Why Does the United States Have an Exclusionary Rule?:
Adam Liptak has an interesting story in today's New York Times about the so-called exclusionary rule, the rule of criminal procedure instructing (in simplified form) that evidence acquired by the police in violation of investigatory rules cannot be used in a prosecution. The United States is essentially unique among nations in having a mandatory exclusionary rule: The obvious question is, why? Liptak's article includes a short quote from me on this issue, and I thought I would blog some more thoughts on it.
There are a few reasons why the United States has an exclusionary rule, but I think the most important is that criminal procedure rules in the United States are mostly judge-made. The courts make the rules in the form of interpretations of the Fourth, Fifth, Sixth, and Fourteenth Amendments. That's largely unique among nations. In most countries, investigative rules come mostly from legislatures, not courts.
In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature's control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law.
In contrast, the exclusionary rule does not require the cooperation of any other branches. The same courts that create the rules control the remedy. As a matter of history, I think that explains why we have an exclusionary rule: judges needed a way to enforce judge-created rules even when they were unpopular and didn't have buy-in from other branches. The exclusionary rule provided a way — and perhaps the only way — to do that.
Finally, let me stress that this explanation is descriptive, not normative. That is, it describes why I think judges did what they did, but it doesn't take a position on whether the judges did so appropriately or whether they read the Constitution correctly. If there is interest in the normative question, let me know in the comment thread and I'll consider a follow-up post.
Funding Barack Obama's "civilian national security force."--
A. Obama on National Service.
In Barack Obama’s July 2, 2008 speech calling America to national service, Obama proposed “a civilian national security force that's just as powerful, just as strong, just as well-funded” as our military.
This has prompted some in the blogosphere to raise the specter of a huge new domestic paramilitary organization. Others suggest that he may have been talking about our “current non-military security agencies - FBI, CIA, NSA, DEA, DHS, etc.”
I think that both interpretations are probably wrong. If you listen to the whole speech –- or even the couple minutes before his security force proposal — I think that it’s reasonably clear that Obama is talking about expanding a range of domestic and international agencies such as AmeriCorps, the Foreign Service, and the Peace Corps — and adding some new ones.
The two controversial sentences (shown below in bold) were not in the transcript of Obama’s prepared remarks. Because the lines seem as if they were crafted ahead of time, I wonder whether the language was cut from an earlier draft, but Obama decided to deliver the sentences anyway.
Here is Obama on national service (the controversial passage starts at about 16:00; I have also corrected some slight errors in the transcriptions posted by other bloggers):
Obama on National Service, July 2, 2008
Just as we must value and encourage military service across our society, we must honor and expand other opportunities to serve. Because the future of our nation depends on the soldier at Fort Carson, but it also depends on the teacher in East LA, or the nurse in Appalachia, the after-school worker in New Orleans, the Peace Corps volunteer in Africa, the Foreign Service officer in Indonesia. . . .
Today, AmeriCorps – our nation’s network of local, state and national service programs – has 75,000 slots. And I know firsthand the quality of these programs. My wife Michelle once left her job at a law firm at city hall to be a founding director of an AmeriCorps program in Chicago that trains young people for careers in public service. These programs invest Americans in their communities and their country. They tap America’s greatest resource – our citizens.
That’s why as President, I will expand AmeriCorps to 250,000 slots, and make that increased service a vehicle to meet national goals like providing health care and education, saving our planet and restoring our standing in the world, so that citizens see their efforts connected to a common purpose. People of all ages, stations, and skills will be asked to serve. Because when it comes to the challenges we face, the American people are not the problem – they are the answer.
So we are going to send more college graduates to teach and mentor our young people. We’ll call on Americans to join an Energy Corps to conduct renewable energy and environmental cleanup projects in their neighborhoods all across the country. We will enlist our veterans to find jobs and support for other vets, to be there for our military families. And we’re going to grow our Foreign Service, open consulates that have been shuttered, and double the size of Peace Corps by 2011 to renew our diplomacy.
We cannot continue to rely only on our military in order to achieve the national security objectives that we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded.
Undoubtedly, much of what Obama is talking about is also proposed on his website, for example:
He will establish a Classroom Corps to help teachers and students, with a priority placed on underserved schools; a Health Corps to improve public health outreach; a Clean Energy Corps to conduct weatherization and renewable energy projects; a Veterans Corps to assist veterans at hospitals, nursing homes and homeless shelters; and a Homeland Security Corps to help communities plan, prepare for and respond to emergencies.
So I think it’s incorrect to think that Obama is proposing some new paramilitary organization or is just referring to the FBI or the CIA.
B. Comments on Obama's Proposal
The part of Obama’s comment that may be a genuine cause for concern is his statement that this civilian force has to be “just as powerful, just as strong, just as well-funded” as our military.
1. First, Obama is suggesting a fundamental restructuring of our national government with civilian service organizations becoming roughly as important and as expensive as our military. He is proposing to carve another large slice out of the private sector and assign it to the government.
As his website makes clear, Obama is proposing to "Require 100 Hours of Service in College" and grant a $4,000 tax credit to college students for 100 hours of community service work, an effective wage of $40 an hour.
Require 100 Hours of Service in College: Obama will establish a new American Opportunity Tax Credit that is worth $4,000 a year in exchange for 100 hours of public service a year.
Further, Obama proposes to divert fully a quarter of college work study funds away from work in college libraries and student services to serving the larger community. (As someone who went to Yale College on a full need scholarship and did work-study, the university would probably have had to hire someone else to do much of the work that I did. Over two years I also did unpaid tutoring in a local high school.)
2. Second, there is the cost. The US military has about 2 million members in service and about 650,000 civilians employed by the Defense Department. Its proposed FY2009 budget is about $585 billion.
Today, before Obama’s expansions, AmeriCorps currently has about 1.875 million members in its various programs: 75,000 in the main AmeriCorps program, 500,000 seniors in the SeniorCorps, and 1.3 million students in the Learn and Serve America program. Obama’s proposed increases in AmeriCorps alone would lead to at least the 175,000 new members mentioned in his speech, bringing the AmeriCorps total to at least 2,050,000 members, about the same as the military’s 2 million members. While the military also has about 650,000 civilian employees, it is unclear how big the existing bureaucracy is at AmeriCorps and other parts of Obama's civilian security force.
With Obama’s proposed increases in the Foreign Service, the Peace Corps, and other agencies — not to mention the existing and expanded bureaucracies to run them — the total number of members of Obama’s civilian national security force should range from about 2.1 to 2.7 million members and staff, roughly the same numbers as are employed by the Department of Defense.
Yet the current budget of AmeriCorps is under $1 billion, as is the Peace Corps’. The budget of the Defense Department, on the other hand, is about $585 billion, over $200,000 per employee. Although the equipment costs involved in Obama’s civilian national security force would be small compared to the equipment needs of the military, they would not be trivial (building infrastructure is one of Obama's more expensive goals). (Further, pension and health care costs for former members of the military take up a significant minority of military funding.)
The Heritage Foundation reports that spending on military personnel averages $70,000 per member, though it is not clear what that entails.
If Obama is talking about funding his civilian national security corps at the same level as the military, he would need at least an additional $500 billion.
Even though Peace Corps volunteers are poorly paid under the existing program, the agency’s annual budget is still about $43,000 per Peace Corps volunteer, not a trivial amount. If pay for Peace Corps volunteers and funding for their programs were raised to military levels, the per capita cost of the program would probably increase several fold. If one raised funding for Obama’s civilian corps only to the same level as the military spending on personnel only ($70,000 per member), we would require at least $150 billion in additional annual funding.
These staggeringly huge numbers are driven in part by the large numbers of students in AmeriCorps, 1.3 million of them. If the students were paid only $4,000 each, rather than $70,000 in personnel costs, and the student program is assumed to be otherwise completely free to administer, and the rest of AmeriCorps cost $100,000 per member, then the budget increase needed would be about $100 billion.
Also, is Obama going to expand the GI Bill to cover the 2-3 million people in Obama’s civilian national security force? If they deserve the same power, strength, and funding as the military, why not?
So – if Obama means what he says – his civilian national security corps would cost at least another $100 billion a year, and perhaps as much as $500 billion a year. With total federal income taxes of $935 billion in 2005, Obama's proposal would mean using up to half of all federal income tax revenues just to fund his promise “to have a civilian national security force that's just as powerful, just as strong, just as well-funded” as the military.
3. Last, given the dangers and the sacrifices that our fighting men and women are making every day in Iraq and Afghanistan, is it really fair to suggest that AmeriCorps and similar programs should be “just as powerful, just as strong, just as well-funded” as the military?
Times have certainly changed. I hesitate to think what the American public would have thought of a politician during World War II who suggested that those donating their time to tutoring, visiting the sick, or leading blackout drills on neighborhood watches on the homefront should be “just as well funded” as those serving in the military. My grandfather, who was too old to serve in WW II and led such neighborhood drills, was a man whom I admired more than anyone else I knew while I was growing up. I’m certain that my grandfather would have thought Obama’s suggestion to be strangely lacking in proportion and simple common sense.
To comment on Barack Obama, go here. To comment on John McCain, go here.
Josh's posts will focus on his new article, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which makes the surprising assertions that, (1) while the Constitution gives Senators a right to resign their seats, Representatives have no such right, but may only quit if the House lets them, and (2) there are good reasons for the House to change its rules so that resignations have to be accepted by vote of the House to become effective. Long-time Conspiracy readers may recognize that this is Josh's second guest-blogging appearance here; he and his OxBlog cobloggers guest-blogged here nearly five years ago.
Third Circuit Rejects Proposed New "Depiction of Animal Cruelty" First Amendment Exception,
by a 10-3 en banc vote (U.S. v. Stevens). Here's my summary of the issue from when I blogged about another such case last year, though I've revised it slightly.
The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."
"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting or dogfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting or dogfighting was legal in the place (say, Puerto Rico or Japan) in which the video was created.
The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.
But the statute is written much more broadly than that. On its face, the statute would also punish, depending on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value" (emphasis added):
A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.
A magazine with photographs of people illegally killing endangered species in a foreign country.
A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).
One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."
Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.
The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.
The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,
production of cruelty videos can be done in secret, but the distribution has to be relatively public;
a ban on production will thus be very hard to enforce;
so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,
to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.
The argument against extending the child pornography exception would be:
The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.
The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.
The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)
This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.
Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view, and the Third Circuit decision suggests the risk of spread isn't that high, though note that the 3 dissenters did indeed rely heavily on Ferber as justification for carving out a new exception here.) But one shouldn't pretend that the slippery slope risk doesn't exist.
The McCain campaign has a long, nearly 8-minute ad up on its website, which is mostly just video clips of Barack Obama's statements on Iraq, interspersed with derogatory slides expressing negative conclusions about Obama. Personally, I could do without the ominous music and most of the slides (which are sometimes fair and sometimes not). Yet I like actually hearing Obama's views on what is for me the main issue. Although there might possibly be a clip taken out of context, my sense is that the clips shown are quite representative of his views on Iraq over time.
Indeed, I was happy to see that the political ad included a brief example of his view before he started running for President that we should NOT pull out of Iraq because of the destruction that would result from our leaving. This is the position he took in "The Audacity of Hope." Most people think that Obama always opposed continuing the war and always favored pulling out fairly quickly.
Personally, I would prefer that, should Obama clearly pivot on what to do in Iraq, he not be attacked by either the left or the right for flip-flopping, but rather commended for responding to new realities. After all, he is likely to be President, and the earlier he takes a more mature position on the war, the likelier he is to stick with it. Indeed, that Obama has been so slow even to begin changing his position is a worrisome sign. Even if Obama does change his views and decide to stay in Iraq and win a war that is now probably winnable, I wonder whether when he takes office he has the courage to disappoint his supporters, especially when he has to deal with, not only his extravagant promises, but the families of dead soldiers.
One thing I find disturbing about the Obama clips and some recent public comments is the degree to which he is trying to rewrite the history of what his positions were, particularly on the surge. Obama was wrong on the main foreign policy issue of his brief time in the US Senate, the surge, and he should correct his position as quickly and as forthrightly as is politically possible, not pretend that he always thought that the surge would work to reduce violence.
