The court said it will grant a hearing in the case of Town of Greece v. Galloway, which involves the legality of saying a prayer before the start of public township board meeting. The court didn’t say on Monday that it will hear a second case involving public school graduation ceremonies at church sanctuaries.

In 2008, two Greece, New York, residents sued over the town’s practice of having a prayer delivered before board meetings, in a community heavily dominated by Christian churches.

At the heart of the case is the Establishment Clause in the Constitution’s First Amendment, which deals with issues about the separation of church and state. The residents who sued say the board’s policy about the prayers was tantamount to the endorsement of a religion.

They believed the practice violated the First Amendment because of the types of prayers offered. A U.S. district court said the prayers didn’t violate the First Amendment. But the 2nd Circuit U.S. Court of Appeals in May 2012 overturned the lower court decision.

“The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than 200 years. But when one creed dominates others–regardless of a town’s intentions–constitutional concerns come to the fore,” Judge Guido Calabresi wrote for a unanimous three-judge panel last May.

Greece is mostly Christian, and most of the prayers offered at its board meeting were Christian or came from Christian clergy within that community.

After initial complaints in 2007, the board in Greece invited a Wiccan priestess, a chairman of a Baha’i congregation, and a lay Jewish man to give prayers. But most prayers were delivered by Christians.

The other case, Elmbrook School District v. Doe, involves a controversy over the rental and use of a church sanctuary to host graduation ceremonies for two public schools.

The court has yet to say if it will consider the Elmbrook case, deny it, or send it back to a lower court.

Constitution Daily contributor Lyle Denniston covered the Elmbrook story and its history in detail last month.

Related Story: Lyle Denniston: The Constitution and graduation ceremonies in church

In Brookfield, Wisconsin, a western suburb of Milwaukee, the two local high schools for years staged graduation exercises in the sanctuary of Elmbrook Church, an evangelical congregation not affiliated with any denomination. The practice began in 2000 with a choice by one of the high schools, at the request of its graduating class, to move the ceremony out of the school’s gym, because of limited conditions there.

The church’s leaders and its congregation had no role in the graduation celebration, and there was no one on hand to offer any kind of religious counseling.

But for nine people–current and former students and their parents–the site itself was the problem, with its religious symbolism and significance. They said the exposure to artifacts of faith offended them and compromised the experience of graduating.

The lawsuit continued, even though the district stopped using the sanctuary, as the challengers took the case on to the 7th U.S. Circuit Court of Appeals.

A three-judge panel there agreed with a trial judge, finding no First Amendment religion problem. But the full circuit court reconsidered. Splitting 7-3, that court found that the Elmbrook Church site could not avoid being coercive for the students and their younger brothers and sisters attending the ceremony.

Among the parties involved in the case are The Becket Fund for Religious Liberty and the Americans United for Separation of Church and State.

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The Warren Court.

The decision of Brown v. Board of Education of Topeka in 1954 is perhaps the most famous all of all Supreme Court cases. It overturned the equally far-reaching decision of Plessy v. Ferguson in 1896.

In the Plessy case,  the court decided by a 7-1 margin that “separate but equal” public facilities could be provided to different racial groups.

In his majority opinion, Justice Henry Billings Brown pointed to schools as an example of the legality of segregation.

“The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced,” he said.

The lone dissenter, Justice John Marshall Harlan, wrote, “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case (referencing the controversial 1857 decision about slavery).”

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he added.

The Plessy decision institutionalized Jim Crow laws that allowed racial segregation to continue for decades.

By 1951, the issue was heading back to the court for review, and the outlook didn’t look promising for the forces that had united to overturn the Plessy decision. The NAACP and their attorney, Thurgood Marshall, had been in court for years and had won some isolated victories.

The Brown case was actually a combination of five cases involving segregation at public schools in Kansas, Delaware, Virginia, South Carolina, and the District of Columbia.

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The justices who first heard the case in 1953 were divided. Chief Justice Fred Vinson, from Kentucky, wasn’t convinced that Plessy should be overturned on constitutional grounds. Several other justices were undecided and possibly leaning toward upholding Plessy. Four justices seemed to be committed to overturning Plessy, but five votes were needed, and there were concerns about a divided court.

Another concern was about how the Brown decision, if it overturned segregation, could be enforced in 19 states and the District of Columbia without widespread violence.

The court decided in June 1953 to hear more arguments in the case later in the year. But in September 1953, Chief Justice Vinson died suddenly from a heart attack. President Dwight Eisenhower had promised the next Supreme Court opening to the politically powerful Earl Warren from California, who was favored desegregation.

Warren was appointed chief justice and the court met in a private session in December to discuss the Brown case. Two justices took notes of the meeting, which indicate that Warren made a powerful opening statement that made it clear the court was heading toward the end of segregation.

