Posted December 19, 2005

Dear Friends,

If you're like me, you'll make a flurry of charitable contributions between now and the end of the year. I hope you will consider supporting (or increasing your support of) the Center for Constitutional Jurisprudence. Making a donation is easy; just click HERE. Be sure to enter "Center for Constitutional Jurisprudence" in the comments section if you wish to support our CCJ litigation efforts.

We have plans to launch a formal Finance Committee in 2006, and hope to attract 10 sustaining members who will commit $10,000, and another 50 regular members who will commit $1,000, to the Center's efforts. Of course, any amount is welcome, is tax deductible, and will help us expand the litigation efforts that have been such a vital part of the national effort to recover constitutional principles in our courts. This past fall, for example, we hired Karen Lugo, Chapman Law School Class of 2005, to serve as Assistant Director of the Center, coordinating overall litigation and marketing efforts both with student clinics and with our Board of Advisors--a prestigious group of nationally prominent legal scholars, many of them former Supreme Court clerks, who are partnering with us as we expand our litigation and scholarly efforts. More of our recent and upcoming activities are described below.

I cannot thank you enough for your support of our efforts at the Center for Constitutional Jurisprudence, and on behalf of all of us at the Claremont Institute, I wish you a very Merry and Blessed Christmas and a Happy New Year.

Warm regards,

John Eastman

Director, Center for Constitutional Jurisprudence

Mission of the Center

Currently in its sixth year of operation as the public interest legal arm of the Claremont Institute, the Center advances, via strategic litigation, the Institute's mission of restoring the principles of the American founding to their rightful and pre-eminent authority in our national life.



 

Activities




Over the past six years, we have filed more than fifty amicus curiae briefs with the U.S. Supreme Court, in various federal Courts of Appeal, or in State Supreme Courts. At times we have been directly involved in the litigation of cases which vary from challenging unconstitutional restrictions on political speech, to protecting property rights, to challenging the removal of religious symbols from the public square.



 

Board of Advisors




In 2004, we formalized our Board of Advisors in order to expand the reach of the Center over the next five years. Chaired by former Attorney General Edwin Meese III, the Board includes an impressive array of constitutional scholars, many of whom are former Supreme Court clerks, who will join with Claremont Institute Senior Scholars to produce an even broader set of court filings articulating the principles of the American founding. Members of the Board are:


• Hon. Edwin Meese III, Chairman, former Attorney General of the United States
  
• Jonathan Adler, Case Western Reserve Univ. School of Law
  
• Hadley Arkes, Amherst College
  
• John Baker, Paul M. Herbert Law Center, Louisiana State University
  
• Thomas Baker, Florida International Univ. College of Law
  
• Eric Claeys, St. Louis University School of Law
  
• Viet Dinh, Georgetown Law Center
  
• Allison Eid, University of Colorado School of Law
  
• Edward J. Erler, California State University, San Bernardino
  
• David F. Forte, Cleveland-Marshall College of Law, Cleveland State University
  
• Nicole Stelle Garnett, Notre Dame Law School
  
• Richard W. Garnett, Notre Dame Law School
  
• Robert P. George, Princeton University
  
• Harry V. Jaffa, Claremont McKenna College
  
• Douglas W. Kmiec, Pepperdine University School of Law
  
• Gregory E. Maggs, George Washington Univ. Law School
  
• Stephen B. Presser, Northwestern University School of Law
  
• Stephen F. Smith, University of Virginia Law School
  
• Thomas G. West, University of Dallas
  
• John Yoo, Boalt Hall School of Law, University of California, Berkeley
  
  Our plan for the coming year is to provide enhanced logistical support so that many of these board members may contribute to the brief writing and litigation efforts of the Center, working closely with Institute scholars to ensure consistent application of principle in a much broader range of cases than we have undertaken in year's past. During the Supreme Court's 2004-05 term, for example, Professor Claeys, working with Claremont Institute Senior Fellows Tom West and Ed Erler, and CCJ Director John Eastman, took the lead in drafting our brief in the eminent domain case heard by the Supreme Court this past term, Kelo v. New London, Connecticut. Although the Court narrowly rejected the argument that the Takings Clause prevented local governments from taking private property from one individual and giving it to another, strong dissents from Justices Thomas and O'Connor, drawing on the arguments put forward in our brief, and public outrage since the decision, suggest that the issue remains live for correct resolution in a future case.
  
