The federal government can't, except arguably public speech by Senators and Members of the House. The states may, consistent with their own constitutions.

This, too, is a matter for state law but, generally, the line is crossed when a false statement that would reasonably be understood to reflect poorly on another is communicated to third parties. The rights of "public figures" to sue for slander might be different, though.

From the federal government? Completely. From the state governments? Not at all.

Can Government regulate hate speech? What about sexually explicit materials?

The federal government cannot regulate speech. The state governments can, consistent with their own constitutions.

Specifically:

The substantive holding in Sullivan is pretty close to where I would come down if I were a legislator. It is well-rooted in American law, being very similar to the regulations adopted by Congress in the Alien and Sedition Acts. It is, though, entirely outside the power of the Supreme Court, properly understood, to have imposed this rule.

I find "Congress shall make no law . . . abridging the freedom of speech" pretty self-explanatory.

I think that the distinction is untenable and that the regulation of campaign contributions is beyond the power of the federal government.

2. First Amendment and the Establishment Clause:

Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?

The federal government should neither establish a religion, or interfere in a state establishment of religion.

There is no prohibition on government "involvement" with religion, or any specific religion. However, the federal government is not a government of general powers that may act unless it is prohibited. It is a government of limited powers that may not act unless it is permitted. [NB: Even if I drop the pretense that I don't know what he's talking about, I don't know what he's talking about here. This is a spectacular example of, in Orrin Hatch's phrase, Schumer's "dumb ass" questions.]

Yes.

An "establishment of religion" is a state-authorized, tax-supported church intertwined with the secular government. The federal government can't have one of those. Otherwise, a religion is simply another association of citizens, to be treated like any other such association, so long as Congress doesn't interfere with an individual's right to freedom of religion.

Specifically:

I have no idea where the Supreme Court found that distinction in the text of the Constitution.

What part of "Congress" is hard to understand?

3. Commerce Clause:

I agree that, if Congress tries to exercise its powers outside of the limited grant contained in the Constitution, then Congress has exceeded its powers. If Congress has exceeded its limited powers, then neither of the other two branches is obliged to pay it any attention. [Another sdaq]

Is this an open-book test? Because there's actually a written document, with which you are apparently unfamiliar, that pretty much answers this question.

[A question so da it can't be answered]

This is a little random, because the question is so poorly structured, but I'll go with "no."

Once again, let's look to the document. Looks to me that, if it's not interstate commerce, it can't be regulated as interstate commerce.

Somewhat inartfully, Senator Schumer is raising two completely separate issues here. 1. Legislative history is irrelevant to either statutory or constitutional interpretation. 2. Legislation must be constitutional both on its face and as applied.

I am not a fan of the dormant commerce clause [the idea that some commerce is so inherently a federal matter that the states may not regulate it even if Congress has not acted], although it is such well-settled law that, while I might construe it narrowly, I would probably not strike it from the case-law. Generally, the states, unlike the federal government, may act unless action is specifically prohibited by the constitution or proper federal law.

Specifically:

Do you agree with the Court's decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority?

1. Yes. 2. Again, this is such a bad question that the answer is random, but again I'll go with "No."

Yes.

4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?

Senator Schumer does not distinguish between constitutional precedent and non-constitutional precedent. For now, I'll assume that he's asking about precedent interpreting the Constitution. Such precedent is important. Democracy is important. When the two conflict, democracy wins, but the conflict has to be clear and direct. For example, as I noted above, I'm not a big fan of the dormant commerce clause. If presented with the question for the first time, I wouldn't hold that such a thing exists. But it is now well-settled, people's expectations have been set and it is not so directly in conflict with the Constitutional text that I would consider myself compelled to overturn it.

The only issue is whether precedent is in conflict with the constitution. However, the history of the precedent is relevant to determining if there is a true conflict. The longer a precedent has been in place, the less likely that there is a direct conflict. On the other hand, if the precedent has been dormant and unrelied upon, or if there has been constant opposition to the precedent in the courts or by the people, then time becomes a much less relevant factor.

Yes.

No. [Another sdaq.]

A 5-4 decision is more likely to be wrong than a 9-0 decision. This is, though, much less of a factor (it might even reverse itself) if the precedent is particularly old.

Specifically:

I have no opinion on this.

I agree with Stanford and disagree with Roper. In particular, the majority's reliance on trends in international and state law was completely misplaced and had no relevance at all. The value of precedent as precedent has very little to do with my opinion, although the sense the court gives of playing games with capital punishment and the Constitution is unfortunate.

I agree with Bowers, not Lawrence. Nothing in the federal constitution bars the states from acting in this area. Again, this is on the merits and doesn't turn, at all, on the value of precedent.

If it doesn't bear a rational relation to one of Congress' enumerated powers. However, I would be relatively deferential Congress' understanding of the scope of its enumerated powers.