Warren talked about the abilities of Marshall and the legal team from the NAACP.

“If oral argument proved anything, the arguments of Negro counsel proved that they are not inferior. I don’t see how we can continue in this day and age to set one group apart from the rest and say that they are not entitled to exactly the same treatment as all others,” Warren said.

“At present, my instincts and tentative feelings would lead me to say that in these cases we should abolish, in a tolerant way, the practice of segregation in public schools,” he said.

Warren also made it clear he would work with the justices to find “unanimity and uniformity, even if we have some differences.”

Two justices—Robert Jackson and Stanley Reed—had concerns about the Supreme Court making a decision that would be better left to Congress. There were also questions about Marshall’s arguments, which referred much to the sociological evidence about the damage caused by segregation (and not as much to prior case law).

On May 17, 1954, Warren read the final decision: The Supreme Court was unanimous in its decision that segregation must end. In its next session, it would tackle the issue of how that would happen.

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” Warren said.

The announcement made international headlines and more than a few newspapers saw the decision as vindication for Justice Harlan’s dissent in the 1896 Plessy case.

Not long after the Brown decision, in October 1954, Justice Robert Jackson died and President Eisenhower picked his replacement from the Second Circuit Court: Judge John Marshall Harlan, the grandson and namesake of the famous dissenter.

MGM stars in 1943.

Hollywood’s greatest drama took place over two decades in a fight that featured movie barons, President Franklin Roosevelt, Walt Disney, Charlie Chaplin, and the United States Supreme Court.

In the end, the court ruled in U.S. vs. Paramount on May 4, 1948, in a devastating blow to five major studios and three smaller ones. The case had roots back to 1921, when concerns arose about the studios and the Sherman Anti-Trust Act.

The major studios had a near monopoly on the movie business in the United States. Each studio had exclusive contracts with actors and directors; owned the theaters where their movies played; worked with each other to control how movies were shown in independent theaters; and in some cases, owned the companies that processed the film.

The system of “vertical integration” was expensive to maintain, but it was lucrative when the movie business was booming.

Independent movie makers and theater owners started legal action decades before the 1948 Supreme Court ruling.

The website Hollywood Renegades Archive has a detailed history of the 27-year fight that pitted movie titans like Adolph Zukor and Jesse Laskey against the Justice Department in the 1920s.

The Justice Department won the first round of the fight in 1930, when the Supreme Court ruled that the movies studios were monopolies. A key finding was that the process of “block booking” was illegal. In block booking, studios forced theaters to buy films as a group well in advance, and often without seeing them.

But the studios, after some legal delays, found an ear with incoming President Franklin D. Roosevelt in 1933. Claiming that the movie business was in dire straits during the Depression, the studios asked President Roosevelt to stop the forced breakup of the monopolies. After all, the nation needed movies as a relief from troubled times.

Roosevelt used the National Industrial Recovery Act to justify a delay. But the Supreme Court threw out the Recovery Act in 1935, and in 1938, the Justice Department filed a new lawsuit against the studios.

Again, the studios found a way out of losing their monopolies. In 1940, they reached a deal with the Justice Department in a consent decree. During a three-year trial, the studios could keep their movies theaters, but block booking was regulated and theater owners had a chance to see movies before they bought them.

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The decision enraged independent producers like Disney, Chaplin, David Selznick, Mary Pickford, and Orson Welles. They organized as a group, even though some would be defendants in the case because of their roles in United Artists, a studio that only distributed films.

The Justice Department, with the support of the independent producers, renewed the case in 1946. A federal district court in New York eliminated the studios’ ability to sell blocks of films, but it also let the studios keep their movie theaters.

Both sides appealed the case to the Supreme Court. In its 1948 ruling, the court effectively dismantled the Hollywood studio system.

In an opinion from Justice William O. Douglas, the court killed the block booking system, and recommended the breakup of the studio-theater monopolies. The justices asked the lower court to decide the issue of selling the theaters.

As the movie studios regrouped for another fight in the lower courts or another deal with the Justice Department, their unity in the case cracked. Maverick studio owner Howard Hughes of RKO Pictures decided to sell his movie theaters.

The Justice Department made it clear that no deals were coming, and then the biggest studio, Paramount, sold its movies theaters. Its involvement in the anti-trust case blocked its ability to buy into a new fad called television. The battle was over.

In the end, the Paramount case fueled the growth of television greatly, in addition to changing the movie business. RKO and other studios sold their film libraries to television stations to offset the losses from the Paramount case. The studios also released actors from contracts who became the new stars of the television world.

The audience for television grew tremendously as people stopped going to movie theaters. In 1948, about 90 million people were regular moviegoers. By 1958, that number fell to 46 million people. The audience for television grew to 204 million people in 1958.

Scott Bomboy is editor-in-chief of the National Constitution Center.

