Jamesian Philosophy Refreshed

Often, in recent years, we have used this third column for the discussion of what I think of as "structural" constitutional issues, leaving for the fourth column the more rights based constitutional issues. I won't make that distinction this time. There was really only one structural case worth discussing, in my own unappealable opinion. There was the tribal sovereignty issue of US v. Cooley . After that I will turn to rights based matters that come from amendments other than my favorite, other than the first.  Tribal Sovereignty Tribes have been doing rather well in the Supreme Court recently, as a group of sovereignty-venerating Justices treat the notion of their sovereignty more seriously than it has sometimes been taken. McGirt v. Oklahoma is the first instance of this to come to mind.  This year brought another tribal win: Cooley . The court said that police officers for a tribe have the power to search and to temporarily detain non-Indians on public rights-of-way ...

[Despite my efforts to straighten things out, the fonts, spacing, etc, in this post has ended up an ugly hodge-podge. My apologies. - CF]  T o first amendment lawyers, this is preeminently the term in which  Matal v. Tam found that the disparagement clause of the trademark statute infringes upon the free speech right under the first amendment. The court was unanimous as to the judgment (that the "Slants," a dance-rock band, can be trademarked as such) though there were differences as to the reasoning. Hugh C. Hansen, law professor at Fordham, has called this “one of the most important First Amendment free speech cases to come along in many years.”    Simon Tam and his fellow band members made for sympathetic defendants. They obviously were not disparaging their own Asian background. They were appropriating a stereotypical slur concerning Asians’ eyes, in the tradition of many groups throughout history who have turned insults into badges of ...