57. Matthew Spaulding, “A Defining Moment: Marriage, the Courts, and the Constitution,” Heritage Foundation Reports, Backgrounder No. 1759, May 17, 2004.
58. Kelly Wiese, “Missouri Voters Approve Gay Marriage Ban,” Associated Press Online, August 24, 2004.
59. Frank J. Murray, “Despite Constitution, states choose marital laws they want,” Washington Times, December 10, 1996.
60. U.S. Constitution, Article III, § 2.
61. Maggie Gallagher, “An Ambiguous Amendment,” National Review Online, March 29, 2004.
62. Associated Press, “Bush expresses support for constitutional amendment,” February 24, 2004.
63. Ibid.
64. Facts on File World News Digest, “Senate Blocks Amendment Barring Same-Sex Marriages; Republicans Divided,” July 15, 2004.
65. Marriage has never been exclusively a state matter. As columnist Maggie Gallagher wrote: Why is monogamy both the legal and social norm in America? For one reason only: Between 1862 and 1887, Congress repeatedly passed laws designed to stamp out polygamy in U.S. territory. The lengths to which Congress went strike us now as extreme. But without decisive federal intervention, America today would have polygamy in some states and not in others. In 1862, Congress passed the Morrill Act criminalizing bigamy. Under that law, no married person could “marry any other person, whether single or married, in a Territory of the United States,” under penalty of a $500 fine or five years in prison. In 1874, responding to the difficulty of getting convictions in regions where people supported polygamy, Congress passed the Poland Act, transferring plural marriage cases from Mormon-controlled probate courts to the federal system. In 1882, Congress passed the Edmunds Act, which vacated the government in the Utah territory, created a five-man commission to oversee elections, and forbade any polygamist, past or present, to vote. By 1887, half the prison population in Utah territory were people charged with polygamy. That year, Congress passed the Edmunds-Tucker Act, which, partly to facilitate polygamy convictions, allowed wives to testify against husbands in court. By 1890, the Church of the Latter Day Saints threw in the towel, advising its members “to refrain from contracting any marriages forbidden by the law of the land.” Maggie Gallagher, “Latter Day Federalists,” Weekly Standard, March 29, 2004.
66. Helen Dewar, “Ban on Gay Marriage Fails,” Washington Post, July 15, 2004.
67. Mary Fitzgerald and Alan Cooperman, “Marriage Protection Act Passes,” Washington Post, July 23, 2004.
68. Steven Dinan, “House targets marriage validation,” Washington Times, July 23, 2004.
69. Ibid.
Chapter Six: Endorsing Racism
1. Fred Barbash, “Justice Douglas’ Memoirs,” Washington Post, September 11, 1980. Justice William O. Douglas attributes this quote to Justice Thurgood Marshall in his memoirs, The Court Years, 1939–1975; The Autobiography of William O. Douglas.
2. The History of Affirmative Action Policies, Americans for Fair Chance, August 7, 2003. Available at www.inmotionmagazine.com/aahist.html.
3. Richard Nixon, RN: The Memoirs of Richard Nixon (New York: Grosset & Dunlap, 1978), 437. Available at www.policyalmanac.org.
4. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
5. Ibid., 274.
6. Ibid.
7. Ibid., 276.
8. Ibid., 277.
9. Strauder v. West Virginia, 100 U.S. 303, 308 (1880).
10. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
11. Truax v. Raich, 239 U.S. 33, 41 (1915).
12. Korematsu v. United States, 323 U.S. 216 (1944).
13. Hernandez v. Texas, 347 U.S. 475 (1954).
14. Bakke at 293, citing McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 296 (1976).
15. The Court tells us that “strict scrutiny” differs from a “rational basis” examination in that in order to pass constitutional muster under the “rational basis” test, a law need only be “rationally related” to a “legitimate” government interest.
16. Bakke, 307.
17. Ibid., 310.
18. Ibid., 311.
19. Ibid., 315.
20. Ibid., 318.
21. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
22. Gratz v. Bollinger, 539 U.S. 244 (2003).
23. Grutter v. Bollinger, 539 U.S., 333.
24. Ibid., 325.
25. Ibid.
26. Ibid.
27. Ibid., 326.
28. Ibid., 330.
29. Ibid., 333.
30. Ibid.
31. Ibid., 338, citing Bakke at 317.
32. Ibid., 341. Internal citations omitted.
33. Ibid.
34. Ibid., 342.
35. Brian T. Fitzpatrick, “The Diversity Lie,” 27 Harv. J.L. & Pub. Policy 385 (2003).
36. Daniel Golden, “Some Backers of Racial Preference Take Stand Beyond Diversity: Society Wins With Integrated Elite,” Wall Street Journal, June 14, 2003.