The statements at issue:

“[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’ … Obviously the court did reach a decision and thought it had to reach a decision. It turned out that the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

– Retired Justice Sandra Day O’Connor, in remarks April 26 to the editorial board of the The Chicago Tribune, as reported in an article that day by Tribune writer Dahleen Glanton.

“We do know that she sided with the majority in the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote.  The ruling was a huge stain on the court’s reputation because it appeared to be—may well have been—blatantly partisan.”

– Andrew Rosenthal, editorial page editor of  The New York Times, commenting on Justice O’Connor’s statement, in an online column, “Taking Note,” on April 29.

We checked the Constitution, and…

Because the First Amendment provides a wide berth for free speech, especially about the way the government works, pundits—and even former judges—are entitled to rewrite history if they have a mind to do that. Both Justice O’Connor and the Times’ Andrew Rosenthal have done some of that in their comments about the Supreme Court’s decision in 2000 in Bush v. Gore, putting a constitutional end to that year’s presidential election.

Recall the factual situation on the morning after the November election: Democrat Al Gore stood to receive 267 electoral votes and George W. Bush, 246, with the 25 electoral votes in Florida undecided. To win, one candidate had to get at least 270 electoral votes. If Gore won Florida, he would have 292; if Bush won that state, he would have 271—one more than enough.

Gore had 48.4 percent of the popular vote nationwide, and Bush 47.9 percent (that total doesn’t add to 100 percent because there were four minor candidates). The uncertainty over who had won Florida’s popular vote (and thus all 25 of its electoral votes, under the winner-take-all formula) lingered for 36 days, until the Supreme Court issued its decision on the night of December 12, 2000.

When the Supreme Court ruled that further recounts of the vote could not proceed, Bush was ahead in the Florida popular vote, and when the official canvass was completed, Bush had 537 more votes than Gore—out of nearly 6 million total Florida votes between them.

Although Bush v. Gore will be debated for a long time to come, the reality is that election outcomes are decided under rules of law that govern vote-counting, and those rules routinely come into play when election-night counts turn out to be very close. No one can argue persuasively that the 2000 election was going to be settled by anything other than a legal decision. If it wasn’t to be made by the Supreme Court, it would be made by lower courts. (The only chance for a political, not a legal decision, would have been if the electoral vote count had ended in a tie and the House of Representatives would settle it; given the numbers with Florida’s 25 in play, there was no chance of a tie.)

If, as Justice O’Connor has suggested, the Supreme Court had said that it was not going to take the case, at that point rulings by the Florida Supreme Court or by a federal appeals court would have settled it, probably by allowing further recounting in Florida. It is impossible to imagine that America would have been content to let a lower court resolve what had become, for all intents and purposes, a constitutional crisis with time running out. In that circumstance, that is why there is a Supreme Court to settle constitutional meaning.

It is not clear what Justice O’Connor meant by saying that the court may have “added to the problem,” but that is a political assessment, not a judicial one. The court does get into political trouble when it makes controversial decisions, particularly on an issue as momentous as how to decide the legalities of a presidential election contest. The court’s decision did bring an end to the crisis, and however controversial that was then or may be in retrospect, Americans quickly learned to live with it.

And, whatever one may make of the presidency of George W. Bush, that history was not caused by the Supreme Court.

Many critics, including most recently Rosenthal, have suggested that Bush v. Gore stained the court’s reputation because it might have been ”blatantly partisan.” The claim of a stain is much exaggerated; the kinds of decisions that actually do sully the court’s good name are decisions that preserved slavery, saved racially segregated schools and other public facilities, and allowed imprisonment of citizens during wartime on no basis other than rampant bias and fear. Bush v. Gore does not come close to belonging in that group.

And there is no proof whatsoever that the justices who voted in the majority in the 2000 decision did so with the specific intent of assuring that a Republican would win. If they got it wrong, they got it wrong for legal reasons.

The constitutional and legal issues were fully aired, every step of the way, based on legal documents that were on full public display and on public hearings that were entirely open and were focused on the law. An accusation that a judge votes his or her political preferences is a very serious allegation, and for a federal judge might be, if proven, a valid basis for impeachment. Such a claim should not be offered as loose conjecture in an attempt to revise history.

If one is looking seriously for a real scapegoat in 2000, perhaps the constitutional culprit is the Electoral College itself.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for Supreme Court ‘repudiation’ of the Korematsu v. U.S. decision and other Japanese internment rulings.  Such repudiation, it if occurred, would be unprecedented.  An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading.”

– George F. Will, syndicated columnist, in an op-ed story in The Washington Post on April 25,”When fear trampled citizenship.”

“A public statement by the court of the repudiation of the internment cases … would fall within the court’s inherent power to ‘correct its records’ in these cases. The fact that the court has never before issued such a ‘repudiation’ statement is no bar to the authority of the justices to take such an action.”

