Courtyard Chat Today--Wednesday March 2

 

 

The weather is beautiful today. I will head to the Courtyard immediately after class. Join me for some sun and some con law discussion. Sadly, beer will not be served.

Assignments For Week 7

 II. Exclusionary Zoning

--Casebook p. 883-896; Con Law Video on Equal Laws vs Equal Results:
https://use.vg/CvcTZk  

--Casebook p. 897-914

NO CLASS FRIDAY MARCH 4

Equal Protection: Equal Opportunity vs Equal Results

 I am not assigning this, but sometime read Kurt Vonnegut's wonderful short story, Harrison Bergeron. I think you can find copies of this story circulating in pdf on the web.

Class Cancellation Dates

                                             Hayes Carll at Knuckleheads Kansas City

 

 As you know, we still have 6 classes that we are required to cancel. Here is how I propose we use 5 of them:

Friday March 4 (nice halfway point to take a little break)

Friday March 11 (Friday before Spring Break)

April 27, 28 & 29 (Last week of class)

Be thinking about how you would like to use our 6th and last day.

Zoning and Rent-seeking: Please Comment

Notice that zoning and landmark laws can be used by special interests (e.g.,developers, preservationists) to regulate property in a way that takes property from others and transfers the value to them.

For example, developers of single-family homes can use zoning laws to create "exclusive" (and therefore more valuable) residential neighborhoods. But this comes at a cost to people who can only afford to live in duplexes or triplexes or apartment buildings. We saw this problem in Euclid and we will see it again this week in cases like Arlington Heights.

If I am allowed to build a low-income apartment building on land I own  in a neighborhood zoned for single-family residential use only, should I have to pay damages for the reduction in value of the single family homes nearby? What have I done other than use my own land to provide good homes for many low income families. Is this a tort? An actionable nuisance?

If the government allows me to build low income housing, has it "taken" the property of the single family landowners whose properties are no longer as "exclusive" as they were before I developed the low-income apartment complex? Or has it simply allowed me to use my own land free of the burdensome zoning law and its single-family restrictions?

By the way, under zoning laws where should landfills and dumps be zoned? Near exclusive neighborhoods such as Firethorn? Or on the other side of the tracks near where the poor people live? Where do the influential people in the community, those who control these zoning decisions, likely live?

Please feel free to debate this issue among yourselves by commenting below.

Justice Stevens

 Yesterday, I said I thought Justice Stevens was still alive and retired near the beach. In fact, he passed away on July 16, 2019, at the age of 99.

I think I was aware of this, but it just slipped my mind when I mentioned him yesterday.

R.I.P.

Assignments for Week 6: February 23, 24 & 25

  -- Murr v. Wisconsin (I will email you a pdf of SCOTUS slip opinion); (casebook p. 879-881)

-- RLUIPA (Religious Land Use civil rights law): PDF Handout I Emailed You recently

For Wednesday, we will finish up Takings and, if time permits, we will walk through the RLUIPA statutory text and talk a little bit about statutory interpretation.

Thursday and Friday we will take a deep dive into the substance of RLUIPA, a federal civil rights law designed to mandate diversity and inclusion in communities.

Masks Optional Next Week

 

The powers that be have eliminated the mask mandate in Lincoln and at UNL. 

My policy, as always, is one of liberty. If you wish to wear a mask, please feel free to do so. If you wish to go without a mask, please feel free to do so. Everyone is welcome in Property!

 Whatever your views about the now-expired mandate, I hope that you will not become too used to having your life so heavily regulated by government for such a long period of time. It is like boiling a frog slowly; you get used to the warm water as the heat slowly increases and the next thing you know you are boiled alive. Here is something Jefferson wrote to Abigail Adams in 1787:

"The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the Atmosphere."

 And here is something Reagan said along the same lines:

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men [and women] were free.”

You are the next generation. I will be gone soon (never having enjoyed my retirement home on Lake Tahoe). It is up to you to decide whether you will live as free men and women, or as obedient subjects of the bureaucratic state tipping your forelock to the great Lords and Ladies of Government.

Finally, here is a lament about lost liberty from Aleksandr Solzhenitsyn:  “We didn’t love freedom enough. And even more - we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.”

