, and leaving the definition of marriage to the states may not be an unalloyed blessing.  As noted in the dissent to Windsor, many states have adopted restrictive definitions of marriage.   Those restrictive definitions would determine federal benefits for each state’s residents if DOMA were to be struck down.  Thus, the significance of our federal system would then be seen in the challenges to state level restrictions on gay marriage and the standard that would be used by the Court in deciding those cases (cue Hollingsworth v. Perry and cases like it here).


When this occurs, will the fight over gay marriage look like the struggle for progressive labor regulations during the early 20th century?  That is, will gay marriage become an issue that can be regulated by neither the federal government, because it is a matter for the states, nor state governments, because the laws would be an unconstitutional violation of an important individual liberty?

[2] Windsor  Sec. 4 A at 8.

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