– Peter Irons, in the essay cited by George Will.  The essay is titled “Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases,” available at this website. 

We checked the Constitution, and…

However wrong-headed, or even worse, a decision by the Supreme Court might be, either when issued or when assessed in later years, the Constitution simply does not give the justices the authority to issue public statements condemning such a past ruling. That is a political act, and it would be a direct contradiction of the limits of Article III for the court to indulge in such a public statement.

That is not to say that the court cannot show its profound disagreement with a prior ruling that it has made, but there is a way to do that without the court becoming a public critic of its own precedents. The way is to overrule an offending precedent when the occasion arises for such a decision to be tested anew.

Note that phrase: “when the occasion arises.” That, constitutionally speaking, is limited to an opportunity for the court to rule on a new case that actually involves what the court often calls a “live case or controversy” and the past ruling is claimed by one side or the other to affect or control the outcome.

The court itself has understood since its very early years that its function is to decide actual lawsuits, in which there are at least two sides in conflict and in which the legal adversaries have something real at stake. That is a tradition that the court itself established in 1793.

President George Washington, through his secretary of state, Thomas Jefferson, asked the court to provide legal advice to the president on how to interpret treaties with Britain and France about American obligations toward them during the French Revolution, when the United States was seeking to remain neutral. Politely and with an apology, the court declined to offer any advice, saying that to do so would violate the separation of powers that the Constitution requires among the three branches of the national government.

Separation of powers of the government, a concept traced to the French philosopher Baron de Montesquieu and embraced fervently by James Madison in the Founding era, was considered to be absolutely vital to prevent one branch of the government from becoming despotic. Each branch is to act as a check upon each other in order to preserve liberty, the concept holds.

Because each of the branches of the national government has grown so powerful, it may be quite easy to assume that they have very wide discretion about how they use their own grant of power. And it is perhaps easy to forget that a basic principle the Founders applied devotedly was that they were creating three branches with limited, not open-ended, authority.

Why shouldn’t the Supreme Court be allowed simply to put out what would amount to a press release, repudiating its World War II–era decisions upholding the government’s power to put citizens into detention camps out of fear that they would be disloyal during wartime? The answer is simply that a press release does not decide a lawsuit, and that is all that the court can do.

In the brief quotation above from Peter Irons’ essay, he suggested that the court had “inherent power” to “correct its records.” But the principle of separation of powers simply does not allow for unspecified and ungranted “inherent” authority by any of the branches of the federal government. “The Judicial Power of the United States”—the words that open Article III—do not confer on the Supreme Court or lower federal courts the authority to issue advisory opinions, outside of the four corners of a lawsuit.

Last year, the Justice Department learned that it had made a significant mistake in defending one of the arguments that it had used to help it win a case about immigration and deportation laws. That is precisely what happened in the World War II Japanese internment cases; indeed, the government lawyers in those cases explicitly withheld information that contradicted what they had told the court; that information only came out later.

In the incident last year, the Justice Department admitted its mistake to the court. But the court did nothing at all in response. It simply accepted the admission, and let its prior ruling stand. If a new case raising the same issue were to reach the court again, the justices might well cast aside their precedent, and cite the government mistake as its reason. But, again, that could come only in reaction to a specific case.

The constitutional reality is that the World War II Japanese-American precedents have been condemned in the only way that the federal courts can do: in the context of an actual legal proceeding. Many years after those cases were decided, two of the individuals who had been imprisoned and found guilty of violating the exclusion rules—Fred Korematsu and Gordon Hirabayashi—were allowed to challenge their convictions using a little-used but perfectly legal method, and their convictions were overturned.

Had those cases gone to the Supreme Court (they did not, because the government at the time did not appeal), that would have given the court a chance to overrule its precedents. It is not likely to have another chance like that.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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We Americans entered a new phase in our history – the era of integration–in 1954.

–Constance Baker Motley

When Constance Baker Motley, lawyer, judge, activist, and author of the original complaint filed in the 1954 case of Brown v. Board of Education,  wrote those words, she could likely not have imagined that the issue of integration would still be a battle for students in public high schools almost exactly 60 years later.

This Saturday will mark the first time in the history of Georgia’s Wilcox County High School that an integrated prom, open to students of all races, will take place.

Until 2013, Wilcox County High School held two proms: one for white students and one for African-American students. It comes as a surprise to many that a tradition of racially segregated proms still exists—and leaves many with questions about the legality of the segregation.

In 1954, the Supreme Court was asked whether it was legal to segregate students in public school based on race.

The school district in Topeka, Kansas, as in other districts in the South, separated white students from African-American students into different elementary schools.