Recording Mishap: Friday February 18

Yesterday's class (Friday February 18) failed to record. I think what happened is I paused it before class started and I forgot to "unpause" it. I apologize for the mishap. Technology is not my forte.

I will try to do better going forward.

The Link Between Economic Liberty and Religious Liberty

Prof. Richard Epstein: "An even broader look at the place of religion in the [Welfare/Regulatory State] shows that many of the greatest threats to religious liberty stem from the insufficient protection of individual liberty in economic affairs."

Landmark laws often single out churches for landmark status (making it difficult to alter the building if new needs arise).

Zoning laws can zone churches, parochial schools, and religious homeless shelters and soup kitchens out of commercial areas and residential areas.

The contraceptive mandate challenged in Hobby Lobby was an economic regulation of a private business owned by a deeply religious family who wished to run the business based upon their religious conscience.

Try to think of more examples of government regulations affecting property and private enterprise that can have the incidental effect of restricting religious liberty or freedom of speech.

When we protect economic liberty for everyone, we also protect religious liberty along with secular liberty. Liberty for all is liberty for each one.

Landmarking Churches

Abandoned Church Near Seward, NE (photo by Josh Duncan)





From Religion Clause blog:

Diocese Challenges Designation of Church As Historic District

Yesterday's Springfield (MA) Republican reported that the Roman Catholic Diocese of Springfield has filed suit in state court seeking to enjoin enforcement of a city ordinance enacted last December that creates an historic district out of Our Lady of Hope Church. The suit, filed against the city, the mayor and the council members in office when the district was created, also seeks unspecified damages. Historic district designation means that the building may not be torn down, and no changes can be made to its exterior, without approval of the city's Historical Commission. The complaint alleges that by limiting its ability to control church buildings, including religious symbols on them, the ordinance infringes the Diocese's constitutionally protected free exercise rights and freedom of expression, as well as violating equal protection guarantees, under both the state and federal constitutions.

And also this one:

Court Holds Church Can Tear Down Historic Rectory

In Stamford, Connecticut, a state trial court judge on Wednesday refused to enjoin St. Andrew's Episcopal Church from tearing down its its 136-year old rectory building. The Stamford Advocate reports that in a 26-page opinion the court rejected the challenge brought under a rarely used state law that allows any citizen to sue to prevent the "unreasonable" destruction of historic buildings. In denying the temporary injunction. the court concluded that there is no feasible or affordable alternative to the church's arrangement with a real estate developer.

Lake Tahoe Case

Suppose the President asks Congress to impose a 32-month moratorium on speech criticizing the Administration's foreign policy.

Should this temporary restriction on freedom of speech be considered a violation of the First Amendment?

What about a 32-month moratorium on abortions? On the protections against unreasonable searches by the police?

Other than Regulatory Takings protections, are there any other constitutional rights that you believe should be unprotected against temporary restrictions and abridgments? Which? Why or why not?

All rights are temporary, aren't they? As Justice Thomas put it in his dissent, "[a]fter all, in the long run we are all dead."

Looking Forward to "Mask Optional" Policy Soon at UNL

 Here is what one public school teacher said about the end of the mask mandate at his school:

"Taking masks off added more joy and community to my classroom almost overnight, seeing each others faces as we laugh, smile, and discuss."

I miss normal law school as it existed in 2019. If you could only have seen how alive and full of students and faculty the law school building was back then. This is not a political statement; it is a pedagogical statement. It breaks my heart that Covid-era law students have missed out on what law school used to be just a short time ago. Law school should be full of laughter and joy and smiles while learning about law. Joy makes hard work seem less burdensome. And laughter helps unify people with different views about law and justice. Can't do that as well in a masked world.

Rescheduled: Make-Up Exam Review Session: Thursday February 17 from 2:15 to 3:15 PM

On the first day of class this semester, I went through the midyear exam, question by question, to show you which questions you answered correctly and which incorrectly. But some of you were not able to attend due to Covid quarantine.

Several of you, who were unable to attend the first time, have indicated a wish to attend a make-up exam review session.

I have Room 113 this Thursday (February 17) from 2:15 until 3:15 and we can do a make-up Mid-year exam-review session.