37. U.S. Census Bureau, “Census Bureau Projects Tripling of Hispanic and Asian Populations in 50 Years; Non-Hispanic Whites May Drop To Half of Total Population,” press release, March 18, 2004.
38. Mary Wiltenburg and Amanda Paulson, “All in the (mixed-race) family: a US trend,” Christian Science Monitor, August 28, 2003.
39. Grutter v. Bollinger, 539 U.S. at 385.
40. Ibid., 355.
41. Ibid., 351.
42. Gratz v. Bollinger, 539 U.S. 244 (2003).
43. Ibid., 272.
44. Ibid., 255.
45. Ward Connerly, “Murder at the Supreme Court,” National Review Online, June 26, 2003.
Chapter Seven: Citizenship Up for Grabs
1. Plyler v. Doe, 457 U.S. 202, 242 (1982).
2. U.S. Constitution Article 1, § 8.
3. Don Collins, “Illegal Immigration is Ravaging Arizona,” Pittsburgh Tribune-Review, June 22, 2004. Available at pittsburghlive.com/x/tribune-review/opinion/columnists/guests/print_199848.html.
4. Yilu Zhao, “Wave of Pupils Lacking English Strains Schools,” New York Times, August 5, 2002.
5. Ibid.
6. Stephen Dinan, “States pay $7. 4 billion to educate illegals; Report notes drain on U.S. children,” Washington Times, August 21, 2003.
7. Ibid.
8. Jerry Seper, “Report ties health care struggles to immigration; Increase in uninsured aliens seen straining hospital budgets,” Washington Times, February 26, 2004.
9. Immigration Laws 1700–1800, “Colonial Period: Legal Authority over Immigration.” Available at oriole.umd.edu.
10. Ibid.
11. Ibid.
12. Immigration and naturalization are the two main classifications of law in this regard. Immigration refers to emigrants from other countries entering the United States. Naturalization concerns the process by which immigrants become citizens of the United States.
13. U.S. Constitution Amendment I, § 814. Joseph Story, Commentaries on the Constitution of the United States, “Power Over Naturalization and Bankruptcy,” § 1098.
15. The term “Alien and Sedition Acts” is commonly used as shorthand for three acts of Congress: the Naturalization Act of 1798, the Aliens Act of 1798, and the Alien Enemy Act of 1798.
16. Ibid.
17. Immigration Act of 1875.
18. Ibid. Coolies were bonded workers from China, India, and other nations in Asia.
19. Naturalization Act of 1855.
20. 8 U.S.C. § 1101 (2000).
21. 8 U.S.C. § 1103 (2000).
22. U.S. Constitution Amendment V. The Fifth Amendment delineated the limitations on the federal government’s power over individuals. In addition to requiring that no person can be deprived of “life, liberty, or property” without due process of law, it provides for the use of a grand jury to indict someone and prohibits double jeopardy and self-incrimination. The Fourteenth Amendment imposes similar restrictions on the authority of state governments.
23. U.S. Constitution Amendment
XIV. The Fourteenth Amendment, in particular, was written to ensure that state governments did not treat individuals, or groups of individuals, unequally under the law, or that individuals or groups were not treated differently solely because of their race or ethnic heritage. It was not written to guarantee identical treatment for everyone everywhere, nor to provide for equal outcomes under the law for everyone.
24. Graham v. Richardson, 403 U.S. 365 (1971).
25. The Graham decision also cited other cases in which the premise of no distinction between benefits or privileges and rights should be made. These cases include Sherbert v. Verner, 374 U.S. 398 (1963), Shapiro v. Thompson, 394 U.S. 627 (1969), Goldberg v. Kelly, 397 U.S. 254 (1970), and Bell v. Burson, 402 U.S. 535 (1971).