The NAACP sponsored a lawsuit against the Board of Education of Topeka, claiming that the segregated facilities violated the African-American students’ constitutional rights.

A unanimous Supreme Court ruled that “separate educational facilities are inherently unequal” and as a result, the practice of segregation by a public school was held unconstitutional.

About 10 years after the Brown v. Board of Education decision, Congress passed the Civil Rights Act of 1964, making it illegal for a place of public accommodation—an establishment that serves members of the public—to deny service or accommodation to a person on the basis of his race, color, religion, or national origin.

How can it be, then, that almost 60 years after the Supreme Court found that separate public schools to be unconstitutional and almost 50 years after the passage of the Civil Rights Act of 1964 making segregation in all public accommodations illegal, can separate proms still take place?

The answer lies in the sponsorship of the prom.

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In many school districts, it is the school and its administration that organizes and monitors the school dances and the prom. In such cases, it is the public school that is responsible to ensure that it extends civil rights to all participants in school-sponsored events.

Similarly, a hotel or other public accommodation cannot prevent a person from entering the venue based on his or her race, color, religion, or national origin.

But the Wilcox County High School doesn’t organize the prom. It does not provide funding or space, it does not send chaperones, and it is not responsible for the event.

Nor does the accommodation at which the prom is held have a rule that says that students of a given race may not enter. Instead, the prom is a private event, organized by some parents and some students who decide who will be invited.

Just as the government  doesn’t regulate to whom a student sends an invitation to a birthday or graduation party, neither does it regulate who is invited to a dance organized by private parties.

So while laws have eliminated segregation based on race in public education and public events, the laws do not prevent the students at the schools—or the parents of those students—from hosting segregated private events.

This year, students in the school have organized a third prom. There is a prom for white students, a prom for African-American students, and an integrated prom to which all students are invited, sponsored by current students at Wilcox County High School.

According to the statement on the district’s website, “The Board and Superintendent not only applauded the idea, but passed a resolution requesting that all activities involving WCS students be inclusive and non-discriminatory.”

The board plans to put the issue of having the high school officially sponsor an integrated prom next year on its agenda.

Further Reading

• Brown v. Board of Education, 347 U.S. 483 (1954). Read online at oyez.org.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

On one side of the battle is a group that includes a majority of U.S. senators, President Barack Obama, Internet retailer Amazon. Walmart, a group representing national retailers, and a cadre of state governors (including New Jersey’s Chris Christie).

The other side includes digital giants eBay, Facebook, Yahoo, and Expedia; tax fighter Grover Norquist; the Heritage Foundation; direct marketing interests; and conservative House Republicans.

And the Commerce Clause, which played a key role in the Supreme Court’s health care decision, could make a cameo appearance at the end of the fight.

At stake is an estimated $23 billion a year in local and state sales taxes that, in theory, could be collected if consumers in 45 states and the District of Columbia were required to pay sales taxes for online purchases.

On Monday, the White House said President Obama supports the Marketplace Fairness Act. The law proposed by Mike Enzi (R-Wyoming) would let states collect sales taxes from residents who buy online from out-of-state retailers. The retailers would collect the tax at the point of purchase, and remit the taxes to the eligible states and local municipalities.

So for example, if you live in Illinois and buy a pair of sneakers on eBay, you would pay a direct sales tax for your state (6.25 percent) and if applicable, your city (as much as 3 percent).

Currently, some states have similar agreements with retailers like Amazon. Others require people to report an annual use tax to estimate how much they spend online each year. The problem is that compliance is low on reporting the use tax. The new law shifts the role of tax collector from the state to the retailer.

The Senate is expected to pass the bill as soon as this week, with greater support than it gave gun-control measures last week.

But will it pass the House, where the measure could be seen as a tax hike?

That answer is uncertain. Some House Republicans might have problems with any law that suggests a tax hike, even though the act’s supporters claim they just want to see the proper amount of taxes collected.

There is an exemption for small businesses that earn less than $1 million annually from out-of-state sales.

John Donahoe, the CEO of eBay, wants the exemption raised to $10 million in annual sales for small businesses or companies with fewer than 50 employees.

“I am writing to ask for your help in telling Congress ‘No!’ to new sales taxes and burdens for small businesses,” Donahoe said in an email to eBay customers on Monday. “We believe this is a reasonable exemption to protect small online businesses.”

The issue of who decides the Internet sales tax question goes back to 1992, when the Supreme Court put the ball in the lap of Congress in a ruling that predated the modern commercial Internet.

During the past 20 years, many online businesses have cited that 1992 Supreme Court ruling, Quill Corp. v. Heitkamp, as proof that online retailers don’t have to charge—and collect—sales taxes in states where they don’t have a physical business.

Quill was an out-of-state mail-order house that sold products without having a store or sales staff in North Dakota.