Assignments for Week 5: February 16, 17 & 18

--Wednesday February 16: Lucas problems from blog posts :Nollan (and maybe but probably not Dolan) casebook p. 849-868
--Thursday February 17: We will probably start with Dolan and then move on to:Palazzolo (casebook p. 868-879); Tahoe-Sierra (link)

These two assignments may get us through the week. If not, then:

--Friday February 18: Murr v. Wisconsin (I will email you a pdf of SCOTUS slip opinion); (casebook p. 879-881

Last Week: A Few Thoughts

A few thoughts about the material we covered in class last week. 

1. Euclid--We discussed how zoning laws can be used to segregate society on the basis of wealth (and indirectly, race). Notice that the law of covenants running with the land--private agreements that the law allows to be attached as servitudes on the land and which run with the land and bind subsequent owners of the land--are often even more exclusionary (and more restrictive of liberty and the free use of land by the current owner) than zoning requirements. We will study the law of covenants later this semester. 

2. Categorical rules (per se takings): A. Loretto: All physical takings--whether small or large--are takings that require compensation. This is like Horton Hears a Who--a physical taking is a taking no matter how small. The size of the physical taking goes to the issue of damages (just compensation), not to whether a taking has occurred. Query: Why doesn't this extremely logical rule apply to regulatory takings? What would be its impact there? B. Lucas: A total regulatory taking requires "categorical treatment" (i.e. is a taking per se) unless an "objectively reasonable application" of background principles of law demonstrate that the "proscribed use interests were not part of [the claimant's] title to begin with." A total regulatory taking occurs when the state denies an owner "economically viable use of his land" such as "by requiring land to be left substantially in its natural state." This does not require a showing of zero economic value--only that the owner is forbidden to make any "productive or economically beneficial use of the land." Thus, in Lucas, the fact that the owner of the land had the right to camp out on the land (or tip toe through the tulips), or sell it for a few bucks to a neighboring landowner did not prevent the Court from concluding that the ban on development constituted a "total taking" which required payment of Just Compensation. Also remember, the famous note 16  and its discussion of the denominator issue that is still unresolved in the wake of Lucas. Lucas is an important decision when very restrictive environmental laws are enforced against landowners who wish to develop their land. The denominator issue is particularly important in cases in which a regulation requires, say, 75 acres (of a 100-acre tract) to be left undeveloped while permitting some development to take place on the rest of the tract.

Economic Segregation in Housing

Recently, the Christian Science Monitor had an article about economic housing segregation and how it often amounts to racial housing segregation. Here is a link in case you are interested.


A Tale of Two Towns

What's Wrong With Duplexes and Apartments in Single-family Zones?

 3-Decker in Fall River Massachusetts (my boyhood home--2 blocks from the projects--we lived on first floor and had tenants on floors 2 & 3; most landlords are not rich; owning a rental is the first step out of poverty for many Americans)

Friday's Zoom Class Failed to Record

So sorry. It was supposed to be recorded automatically, but somehow it did not work. I think I have fixed it, and next week’s classes should be recorded.

Mostly, we went through the blog posts in Pennsylvania Coal and Penn Central, so much of what we discussed is laid out for you in the blog posts.

Sorry. I will make sure next week's zoom classes are recorded.

Assignments For Week Four (Zoom Classes)

Wednesday February 9: Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw; just focus on the majority opinion's discussion of the Takings issue--ignore the Contracts Clause issue).

Thursday February 10:  Lucas (casebook p. 836-849)

Zoom Schedule

 See you tomorrow at 1:15 PM on zoom. I am going to stay away from the Law College for all of next week. Here is our schedule for next week:

1. Wednesday--Zoom class

2. Thursday--Zoom class

3. Friday--No class (have a great long weekend as a reward for zoom attendance).

We have 8 classes we can cancel, so today and next Friday will use 2 of them.

I'm feeling great--very mild symptoms. But stuck inside the house. I wish I could lift weights on zoom; I am feeling the need for heavy metal.

Assignments for Week Three (February 2-4)

 Cedar Point decision ;Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw; just focus on the majority opinion's discussion of the Takings issue--ignore the Contracts Clause issue).