I would love to see a similar long, detailed ad on the Obama website on John McCain's shifting views on immigration (for amnesty/against amnesty; border control first/border control as part of a general solution). (Perhaps one is already there.)
My own immigration views are for tighter borders AND increased immigration through greatly increased legal immigration. I have long entertained the possibility that some portion of slots should be sold or auctioned off to screened, otherwise qualified immigrants, a proposal explored by Dick Posner and Gary Becker.
Three Difficulties With Using State Constitutional Rights to Infer Federal Constitutional Rights:
I really appreciate Eugene's thoughtful response to my earlier questions about the relevance of state constitutional rights to whether courts should infer or an analogous federal constitutional right. At the same time, I'm not yet persuaded. Here's why:
First, I have concerns with Eugene's approach from the standpoint of constitutional fidelity. I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V. As I understand it, the first Congress that debated and enacted the Bill of Rights looked largely to the provisions found in then-existing state constitutions for ideas. They selected the state constitutional amendments they wanted, and they declined to pick others.
It seems to me that Eugene's proposed methodology risks effectively nullifying those decisions. It seems a bit like a constitutional version of "heads I win, tails you lose." Those state constitutional provisions actually adopted become part of the federal constitution, and those that weren't adopted become of the federal constitution anyway because they are "traditional" (at least if they are sufficiently common in the states). I would prefer a constitutional methodology that draws a sharper line between Constitutional amendments that were actually adopted and those that weren't.
Second, I think Eugene's approach has troubling implications for federalism. If surveying state constitutions means that minority approaches tend to become constitutionally forbidden, you cause a shift in power from the states to the federal government. Diversity among the states is replaced by a one-size-fits-all rule from Washington, DC. This does happen in the Eighth Amendment setting, granted, but at least there's a textual hook: the word "unusual" suggests an inquiry into relative frequency, and state laws could help shed light on that. But here we seem to be interpreting no particular text at all, and the federalism concerns strike me as troublesome.
Finally, the relevance of state constitutional practice seems at best modest under existing law. I agree with Eugene that legal history and tradition is often an important part of constitutional decisionmaking. But I think the role of state law in interpreting unenumerated rights is narrower than Eugene suggests. In the substantive due process context, for example, cases like Washington v. Glucksberg that have tried to root substantive due process in historical practice treat history as a necessary condition but certainly not a sufficient one. That is, newfangled rights don't get recognized, but the fact that a right has a long historical pedigree does not mean that it gets constitutionalized. Indeed, the same cases that try to root the doctrine in history warn that courts must be "reluctant" to expand substantive due process, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court." Glucksberg.
Dave Kopel argues that the use of the word "the" in "THE right to keep and bear arms" indicates that the right was pre-existing.
A similar — though significantly different — argument has been made about "THE freedom of speech" in the first amendment, that including the word "THE" indicates that the right was pre-existing.
In the first amendment context, that argument misunderstands English grammar. When an of-phrase is newly coined, it should take an article, thus
"I recognize THE freedom of taking a shower whenever I please,"
"I recognize freedom of taking a shower whenever I please."
When an of-phrase becomes so common that it is treated as a single concept, only then is it idiomatic to drop the article. Thus, today we would usually say that a case "involves freedom of religion" or "involves freedom of speech." When a few hundred years ago, these phrases were not so common that they could be thought of as single concepts, we would have said that a case "involves THE freedom of religion" or "involves THE freedom of speech."
Now Dave Kopel's 2d amendment argument is different than the standard 1st amendment argument because an of-phrase is not involved:
"THE right TO keep and bear arms."
Although he is not entirely clear, I assume Kopel means that, if the right was not pre-existing, the 2d amendment might have said:
"A right to keep and bear arms."
But IMO idiom is not as reliable a guide here as Dave considers it to be. One can certainly use "A" to introduce rights thought to be pre-existing. Kopel does so himself in the post I am responding to. Kopel writes:
If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect A personal right to arms for self-defense.
But is it also idiomatic to use "THE" when the right is not recognized as pre-existing? Yes. Idiomatically, I might write either:
I believe that each American should have THE right to drive as fast as he wants.
I believe that each American should have A right to drive as fast as he wants.
Even though my examples presume that the right does not pre-exist, I still think that I might idiomatically refer to "THE right to drive as fast as he wants" or "A right to drive as fast as he wants." If I use "THE" to refer to a non-existent right, the word indicates which right I am refering to, in this example the particular right to drive as fast as he wants. IMO, using "THE" to refer to a right may just tell us which right is referenced, not that the right is pre-existing.
BTW, the best discussion of the use of articles before "of" phrases is in Wilson Follett's Modern American Usage (the versions edited by J. Barzun).
Over at Cato Unbound, Bob Levy (Cato), Dennis Henigan (Brady Center), and I are debating the Heller case. All three of us have new essays on the subject. My essay published today looks at the fatal flaw in the Stevens dissent: its treatment of "the" in "the right to keep and bear arms." The essay also examines which types of gun bans and gun storage laws may now be unconstitutional. Erwin Chemerinsky will weigh in next week. Thereafter, we will engage in a four-way blog discussion.
The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.
Indeed, the purpose of entering into civil society was for protection. As Locke argued, when a person attacks you (and when civil authorities would be ineffective in such an emergency), you have a right to defend against — and even kill — your attacker because he is in a state of war with you. Since preservation is the purpose of society, no legislature has the power to legislate in direct contravention of that right of self preservation.
The right of self defense is among the most basic of the natural rights and was sometimes described in the 19th century as a “fundamental” right.
The framers would have thought it strange to believe that people could have no right of self defense, even after they enter into civil society. Remember, the right to life was considered inalienable. Some 17th and 18th century commentators considered self defense to be, not only the permissible thing to do, but the morally required thing to do (for the same reason that suicide was considered immoral).
The legal question for an originalist would be: Is this natural right of self defense protected by the US Constitution, or does the Ninth (and/or Tenth) Amendment merely reserve it to the people by making clear that the new Constitution did not abrogate such pre-existing rights?
Most of the 19th century discussions that I’ve read seem to assume that it is a natural right, but not a right protected by the US Constitution.
Under that view, I would think that a state would not be allowed to take away the right of self defense completely (even if no 2d Amendment arms were to be used), because no government could legitimately do so.
This passage from Gray vs. Combs, 30 Ky. 478 (App. 1832), presents the issue nicely, as well as shows that, even for many originalists, the proper scope of the natural right of self defense might change over time based on changed circumstances.
The right of necessary defence, in the protection of a man's person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen's natural right of self defence. Sir Matthew Hale, in speaking on this subject, says, "the right of self defence in these cases is founded in the law of nature, and is not, nor can be superceded by the law of society. Before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporated into society, cannot resort for protection to the law of society, that law with great propriety and strict justice considereth them as still, in that instance, under the protection of the law of nature."
Accordingly, the framers would have thought the right of self defense to be a natural right, perhaps more fundamental than any other. This natural right would have been contemplated (but not explicitly guaranteed) by the language of the 9th Amendment. Whether that is enough to makes it a “constitutional” right I couldn’t say.
Perhaps other Volokh Conspirators or commenters can enlighten me on whether fundamental rights recognized as reserved to the people by the 9th Amendment are “constitutional” rights. I would say technically not, but I would also say that the US Constitution does not give governments the power to abrogate the right of self defense in a general way.
If one were to agree with me, would that make the right of self defense a “constitutional” right? Would a court in the US be duty bound to recognize such a right of self defense? Is every right that courts must recognize (by striking down statutes if necessary) “constitutional” by definition?
Other cases discussing or mentioning the natural right of self defense include Nunn v. Georgia, 1 Ga. 243 (1846); Missouri v. Quaite, 20 Mo. App. 405 (1886); Cockrum v. State, 24 Tex. 394 (1859); and Anderson v. Dunn, 19 U.S. 204 (1821) (argument of lawyer).
By the way, for an enterprising student, a good law review note topic (and title) might be “The Natural Right of Self Defense” or “The Fundamental Right of Self Defense.” If a student reader of the VC does indeed choose that topic, it might be kind (and in your own best interests) to let other student readers know of your choice by clearly disclosing your intentions in the comments, so that others can decide if too many others are working on that angle in the impending self defense debate inspired by Heller.
For background, here is Locke on the “fundamental law of nature, man being to be preserved as much as possible” from his Second Treatise:
Sec. 6: . . . Every one, as he is bound to preserve himself, and not to quit his station willfully . . . .
Sec. 16. THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. . . .
Sec. 19. . . . But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.
Sec. 25. . . . men, being once born, have a right to their preservation . . . .
Sec. 128. For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.
The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature . . . .
Sec. 129. The first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature. . . .
Sec. 131. But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. . . .
Sec. 134. THE great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.
Sec. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,
First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
This fall, I will be a visiting professor at the University of Pennsylvania Law School, teaching Property and a seminar on Federalism. Thanks to the Law School's generosity in providing me with a research stipend, I have the opportunity to hire one or two Penn law students as research assistants.
If you are a Penn law student and would like to take advantage of this exciting and incredibly lucrative (OK, maybe exciting and not so lucrative) job opportunity, please e-mail me and send a resume. My website should give you an idea of the sorts of issues I'm working on in my scholarship.
A higher court writes a decision which says X. Misreading the case, many lower courts claim that the decision means Y. Years later, the higher court faces the same issue. To what extent, if any, should the higher court's new decision take into account the reliance interests of the lower courts who said Y?
Is the obvious answer "none"? Justice Stevens and the other three dissenters in Heller did not think so. All nine Justices agreed that the Second Amendment secures an individual right, not a collective right. (The Justices disagreed about the scope of the individual right--in effect, a disagreement between X1 and X2.) Yet Justice Stevens in dissent complained at length that the Heller majority was harming the reliance interests of lower courts, and his litany of complaint about lower court decisions that were being disregarded included many "collective right" decisions from the lower courts.
I am working on a law review article on the subject. I would be grateful for any leads for law review articles which discuss what deference higher courts should give to a large body of lower court decisions on an issue of law, particularly when that body of decisions is based on the lower courts' controversial application of a precedent from the higher court.
The "Unitary Executive" and the Scope of Executive Power:
As co-blogger Jonathan Adler points out, Libertarian Party presidential candidate Bob Barr is one of many people who confuse the theory of the "unitary executive" with the claim that the executive has virtually unlimited power. Barr argues that "McCain has endorsed, in action if not rhetoric, the theory of the 'unitary executive,' which leaves the president unconstrained by Congress or the courts." In reality, the unitary executive argument is a theory about the distribution of executive power, not its scope. I addressed this crucial distinction in more detail in this post. I hate to quote myself, but I don't think I can improve on what I said then:
The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.
This is perfectly consistent with simultaneously believing that the scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X....
Constraining presidential authority in this way does not go against the theory of the unitary executive. What Congress cannot do without contradicting the theory is pass a law allocating authority to decide whether to do X to executive officials who are exempted from presidential control and removal.
Barr's claim that McCain supports unlimited executive power "unconstrained by Congress or the Courts" is also strange in light of the fact that McCain sponsored the McCain Amendment forbidding the use of torture, one of the best-known congressional efforts to cut back on the Bush Administration's extreme assertions of executive authority.
UPDATE: TalkLeft criticizes this post, arguing that the Bush Administration has claimed that the unitary executive theory does indeed justify unlimited presidential power. TalkLeft's post gives several examples of Bush Administration officials claiming extremely broad presidential power. However, none of the quotes in question claim that power on the basis of the theory of the unitary executive. One of the quotes mentions the "unitary executive branch" in passing, but rests its claim of broad executive authority on the Commmander in Chief Clause. And even if the Bush Administration has misused the term "unitary executive" on occasion, that is no reason for the rest of us to do so.