The Supreme Court found that states had a right under the Due Process Clause of the Constitution to collect sales taxes, but the burden placed on out-of-state businesses to collect the taxes ran afoul of the Commerce Clause.

“The State’s enforcement of the use tax against Quill places an unconstitutional burden on interstate commerce,” said Justice John Paul Stevens.

The court then said that the “underlying issue here is one that Congress may be better qualified to resolve, and one that it has the ultimate power to resolve.”

The key issue is how effectively a computerized system can be established to collect taxes not only from 45 states and the District of Columbia, but also additional local sales taxes, and get the revenue in the hands of the correct people, without imposing a huge cost or burden on small businesses.

Supporters of efforts such as the Streamlined Sales and Use Tax Agreement, which has been adopted by 24 states, say it’s an issue of fairness, in addition to states losing out on tax revenue.

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House Judiciary Committee Chairman Bob Goodlatte (R-Virginia) will be one key player in getting the law passed after its likely approval in the Senate.

“While it attempts to make tax collection simpler, it still has a long way to go,” Goodlatte said. “There is still not uniformity on definitions and tax rates, so businesses would still be forced to wade through potentially hundreds of tax rates and a host of different tax codes and definitions.”

Goodlatte and others have concerns about the potential reach of such a law. The Securities Industry and Financial Markets Association, in particular, says the bill could set a precedent that would allow states to collect taxes on other out-of-state activities.

In the end, it could be the ease of use (and power) of a software system that could get the Marketplace Fairness Act past the Commerce Clause concerns in the 1992 court ruling.

That system would need to account for about 9,600 local taxes, in addition to 45 states and the District of Columbia, without imposing a burden on retailers.

The Congressional Research Service analyzed the issue earlier this month as part of a report for Congress.

It says the under the precedent set by Quill, a connection, or nexus, must be established that shows that “(1) the state has provided some benefit for which it may ask something in return and (2) the seller has fair warning that its activities may be subject to the state’s jurisdiction.”

In addition to this connection, “the Commerce Clause prohibits state laws that discriminate against interstate commerce,” the CRS says. That includes the concept that “a state law that subject[s] remote sellers to tax-related burdens not imposed on in-state sellers would appear to be facially discriminatory and, therefore, subject to a high level of judicial scrutiny.”

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Senator Mitch McConnell

On Tuesday, Mother Jones published audio and a transcript of an 11-minute conversation in Louisville, Kentucky, on February 2, 2013. The muffled audio was allegedly made without the knowledge of the campaign committee members for Mitch McConnell, which met at their campaign headquarters to discuss tactics in the senator’s upcoming re-election bid.

McConnell was in the room as the staff discussed the perceived weaknesses of actress Ashley Judd, who at the time was considering a run as a Democrat against McConnell. The tape and the transcript indicated campaign staffers were considering attaching past mental health issues involving Judd, who is a three-time rape survivor.

Judd declined to run for office, and the chance never came for the tactics to be considered.

The Washington Post’s Greg Sargent, a liberal columnist, said later on Tuesday that the tactics discussed weren’t unusual.

“They show the McConnell team debating the use of tactics that are nasty but not that unusual by oppo research standards,” he said.

Sargent also spoke with Mother Jones writer David Corn, who broke the McConnell tape story. If the name sounds familiar, it’s because he also published the Mitt Romney “47 percent” video last fall.

Corn said Mother Jones asked for comment from McConnell’s Senate and campaign offices before releasing the audio, and the magazine’s lawyers approved the story.

The reaction from McConnell and his staff was swift.

“We’ve always said the Left will stop at nothing to attack Sen. McConnell, but Watergate-style tactics to bug campaign headquarters is above and beyond,” said McConnell campaign manager Jesse Benton.

McConnell accused the group Progress Kentucky of bugging his campaign office.

“As you know last month my wife’s ethnicity was attacked by a left-wing group in Kentucky and then apparently they also bugged my headquarters,” McConnell said. “So I think that pretty much sums up the way the political left is operating in Kentucky.”

Politico reported on Tuesday that McConnell’s team has swept the room for a recording device and found nothing.

Mother Jones also issued a statement that indicated how it justified releasing the audio.

“As the story makes clear, we were recently provided the tape by a source who wished to remain anonymous. We were not involved in the making of the tape, but we published a story on the tape due to its obvious newsworthiness. It is our understanding that the tape was not the product of a Watergate-style bugging operation. We cannot comment beyond that,” the magazine said in a statement.

When Mother Jones faced the critics in the Romney case, some legal experts pointed to a 2001 Supreme Court ruling that could shield it from federal prosecution. In that case, the magazine also claimed it wasn’t involved in videotaping Romney at a private Florida presidential fundraiser.

