Short Circuit

We all know about the separation of powers. But this week IJ attorney Jaba Tsitsuashvili introduces us to something else: the concentration of powers. It’s pretty much what it sounds like, and it happens when people have to depend on legislatures to protect constitutional rights. That’s what unfortunately happened recently at the Iowa Supreme Court. Anya Bidwell gives us the details on that story. But sometimes the legislature actually does act to protect constitutional rights. Ok, so then what? Well, Jaba explains that the Louisiana Supreme Court essentially thought that wasn’t good enough to . . . actually protect constitutional rights. Finally, your host details a recent piece he wrote about remedies, constitutions, and statutes. See if your mind is blown by an old law review article like his was.

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Burnett v. Smith

Jameson v. Montgomery

Xi v. Haugen

Some Reflections on Legislation, Adjudication, and Implied Private Actions (Foy article)

Where Does the Law Come From? (Anthony’s article)

IJ attorney Paul Avelar seizes the means of production (and the Short Circuit microphone) and hosts this week’s episode, live from IJ’s annual Law Student Conference. He’s joined by IJ attorneys Arif Panju and Ari Bargil, who come on to demonstrate that they are, in fact, different people. Arif first details a recent IJ appellate victory in the Sixth Circuit, where Judge Sutton once again explained that if your name is not “Rooker” or “Feldman” then the Rooker-Feldman doctrine most likely does not apply. Arif also gives the facts of the tragic story of what our clients went through before the “Environmental Court” in Memphis, Tennessee, and where the lawsuit challenging its Kangaroo nature now stands. Then Ari digs into a police raid gone horribly wrong in Harris County, Texas. Not exactly a story of the Lone Star State’s finest, as the Fifth Circuit recently indicated. There’s also much ado about procedure.

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Tuttle v. Sepolio

Hohenberg v. Shelby County

That book Paul won’t stop talking about

June 4, 2023 marks exactly 100 years since the Supreme Court handed down its opinion in Meyer v. Nebraska, where the Court ruled that it is unconstitutional for states to forbid the teaching of foreign languages. The case was a momentous decision both at the time and for the future. It lead to developments in many different areas of constitutional law, including free speech, religion, educational freedom, economic liberty, and the incorporation of the Bill of Rights. To celebrate the anniversary the Center for Judicial Engagement at the Institute for Justice held a conference on March 31, 2023 called “100 Years of Unenumerated Freedoms: Meyer v. Nebraska at a Century”.

This episode of Short Circuit provides you with the keynote address from the conference, a speech by Professor William G. Ross of Samford University’s Cumberland School of Law. Professor Ross is the author of Forging New Freedoms: Nativism, Education and the Constitution, 1917-1927 (1994), the definitive account of Meyer and the other cases in the same “trilogy”: Pierce v. Society of Sisters and Farrington v. Tokushige. We were absolutely thrilled that he spoke at our conference and wanted to celebrate the anniversary date itself by sharing his remarks with you. And if you’re also interested in hearing what other scholars had to say at the conference please find the link in the shownotes that will bring you to the archived video of the event.

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Meyer v. Nebraska

Forging New Freedoms

Video of the conference “100 Years of Unenumerated Freedoms”

Today we’re digging into the Fourteenth Amendment. No, not the part we usually talk about, Section 1, with its privileges or immunities, equal protection, and all that. Not even Section 4 (debt ceiling?) or Section 3 (rebellion stuff). No, we’re digging into a super interesting case involving Section 2, the part that lowers a state’s Congressional representation if it abridges the right to vote. Jared Pettinato of Citizens for Constitutional Integrity, counsel in the lawsuit, joins us to discuss what it’s all about. We learn the history of Section 2, how Jared represents voters in states that lost members of Congress in the last census, how he’s suing the Census Bureau via the Administrative Procedure Act, and what a three-judge panel recently said about his clients’ standing. He also previews what’s ahead at the D.C. Circuit. After all that IJ’s Sam Gedge discusses Footnote 4. Not, not that Footnote 4, but a recent one from the Second Circuit that kind of said unpublished cases are actually published. Or did it?

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Citizens for Constitutional Integrity v. Census Bureau

U.S. v. Montague

Politico article on Jared’s case

Jared Pettinato

Sam Gedge

Anthony Sanders

If a sitting senator threatened you with censorship, would it matter what jacket she’s wearing? Although not an issue we discuss this week, it’s related to both of our cases. First, Justin Pearson tells us of a Ninth Circuit case considering whether a letter from Senator Elizabeth Warren crossed the constitutional line by discussing actions that could be taken against Amazon for selling a certain book. Then, Christie Hebert brings us to the Fifth Circuit and whether a man abandoned his jacket at his mother’s house. Does it matter that it was on top of the trash can?