The post also cites a 2001 speech by Samuel Alito arguing that "all federal executive power is vested by the Constitution in the President." This statement, of course, is clearly compatible with strong judicial and congressional limits on executive power. Executive power can be narrow, yet still be entirely vested in the hands of the president. As Alito himself stated at his confirmation hearing:
The question of the unitary executive . . . does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive.
Finally, TalkLeft claims that the theory of the unitary executive (even as I construe it) is "self-evidently wrong" because of the Spending Clause and the Senate's power to confirm certain presidential appointees. I don't see how the existence of the clauses invalidates the theory that all executive power lies in the hands of the president. Rather, the existence of the Spending Clause simply shows that the power to control federal spending is not part of the power of the executive branch. Similarly, the Senate's confirmation power simply allows the Senate to veto certain presidential appointments. To use Alito's terminology, neither says anything about the question of "who controls whatever power the executive has."
The Olympics and Property Rights Violations in China:
The Boston Globe reports that as many as 1.25 million people have been evicted from their homes in Beijing by the Chinese government, so that the property they live on can be used to "beautify" the city in preparation for the 2008 Olympics [HT: Yefim Somin]. Numerous small businesses have also been forcibly displaced.
Although today's Chinese government shows greater respect for property rights than it did in the days of Mao Zedong, there is still a long way to go. As I noted in this 2007 post, some 40 million Chinese have been forcibly displaced by government-sponsored development projects in recent years.
New York City Declares Neighborhood "Blighted" so that Property Coveted by Columbia University Can be Condemned:
The New York Times reports that Columbia University has succeeded in its efforts to get New York City to declare a portion of Manhattanville "blighted" so that the area can potentially be condemned and transferred to the university in order to facilitate its expansion plans [HT: VC reader Michael Pitkowsky]. Once an area is declared blighted, all the property there can be condemned by the government at any time, for as long as the blight designation lasts (which can be many decades). I have previously criticized Columbia's efforts to use the threat of eminent domain to acquire this property (see here for the most recent post and links to earlier ones).
Although the Manhattanville area isn't one of New York City's most prosperous, it is clearly not blighted in the layperson's sense of the term (see here for a photo). Such blight as might exist on the area is actually on property already owned by Columbia, and thus within the University's power to alleviate without acquiring additional land. However, New York law, like that of many other states, defines "blight" so broadly that almost any neighborhood can be declared blighted and then taken by eminent domain and transferred to politically influential interest groups. Obviously, Columbia University has a lot of political clout in New York. As the Times article suggests, it is probably no accident that the firm that conducted the official study that found the area to be blighted also does consulting work for the University itself.
UPDATE: I criticized Columbia's arguments that the use of eminent domain in this cae will benefit the city in my original 2006 post on this issue. The bottom line is that if Columbia's planned uses for the property are truly more valuable than those of the current owners, the University should be able to get them to sell voluntarily. Indeed, their refusal to do so is a strong sign that they value the property more than Columbia does. For a more detailed exposition of the reasons why genuinely beneficial private development projects rarely if ever need to use eminent domain, see Part I of my 2007 Supreme Court Economic Review article, and this excellent article by Daniel Kelly.
UPDATE #2: Commenter Edward Hoffman points out that the photo linked in the original post includes a larger area than the one Columbia wants to expand into and notes that Columbia University's own website on the project contains more narrowly focused photos. Having actually been to this area, I think that Columbia has picked some of the least attractive buildings in the area to feature in its website (which, after all, is intended to defend its project). But even these far from flattering pictures don't prove the existence of blight in the lay sense of the term: severe dilapidation, threats to public health, and the like. What they show is a neighborhood with some esthetically unattractive buildings and infrastructure.
The White House and OLC:
The Washington Post offers up this very interesting story on the White House's initial insistence in 2003 that John Yoo would become the head of DOJ's Office of Legal Counsel. Marty Lederman adds some fascinating details about White House involvement in later OLC picks over at Balkinization.
One very minor correction: The Post states that Adam Ciongoli was "a onetime Supreme Court law clerk" in 2003, but I believe he clerked afterwards, in OT2005. I'm guessing Ciongoli is the first person to serve as a law clerk after he was seriously considered as a nominee to head the Office of Legal Counsel.
The idea of a "living Constitution" long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing "judicial activism" and proclaiming their fidelity to "original intent." However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired. . . .
even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.
For instance, most conservatives believe that the First Amendment safeguards political speech. Mr. McCain does not. . . .
In his May 2008 speech on judges at Wake Forest University, Mr. McCain talked about the importance of "the constitutional restraint on power," but in practice he recognizes no limits on government or executive-branch authority. In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress. . . .
It is important to choose judicial nominees carefully. But that is no reason for conservatives to vote for Mr. McCain. He has demonstrated no more interest in "conserving" the Constitution, and its principles of limited government and individual liberty, than has Mr. Obama.
This is a smart tack for Barr to take. Many limited government conservatives are quite disgusted by Republican profligacy and incompetence but nonetheless fear having a President Obama nominate two or more justices to the Supreme Court. Challenging McCain's credentials as a "judicial conservative" is one way to discourage conservative support and diminish conservative fervor for his campaign.
Judicial nominations is one of the few issues with the potential to keep many limited government conservatives in McCain's camp. But Bruce Bartlett is skeptical that "at the end of the day . . . the makeup of the Supreme Court will really be all that different under McCain than under Obama." According to Bartlett:
With Democrats virtually guaranteed to control the Senate by a comfortable margin in the next Congress, McCain would have enormous difficulty getting anyone nearly as conservative as Roberts or Alito onto the Supreme Court.
While McCain could theoretically just keep nominating conservatives until the Senate is finally forced to accept one of them, this approach is unlikely. There isn’t an unlimited supply of conservative jurists with the requisite experience to be a viable Supreme Court appointee. And if the confirmation process remains as contentious as it has been in recent years, many of those who are qualified will pass on the opportunity to have their lives torn apart.
More likely, McCain would be forced to appoint moderate justices just to get confirmation. . . .
McCain could help himself by explaining what his strategy will be to find dependable conservatives and get them confirmed. However, he has already repudiated the best hope Republicans had for circumventing Democratic opposition: the so-called nuclear option, which would have forced the Senate to give all federal court nominees an up-or-down vote. McCain basically destroyed any hope of getting a parliamentary ruling on this scheme by putting together the Gang of 14, a bipartisan group of senators that agreed to allow all qualified nominees to have a vote before the full Senate.
Conservatives have to ask themselves whether the man who torpedoed the nuclear option is really likely to fight to the bitter end for the kinds of justices they want to see on the court.
Bartlett suggests that Obama will also be constrained in selecting judicial nominees, but I think he overstates his case here. The likelihood of a GOP filibuster of an Obama Supreme Court nominee is quite small (as it should be). Still, if liberal justices are the next to retire, a President Obama would have difficulty moving the Court much to the left.
Note: Barr's op-ed makes the common mistake of conflating the theory of a "unitary executive" with a theory of robust or unconstrained executive power. The theory of the "unitary executive" concerns the nature of the President's control over the executive branch, but has relatively little to say about the scope of executive authority or the degree to which the executive may act unilaterally.
How Much Is Your Law School Worth on the Open Market?
College Life, an Orange County Register blog, reports that "Orange County’s first law school [Western State University College of Law], which educated an entire generation of lawyers and judges here since it was founded in 1966, has been sold to an education company based in Geneva, Switzerland.... The deal was estimated valued between $5 million and $10 million, according to SEC documents filed July 16 by Education Management LLC, the parent company of the for-profit law school."
Nyah, Nyah, Nyah, Nyah, Nyah, Nyah, 200 Years Ago:
A short snippet from the Newburyport Herald, Jan. 25, 1799, which illustrates just how hot the political divisions of the time were -- remember that this was the Sedition Act era of massive political warfare between the Federalists and the Republicans (whom the Federalists derided as Jacobins). "Sedition pole" is a reference to a liberty pole, at the time a symbol of opposition to the Adams Administration, that the target presumably helped erect; other accounts of the incident report that the Sedition and Alien Acts were burned at the foot of the pole. Here's the entirety of the mini-article:
Thursday last a petition was presented by Charles Webber, of Vassalborough, to the Mun. Court of Sessions, &c. now sitting in this town, for a Licence to keep a house of public entertainment, which (to the honor of the Bench) was unanimously rejected. So much for Sedition Poles, and being an enemy to country, Charley.
Oddly, Charley had already publicly repented two weeks before the article was written, perhaps because of the threat of Sedition Act prosecution.
The cases about secular enforcement of Muslim dowry-on-divorce agreements (see below) remind me of a broader thought I had offered before about Islamic agreements and American law: Those agreements should be treated the same as other agreements, without any attempt to specially nanny-state the parties.
If American law provides for certain constraints on contract enforcement generally -- e.g., you can't contract to have your hand cut off, certain prenuptial agreements are unenforceable, contracts entered into by minors are unenforceable unless properly ratified when the minor becomes an adult, parties can't contract away the rights of nonparties, such as the parties' future children, etc. -- those same constraints should apply to Islamic agreements. That should be true of agreements to arbitrate pursuant to certain rules, agreements to pay money in the event of a divorce, or whatever else. But if American law allows people freedom of contract, even when the people are young, foolish, socially pressured, and the like, Muslim people are as entitled as other people to such freedom (with the burdens that freedom often yields).
Sometimes the enforcement of the agreements might hurt Muslim women, who we think were wrongly pressured by family, community, or religion into waiving important rights. Sometimes it might help Muslim women, as with the enforcement of promises of a certain payment on divorce. But that, I think, shouldn't much matter, because the more important point is that Muslims, women, and Muslim women should be no more and no less entitled to freedom of contract than the rest of us.
If they feel undue pressure, the harsh but proper remedy is for them to leave the source of the pressure, again, whether family, community, or religion. Of course the law should protect them as best it can against unlawful (for instance, violent) retaliation for the departure; but that should be the extent of it. This "leave and take the social consequences, or stay and live with the contracts you make" is the remedy American law offers to the Amish, Hasids, Mormons, Catholics, Baptists, or anyone else, religious or not, who are dissatisfied with what their families, communities, or religions demand of them. It should be no different for Muslims.
Mohammed Zawahiri and Raghad Z. Alwattar were married, in an arranged marriage. The day of the wedding, Zawahiri signed a "mahr" under which he promised to pay his wife $25,000 in the event of divorce. Last week, the Ohio Court of Appeals held that the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.
What particularly interests me, though, is the trial court's alternative basis for its decision, on which the appellate court didn't opine: The First Amendment barred enforcement of a mahr -- just as it would bar the enforcement of an agreement to give a Jewish religious divorce (citing an unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 2446 (Ohio. App.)). Though the mahr requirement "seems less like a religious act than the participation in a religious divorce ceremony," "because the obligation to pay $25,000 is rooted in a religious practice, it is similarly a religious act" and a court therefore can't order the husband to make the payment.
I saw a similar First Amendment argument made in last month's Ahmed v. Ahmed, but the appellate court didn't consider it because it hadn't been properly raised below. I also saw it made and rejected in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002):
[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a “free exercise” of religious beliefs, no matter how diverse they may be. If this Court can apply “neutral principles of law” to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications. Enforcement of this Agreement will not violate the First Amendment proscriptions on the establishment of a church or the free exercise of religion in this country. “The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity.”
It seems to me that the New Jersey court got it right, and the Ohio trial court got it wrong: If two parties enter into an agreement promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable event (e.g., a divorce), there's no Establishment Clause barrier to enforcing such an agreement. There might be state law principles constraining such agreements. But the religious motivation for the promise, and the religious event in which the promise was made, shouldn't affect the analysis. (See Jones v. Wolf, which holds that church property disputes may be resolved by civil courts using "neutral principles" of contract and deed interpretation.)
I would go further and say that refusing to enforce a contract simply because of its religious source or motivation would itself violate the Free Exercise Clause, because it would deny people an important generally available right (the right to have contracts enforced) because of their religious motivations. A person who has a religious reason for entering into a contract is just as entitled to enforcement of the contract as a person who has a secular reason for doing so.