The case of Bartnicki vs. Vopper established that the First Amendment protected a media organization publishing information obtained from illegal wiretapping, as long as the publisher wasn’t involved in the act and the information was of public interest.

Jeff Hermes, director of the Digital Media Law Project at Harvard, wrote extensively on the subject last September.

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“Regardless of whether the recording was illegal, Mother Jones is likely protected by the First Amendment. The legitimate public concern over comments made by a presidential candidate would override any interest in preventing Mother Jones from disseminating this information,” Hermes said about the Romney tape.

As the most powerful Republican member of the U.S. Senate, McConnell is also a public figure.

McConnell has asked the FBI to investigate the incident.

“Senator McConnell’s campaign is working with the FBI and has notified the local U.S. Attorney in Louisville, per FBI request, about these recordings,” said Benton. “Obviously a recording device of some kind was placed in Senator McConnell’s campaign office without consent. By whom and how that was accomplished presumably will be the subject of a criminal investigation.”

Kentucky has its own laws regarding privacy. It is a one-party consent state, meaning that at least one person in the room needs to consent to the recording, even if it is the person hitting the button.

McConnell’s aides say about a half dozen close, long-time staffers were in the conference room at the time.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The Washington Redksins are an iconic brand in football and the most popular pro sports team in the D.C. metro area. The team formerly known as the Boston Redskins moved to Washington in 1937, and they’ve won five NFL titles since, including three Super Bowl wins.

Forbes magazine ranks the Washington franchise as the third-most-valuable team in the NFL, at $1.6 billion. The current owner, Daniel Snyder, bought the club for $700 million in 1999. The team could easily go up in value as it becomes a contender again, led by Robert Griffin III.

But that hasn’t stopped some long-term fans and local leaders from asking Snyder to drop the “Redskins” nickname, since they view it as offensive to Native Americans. Some Native American groups have made the same request.

The team has argued for decades the name originated in the 1930s as a tribute to the bravery of Native Americans and also as a tribute to a team coach from that time period.

In February 2013, team general manager Bruce Allen repeated the club’s stance. “There’s nothing that we feel is offensive,” Allen said. “And we’re proud of our history.”

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On Friday, former Federal Communications Commission chairman Reed Hundt wrote in a Washington Post editorial that the time has come for Snyder to act in the best interest of the community.

Hundt said that he and “other former FCC officials and concerned parties [have] asked Snyder to change the name of our beloved football team—so that broadcasters no longer would have to describe it using a name they would never use in any other context.”

Hundt believes the FCC has the power to investigate if it can fine broadcasters who use the team’s name in public while describing a game, or in any context.

“As chairman of the FCC, I prosecuted a case against Howard Stern for violating indecency rules. Such cases have often led to subtle debates in appellate courts about the application of the First Amendment,” he argued.

In his letter to Snyder, Hundt uses the term “XXXSkins” to refer to the team.

Whether the current FCC could put financial pressure on Snyder is at best a theoretical question. If anything, the FCC could be relaxing its rules about indecency—when it does enforce them.

This week, the FCC asked for public comment on whether it should cut back on enforcement to focus on only the worst cases. But there would be some hope for nickname opponents, since the FCC wants feedback on focusing on “deliberate and repetitive use [of expletives] in a patently offensive manner.”

But the FCC also announced this week that it had eliminated 70 percent of pending indecency complaints filed since September 2012.

Last June, the Supreme Court confirmed the right of the FCC to fine over-the-air broadcasters if they aired profane words. It also said the FCC had to make its rules clearer to broadcasters.

One issue would be whether anyone can prove in court that the word’s use is obscene or profane.

In its official guidelines, the FCC states: “Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.”

Its rules for profanity are different.

“The FCC has defined profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’ Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.,” the FCC policy reads.

It has been years since the FCC has issued a significant obscenity fine against a broadcast TV network.

Washington, D.C., mayor Vincent Gray also wants the name changed, and he has said that the team shouldn’t be allowed to move back to the city of Washington to play their games until it has a new name.

Currently, Snyder’s team plays in Maryland and has a lease on that stadium until 2026.

Other opponents are using a different tactic: attacking Snyder’s ability to trademark the team’s name. In 1999, the Trademark Board did rule in favor of taking the Redskins trademark away from the team, in a decision that was later reversed.

That battle took 17 years and ended on the steps of the U.S. Supreme Court, when the justices refused to hear an appeal.

On March 6, a group was in front of the Trademark Board pursuing the case again. It could take years to move forward. Their hope is to put enough financial pressure on Snyder to drop the name and replace it with something he can trademark and get paid for.

Washington Post columnist Sally Jenkins has also taken up the cause. (If her name sounds familiar, she was granted the last interview with the late Penn State football coach, Joe Paterno.)

