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| Fulfilling the Progressive Promise of the Constitution's Text & History June 2011 |
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Opening Statement
Judith Schaeffer
Vice President, CAC
Not that I ever take our constitutional freedoms for granted -- far from it -- but there's nothing like spending a couple of weeks in a country like China to make you appreciate even more the liberty we enjoy as Americans, the liberty we are guaranteed by our Constitution. In May, I was privileged to go on an extraordinary journey through a good part of China. For a baby boomer like me, standing in front of the Forbidden City with its iconic portrait of Chairman Mao was literally a "pinch me" moment. Climbing the Great Wall was a dream come true. Seeing the Terra Cotta Warriors in Xi'an and sailing through the Three Gorges of the Yangtze were spectacular.
China, as our guide said, is a very "complicated" country. There is a great deal of new prosperity; people are buying condos, and cars are replacing bicycles on the crowded streets of Beijing. Outward trappings of capitalism exist. But in their homes, the Chinese cannot watch CNN or the BBC. According to our guide, they are fed "happy news" on TV each night, described to us in a manner that immediately brought George Orwell to mind. We were told not to take photos of the police in Tiananmen Square. There were web sites we visit daily in the U.S. but could not access on the Internet in China. For so many reasons, it was impossible to forget that we were in a country so very different from our own.
And so returning to America and learning that Tea Partiers are trying to invade our public schools and indoctrinate our Nation's children with falsehoods about our Constitution was particularly unsettling. We are so fortunate to have the freedoms that we have. Let's make sure that the next generation understands and appreciates this too. And let's continue to push back hard against those who are trying to pervert our Constitution and its history.
Until next month,
Judith
Photo by Judith Schaeffer
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Public Schools Should Reject Tea Party Efforts to Indoctrinate Youth with Bad Constitutional History
Last month, an organization called the "Tea Party Patriots" announced a plan to pressure public school boards around the country into allowing them to teach children the U.S. Constitution in the classroom during Constitution Week in September. As an organization devoted to the Constitution, CAC thinks it's a great thing that students are well-educated in constitutional history. However, it's important that the instruction be accurate. Unfortunately, the materials the Tea Party Patriots plan to use for this instruction are produced by an organization that is so far from the mainstream that their planned effort amounts to "indoctrination, not education," as CAC President Doug Kendall told the Associated Press in a story late last month that made this effort national news.
The source materials are produced by the "National Center for Constitutional Studies," an organization founded by radical author W. Cleon Skousen. Skousen has been dismissed as a dishonest, ultra-far-right conspiracy theorist by scholars and conservatives such as William F. Buckley. As someone who "once called Jamestown's original settlers communists, wrote end-of-days prophecy and suggested Russians stole Sputnik from the United States," Skousen "was too extreme even for the conservative activists of the Goldwater [E]ra." In his outrageous re-imagining of history, Skousen wrote that "slave owners were the worst victims" of slavery. He also believed that "most federal regulatory agencies are unconstitutional, including the Environmental Protection Agency and the Federal Communications Commission," and called for the repeal of the 16th and 17th Amendments, and Social Security, "which he view[ed] as an affront to states' rights." (For more on the radical views of Skousen, read Salon's in-depth profile piece.)
On the Huffington Post, Doug issued a challenge to the Tea Party Patriots to find one credible historian from any of the 50 highest-rated universities in the country who is willing to support their view of the Constitution's history in order to qualify to educate our Nation's children on this important subject. They have yet to identify such a scholar.
Last week, CAC also responded to the latest Tea Partier to flunk constitutional history: Herman Cain. After lecturing Americans to "reread" the Constitution," Cain, a Tea Party favorite and GOP presidential candidate, proceeded to confuse the words of the Constitution with the words of the Declaration of Independence. Cain is just one of many Tea Partiers who have wrapped themselves in the Constitution yet exhibited a shameful lack of knowledge or understanding of our Nation's charter and history. Until Tea Partiers can prove they have mastered the basics of our Constitution's text and history, America's school boards should flatly reject the Tea Party Patriots' attempts to muscle their bad history into our children's classrooms. America's students deserve a far better education.