There are indeed reasons why civil courts may not enforce certain contracts, for instance when enforcing the contract requires interpretation of religious doctrine, or when it would require ordering people to perform an act that has purely religious significance. (I should note that there's a conflict among courts about whether enforcing prenuptial contracts to give a Jewish religious divorce, called a get, would violate the Establishment Clause; but that, I think, is because the giving of the divorce, as opposed to paying money, is indeed an act that has purely religious significance.) But when the contract simply calls for a payment of $25,000 in the event of a divorce, and the parties do indeed get civilly divorced (so there's no need to determine whether there's a valid religious divorce), then it seems to me that the motivation for the contract should not make any difference.
My answer to Orin is that "law" can validly mean many things, depending on the context and what you want to use it for.
For instance, Holmes -- explaining his famous "bad man" view of the law -- says that law is "the prophecies of what the courts will do in fact." (See The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897).) We can expand this a bit beyond courts and say, with Eskridge and Frickey, that "law is a prediction of the rules that interacting government institutions will apply." (See Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994).)
Thus, in most of our lives, most of us don't care what the law is in any abstract sense (I sure don't!); we just want to know what we should or shouldn't do if we want to avoid being punished by someone. That, to us, most of the time, is Law. Constitutional law is just a subset of law, so, among other things, we might want to know what we should or shouldn't do if we want to avoid being unconstitutional, which will usually be relevant only if we're some government actor. (But see Amend. 13, which means any private slaveholder is acting unconstitutionally!)
So usually, constitutional law will be current Supreme Court doctrine. It's possible that other branches might be applying their own constitutional rules -- maybe the Executive Branch has a policy of withholding government funds from property development projects it believes are unconstitutional, and maybe it has a different view of the Takings Clause than Kelo -- so then, from your perspective, constitutional law would also consist of the views of those other branches.
But that's not the only view of law! For instance, there are all sorts of unenforced or underenforced constitutional commands. The Suspension Clause says the writ of habeas corpus won't be suspended, unless in case of rebellion or invasion the public safety requires it. If Congress suspends the writ, it's unlikely that the Supreme Court would ever judge whether the public safety really requires it, or whether what's going on is really a "rebellion." There are lots of political questions like that, and other "underenforced constitutional norms." It's not that there's no law to apply -- it's just that whatever law there is is unenforceable.
Does that mean there's no law? From the "bad man" perspective above, that is correct -- there's no law. Congress can suspend habeas even when there's no rebellion or invasion or the public safety doesn't require it. But suppose -- just suppose -- that for whatever reason, you wanted to follow constitutional commands, perhaps because you took an oath to that effect and want to live up to it. In that case, the Constitution becomes an independent source of duties for you, and you have the obligation to figure out what duties it imposes.
Now you could just decide to listen to the Supreme Court all the time, or on certain questions (perhaps whenever there's something enforceable), or whatever; but that will be your choice. There's nothing in the Constitution that says the Supreme Court is always right. If you have a view on how the Constitution should be interpreted, and, after due consideration, you decide that you disagree with the Supreme Court, why not follow your own view? (Especially, as I said in my previous post, if the Supreme Court won't stop you, for instance if you take a more protective view, not as a matter of policy but as a matter of constitutional meaning.)
So suppose you decide that you believe in original public meaning. And you observe that, low and behold (moo!), all these originalist textualists have already created a whole body of work explicating that meaning! No need to read those pesky Supreme Court opinions (except for prudential reasons, to the extent they'd actually frustrate your plan); you've already got a whole set of binding principles that tell you how to act. What are these principles if not law?
Well, you don't have to call them law, but from your perspective, they're as binding on you -- if unenforceable by judicial means -- nay, more binding on you!, than the stuff laid down in Supreme Court opinions. It's what the "bad man with a conscience" has to follow if he doesn't want to be punished by his conscience. No, I don't think that all moral rules that you feel are binding should be called "law" -- if you were elected to office wanting to implement Kantian ethics, that wouldn't be law. But I do think it's fair to call them "law," at a minimum, if they derive from what are commonly recognized as legal principles, for instance, interpretation of a legal document. Once what you're doing purports to derive from a statute or constitution or treaty or suchlike, the rules that you derive that you claim bind you and should bind others are properly called "law."
Yes, this means that Hectorism can be considered "law," and arguments deriving from Hectorism are "legal arguments." It doesn't mean that non-Hectorists should give it any consideration, because, life being short, it's only worthwhile considering theories that (1) are actually applied in the world by at least some people, OR (2) are actually advocated in the world by people you respect, OR (3) are, in your view, meritorious.
And, as a final note: These arguments don't need to be OUGHT arguments at all. I'm perfectly capable of arguing that "the original public meaning of the Second Amendment implies position X," even if I don't believe that original public meaning has any normative value at all. It's just fun to talk about it! Larry Solum's recent article on Semantic Originalism, if I understand it correctly, makes the point that the meaning of the Constitution is original public meaning, but separates that from the question of whether one should actually follow the meaning of the Constitution.
So a non-originalist can make arguments from original public meaning that are contrary to Supreme Court doctrine; those can definitely be IS arguments about the meaning of the Constitution without being OUGHT arguments. And of course one can make OUGHT arguments without making any legal IS arguments about anything. For instance, "We should adopt position X because it's required by Kantian ethics" is an OUGHT argument, and is also an IS argument about Kantian ethics, but is not a legal IS argument.
As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution "means" something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution."
It is true that groups of people can get together and agree on what the Constitution means, and for them that will become what the Constitution "is." For example, a group could decide that the Constitution has 14 branches of government overseen by a Giant Iguana King named Hector. They would be quite distressed that the courts have not yet recognized Hector the Iguana King as the authority ("damn activist judges!"). But to them Hectorism is not a theory of what the law should be but what it truly is.
But as Sasha suggests, this is just a definitional point about what it means for the law to be something. To borrow from our former President, it depends on what the meaning of "is" is. "What Law Is" has filled libraries, and obviously I can't resolve it here. But I think I can take it to mean what I think most of us commonly think it means; what legal institutions believe it they must do or not do using widely shared practices of interpretation, rather than a person's view about what those legal institutions should believe.
The contrary view makes the notion of what the law "is" rather useless, I think, which presumably explains why it is not the common use of the term. If the Constitution "is" what a person thinks it is, and no two people agree on what that is, then the Constitution is different to everyone. There isn't much to be gained by talking about what it "is" at that point. So we could define it that way, but the results are silly enough that it's not the common understanding of the term. And besides, Hector insists, and Hector must be obeyed.
But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.
This is another classic and much-debated question in the law reviews, of course, and again I can't settle it here. But I intentionally tried to sidestep that debate in my post by not referring only to the Supreme Court or "Supreme Court doctrine." Rather, I made a point to refer to "legal institutions such as courts." To elaborate on that, I think Congress is a legal institution. The executive branch is one, as well. Exactly what their role should be in determining constitutional meaning raises a fascinating set of questions, but those questions are distinct from the point I was making in my post.
Is the "is"/"ought" distinction so clear in constitutional law?
In general, I endorse the is/ought distinction, in law as in other places. When Orin tells you what Supreme Court doctrine says, it doesn't mean he endorses it as the correct doctrine, the correct understanding of the Constitution, or whatever.
However, I think the line may be a wee bit fuzzier than Orin lets on. As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution "means" something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution. (Incidentally, I'm taking no position here on whether that view of a True Meaning is correct. This is an "is" point, not an "ought" point! In any event, I could phrase my argument without recourse to such views; but it's simpler this way.)
So, when we ask whether the Commerce Clause allows regulation of intrastate marijuana, one can give an "is" description of what the Commerce Clause means under one's preferred theory (e.g., "no it doesn't because the original meaning of 'interstate commerce' didn't cover that"), but that description would at the same time often be an "ought" description because usually such arguments would be accompanied with an argument that the theory is the normatively correct one. So such a description would be both "is" and "ought" at the same time, and more importantly, it could differ radically from what the Supreme Court says the Constitution means.
O.K., Orin might say — if I might put words into his mouth — but, he might continue, when I'm describing doctrine, it's clear what I'm doing — look, I'm citing Supreme Court cases! So (says the hypothetical Orin) let me translate my point into your rhetoric: Don't confuse "an argument about what current Supreme Court doctrine is" with "an argument about what the Constitution really means in your view, which really comes down to what you think Supreme Court doctrine ought to be."
Fair enough. But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.
Now you'll probably want to avoid doing what the Supreme Court says is unconstitutional, in a context where they're just going to reverse you, just like you want to avoid walking down a dark street in a dangerous part of town — it's probably prudent, but it doesn't mean you accept it as the way things should be. (But not even everyone agrees with that — some argue that there's a duty to follow your own view of the Constitution, even if it means reversal, because that's just your duty as a defender of the Constitution.)
But there's no reason why you can't take a stricter view of the Constitution than the Court. For instance, as a legislator, you might say: "The Supreme Court says this law is constitutional, but I disagree, so I'll vote against it on constitutional grounds." Or the President could use the same argument for vetoing a law, or for enforcing a law in a particular way. (Some have also written about the President's duty to veto, and the President's duty not to enforce unconstitutional laws.) Or regular folks could use their own view of the Constitution in making arguments to these officials.
This stuff rarely gets litigated. For example, regular people don't need to account to anyone for the arguments they make; elected officials don't need to give reasons for why they vote against or veto something; and so on. But these are still arguments about the meaning of the Constitution, or, if you want to put it differently, about the substance of constitutional commands.
Now, is this constitutional law? Because, some might say, arguing about сonstitution meaning isn't the same as arguing about constitutional law. For instance, in the view of some, "law" is just what comes out of the courts. (Perhaps constitutional law, in this view, should be influenced by constitutional meaning, but it might diverge from constitutional meaning sometimes, either for good or for bad reasons; but the two are different things.) I disagree, and so does a substantial literature on "popular constitutionalism." I won't try to give a complete definition of "law" here, but I'll say that at the very least, legal principles include any principles that purport to bind government actors in a way that purports to be independent of mere policy preferences.
For instance, this is a legal argument: "You, Senator X, have the duty to vote against this law regardless of how good an idea you think it would be as a matter of policy, because it's contrary to the true meaning of the Constitution, by which I mean the original public meaning."
And if Senator X himself claims, "I think this is an excellent idea, but sadly I feel bound to vote against it because it's contrary to the Constitution, even though the Supreme Court would uphold it," he's enunciating a principle of constitutional law, though not a principle of a judicial variety, and not one that could actually be enforced in any court.
An implication of all this is that if Senator X votes against a law because he (correctly, in your view) thinks it's unconstitutional, and the law gets enacted anyway, and then the Supreme Court (incorrectly, in your view) upholds it, then it's perfectly valid to say that Senator X understands constitutional law better than the Supreme Court does.
What this all comes down to is that when Orin makes an argument about the state of current Supreme Court doctrine, you should listen to him and not confuse it with an argument about what Supreme Court doctrine ought to be. But you also shouldn't think that Supreme Court doctrine exhausts the whole of constitutional law. And in particular, if your argument about what Supreme Court doctrine should be is grounded in some theory of constitutional interpretation, your "ought" argument can also be an "is" argument about constitutional law, though not about the Supreme-Court-doctrine branch of it.
Glenn Reynolds & Brannon Denning on the Second Amendment After Heller,
at the Northwestern Law Review's Colloquy. Both Professors, in addition to their other claims to fame, have written a good deal of scholarship on the Second Amendment before, and even more on constitutional rights more generally. Much worth reading, and only 9 pages.
The Relevance of State Constitutional Rights to a Federal Constitutional Right:
Orin asks -- in the context of our discussion of self-defense rights -- why the existence of state constitutional rights would be relevant to whether there is an analogous federal constitutional right. Let me offer a few thoughts on this.
1. Tradition: To begin with, the Court has made clear that whether American law traditionally recognizes a right is relevant to the existence and scope of federal constitutional rights. Washington v. Glucksberg says the existence of such a tradition is necessary to recognizing an unenumerated right (and Glucksberg strikes me as still important despite Lawrence v. Texas's seeming departure from the Glucksberg approach). Richmond Newspapers v. Virginia relied heavily on tradition in recognizing a First Amendment right of access to criminal trials (even though generally the First Amendment has not been read as securing a right of access to government property or proceedings).