“It would be nice if the NFL franchise in the nation’s capital were an example for all the land. But apparently Snyder takes his example from 10th graders,” said Jenkins in February, citing a campaign by the team that talked about 70 high schools that shared the same name with the NFL club.

Jenkins argued that most teens don’t understand why the name could be construed as an insult.

“Given that the most recent National Assessment of Educational Progress found that only 12 percent of high school seniors were proficient in American history. And only 2 percent were able to identify the social problem addressed by the Supreme Court’s decision in Brown v. Board of Education,” she said.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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The statement at issue:

“A foreign member of al Qaeda should never be treated like a common criminal and should never hear the words ‘you have a right to remain silent.’ ”

– Joint statement of Republican Senators Kelly Ayotte of New Hampshire, Lindsey Graham of South Carolina, and John McCain of Arizona, quoted in The Washington Post on March 31, in an article by reporter Peter Finn, titled “Somali’s case a template for U.S.” The three senators made such a comment twice in March when the U.S. government revealed it had brought foreign nationals suspected of terrorism to the U.S. for prosecution in a civilian court.

We checked the Constitution, and…

Almost a dozen years since the terrorist attacks on the United States on September 11, 2001, it is an open question which of the rights protected by the Constitution apply to those captured or prosecuted as terrorism suspects. The military detention system set up at Guantanamo Bay right after those attacks was understood then, and that remains true today, precisely to limit the rights of those held in detention. The same is true of those prosecuted by military commissions at Guantanamo.

The practical reality, however, is that the federal government has had far more success getting guilty verdicts against terrorist suspects captured overseas since 9/11 in civilian court than in the war crimes commissions; the score so far is 67 to 7 (and two of those seven war crimes verdicts have been overturned on appeal). What a guilty verdict does is to take an individual out of circulation, perhaps for the rest of that person’s life, and the thorny legal and moral question of long-term detention without criminal charges does not arise.

And federal government officials understand that, if they are going to take a terrorism case into a civilian court, they had better be prepared to prove to the court that the evidence of a war crime was not tainted because it was gathered in an unconstitutional way. One almost certain way to turn a criminal trial in the accused’s favor is to forfeit a chance to use evidence that was obtained by coercion–that is, by getting a suspect to talk without knowing the legal peril of confessing.

That is why a captured suspect will be given “Miranda warnings”–that is, will be told about the rights they have, such as a right to remain silent, that are mandated by the Supreme Court’s 1966 decision in Miranda v. Arizona.

That mandate is now constitutionally required under the Fifth Amendment, according to a decision in 2000 in the case of Dickerson v. U.S. In that decision, the court remarked: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

The Supreme Court has not yet had a chance to say, in a post-9/11 terrorism case, whether “Miranda warnings” do apply to foreign nationals captured abroad in a terrorism investigation. But when the Justice Department opts for a prosecution in civilian court, it proceeds on the premise that the Fifth Amendment literally applies to “any person,” protecting that individual from being compelled to be a “witness against himself.”

Beyond the Miranda warnings issue, there is a long tradition in America that military trials should not go forward when the civilian courts are open and operating, even during wartime. That was clearly established by the Supreme Court’s 1866 decision in the case of Ex parte Milligan. Whether that precedent governs during a “war on terrorism” apparently is still open to debate, however.

Official Washington is now clearly divided over what to do with terrorism suspects. Majorities in Congress continue to pass laws that are intended to restrict the executive branch’s power to use the civilian courts for terrorism prosecutions. The aim is to have all foreign nationals seized by the U.S. on suspicion of terrorism to be taken to Guantanamo Bay, and to be held there for the duration of the terrorism conflict, or, as the only alternative, prosecuted for war crimes in a military commission, with far fewer rights than apply in a civilian court.

The opposition to civilian trials includes a fervent objection to giving Miranda warnings to suspects, on the theory that doing so will cause suspects to stop talking, thus depriving the U.S. government of valuable intelligence about terrorist operations, past and future.

As the three Republican senators said in one of their statements in March objecting to civilian prosecution of al Qaeda suspects: “When we place [these] individuals in our civilian legal system, read them Miranda rights, and focus on prosecution rather than intelligence collection, we miss valuable information that will prevent future attacks.”

Administration officials, however, counter that they have found ways to gather intelligence and then prepare an individual for civilian trial by giving Miranda warnings. First, they conduct extensive interrogation of an individual in the days or weeks after initial capture. Then, they will bring in an FBI interrogation team–a group supposedly told nothing at all about what the suspect said during questioning–and that team reads the individual the warnings about rights. If, as seems to have happened in some of these cases, the individual waives those rights and goes on talking, then the government appears to have it both ways.

It is unclear at this point how all of this is going to be sorted out in the long run. But, for the time being, the government is getting the verdicts it wants in civilian courts, while the Guantanamo war crimes machinery continues to struggle its way toward effectiveness and real results.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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