Losing the Spirit of Tinker v. Des Moines and the Urgent Need to Protect Student Speech

David L. Hudson, Jr.

66 Clev. St. L. Rev. Et Cetera 2 (2018)

Nearly fifty (50) years ago, the U.S. Supreme Court declared in Tinker v. Des Moines Independent Community School District that public school students did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” It remains the seminal case on K-12 student speech rights in the United States of America and the “high water mark” of student rights. One of the litigants in the Tinker case, the late Christopher Eckhardt, stated: “What George (Washington) and the boys did for white males in 1776, what Abraham Lincoln did to a certain extent during the time of the Civil War for African-American males, what the women's suffrage movement in the 1920s did for women, the Tinker case did for children in America."

The Tinker case led to a new era for student speech, increased litigation over school dress codes and hairstyles and created a fundamental appreciation that young persons were truly persons under the Constitution who had constitutional rights that needed to be respected.

Sadly, that day has passed and gone. Today courts increasingly restrict student discourse even under the speech-protective standard that Justice Abe Fortas pronounced for the Supreme Court in Tinker. Students live in an environment that does not respect their constitutional rights. Sadly, this is creating a generation of younger persons who don’t have the same level of appreciation for the supreme importance of freedom of speech.

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Three Approaches To Freedom of Speech

R. George Wright

66 Clev. St. L. Rev. Et Cetera 1 (2018)

It has been said that in the field of quantum theory, there have been periods when even second-rate scientists could do first-rate work. This raises, however, the possibility that there may also be periods in which even the best theorists in a field can make contributions that rate only as good. It is proper to classify each of the free speech writers discussed as first rate. But it is also possible that the age in which they write inhibits the production of genuinely great work with a genuinely common goal.

The underlying problem for today’s free speech theorists is no doubt multifaceted. But one important aspect thereof may involve our collective poring over the glittering remnants of a shattered mirror, even as our understandings of the possible uses of a mirror become increasingly unclear, contested, or unstable.

In this respect, consider, without the slightest attempt to assess on the merits, the presumptive speech libertarianism of Floyd Adams, the contextually sensitive functional value balancing of Steven Shiffrin, and the broad scope of coverage view of Mark Tushnet, Alan Chen, and Joseph Blocher.

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How The Tenth Amendment Saved The Constitution, Contradicts The Modern View of Broad Federal Power, and Imposes Strict Limitations

Steven T. Voigt

64 Clev. St. L. Rev. Et Cetera 2 (2016)

This paper challenges the position that the Tenth Amendment merely states an abstract concept and has no place in constitutional interpretation. The history of the Tenth Amendment portrays a much greater significance for this amendment. Not only did the Tenth Amendment likely save the Constitution and preserve the union, but it imposed very real restraints on federal power. The implication for modern courts is that the Tenth Amendment cannot be ignored. Far from just stating a truism, it sets forth a constitutional rule of interpretation that must be applied whenever the scope of any federal power is examined.

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The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, and Water Law

Colin W. Maguire

64 Clev. St. L. Rev. Et Cetera 1 (2015)

Making big news in legal circles and on Capitol Hill was the approval of the EPA and US Army Corps of Engineers’ new agency rule regarding the definition of “Waters of the United States” under the Clean Water Act (CWA). In a nutshell, these government agencies can regulate development or industrial activity that impacts the “Waters of the United States.” Allegedly new science shows that there are significant hydrological connections between small streams and wetlands, also known as tributaries, areas around those tributaries, and larger bodies of water; this creates more “categorical assertions of CWA jurisdiction,” and allegedly increases CWA jurisdictional assertions by as much as 5%, which is still many millions of acres of land. The EPA has even provided a handsome graphic with fun facts to demonstrate this hydrological connection as established under the new rule.

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The Originalism is Not History Disclaimer: A Historians Rebuttal

Patrick J. Charles, J.D., L.L.M.

63 Clev. St. L. Rev. Et Cetera 1 (2015)

A number of originalists are on record asserting the disclaimer that orginalism is not history, therefore claiming that originalism does not suffer from the problems typically associated with history-in-law.  This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations—therefore falsely giving rise to the presumption that originalism and history are one and the same—and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history.  This Article further argues that if originalists want to issue an accurate disclaimer, it should state that originalism is not intended to be accurate history. This would correct many of the publics misconceptions as to what does and what does not constitute originalism.

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A Letter to the Editor-in-Chief

In a letter addressed to The Cleveland State Law Reviews Volume 63 Editor-in-Chief, Mr. Timothy Sandefur responded to an article featured in the Law Reviews History and the Meaning of the Constitution Symposium issue: Scott D. Gerber, Liberal Originalism: The Declaration of Independence and Constitutional Interpretation, 63 Clev. St. L. Rev. 1 (2014).

Mr. Sandefur currently serves as Principal Attorney in the National Litigation Center of the Pacific Legal Foundation, and is also an Adjunct Scholar with the Cato Institute.

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