Justice Scalia has long argued that traditional recognition of restraints should generally lead courts to uphold those restraints as constitutional, even where the question relates to the scope of an enumerated constitutional right. Likewise, in D.C. v. Heller itself, Justice Scalia suggested that various traditionally accepted gun controls would be constitutional, and my sense was that he was chiefly relying on tradition in doing so.
More broadly, in our legal system tradition -- which is to say the accumulated judgments of important governmental decisionmakers -- influences court decisions. That's clearest when the tradition comes from judicial precedent (even of other courts), but it's also visible when courts rely on legislative decisions (again, even outside the jurisdiction) and other governmental judgments. There are, for instance, many tort law cases in which courts choosing a common-law tort rule consider as authority the decisions of other state legislatures as well as the decisions of other courts.
2. State Constitutional Rights: And if courts look to traditional recognition of a right as evidence that the right should be further constitutionalized, it seems to me that recognition in state constitutions should be an especially influential form of recognition. Now it need not always be so, for instance if the right is controversial, and some state constitutions recognize it but others deliberately reject it. (Consider, for instance, "right to work" amendments in some state constitutions, which bar private employers and unions from requiring that all employees pay union dues.) But in a case such as self-defense, there is no such controversy. Rather, all the states recognize the right as a matter of common law or statute, and on top of that 21 states recognize the right in a state constitution, plus 23 more recognize a state constitutional right to bear arms in self-defense.
The state constitutional evidence as to self-defense (whether the 44 states if you include the right to bear arms in self-defense states, or only the 21 that speak separately of the right to defend life) thus strikes me as evidence of a particularly strong and important tradition of protecting the right. The state constitutional evidence may be neither necessary or sufficient, but it seems an important piece of data nonetheless, and likely to be of influence on courts considering -- especially under the Glucksberg rule -- whether to recognize a federal constitutional right of self-defense.
3. Rebutting the Charge of Novelty: Finally, consider a question that Orin himself asked as to whether there's a constitutional right of self-defense:
If it's so obvious, why is it that no one has recognized the right before? Indeed, why is it that (as far as I know) no one litigated the issue in court in the last 220 years despite hundreds of thousands if not millions of opportunities?
For reasons related to what I said in item 1, these sorts of questions are very important in a fundamentally conservative legal system, or for that matter to anyone who takes a Burkean or Burkeanish approach to constitutional law. Remember, as the old saying goes, "law is the only field where 'that's an original idea' is a pejorative."
Well, the state constitutional cases, and the court decisions I cited in which the claim was raised by the parties and in which the court recognized a constitutional right, seems to answer Orin's objection: Some people, specifically at least 21 sets of state constitutional drafters, plus the judges who applied the provisions, did recognize the right. Some people litigated the provisions -- not often, perhaps because the right to self-defense has been so broadly accepted, but sometimes. It's true that most of the cases involved people raising specific state constitutional rights, but some spoke more broadly about constitutional principles that weren't mentioned in that particular state's constitutional text. And of course it makes sense that litigants in state court would raise state constitutional objections, especially before the massive federalization of constitutional criminal procedure that mostly took place in the 1960s.
So I hope the state constitutional evidence -- both the provisions and the many cases I cited that apply the provisions, including sometimes to trump contrary statutes (and sometimes to interpret statutes or common-law principles) -- does help respond to Orin's
"If it's so obvious, why is it that no one has recognized the right before?" objection. One can still argue, of course, that for various reasons the federal courts should decline to recognize a federal constitutional right to self-defense. But I hope I've demonstrated that the state constitutional evidence is important here, even if not by itself conclusive.
Confusing "Is" and "Ought" in Constitutional Law:
When I write a post that discusses existing constitutional law, it's common for a commenter to chime in that I am wrong to want the law to be that way. In other words, the commenter will imagine that my descriptive claim is really a hidden normative claim: That is, when I describe the law, I must really be describing what I personally want the Constitution to mean rather than what legal institutions such as courts actually indicate that the law is.
Why is that? I suspect the reason is that many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought." When asked what the Constitution means, lots of people construct a pastiche of existing law and law that they personally would really like. Libertarians will usually offer a nicely libertarian constitution, kind of a mix of existing law and libertarian thought; liberals will offer a liberal one, mixing their existing law with liberal politics. (In that setting, the purpose of high constitutional theory is coming up with creative arguments for why a particular set of policy views really are the ones embedded in the Constitution: unsurprisingly, people are generally persuaded by theories that embed their own policy views and unpersuaded by theories that embed someone else's.)
In light of his common practice, I suppose I can understand why many readers would confuse "is" and "ought." The distinction may be so often overlooked that it just gets lost. For what it's worth, though, when I describe the current state of the law, I am being purely descriptive, at least to the best of my ability. That is, I'm trying to describe what the law is in the same way I might describe the law to a client who needs to know the legal consequences of particular conduct.
Of course, simply describing the law is not rocket science. To be candid, many law professors think such things are beneath them (eww, doctrine — how unsophisticated!). But in my view, an accurate description of the law is often an incredibly important starting point for discussions about potential legal change. You can't assess where you're going if you don't first know where you are, and a blog can be a great way to get us all on the same page about where we are. So while I will sometimes make a normative argument, I will often make a purely descriptive one: and when I make a descriptive claim, please understand that I don't mean to endorse the law just because I have described it. And where it's not clear which type of claim I am making, feel free to ask in the comment thread and I'll very likely respond pretty quickly to clarify.
Yes, says the Manhattan Institute's Walter Olson in a blog post. Olson, who has been deftly criticizing our society's litigiousness for years at overlawyered.com, argues against what he sees as a trend in the business community toward support for direct election of state court judges. The argument has been that merit-screening panels and gubernatorial appointment systems are prone to capture by interests hostile to business, like trial lawyers. If judges are elected, the thinking goes, litigation outcomes will be fairer and more predictable. Olson responds:
Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies — in Western Europe, Japan, Canada — as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive "American disease" of law.
When you get down to comparisons between particular states, the sorts of outrages of which business has long complained — runaway juries, outlandish punitive damages, judges who practice "home cooking" favorable to local chums — have long been concentrated in the same states where partisan judicial election is the order of the day. Most of the fabled nightmare jurisdictions — south Texas, Alabama, the Bronx — were and are places where judges run for election. Meanwhile, Delaware, known as the state most favored by business in litigation, had and has appointive judgeships. Alex Tabarrok and Eric Helland have found strong evidence that where judges are elected on partisan ballots, trials result in higher verdicts against business defendants and specifically against out-of-state business defendants.
So what explains the otherwise baffling admiration of some business advocates for an institutional arrangement they once rightly distrusted? A major factor, surely, is that in the last decade or two a coalition led by the U.S. Chamber of Commerce has enjoyed great success in pouring campaign contributions into high court races, in the process transforming some of the state high courts formerly most hostile to business defendants, such as Alabama, Texas, and Michigan, into courts highly skeptical of many of the excesses of litigation. . . . But it is a mistake to observe a tide that has been sweeping out to sea, and conclude that it will continue to sweep out indefinitely. It is hard to deny that the substantive improvement in some of these courts has been bought at a cost of politicization and polarization which inevitably invites the other side to respond in kind when its day comes.
If you're interested in these issues, it's worth reading Olson's entire post. Having lived and practiced for years in Texas, where state court judges are elected on partisan ballots, I'm sympathetic to Olson's preference for some form of merit selection system (perhaps tempered by retention elections). I'm inclined to think the quality of the judiciary — in terms of expertise, understanding of the law, levels of corruption, and temperament — is on average better when judges are appointed and don't face the myriad pressures of democratic politics.
An objection to Olson's argument could be that in theory, at least, there's no reason one system rather than another will systematically favor or disfavor any particular set of interests, business or otherwise. If the enemy is trial lawyers, for example, it's possible for them to exert inordinate influence over either a merit system or an election system; the first through bar connections and donations to gubernatorial campaigns, and the latter through judicial campaign contributions. Any special-interest group will have the motivation, and some will have the means, to help produce results they favor given either selection system. On the one hand, elections might excite populist sentiments and demagoguery against the wealthy and big business. On the other hand, business interests have been politically very successful inveighing against what they deride as greedy trial lawyers and frivolous lawsuits. But Olson makes a good argument and provides some evidence that, on the whole, business interests are better served by a merit system where the judges themselves are more likely to understand the law and try to apply it in a principled way.
One of the books I've been spending some time with, the past week or so (on a recommendation from my daughter - thanks, Sarah!), is Brian Greene's truly magnificent "The Fabric of the Cosmos: Space, Time, and the Texture of Reality." It's a kind of summary snapshot of the state of modern physics, very much intended for the non-specialist, and it's been, for me, something of a revelatory experience. I've never read anything that does nearly as good a job explaining the truly extraordinary and bizarre rules that, apparently, govern our universe. Greene does a spectacular job explaining, using really well-chosen and well-thought out (and incredibly simple) examples, the fundamental ideas underlying special and general relativity, the profound differences between the Einsteinian view of the universe and the quantum mechanical view of the universe, the reason why "string theory" might actually better explain the nature of things, and the like. And he's appropriately awe-struck at how un-real reality seems to be. I had thought I understood (at least in a non-technical way) the idea behind Heisenberg's Uncertainty Principle: that you could not simultaneously measure both a particle's velocity and its position, that measuring one of them necessarily meant you could not obtain information about the other. Pretty weird, but not nearly as weird as the actual version of the Principle, which I now, thanks to Greene, have a glimpse of: that particles don't have any "position" or "velocity" until you attempt to measure the one or the other. That, friends, is a very strange universe to live in.
In any event, if you're interested in any of this stuff and don't feel you really have a grasp of what the physicists are all arguing about, I can't recommend Greene's book highly enough.
The Relevance of State Constitutional Rights to A Federal Constitutional Right:Eugene suggests that the existence of state constitutional rights is relevant to whether there is an analogous federal constitutional right because it sheds light on "whether the right is firmly rooted in American law." But I'm not sure how firmly rooting a right in state constitutions sheds light on whether the U.S. Constitution protects it.
As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside). So a state can establish a constitutional right not to have one's labor treated as a commodity, see New York Constituion, Art. I, Sec. 17 ("Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed."). Or it can establish a constitutional right to have English as the official language, see Arizona Constitution, Art. 28. Or it can establish a constitutional right to have contributory negligence treated as a question of fact for the jury, see Oklahoma Constitution, Section XXIII-6.
State constitutions are chock full of such things. But as far as I know, these state constitutional rights don't generally change the meaning of the U.S. Constitution. Constitutional rights don't generally seep from one sovereign to another.
Granted, state constitutional law can become relevant to federal constitutional law in some contexts. Take the Eighth Amendment (please!). Under the Supreme Court's current head-counting approach to the Eighth Amendment, state constitutional law could in fact influence whether a particular punishment amounts to "cruel and unusual punishment." But I don't see the relevance of that head-counting approach in the Second/Ninth/Fourteenth Amendments-and-Associated-Penumbras context that we are considering here.
Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:
From yesterday's unpublished U.S. v. Gilbert (some paragraph breaks added):
Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms ..., one count of being a felon in possession of a firearm ..., seven counts of possession of a machinegun ..., and two counts of possession of an unregistered firearm ....
At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.
The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:
A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.
... The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law.
The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms....
Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment.... [T]he charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length.
Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible [as irrelevant]. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.
Whatever one might think about what D.C. v. Heller should have said about these issues (and I'm inclined to approve of its conclusions on them), it seems to me the Ninth Circuit read and applied Heller quite correctly.
