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Xavier Cortada’s Images of Constitutional Rights
Volume Editors: and
In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law.

Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.

Xavier Cortada’s picture depicts Bush v. Gore with an hourglass, reflecting the tremendous time pressure that the Supreme Court felt to resolve the 2000 election. But it is exactly this time pressure that caused the Court to go seriously wrong: deciding a case that was not ripe for review, incorrectly applying equal protection law, and violating a basic principle of federalism that state courts get the last word on questions of state law.

In: Painting Constitutional Law
In: Painting Constitutional Law

A purple cape. Cuts of goat meat ready to be cooked. Crutches and two dogs. Their meaning, as Xavier Cortada writes of his painting, is ambiguous. Perhaps the goat has been carved by an injured butcher for a nontraditional Christmas feast, but the symbolism also suggests that the goat may have been carved for Babalú-Ayé, one of the spiritual beings known as orishas among followers of Santería. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court struck down a series of ordinances tailored to prohibit Santería animal sacrifice but few other killings. The ordinances were neither neutral nor generally applicable and failed to survive strict scrutiny under the Free Exercise Clause. Lower courts and scholars disagree about Lukumi’s reach. Understood narrowly, Lukumi is about religious hostility; read broadly, it requires equal treatment of analogous religious and nonreligious conduct. A close look at Cortada’s painting suggests Lukumi might be even more protective.

In: Painting Constitutional Law
In: Painting Constitutional Law

This Chapter explores Fourth Amendment law and history through the lens of Xavier Cortada’s painting inspired by Florida v. Jardines. At its core, Jardines is a case about the future of Fourth Amendment interpretation and how different doctrinal theories should best protect an individual’s home from unreasonable searches and seizures. Written by Justice Antonin Scalia with his characteristic irreverence, flair, and self-confidence, Jardines is a case about fundamental questions of privacy and security that turns on the constitutional significance of a police dog sniffing outside your home.

In: Painting Constitutional Law
In: Painting Constitutional Law

This chapter tells the story of Florida inmate Clarence Gideon, a most unlikely champion for the Sixth Amendment’s guarantee of the right to counsel for poor criminal defendants. Before Gideon wrote his famous letter from his jail cell, the Supreme Court had narrowly interpreted the Sixth Amendment leaving the vast majority of poor criminal defendants tried in state courts without access to a lawyer. Clarence Gideon’s hand-written appeal to the Supreme Court sparked a fundamental change in our criminal justice system, resulting in the Court declaring the right to counsel essential to a fair trial and requiring states to provide lawyers to poor criminal defendants. Although the Supreme Court has subsequently limited the application of the holding in Gideon v. Wainwright and the states have fallen woefully short in meeting their obligation to provide lawyers for poor criminal defendants, Clarence Gideon’s contribution remains remarkable and worthy of celebration.

In: Painting Constitutional Law
In: Painting Constitutional Law
Author:

Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgment, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these traditional approaches by expanding the scope of the analysis of the relationship between image and law. This book continues these scholarly efforts. It is, in essence, a study of legal iconography at ground level. The viewers, interpreters, and expositors of Cortada’s paintings are constitutional scholars rather than historians or theorists of law, art, or culture. This work analyses common law materials, constitutional cases, and the depiction of specific cases in twenty-first century artwork. It illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.

In: Painting Constitutional Law