26. Heim v. McCall, 239 U.S. 175, 188 (1915).
27. Ibid., 191.
28. Ohio ex rel. v. Clarke Deckebach Auditor, 274 U.S. 392 (1927).
29. Ibid., 395.
30. Ibid., 397.
31. Ibid.
32. Ibid., 367.
33. Graham v. Richardson, 403 U.S. 367.
34. Ibid.
35. Ibid., 368.
36. Ibid., 376.
37. Ibid., 372.
38. 1866 Civil Rights Act, 14 Stat. 27–30, Section 1. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding,”
39. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
40. In 1971, the Post Office, which was a federal agency, was semi-privatized and became the U.S. Postal Service.
41. In 1979, the federal department of Health, Education, and Welfare was reorganized into two agencies, the Department of Education and the Department of Health and Human Services.
42. Hampton v. Mow Sun Wong, 426 U.S. at 102-03.
43. Ibid., 106.
44. Sugarman v. Dougall, 413 U.S. 634 (1973).
45. Ibid., 637. The four employees were among approximately 450 employees who actually worked for private sector nonprofit organizations that received funding through a federal agency, the United States Office of Economic Opportunity. In 1970, federal funding for those organizations was stopped and the nonprofits absorbed by a New York City agency, the Manpower Career and Development Agency (MCDA). When the jobs were moved under the city, the state’s civil service requirements became applicable and the noncitizen employees were dismissed.
46. Ibid.
47. Ibid., 639–40.
48. Ibid., 651.
49. Plyler v. Doe, 457 U.S. 202 (1982).
50. Ibid., 205.
51. Ibid., 210.
52. Ibid., 220.
53. Ibid., 221.
54. Ibid., 222.
55. Ibid., 229.
56. Ibid., 242–43.
57. In Re Griffiths, 413 U.S. 717 (1973).
58. Nyquist v. Mauclet, 432 U.S. 1 (1977).
Chapter Eight: Al Qaeda Gets a Lawyer
1. Ronald Reagan, Remarks at a meeting with members of the American Business Conference, The White House, April 15, 1986. The Quotable Ronald Reagan (Washington, D.C.: Regnery, 1998).
2. An illegal or unlawful combatant, who is not protected by the laws of war, is an individual waging war who does not comply with any of the following requirements, according to the Second Hague Convention of 1899 and the Third Geneva Convention: (1) In uniform: Wear distinctive clothing making them recognizable as soldiers from a distance; (2) Openly bearing arms: Carrying guns or small arms and not concealing them; (3) Under officers: Obedient to a chain of command ending in a political leader or government; (4) Fighting according to the laws of war: Not committing atrocities or crimes, not deliberately attacking civilians or engaging in terrorism. 6 U.S.T. 3516 (1949).
3. Remarks by Alberto R. Gonzales, counsel to the president, before the American Bar Association Standing Committee on Law and National Security, February 24, 2004.
4. William J. Haynes II, general counsel to the Department of Defense, “Enemy Combatants.” Available at www.cfr.org/publication.php?id=5312, citing Ex Parte Quirin, 317 U.S. 37 (1942), Colepaugh v. Looney, 235 F.2d. 429, 432 (10th Circuit 1956), In re Territo, 156 F.2d. 142, 145 (9th Circuit 1946), Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Circuit 2002). This decision was subsequently modified by the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. ___, 124 S.Ct. 2633 (2004).
5. Rasul v. Bush, 542 U.S. ___, 124 S. Ct. 2686 (2004), Brief for the Respondent President George W. Bush, 5–6.
6. Ibid. Brief for the Respondent George W. Bush, 6.
7. Ibid.
8. Ibid., 7.
9. Ibid.
10. Ibid.
11. Ibid.
12. Rasul v. Bush, 542 U.S. ___, 124 S. Ct. 2686, 2004 U.S. LEXIS 4760 at *1 (2004). The Supreme Court also decided the case Rumsfeld v. Padilla, 542 U.S. ___, 124 S. Ct. 2711 (2004). Padilla differed from Rasul and Hamdi in that it dealt with a case in which a U.S. citizen was apprehended on U.S. soil and alleged to be actively planning terrorist activities.
13. Hamdi v. Rumsfeld, 542 U.S. ___, 124 S. Ct. 2633, 2004 U.S. LEXIS 4761 at *1(2004). It’s important to note that before the Supreme Court heard the case, the Fourth Circuit ruled that while Hamdi could seek judicial review of his detention, he was not entitled to challenge the government’s evidence. It was enough that a legally valid basis for his detention was provided to the court. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Circuit 2002).