The Court should presume the constitutionality of acts of Congress and not strike them down unless the legislation complained of bears no rational relation to any of the enumerated powers or unless, as applied, it violates the rights protected by the Constitution from governmental action.

The Court shouldn't err.

No.

It must be rationally related to one of the enumerated powers. Congress doesn't have any enumerated rights. [The most dumb-ass question so far. Congressional rights. Pfft.]

Let me ask you about a few cases in which the Supreme Court has struck down federal laws:

OK.

Yes. The law was not rationally related to any of the enumerated powers. It was also a violation on the limits placed on the federal government by the Second Amendment.

I agree with the court. The VAWA was an attempt by Congress to usurp the states' police power for purposes of political posturing. It had nothing to do with interstate commerce.

6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?

There are specific constitutional provisions that implicate individual privacy. There is no separate right to privacy.

Yes, unless the court is simply using the word "privacy" to describe the effect of a limit on the states specifically enumerated in the Constitution.

The Congress may do those things it is allowed to do. The states may do those things they are not prohibited from doing. Each can have some effect on sex.

Specifically:

No.

No. Poor. Irrelevant.

If a case before it squarely presents the question and there is no other basis for decision.

7. What is the proper role of the federal government in enacting laws to protect the environment?

If the laws enacted are rationally related to one of Congress' enumerated powers and if, as applied, the laws don't conflict with the limits to those powers set forth in the Constitution.

Not as you've phrased the question. Congress has certain enumerated powers; people have certain rights. Congress cannot act where it doesn't have power to act and, in any event, can't encroach on the rights of the people. [sdaq]

As far as its enumerated powers allow, so long as it doesn't conflict with the rights of the people.

The Constitution is the supreme law of the land. Federal law trumps state law, where the federal government is allowed to act. As noted above, I'm not a big fan of the dormant commerce clause and would not expand its scope.

Let me put this in the context of specific cases:

I agree with the dissenters. This is, in any event, a question of statutory interpretation rather than constitutional law or how much I value environmental regulation. In questions of statutory interpretation, the value of precedent is much greater and I would be, therefore, much less likely to overturn the Court's prior decision. This is also a good (which is to say, bad) example of Congress' abdication of responsibility to the Court.

I agree with Justice Scalia's majority opinion.

8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?

As extensive as its enumerated powers.

Have you ever read the Constitution?

If you're asking my policy preference, then I generally favor the application to the government of all laws the government imposes upon the people.

I agree with Justice Scalia's dissent in Lane. In particular, in the context of Lane, I think that either the 14th Amendment must mandate "access" or Congress is prohibited from acting. As the 14th Amendment does not mandate access, at least in the circumstances at issue, I would rule that Congress is powerless.

9. What is the proper Constitutional role of Government in enacting laws to regulate education?

Relatively limited.

Pretty far, but that's not so much regulating education as it is enforcing the Civil War amendments, although there is obvious overlap.

In context, the Court has no power to "protect" (actually prohibit) speech or "prohibit violations" (actually violate) the establishment clause. Doe (no prayer at school football games) was wrongly decided.

No.

10. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.

Judicial activism means a number of things, but mostly means when the courts allow their policy preferences to entice them away from the text of the constitution, the legislation at issue or well-established precedent.

Any judge can be an activist in a particular case. The dissenters in Kelo were substituting their policy preference (with which I mostly agree) for the text of the Constitution.

[A daq that can't be answered.]

No.

In each case but Brown, the Court ignored the law to enact its own policy preference.

11. Do you describe yourself as falling into any particular school of judicial philosophy?

Not without prompting. With prompting, I align myself with Justice Scalia.

Generally, I'm all for it.

That the government is bound by the original meaning of the Constitution, as evidenced solely by the text of the Constitution as it was understood at the time of ratification.

It is the accommodation of slavery in the Constitution that makes it a pact with the devil. Also, my learned counsel reminds me that slavery is a good example of how the system is supposed to work. The Constitution accomodated slavery until it was changed by the people, working through the amendment process. It was not changed by the Courts.

12. What in your view are the limits on the scope of Congress' power under the Equal Protection and Due Process clauses of the 14th Amendment?

Congress has the power to enforce the 14th Amendment by appropriate legislation. As long as Congress' understanding of its power is rational, the courts should defer to it.

It depends on the group.

Yes.

They have a right to due process.

13. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?

In the Constitution.

No. I would have deferred to the House in dealing with its members.

Yes. Because I think it's correct.

No. I don't think that there was any violation of the equal protection clause.

It depends on the question presented.

It depends upon what the dispute is, but generally very limited.

14. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?

I probably drop neatly between Justices Scalia and Thomas. They understand the importance of respecting the democratic process and usually have the discipline to defer to the political branches or to the people.

15. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?

Justice Scalia's. [daq]

16. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court's holding or reasoning and discuss the reasons for your criticism?

No. But if Senator Schumer picks his three favorite cases -- oh, ok, if Senator Schumer's staff picks his three favorite cases, that'll do for a list.