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Laying Claim to the Constitution with "The Promise of New Textualism" This month, CAC celebrates its third anniversary. In conjunction with this celebration, we have released a Discussion Draft of a paper, to be published in final form in November by the University of Virginia Law Review, that solidifies the intellectual underpinnings of our organization's text-and-history approach to the Constitution and provides an important foundation for our work in the coming years. The paper, written for CAC by UVA Law Professor Jim Ryan, is titled Laying Claim to the Constitution: The Promise of New Textualism. In particular, the paper describes the rise of conservative originalism during the Reagan Era and documents its success in shaping the conversation about the Constitution. It goes on to explain why the initial response by progressives was only partially successful and was in some ways counterproductive. It then explains the increasing consensus within the legal academy around the principles of what we call "New Textualism," and reviews the important scholarly work done to date documenting the progressive promise of the Constitution's text and history. The paper ends with an outline of the critical work that remains to be done. By releasing this paper in draft form now, we aim to stir discussion and debate, particularly among progressives. We urge readers of the draft to provide us with comments and critiques as it is finalized for publication in the Fall. Please send your comments to [email protected], or post them on the comments section of our blog, Text & History. |
CAC Urges Supreme Court to Hear Fourth Amendment Case This month, CAC filed an amicus curiae brief in support of the Petition for a Writ of Certiorari ("cert.") (a request by a litigant that the Court take the case) in Szajer v. City of Los Angeles. At issue in this case is the effort by Zoltan and Helene Szajer to obtain compensation for what they allege was a warrantless search of their business. CAC has urged the Court to grant the Petition and review this case because of the important role envisioned by the drafters of the Constitution for civil actions in securing the fundamental right of the people to be free from unlawful government searches and seizures. Specifically, we have urged the Court to clarify the circumstances under which the subject of an allegedly unlawful search or seizure may bring a civil action to hold the offending law enforcement officers or agency responsible. This is the third Supreme Court brief that CAC has filed this year at the cert. stage, following our briefs in the implied preemption case of Farina v. Nokia, and the double jeopardy case of Blueford v. Arkansas. We are engaging more at this level of Supreme Court litigation in light of statistics showing that amicus support for a cert. petition greatly increases the chances that the Court will agree to hear the case. As documented by scholar Richard Lazarus, founder of Georgetown Law School's Supreme Court Institute, less than two percent of the petitions for cert. filed without any supporting amicus briefs are granted by the Supreme Court. By contrast, almost twenty percent of petitions accompanied by one or more supporting amicus briefs are granted, a ten-fold increase. Moreover, according to a survey by Scotusblog (a widely read blog focusing on the Supreme Court) of the groups filing cert. stage amicus briefs, over the period of four years studied, of the fifteen organizations that had filed the most amicus briefs in support of Supreme Court review, ten were either ideological groups on the right (such as Washington Legal Foundation and Pacific Legal Foundation) or organizations representing corporate interests, such as the Chamber of Commerce. No prominent progressive organization even made the top 15 list. We hope that our cert. stage efforts will help fill this progressive legal void, and we'll of course keep readers up to date on these efforts. |
Litigation Update In addition to filing the briefs discussed above, CAC's litigation department has been kept busy over the past few weeks watching and commenting as our arguments in defense of the constitutionality of the health care reform law are considered in appellate courts across the country. Not surprisingly, the Supreme Court unanimously rejected Virginia's request that the Supreme Court bypass normal appellate court review and grant expedited review of the law. Accordingly, oral arguments are now proceeding in the Courts of Appeals. The Fourth Circuit heard oral argument on a challenge to the health care reform law at the beginning of May; the Sixth Circuit heard oral argument last week, and the Eleventh Circuit will hear oral argument on June 8. Assuming proper application of the Constitution and Supreme Court precedent, the legal challenges to the health care reform law should be rejected unanimously by the Courts of Appeals and never even be reviewed on the merits by the Supreme Court. Please stay tuned to the litigation section of our website and our blog, Text & History, for the latest updates in these and all other CAC cases. |
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Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution's text and history. We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. For more information on CAC, please visit our website at www.theusconstitution.org, or email Brooke Obie at [email protected].
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