  

   

  Recent and Pending Litigation Matters

  
  
  
  Other cases from the past year, some of which are still pending, address blatantly unconstitutional tax increases, government regulations that impede the right to earn an honest living, property rights, and religion in the public square. A summary of cases active in 2005 follows:
  
  
• Rapanos v. U.S. Army Corps of Engineers. Continuing our effort to revive the fundamental principle that ours is a government of limited, enumerated powers, we filed this brief contesting the federal government's civil and criminal prosecution of a man for moving some dirt on his own land. The U.S. Army Corps of Engineers claims that Rapanos' land is a wetland subject to the Corps' authority to regulate the navigable waters of the United States, because the land has a hydrological connection, across a berm, through a ditch, into a culvert, then to a drainage, then a creek, to a stream, into a river, which empties into a lake that forms part of the great lakes watershed. And all this under the claim that somehow the Corps' insistence that Rapanos obtain a permit is a valid regulation of "commerce among the states."
  
  
• Wisconsin Right to Life v. Federal Election Commission. We joined with several other organizations on a brief filed in the Supreme Court November 14, 2005, defending the First Amendment's rights of speech, assembly, and petition against restrictions imposed by the McCain-Feingold campaign finance law.
  
  
• Norwood, Ohio v. Horney. The CCJ joined with Pacific Legal Foundation on this amicus brief before the Ohio Supreme Court urging the Court to hold that the Ohio Constitution's eminent domain clause prevents government from condemning private property for private development purposes (despite the Supreme Court's holding last year in Kelo rejecting our argument on federal constitutional grounds).
  
  
• Solomon Amendment case. In July, 2005, Dr. Eastman and former Attorney General Edwin Meese filed an important amicus brief in Rumsfeld v. F.A.I.R., in which a lower federal appellate court had ruled that the federal government cannot condition its grants to local institutions of higher education on the school's giving access to military recruiters for on-campus interviews on the same terms that it gives to other employers. Our brief contends that, without the Solomon Amendment hook, there is really no authority for the federal education spending programs in the first place, rending the condition not only constitutional but necessary. Eastman has already participated in debates about the case in general, and about the Institute's brief in particular, at Harvard Law School and Georgetown Law Center, and he has been invited to debate the topic at Columbia Law School early in 2006.
  
  
• Douvas v. Fullerton Unified School District. We represented Stephanie Douvas, a second grade school teacher whose contract with the Fullerton School District was not renewed after her principal reprimanded her for having a stick-figure fish symbol in the signature block of her outgoing e-mail. Because other personal messages of all sorts were permitted by the school district, the principal's actions amounted to an unconstitutional infringement on Stephanie's freedom of speech and free exercise of religion. On an expedited basis because the school year was about to begin, we filed an administrative complaint, and prepared a federal suit, before the School District threw in the towel and re-hired Stephanie pursuant to a very favorable settlement of the matter. Several of this summer's Blackstone Fellows worked with John Eastman and co-operating co-counsel Laurie Messerly on this litigation.
  
  
• Plechaty v. Crescent City, California. When Ron Plechaty put up a billboard on his own property contending that his county Board of Supervisors were adopting whacko environmental policies that were going "to send the local economy into the toilet"--using a porcelain bowl in lieu of the final word--local officials threatened to bring criminal charges against him (which would also have cost him his job and pension as a prison guard). We prepared a thorough demand letter advising the local officials how unconstitutional their actions were, and the city ultimately granted Ron the necessary permits to keep his protest sign up on his property.
  
  
• Hamdi v. Rumsfeld. Although the Supreme Court decided this case back in 2004, our brief challenging Hamdi's claim that he was a citizen merely because he was born in Louisiana while his father was working for an oil company on a 2-year temporary work visa has received new attention. The House Judiciary Immigration Subcommittee held a hearing on birthright citizenship in September 2005, and several bills have now been introduced that would put Congress on record in favor of the correct understanding of the Constitution's Citizenship Clause, which does not confer citizenship automatically on the children of temporary visitors to the United States (and particularly not to the children of those here illegally).
  