Forty-four state constitutions, dating from 1776 to 1998, secure a right to keep and bear arms; 40 of these clearly secure an individual right to keep and bear arms in self-defense, though they may also secure a right to keep and bear arms for other purposes. Of these, 22 say this expressly, using provisions such as “every citizen has a right to bear arms in defense of himself and the state”; 17 have been read by courts as securing an individual right to keep and bear arms in self-defense; in one more state, Alaska, the expressly individual right was enacted in 1994, when the supporters of an individual right to bear arms treated the right as aimed at least in part at self-defense. Any “right [of a citizen] to bear arms in defense of himself” necessarily presupposes some right to use force, including lethal force, in self-defense. A few court decisions say so expressly, but the conclusion flows clearly from the text of the right-to-beararms
The ten states that lack an individual right to bear arms aimed partly at self-defense are California, Iowa, Maryland, Minnesota, New Jersey, and New York, which have no right-to-bear-arms provision; Kansas and Massachusetts, in which the provisions have been read as securing only a collective right; and Hawaii and Virginia, in which the provisions do not expressly set forth the right as individual, and in which state courts have not
decided whether the right is individual. Of these, California, Iowa, Massachusetts, and New Jersey expressly secure in their constitutions a right to defend life. Thus, 44 of the 50 state constitutions secure an individual right to self-defense in some way, 4 only through a right to defend life, 23 only through a right to bear arms in self-defense, and 17 through both.
It is not clear, though, that these provisions presuppose a right to use force in defense of property rather than in defense of life or in resistance to serious infringements on liberty, such as attempted rape or kidnapping. American law has generally not allowed the use of deadly force in defense of property (with some important exceptions), so a right to bear arms, which generally refers to deadly weapons, is more logically seen as focusing on self-defense rather than defense of property. In fact, only 8 of the right-to-bear-arms provisions mention defense of property, though 3 more mention defense of home but not of
Continuing with how the state constitutional right to self-defense has indeed been asserted -- sometimes successfully -- in various kinds of cases:
Criminal Law: A few cases have used state constitutional self-defense rights as guides for determining the scope of permissible self-defense in criminal cases. For instance, Ohio courts relied on the Ohio “defending life” provision to recognize an exception to bans on felons’ possession of firearms when the felon picks up a gun to stave off an imminent threat. Likewise, a California court relied on the California provision to clarify the longstanding principle that self-defense is unavailable when the defender is the one who started a deadly fight, a principle that has sometimes been imprecisely cast as an exception for cases of “mortal combat.” The jury had been instructed -- in the language of the applicable statute -- that “a person claiming [self-defense] if he were the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed”; the court concluded that this instruction was unconstitutional:
The right to defend life is one of the inalienable rights guaranteed by the constitution of the state. It is plain that if a person without fault is assailed by another and a mortal combat is precipitated, to require the former to attempt to withdraw before killing his adversary is to require the very thing that may prevent him from defending himself at all. The instruction is quite capable of the interpretation that although the defendant was without fault and the deceased was the aggressor, yet, if they were engaged in a mortal combat, it was the duty of the defendant to endeavor to withdraw before killing his adversary, although he had reason to believe, and did believe, his life was in imminent danger, and that to attempt to decline further struggle would increase his peril and probably enable his adversary to kill him. Such, of course, was not the intention of the learned trial judge in giving the instruction nor, probably, of the legislature in enacting the law, but it is capable of such interpretation and may have been so interpreted by the jury.
Similarly, a 1913 Colorado decision relied on the
constitutional status of the right to defend one’s home in rejecting a husband’s claimed right to enter another’s house to bring back his estranged wife. Bailey’s sister had fled her abusive husband and came to stay at Bailey’s house. The husband came to Bailey’s house; Bailey demanded that he not come in; the husband came in, and Bailey shot him. Bailey was convicted of murder, in a trial at which the court instructed the jury that a husband
had a right to enter, in a lawful manner, the house ... of any person ... for the purpose of talking with and procuring his said wife to leave the said house, and had a right to use such reasonable force and persuasion as was necessary to induce
her to ... come back to her home with him; and no person ... had a right to interfere with him in the exercise of such reasonable force or persuasion.
The Colorado Supreme Court reversed the conviction partly because this instruction “would destroy the moral, constitutional, statutory and common law right of defense of habitation.”
Civil Liability: One case, Kentucky Fried Chicken of California v. Superior Court, relied on a state constitutional right to defend property to hold that a shopkeeper’s agents have “no duty to comply with a robber’s unlawful demand for the surrender of property,” even when the robber is threatening a patron’s life. [There are also other opinions on this question, but they focus on nonconstitutional
self-defense or defense-of-property principles rather than a constitutional guarantee.]
Employment Law: Several cases have relied on state constitutional self-defense rights in concluding that an employer may not fire employees for acting violently when the violence was committed in reasonable self-defense. In the course of deciding whether firing an employee for his actions constitutes tortuous “discharge against public policy,” courts often look to whether the state or federal constitutions protect that conduct against governmental retaliation. Such constitutional protection is not necessary or sufficient for the tort to be recognized, but it is relevant to the decision.
I've been very pleased that a number of law schools assigned the draft version of the essay to entering students. I hope they will continue to assign it using the final (and nicely formatted) version rather than the draft. As I noted last year, the essay has a creative commons license which means that the final essay can be freely reproduced and posted elsewhere for any educational or non-profit purpose.
A Skeptical View of A Constitutional Right to Self-Defense:
As I'm the VC's resident proponent of judicial restraint, it's probably not surprising that I'm not quite ready to accept Eugene's views about a federal constitutional right to self-defense. Just a few quick responses to Eugene's very interesting posts on the topic:
(1) I agree that there are snippets of opinions that could be used to support an argument that there is some kind of constitutional right to self-defense. But these snippets strike me as just, well, snippets. A court could cite them if the court wanted to go there, but the authority itself doesn't seem to be strong enough to actually establish the point.
(2) Eugene suggests that there can't be a Second Amendment right to use guns in self-defense without a general right to self-defense "because tradition is on the side of a right to self-defense using whatever means come to hand." I'd be interested in hearing more about this, as I don't think I understand its import. The fact that something is traditional doesn't mean without more that the constitution protects it.
(3) On the question of whether Justice Scalia would recognize a constitutional right to self-defense, I don't know. I would think that such a move would be pretty inconsistent with his well-known opposition to judicially-crafted unenumerated rights. Such a move would be particularly ironic if Eugene is right in his argument that a constitutional right of self-defense explains parts of Roe v. Wade and Casey. But who knows.
(4) The disagreement between Eugene and me reminds me a bit of our disagreement in April 2007 over the "defense of property" defense. You can read the exchange here. It was a different discussion, of course, but there's a common theme of my seeing the defenses as creatures of the legislature and Eugene seeing them as more general background principles.
The state constitutional defense-of-life/property provisions have most clearly and most often made a difference in cases where a person claimed a right to kill wild animals to “protect property.” These cases have read the right to “protect property” as a judicially enforceable constitutional right that could trump statutes. It follows that the coordinate right to “defend life” -— a right that the common law historically saw as even broader than the right to protect property —- would likewise be seen as an enforceable right.
The longest line of such precedents comes from Pennsylvania, where cases from 1917 to 2000 hold that the constitutional right to protect property entitles landowners and their agents to kill wild animals that are threatening the landowner’s crops, and that it is unconstitutional for state game laws barring the killing of wild animals to be applied in such situations. Cases from Iowa, Kentucky, Montana, New Hampshire, and Ohio take the
same view. Cases from Alabama, South Carolina, Washington, and Wyoming take this view even though the states do not have express defending life/protecting property provisions.
The common law has generally seen protecting property as an inadequate justification for using force that is deadly to humans; the constitutional right likely doesn’t extend beyond this common-law tradition. But when the law tries to interfere with the use of even nonlethal force against humans, the right to protect property may intervene: Consider In re Reilly [a 1919 Ohio case], which held that a ban on hiring security guards during a strike unless the guard “shall first have been empowered to act such special guard by the director of public safety” violated the state constitutional right to “protect property.”
State Constitutional Rights of Self-Defense and Defense of Property:
The recent posts on whether there's a federal constitutional right of self-defense reminded me that very few people have paid attention to state constitutional analogs of the right (and the state constitutional right to defend property). Even experienced criminal law professors are often unaware, I think, of these rights, and there's very little literature on them. I thought, therefore, that I'd serialize my short and mostly descriptive article on State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007), which discusses (though doesn't deeply analyze) the rights and some of the cases decided under these rights.
If you're interested in citations for the various cases I mentions, just click on the link above and you'll see them; nearly all the applications of the rights that I mention are based on real cases discussing the state constitutional rights, and sometimes relying on them to limit government action. (I don't necessarily approve of all these applications, here I am just describing them.) I should also stress again that this article is about state constitutional rights; the federal constitutional analysis would be different, but for reasons I mentioned yesterday, I think there's a good case that such a federal constitution right exists, and the state constitutional tradition is relevant both to whether the right is firmly rooted in American law and to whether the right is sensibly judicially administrable.
Here's a slightly adapted version of the Introduction:
“[D]efending life and liberty” and “protecting property,” twenty-one state constitutions expressly tell us, are constitutional rights, generally “inalienable” though in some constitutions merely “inherent” or “natural” and God-given. A sample, from the California Constitution, which California courts have indeed found to secure a constitutional right to self-defense (emphasis added): “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Yet these constitutional rights are also almost entirely undiscussed ....
This silence may stem precisely from the broad acceptance of self-defense (and defense of property, at least with force that is not lethal to humans) as a criminal law doctrine. If states never deny people the right of self-defense, then there’s little occasion to explore constitutional limits on such denials.
Nonetheless, the constitutional status of self-defense [both under these state constitutional provisions and under state provisions that secure a right to keep and bear arms in individual self-defense] may matter; it may, for instance, influence courts’ judgments about:
the boundaries of self-defense or defense-of-property doctrine, such as proposed self-defense exceptions to felon-in-possession statutes, or [rules about] when someone forfeits his right to self-defense against fellow criminals by engaging in a drug transaction;
tort liability based on acts of self-defense or defense of property, such as when a store’s employee defends himself against a criminal and in the process inadvertently jeopardizes a third party;
limits on private employers’ ability to fire employees for violent acts in the workplace when the acts were defensive;...
the permissibility of bans on nonlethal weapons such as tasers (even setting aside the gun control debate).
And, more broadly, thinking about a right that many constitution-drafters found important enough to expressly secure may provide a broader perspective on American constitutionalism.
Why Doesn't Israel Have the Death Penalty for Murder by Terrorists?:
The farce plays itself out over and over. Israel captures terrorists, some of whom are guilty of horrific mass murders. Capturing the terrorists often requires the sacrifice of great human, financial, and intelligence resources. The terrorists' allies respond by planning various operations to obtain human "bargaining chips," dead or alive, to use in exchange for their captured allies. Israel then agrees to release anywhere from a handful to hundreds of terrorists in exchange for dead bodies or one or a handful of live captives. The released terrorists become heroes, and some go on to commit new murders.
The prisoner exchange taking place today is hardly the worst of them, but it illustrates the point. Israel is releasing Samir Kuntar, guilty of the horrific, cold-blooded murder of a child (and who is shamefully apparently a national hero in Lebanon) and two adults, in exchange for the bodies of two dead soldiers. The soldiers themselves were abducted in an attempt to gain Kuntar's release, an incident that provoked the 2006 Lebanon Hezbollah war, and led to the death of dozens of more Israelis.
I simply don't understand why Israel doesn't put an end to this madness and institute the death penalty for murder caused by terrorism. I have mixed emotions about the death penalty in general, but this is one circumstance in which I think the arguments in favor are overwhelming. The special absurdity is that Israel will institute the death penalty for "genocide", but applies this concept only to perpetrators of Nazi crimes (it was, for example, imposed, then overturned, on John Demjanjuk) who deserve it but are currently harmless, but not to, say, murderous members of Hamas or Hezbollah, organizations which would be all too happy to massacre the Jewish inhabitants of Israel if given the opportunity, and are presently deadly.
(Of course, the wisdom of the prisoner swaps is itself highly questionable, but if, for example, Kuntar had been executed in the late 1970s as he should have been, the issue wouldn't arise to begin with.)