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Download Anthony’s book for free!

Robert F. Kennedy, Jr. v. Elizabeth Warren

U.S. v. Ramirez

Cars and free speech, what could be a more American combination? This week we’re playing a double-sided session that you can enjoy while honking your horn or writing your Facebook post. That’s because our two cases examine the free-speech implications of both of those activities. First, if you honk in support of a protest, is that protected by the First Amendment? We drive out to sunny California and the Ninth Circuit to answer that automotive question. Then, it’s off to the hills of Kentucky for another—not quite as fun—car activity: Calling the tow truck. For one towing company they found the calls stopped just around the time they criticized a local politician on Facebook. Coincidence? The Sixth Circuit thinks maybe not. Plus, with a speech bonus, you’ll hear what Rudyard Kipling thought of the motorcar.

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Porter v. Martinez

Lemaster v. Lawrence County

To Motorists

Background to To Motorists

IJ attorney Josh Windham seizes the microphone and turns it around on your regular host, Anthony Sanders. Josh interviews Anthony about his new book, which comes out on May 9, 2023, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.

The book is part history, part legal theory, and part advocacy. It tells the story of how Americans took the words of the Ninth Amendment to the U.S. Constitution and put them in various state constitutions. It then explores what that means for how state constitutions protect our rights (a lot) and what judges have done to give those rights protection (not much). Josh and Anthony dig into these issues, how these provisions should be interpreted, how that would change how state constitutions protect our rights, and even how this story might change how we think about the U.S. Constitution itself.

Further, as of May 9 you not only will be able to read the book, but download it for free! You can do that even from the comfort of the podcast app you’re currently using, either from the publisher, University of Michigan Press, or, for Kindle users, from Amazon.

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University of Michigan Press page (with free download) for Baby Ninth Amendments

Amazon page (including free Kindle version)

Institute for Justice page for the book

It’s Special Short Circuit time. And this time that means we don’t just investigate a special legal issue, we journey to a special place (well, at least that’s what Shakespeare and John of Gaunt might say). This week we focus on the British Constitution, how it’s (quite) different from the United States Constitution, how it’s constituted, how it works, and how it’s been changing recently. Two scholars have edited a new volume full of scepticism (note the “c” instead of the “k”) about recent and proposed constitutional changes in the United Kingdom, a book called Sceptical Perspectives on the Changing Constitution of the United Kingdom. If you don’t know much about the constitutional order of America’s mother country you’ll learn quite a bit. If you’d like to learn more about the constitutional debates they’re having in Britain you’ll learn quite a bit more. And if you’d like to hear a bit of push-and-pull about the merits of a written constitution that judges can enforce versus one that’s ever changing then you might even learn a bit about that—whether you agree with our guests or not. Richard Johnson and Yuan Yi Zhu join us for all things British—with some elements of the English, the Scots, and even the Welsh—and your host throws in a bit of reminiscing about time spent in the remnants of the Duchy of Normandy.

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Sceptical Perspectives on the Changing Constitution of the United Kingdom

Anthony’s essay that discusses the British Constitution

The Act of Union

Richard’s book The End of the Second Reconstruction

Who ever said insurance isn’t interesting? Certainly not the Eleventh Circuit, and certainly not IJ’s Ben Field. He tells us a harrowing story of a church—a church of all places!—which weathers two acts of God (hurricanes) while taking insurance contracts and kicking insurances claims (actually, the insurance company kicked the claims). Ben weaves together the competing views of contract interpretation as personified by Harvard’s Samuel Williston and Yale’s Arthur Corbin to explain how the court ended up where it did. We even delve into the Gospel of John for inspiration. Then, in slightly less theological matters than contractual interpretation, we look at what the Fifth Circuit cooked up when it comes to free speech. Whether you’re a veggie burger connoisseur or not, you’ll want to hear about Louisiana’s attempt to stymie the labeling of meatless meat such as Tofurky. IJ’s Betsy Sanz tells us why the court did not find the law unconstitutional, but also why that means the law might not end up doing very much.

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Shiloh Christian Center v. Aspen Specialty Insurance Co.

Turtle Island Foods v. Strain

Just compensation is a pretty basic part of the Constitution. Which is why this week’s panel is a little confused how the State of Minnesota thought it could just take a bunch of insulin without paying for it. IJ attorney Joe Gay joins us to explain what the Eighth Circuit had to say not just about just compensation but where a property owner goes to get it. Then IJ’s Anna Goodman tells another Eighth Circuit tale of a speedy trial that was not so speedy. But it turns out that’s ok. Even when it’s the government’s fault.

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All about Anthony’s book!

April 24 Feddie Night Fights debate

PhRMA v. Williams

U.S. v. Cooley