  
• RLUIPA case. Dr. Eastman and General Meese also filed an amicus brief in the RLUIPA case, Cutter v. Wilkenson, involving the constitutionality of the federal Religious Land Use and Institutionalized Persons Act. Continuing to press their argument that the Establishment Clause, properly and originally understood, does not reach state government, we nevertheless argued that RLUIPA was unconstitutional because it was a condition on a federal spending program--grants for state and local prisons--for which there is no constitutional authority. In much the same way that Justice Thomas picked up on our Establishment Clause argument 3 years ago in the school vouchers case and has now created a cottage industry of commentary on the argument, he challenged the constitutionality of the RLUIPA spending program in three different places in his concurring opinion. The battle to restore the original limits of the federal spending power is now in full march.
  
  
• Ten Commandments Cases. In December 2004, we filed an amicus brief in support of Texas's display of a Ten Commandments monument on public grounds between the State Capitol and State Supreme Court buildings. The Supreme Court also heard a Ten Commandments case out of Kentucky. The Court ruled 5-4 in both cases, upholding the constitutionality of the Texas monument but finding unconstitutional the Kentucky monument, because it was surrounded by such other "religious" displays as the Declaration of Independence, the Northwest Ordinance, George Washington's Thanksgiving Proclamation, etc. While we are pleased that the Court ruled in our favor in the Texas case, the split decision renders the whole body of Establishment Clause law even more incoherent that it was prior to the decisions. Much work on this front remains to be done.
  
  
• Rancho Viejo v. Norton. Dr. Eastman represented the landowners' right to develop their own land despite the alleged presence of arroyo toad habitat. He argued that the listing of the arroyo toad under the Endangered Species Act exceeded Congress' power to regulate commerce among the states, because there is no commerce in arroyo toads. The Supreme Court denied certiorari in the case in May 2004, but the case has now received a renaissance of interest, due to an opinion written by Judge (now Chief Justice of the United States) John Roberts, dissenting from denial of Eastman's petition for review by the full D.C. Circuit Court, in which he referred to the "hapless toad" as not an obvious article of interstate commerce.
  
  
• Kelo v. New London, Connecticut. This is the "public use" case that the Supreme Court heard last year. New London put most of its downtown area in a redevelopment zone, and then condemned some thriving businesses in order to transfer the property to other business that the city preferred. The Court considered whether such private transfers qualify as "public use" for which the eminent domain power can be used, and contrary to pretty clear constitutional text and history, held that they did. Public reaction to this decision has been pretty strong. One group has even filed an application to develop the property on which Justice David Souter's own personal residence sits. We've not heard the last of this issue.
  
  
• Horowitz v. County of Los Angeles. After threat from the ACLU in May 2004, the Los Angeles County Board of Supervisors voted 3-2 to remove a Cross from the County Seal. The new seal, adopted Sept. 14, 2004, has instead a Cross-less mission. The Center filed suit on behalf of a religiously-diverse set of plaintiffs, contending that the County's decision was an illegal waste of taxpayer funds. We also contend that, under the circumstances, the decision manifests an unconstitutional hostility toward religion. The case is currently on hold pending a ruling from the federal Ninth Circuit Court of Appeals in a parallel case.
  
  
• Other pending matters. We are currently readying litigation dealing with the Boy Scouts, immigration, and campaign finance. More about these matters as requirements of confidentiality permit.
  
  

   

  Blackstone Fellows

  
  
  
  This past summer we continued our collaboration with the Alliance Defense Fund, this year hosting 4 outstanding Blackstone Fellows for six weeks of public interest litigation work and seminars at the Institute. We plan to host another 4-6 Blackstone Fellows again during the Summer of 2006.
  
  

   

  Media Outreach

  
  
  
  Professor Eastman currently debates Duke Law Professor Erwin Chemerinsky each week on Hugh Hewitt's nationally-syndicated radio show, which airs in more than 50 major media markets around the country. He has become a frequent expert commentator on NPR, and continues to give guest appearances on Fox News (The O'Reilly Factor, Fox Report), and numerous radio programs, both local and syndicated, throughout the country.
  
  Dr. Eastman has also debated Supreme Court rulings and other legal issues in numerous fora, including Federalist Society chapters at Harvard, Georgetown, U.S.C., S.M.U., University of New Mexico, Southwestern, Western States, the University of San Diego, BYU, and the University of Minnesota Law Schools.
  
  In addition, our Board of Advisors have been very active with scholarly and media activity, and with your support to hope to provide a broader distribution of their efforts through our web page and otherwise.