UPDATE: I think it's worth recounting the actions of Lebanon's "national hero," via Wikipedia:
After drowning Danny [the father] in the sea in front of Einat (as Ahmed Al-Brass, Mhanna Salim Al-Muayed, and Abdel Majeed Asslan served as look outs and backup cover for Kuntar), Kuntar turned his attention towards the 4 year-old. He took his rifle and then swung it across the toddler's head, knocking her to the ground. Kuntar then dragged the toddler a couple of feet to the closest rock he could find and laid her head down on a rock, with the intention of crushing it with the butt of his rifle. Einat, instinctively covered her head with her arms, Kuntar struggled with the toddler until he finally managed to clear her arms out of the way. Once her arms were out of the way, Kuntar repeatedly beat her on the head with the butt of his rifle and stomping on her body, until blood rushed out of her ears and mouth. Then, to ensure she was dead, Kuntar continued beating her over the head until her skull was crushed and she was dead.
And Wikipedia also states that the hijacking of the Achillee Lauro cruise ship, which led to the murder of American Leon Klinghoffer, was part of an attempt to win the release of Kuntar and other prisoners.
And to compound the ironies, I've also read that Kuntar's original mission was to take hostages to exchange for other terrorists.
In an interview with the New York Times published on Sunday John McCain stated that "I don't believe in gay adoption." That morning I blogged here about this statement, calling for a clarification from the McCain campaign about whether he really opposes all adoptions by gay individuals and couples. It seemed to me unlikely that that was really his view and that, in the context of the culture war, he was really expressing a preference for opposite-sex adoptions.
McCain could have been clearer in the interview in stating that his position on gay adoption is that it is a state issue, just as he made it clear in the interview that marriage is a state issue. He was not endorsing any federal legislation.
McCain’s expressed his personal preference for children to be raised by a mother and a father wherever possible. However, as an adoptive father himself, McCain believes children deserve loving and caring home environments, and he recognizes that there are many abandoned children who have yet to find homes. McCain believes that in those situations that caring parental figures are better for the child than the alternative.
- Jill Hazelbaker, Director of Communications
We could quibble over whether this statement is really a clarification or a retreat. In any event, it's welcome. First, McCain properly affirms that this is a state, not federal, matter. Second, whereas before McCain suggested that it's always best for children to be raised by mothers and fathers, he now acknowledges this often won't be possible since "there are many abandoned children who have yet to find homes." Third, the seeming insistence on opposite-sex adoptions is replaced by what the campaign calls "loving and caring home environments" and "caring parental figures." It's the kind of language about families I would expect to see in a law review article written by a gay activist.
It's not perfect. It doesn't explicitly state that McCain "favors gay adoptions" in some circumstances. It tries to mollify religious conservatives by indicating McCain's "personal preference" for a mother and father in adoptions. (That effort failed: the anti-gay Family Research Council is now concerned that McCain is "muddying the waters" of his earlier opposition to gay adoptions.)
While the new statement could have been clearer in repudiating McCain's earlier answer on the issue, it does accomplish a couple of important things. It makes it clear that McCain is not opposed to adoption by gay individuals. That was in any event a politically untenable stand since only Florida prohibits adoptions by all homosexual individuals. And McCain's new statement suggests that adoption by homosexual couples is preferable to leaving children in foster care. If so, that's a more ambitious stand in favor of gay parenting, since such "second parent" adoptions are now permitted in only some jurisdictions in about half the states. On the whole, unlike the seemingly hard line he took against gay adoption on Sunday, today's statement is more nuanced and is defensible given the current state of the social science on gay parenting.
Orin's and David Kopel's posts below discuss whether Heller recognized a constitutional right to self-defense. I'm inclined to say the answer is yes, for the following reasons:
1. Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Why would the Constitution let you keep an object for a certain purpose, when all use of the object for that purpose could be outlawed?
2. Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional statute, e.g., "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."
3. I suppose that a right to keep and bear arms in self-defense could coexist with a regime that allowed people only a right to self-defense using arms, and that banned unarmed self-defense, or self-defense with weapons that might not qualify as "arms" for Second Amendment purposes. But that wouldn't make a lot of sense: Why would you have a right to defend yourself — lethally, if necessary — using the most lethal weapons, and not using less lethal means? Sometimes the legal answer to some questions is "because that's the way we've always done things, even if you think that's illogical," but that answer can't work here, because tradition is on the side of a right to self-defense using whatever means come to hand.
4. But can an opinion by Justice Scalia, no fan of unenumerated rights, be read as recognizing such a right? Well, it does seem to read that way on its face; and beyond that, Justice Scalia has signalled an openness both to unenumerated rights when they have been broadly recognized for hundreds of years, and to this right in particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (four-Justice plurality authored by Justice Scalia) (suggesting that "the right to have a jury consider self-defense evidence" may be "fundamental" and supported by the "historical record"; such a right would make little sense if self-defense could be abolished as a defense).
5. At least some lower court judges — including some Reagan and Bush appointees — have shown a willingness to recognize a constitutional right to self-defense, even before the Second Amendment was recognized an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047, 1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.** (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en banc); DeCamp v. N.J. Dep’t of Corr., 902 A.2d 357, 361–62 (N.J. Super. Ct. App. Div. 2006) (endorsing Judge Ripple’s position and concluding that prisoners have self-defense rights, though without explicitly deciding whether those are federal constitutional rights or only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S. 107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a constitutional right to self-defense generally, though the case involved only prisoner rights).
6. Likewise, at least two state courts have expressly read a state constitutional right to bear arms in self-defense provision as supporting a right to self-defense, at least with those arms (though for the reasons mentioned in item 2, I don't see how the right would be so limited. See McKellar v. Mason, 159 So. 2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 142–44 (W. Va. 1988).
7. If one counts all the states that have a right to bear arms for individual self-defense in the state constitution together with all the states that have a right to defend life expressly mentioned in the state constitution (and many state courts have indeed read such rights to defend life and property as securing constitutionally protected rights), one gets 44 of the 50 states — an important marker of the breadth of self-defense as a constitutionally secured right, and not just a common-law right. See generally Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007).
None of these, standing alone, would be dispositive evidence that the courts are likely to recognize a constitutional right to self-defense in the wake of Heller. But put together, it seems to me they point strongly in that direction.
I should note, though, that this surely doesn't mean a constitutional right to use deadly force in all circumstances in which one is defending oneself. Historical limitations on this right — either broadly accepted, or at least accepted by a substantial minority of states — are likely to be upheld, especially if history and tradition is a large part of the basis for recognizing the right in the first place.
Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the "duty to retreat," which is to say the principle that deadly force can only be used in self-defense if it's genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller; but it is not unlimited, and is likely to be strongest precisely where there's a broad and deep common-law and statutory tradition of recognizing such a right.
In this 2006 post, I criticized these public subsidies for the new Yankee Stadium, as well as sports stadium subsidies in general. Studies by economists almost uniformly show that stadium subsidies create no net economic benefit for cities, but are instead a pure transfer of wealth from taxpayers to owners and players. The latter, to put it mildly, are not exactly needy. Public subsidies for stadium construction might even leave cities worse off by diverting valuable land and public funds from more productive uses.
In the article linked in the last paragraph, Democratic New York state legislator Richard Brodsky is quoted denouncing the Yankee Stadium bond deal as "government by Soviet-style bureaucracy." That's somewhat of an exaggeration. Nevertheless, there is every reason to oppose this kind of sports stadium socialism.
As regular VC readers know, I'm a big baseball fan. However, I also believe that baseball teams (and other professional sports teams) should pay their own way with funds earned from willing fans. Taxpayers who aren't baseball fans shouldn't be forced to subsidize the entertainment of those of us who are.
The original Yankee Stadium was built with private funds, as were virtually all the great sports stadiums of the first half of the twentieth century. Today's sports team owners are far richer than their early twentieth century counterparts. If they want to build new stadiums, they should pay for it themselves.
Heller and Self-Defense:
In his post below, David Kopel writes:
District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right. In light of Heller, what are some cases from state courts or lower federal courts which might have to be reversed or modified? I am thinking particularly of cases which describe self-defense as a government-granted privilege, for which fewer due process and other protections are available than for a "right." I am not looking for gun regulation cases, but rather for cases about self-defense in general.
David, could you explain why you think Heller "clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right"? Off the top of my head, I tend to disagree with this claim about the scope of Heller. The fact that the Constitution protects a constitutional right to do X when it serves interest Y does not mean that there is a constitutional right to serve interest Y unrelated to X. I'm curious, what passage in Heller do you have in mind that suggests differently?
District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right. In light of Heller, what are some cases from state courts or lower federal courts which might have to be reversed or modified? I am thinking particularly of cases which describe self-defense as a government-granted privilege, for which fewer due process and other protections are available than for a "right." I am not looking for gun regulation cases, but rather for cases about self-defense in general.
First, it looks like Judge Traxler is the only judge to be in the majority on both issues and that his concurring opinion is (mostly) the binding one. It starts at page 64 of the slip opinion, after Judge Motz's very long concurring opinion. Traxler concludes that the AUMF authorizes Al-Marri's detention: The AUMF was designed to allow the detention of Al Qaeda suspects. As I blogged last year, I think this is correct.
Next, Judge Traxler concldues that Al Marri hasn't received enough process under the Hamdi case. Judge Traxler applies the balancing approach of Hamdi and concludes that Al Marri should get much more process than Hamdi did. He then offers a lot of general guidance on how much process would be enough — Cf. Justice Kennedy's opinion in Boumediene — but it looks like it's a pretty complex balancing framework that leaves a lot of questions for the district court to figure out.
Comparing the binding opinion of Judge Traxler today to the panel opinion last year, I think the Traxler approach is much more defensible than the panel opinion. I don't know if Judge Traxler's balancing is correct — the nature of the ad hoc balancing intoduced by the Hamdi case is that there is no one correct answer — but Judge Traxler's opinion seems much more consistent with the teachings of Hamdi than was the original panel decision.
If the SG decides to petition for certiorari, I would think the Supreme Court would likely take the case. As best I can tell, the Fourth Circuit is hopelessly divided, and the judge in the center imposed a complex balancing test that's pretty unclear. It's just super messy, and there's a good case that the Supreme Court needs to step in and clear it up. If DOJ wants cert, they'll probably get it.
On other hand, a cert grant may lead to a Supreme Court decision that is hopelessly divided, with a judge in the center imposing a complex balancing test that's pretty unclear. That would be a lot worse than getting such an outcome from a court of appeals. Plus, my recollection is that there aren't any other similarly situated individuals in the system, or at most there is only a handful. Given that the case actually impacts so few people, it may be better to let the lower courts figure this one out and save the possibility of Supreme Court intervention for another day if we end up in a world with more Al Marri's down the road.
Finally, I hope the Bush Administration will think creatively about how the Al Marri opinions handed down today could be used to bring the war on terror to a quick and victorious end. In particular, the opinions could substitute for waterboarding. Instead of waterboarding the bad guys, the government should force Al Qaeda detainees to go through all 216 pages of the different decisions in one sitting. I would think that even the hardest of Al Qaeda terrorists will break down and confess before making it through, saving many American lives.
LSU law professor John Baker has recently published a report documenting the continued expansion of federal criminal law for the Heritage Foundation. As Baker points out, there are now some 4500 different federal crimes, with the number growing consistently at a rate of about 50 new federal crimes every year for the last several decades. This expansion has continued apace under both Republican and Democratic-controlled congresses.
Interestingly, as Instapundit points out, the growing federalization of criminal law has been condemned by commentators on both the right and the left. For example, Baker's report for the conservative Heritage Foundation was favorably cited by the TalkLeft website, which doesn't exactly praise Heritage every day.
Why should we care about the growth of federal criminal law? After all, does it really make a difference whether a defendant gets hauled into federal court or state court?