14. Ibid., *6.
15. Ibid., *10.
16. Ibid., *8–*9.
17. Ibid., *6.
18. Congress has the power to declare war. U.S. Constitution, Article I, § 8. However, the Constitution provides no guidance about the form of such a declaration. There are no required phrases or terms. On September 18, 2001, Congress passed a joint resolution authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” Pub. L. No 107–40, § 2(a), 115 Stat. 224 (2001). This suffices as congressional authorization for war.
19. Hamdi, 2004 U.S. LEXIS 4761, *20.
20. Ibid., *21.
21. Ibid., *26.
22. Ibid., *46. Hamdi, was in fact, permitted to file a writ of habeas corpus and did so. The government, however, argued that he did not have a right to be represented by counsel; it feared that Hamdi would cease to be a source for wartime intelligence.
23. Ibid., *104, citing Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
24. Ibid., *127.
25. In October 2004, Hamdi was returned to Saudi Arabia, required to renounce his American citizenship, and required to notify Saudi officials if he became aware of any terrorist activities. Associated Press, “Hamdi Returns to Saudi Arabia,” October 11, 2004.
26. Rasul, 2004 U.S. LEXIS 4760, *1.
27. Ibid., *9.
28. Ibid., *1.
29. Johnson v. Eisentrager, 339 U.S. 763 (1950).
30. Robert Alt, “Dangerous Decision,” Na
tional Review Online, June 29, 2004, citing Eisentrager, 339 U.S., 779.
31. Eisentrager, 339 U.S., 766–67.
32. Ibid., 765.
33. Ibid., 768.
34. Ibid., 778.
35. Ibid., 771–72.
36. Rasul, 2004 LEXIS 4760, *18-*19.
37. Ibid., *13–*14 (citing 28 U.S.C. § 2241 (2004)).
38. Rasul, 2004 LEXIS 4760, *23.
39. The federal judicial system includes district courts, appellate courts, and the Supreme Court. Each district and appellate court is limited in that it can only hear cases or controversies that arise from the court’s physical territory. For example, the Ninth Circuit Court of Appeals, located in the western part of the United States, cannot hear a case that was originally brought in federal court in the Eastern District of Virginia.
40. Rasul, 2004 LEXIS 4760, *23.
41. Ibid., *56.
42. Andrew C. McCarthy, “A Mixed Bag,” National Review Online, June 30, 2004.
43. U.S. Constitution, Article I, § 9, Cl. 2.
44. Craig Smith, “Political Communication.” Available at www.csulb.edu.
45. Ibid.
46. Ex Parte Merryman, 17 F. Cas. 144 (1861).
47. Smith, “Political Communication.” My view is that one branch of the federal government does not have the authority to assume constitutional power from or cede it to another branch. Their powers are derived from the Constitution, not from their own actions. Therefore, with or without congressional approval, Lincoln did not have the authority to suspend the writ of habeas corpus, an exclusively congressional function.
48. The two are Yaser Esam Hamdi, who was captured in Afghanistan, and Jose Padilla, who was allegedly planning a terrorist attack in the United States.
49. Executive Order No. 9066 (1942).
50. Associated Press, “Terror Suspects Told of Right to Use U.S. Courts,” July 12, 2004.
51. Literally within a few months of the Supreme Court’s Rasul decision, two federal district courts conferred additional rights on illegal combatants. Judge Colleen Kollar-Kotelly, a Clinton appointee, ruled that these detainees have a right to a taxpayer-financed attorney to help them file habeas petitions, and to unmonitored consultations with their attorney. Odah v. United States, No. 02-828 (D.D.C. October 20, 2004). Judge James Robertson, another Clinton appointee, ruled that Osama bin Laden’s former driver, Salim Ahmed Hamdan, was entitled to a hearing in which the judge would determine whether the executive branch properly designated Hamdan an illegal combatant or whether he should be entitled to more lenient treatment as a prisoner of war. Hamdan v. Rumsfeld, No. 04-1519 (D.D.C. Nov. 8, 2004). Both opinions are available at www.dcd.uscourts.gov/district-court-2004.html.
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