Talking Poletown: A Short Film

 

Kelo and the Great Debate

 Pay careful attention to the difference between Justice Stevens' majority opinion in Kelo and Justice Thomas' dissent. It is a perfect example of the difference between the common law "Living Constitution" and original meaning originalism. 

Do you see this? If the written Constitution is law, which approach seems more faithful to the rule of law?

One of You Comments on the Bruen oral argument

 Max Beal, who can't be in class on Wednesday, wrote me this comment about the oral argument in Bruen:

The passage I found most interesting in the oral arguments from the Bruen case came from Chief Justice Roberts on page 65 of the transcript (approximately 1 hour and 31 minutes in). 

"You don't have to say when you're looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you're entitled to exercise your Second Amendment right?"

I thought this passage was particularly thought provoking because Justice Roberts is using an analogy to the 1^st Amendment's Freedom of Speech guarantee to illustrate a point for the 2^nd Amendment's Right to Bear Arms. Some of the oral arguments leading up to Justice Roberts' comments seemed focus on how the 2^nd Amendment (like 1^st Amendment) is not totally absolute and unrestricted and therefore the right to bear arms should not be without some sensible restrictions either. But Justice Roberts seemed to take a step back and say from a more fundamental standpoint that restrictions on how freedoms are exercised are quite different from restrictions (and barriers) on being allowed to exercise those freedoms altogether. In my opinion, this was really the heart of the argument because fighting over subsequent restrictions on where a citizen is allowed to carry a firearm and fighting over the citizen's initial right to carry a firearm altogether are really two fundamentally different arguments.

 

Thoughts?

New York State Rifle & Pistol Association, Inc v. Bruen

 From Oyez:

Facts of the case

The state of New York requires a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications based on failure to show “proper cause.” A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed.

Question

Does New York's law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?

Next Week's Assignments

 Wednesday January 26: 

New York State Rifle & Pistol Association Inc. v. Bruen: Oral Argument I would like each of you to identify one or two passages from the oral argument (cited to the relevant page on the oral argument transcript) that you believe are particularly interesting. I will ask many of you to share your passage with the class for discussion.

 

Thursday January 27

Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807:  Public Use Requirement

 

Friday January 28  and Wednesday February 2

U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto);Cedar Point decision

Meat Loaf: R.I.P.

 

 

"I was a varsity tackle and a hell of a block

When I played my guitar, I made the canyons rock"

Original Public Meaning of the Civil War Amendments and Segregation

 The Slaugjhter-House Cases (83 U.S. 36 (1872)) was the first Supreme Court decision to interpret the equal protection clause of the 14th Amendment. Here is the language from the Court's opinion about the "one pervading purpose" of the Civil War amendments that I quoted yesterday when we were discussing whether Brown v. Board is an originalist decision:

 Justice Miller said that the Civil War Amendments must be interpreted in light of their “one pervading purpose”—“the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

If you apply that pervading purpose to laws mandating racial segregation and apartheid, do you uphold those laws or strike them down? 

Of course, when the Constitution is ratified to require a major change in society, there will always be resistance to that change. It can take many years for the original meaning of a constitutional provision to accomplish its one pervading purpose. But most originalists believe that Brown v. Board finally fulfilled the original public meaning of the 14th Amendment.

 

Class Recordings

 More than a few of you are unable to attend class due to Covid precautions. Obviously, that is an excused absence. 

I am not opening Zoom up for live participation via zoom. Instead, I am recording the classes and you will be available to access the recordings shortly after class on Canvas. Stay up with the readings, watch the video lectures I assign for certain classes, and view the recorded class sessions. 

And, as I told the class today, please don't hesitate to call me if you have questions or wish to discuss an issue from class. I enjoy interruptions; I like to speak with students. So, text me first, and I will either call you immediately or suggest for a phone conversation.

Rick Duncan

Heller Holding

 1. The Court makes clear that it is interpreting the Constitution based upon its original public meaning and not upon what the Court believes the Constitution ought to mean (p.1): “ The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

2. P. 3-4: “Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed....”

     There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause."

3. page 4: ”Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution....

 

4. page 6: Right Not Unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose….Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

5. page 8: Judgment: “ In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”