It does for at least three reasons. First, federalization imposes the same rule on all fifty states. It thereby undermines the advantages of competition and diversity that flow from decentralized federalism. For example, Alabama voters may prefer to ban the use of medical marijuana; California voters, by contrast obviously don't (as indicated by the fact that they legalized it by referendum). If states make the rules, both Alabamans and Californians can live under the law that they prefer. Creeping federalization, however, imposes a ban on medical marijuana on the whole country, including the many states where majorities prefer a different rule. It also prevents states from competing with each other by offering different legal regimes and allowing individuals and businesses to choose the one that suits them best by "voting with their feet." John McGinnis and I discuss the competition and diversity rationales for decentralization in greater detail in this article.
Second, federal sentences tend to be stiffer than state ones, and federal court procedural rules more pro-government. As a result, getting hauled into federal court instead of state court makes it more likely that the defendant will be convicted, and more likely that he will get a lengthy sentence (though, in fairness, incarceration in a federal prison tends to be safer than life in state prisons, because federal prisons contain very few rapists and murderers). Interestingly, Baker points out that many of the new federal crimes don't have a "mens rea" requirement. In plain English, that means that a defendant can be convicted even if he didn't know that he was committing a criminal act and didn't intend to do so.
Third, the expansion of federal criminal further undermines the constitutional principle that the federal government is one of limited and enumerated powers. If the feds can criminalize virtually any activity they disapprove of, there is little in the way of effective structural limits on federal government power.
This is not to say that expansion of federal criminal law is never justified. For example, the feds may have a legitimate role to play in combatting crimes that threaten national security. However, there is no good rationale for the massive of expansion of federal jurisdiction over activities such as medical marijuana use that have few or no interstate effects.
En Banc Fourth Circuit Decides Al-Marri Case:
Last year I blogged extensively about the Fourth Circuit's panel decision in the Al-Marri enemy combatant case (see here, here, and here). The full Fourth Circuit has just handed down its en banc decision. At first blush, it seems like a mess: there's a one-page per curiam opinion announcing the result followed by more than 200 pages of ensuing concurring and dissenting opinions. (Egads, do we really have to go through all that?) Thanks to Ben Winograd for the link.
Today, in Bryant v. Gates, the U.S. Court of Appeals for the D.C. Circuit held that the advertising section of the Defense Department's Civilian Enterprise Newspapers constitutes a nonpublic forum, and upheld the Department's ban on "political" advertisements.
Of particular interest may be Judge Kavanaugh's concurring opinion, in which he suggests the government could (and should) have defended its policy on the grounds that the newspapers constitute government speech, rather than a nonpublic forum, and cites our own Eugene Volokh in the process.
One thing the Clinton and Bush Administrations have in common is the excessive (and improper) assertion of executive privilege. In Clinton's case, some of the erroneous privilege claims concerned the health care task force and the Monica Lewinsky scandal (see, e.g., here). Remember the effort to claim a Secret Service "protective privilege"?
The Bush Administration is stretching executive privilege as well.
As Douglas Kmiec discusses here and here, the Bush Administration is stretching the legitimate use of the privilege in refusing to allow testimony related to the U.S. attorney firings and detention policy. According to Kmiec, the excessive assertion of executive privilege has consequences beyond the immediate controversies. Among other things, it makes interbranch relations unnecessarily adversarial, facilitates bad advice, and may cover special interest manipulation of executive policy-making. Executive Privilege has a valid purpose, but that purpose is undermined when the privilege is invoked unnecessarily.
Christopher DeMuth will step down as President of the American Enterprise Institute at the end of the year. This week, AEI announced that DeMuth's successor will be Arthur C. Brooks,
Louis A. Bantle Professor of Business and Government Policy at Syracuse University. The WaPo reports here.
In "Enhancing Government," Erwin Chemerinsky provides a kind of holograph of what federalism — as the federal-state relation is confusingly called — would resemble if the U.S. were to enter a period of liberal ascendancy. . . . Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description. . . .
Mr. Chemerinsky argues that no constitutional principle prevents the federal government from regulating any matter. Accordingly, he sharply criticizes the decision in United States v. Lopez, where the Rehnquist Court held that the federal government lacked the authority to prohibit carrying guns near a school. Second, he solves one of the great federalism controversies — whether state or federal courts are more competent to adjudicate federal legal claims — by allowing civil plaintiffs and criminal defendants to choose whichever court that they prefer: presumably the one that, in their view, will most likely vindicate their rights. Finally, he argues that state law should yield only to an express federal directive contradicting it. Thus, in his view, the Supreme Court was wrong to hold that the Food and Drug Administration's approval of a medical device precluded state tort suits impugning the device's safety.
However, political scientists Jacob Levy and Daniel Drezner have put forward alternative explanations based on interest group politics. Drezner argues that the protesting professors are unhappy because their departments aren't getting a big enough slice of the $200 million in research funds that will go to the new Institute. Most of the signatories to the petition are non-economists, he points out, and economists will probably reap the lion's share of the Institute's research grants. Levy, by contrast, suggests that the signatories are motivated not by a desire for more money, but by fear that the Institute will will cause their departments to lose status relative to economics professors:
[I]f you model academic behavior as rational, mutually-distinterested self-interest, you find that everyone should welcome an inflow of $200 million into another part of their university. You predict that there will be no opposition.
If, however, you model academic behavior as a status game, more concerned with relative position than with absolute position, and you find that your university is going to take the fields that are already very high-status in the world and relatively even higher status within your institution, and symbolically endow them with even greater status by making them more central to the institution's name and identity and campus and budget, then things look very different.
I'm a big fan of interest group explanations of political behavior. In this case, however, Drezner and Levy's clever arguments are unpersuasive. The key problem is that both imply that academics will always, or at least usually, oppose the establishment of big new research centers at their universities if the centers are going to fund work in fields other than the academics' own. Thus, economists should protest whenever a new political science center is set up, historians whenever literature profs get a new pot of gold, and so on. This is a necessary implication of both Drezner's theory of competition for funding and Levy's status argument. The only difference is that under Drezner's approach, the protestors will be motivated by a desire to get some of the new money for themselves, while under Levy's, the driving force is fear of loss of relative status. At the very least, both theories predict protest unless the university simultaneously grants additional funding to the departments from which the protesters are drawn.
In reality, of course, such protests almost never happen. In nearly all cases, academics tend to be indifferent or mildly favorable to the establishment of new research centers at their school if the centers fund fields other than their own. And I am nearly certain that such would have been the reaction at Chicago if the new economics research center were called the John Maynard Keynes Institute rather than the Milton Friedman Institute; if it were associated with pro-government views rather than libertarian ones.
In addition, Drezner and Levy's theories imply that Chicago professors outside of economics can be expected to oppose the creation of the Milton Friedman Institute regardless of their own ideologies. If Levy is correct and the new Institute causes, say, political scientists at Chicago to lose status, it will do so regardless of whether they are liberal, conservative, or libertarian. Similarly, under Drezner's theory, conservative and libertarian political scientists will have just as much reason to oppose the Institute as liberal ones. In reality, of course, as far as I can tell not a single conservative or libertarian professor signed the anti-Institute petition. All the protesters seem to be liberals or radicals (see here for the list).
The anti-Institute protesters are engaged in expressive politics, not interest group rent-seeking. They dislike libertarianism and free market ideology, and don't want to be associated with it even indirectly. Drafting and signing the petition is a low-cost way of expressing their views and dispelling any possibility that outsiders might think that they are pro-free market just because they teach at Chicago. In addition, they like - many people of all ideological persuasions - prefer to be surrounded by others who agree with their political views. They aren't happy that the Institute might attract more non-left wing scholars to Chicago, an institution which in the protesters' view already has too many faculty who dissent from academic orthodoxy. When they say that they are opposed to the Institute because of its supposed "neoliberal" (i.e. - free market) ideology, they mean it.
Assessing Surveillance Laws in An Era of Sunset Provisions:
In my blog post last week on the new FISA Amendments, and a follow-up on Friday, some commenters expressed strong disagreement — and in some cases, downright contempt — at my view that the most natural baseline for assessing the latest FISA Amendments was last year's FISA law, the Protect America Act. Our disagreement raises a conceptually interesting question: How should we characterize the direction of new surveillance laws in an era when so many surveillance laws are being subject to sunset provisions? And applying that to the specific case here, is the Protect America Act the right baseline for the new FISA Amendments?
I think the question is tremendously important. Statutory laws require a feedback loop: The public needs to know if their policy preferences are being enacted into law. But the details of surveillance law are a mystery to 99.99% of the population. The laws are arcane and technical, which means that the only way most people will get a sense of the direction of the law is second-hand. In my view, this puts intense pressure on those of us who want to write on these issues in a public forum to get it right. The democratic process only works correctly if we describe the law accurately. If our writings don't accurately describe what is happening, over time the law will no longer match public preferences in the way that they should in a democratic system.
Reporting on the direction of the law is particularly tricky when Congress uses sunset provisions. A sunset provision makes the new law temporary: After a period of time, the new provision elapses and we revert to the old law (pending the likely passage of some new legislation). Sunsets let Congress experiment with different rules and see how they work out; near the end of the sunset period, Congress can have hearings and then decide whether to stick with the old law or try something new.
Congress's heavy reliance on sunset provisions in surveillance law is one of the most interesting developments in the surveillance law of the post 9/11 era. As far as I know, the Patriot Act's sunset provisions were the first to use this: About half of the surveillance law changes in the original Patriot Act of 2001 sunsetted at the end of 2005. The Protect America Act of 2007 picked up the idea, sunsetting after 6 months but allowing orders granted under it to be valid for a year after they were issued. The new FISA Amendments also use sunsets: the new law expires at the end of 2012.
So what baseline should we use when reporting on these issues? Here's my best sense: The most accurate and principled way to report on changes to surveillance laws in an era of sunset provisions will usually be to compare each new provision to the prior provision Congress negotiated. With an important exception, we should ordinarily compare new rules to sunsetting or recently sunset old rules.
I think this is the case for three reasons. First, my sense is that this view matches the understanding of the institutional players in Congress and the Executive branch. Congress has pushed the use of sunsets to ensure that the baseline negotiated today can be renegotiated tomorrow; as the old law sunsets, the new law becomes the baseline for where the new law will go. The understanding of the parties is that the sunsetting law will be the future baseline.
For example, the sunsetting Patriot Act provisions became the standard for how the law would change when Congress negotiated the next step at the end of 2005. Congress had hearings on whether or how to renew or amend pretty much every single sunsetting provision, no matter how minor. Similarly, my understanding is that the Protect America Act became the baseline for the negotiation of the new FISA Amendments. Given that this is the expectation of the institutional players when they insist on (or fight against) sunset provisions, I think it makes sense to track that understanding.
Second, sunset provisions have become sufficiently common in surveillance law that any other baseline becomes rather arbitrary. As I see it, sunset provisions are here to stay: They seem to have become the new norm in surveillance law. If I'm right about that, my concern is that looking back to the pre-sunset law as the standard mostly just looks back to the era before sunsets were common rather than to any objectively "neutral" standard. In the case of surveillance of individuals overseas, for example, Congress's realization of the new technology allowing surveillance from inside the U.S. of individuals abroad led first to the Protect America Act for between 6 and 18 months (depending on how you look at it), then the new law for the next 52 months or so, and then we'll have something else new when the 2008 law expires in 2012. We may keep going on sunset provisions after that, too: we'll keep renegotiating every few years off into the future.
Finally, I think the prior negotiated law is a good baseline because the passage of a new law with a sunset is a front page story of legal change while the reversion back to the pre-sunset version generally is not. When Congress passes a new surveillance law, the papers and op-ed writers usually decry the law and say it is a radical shift that guts protections. But when the sunset expires, we don't get that in reverse: we don't see the same writers celebrate the reversion and say it is a radical shift that drastically enhances protections. The reason relates to reason #1 above, I think: the understanding is that the law isn't permanently reverting, but rather being renegotiated, so it would be odd to report the change as if it were permanent.
If we adopt pre-sunset law as the standard, the law and the press coverage can diverge in a pretty bizarre way. Imagine Congress enacts a new sunsetting law every year in a particular area, and further imagine that the new law always becomes more privacy protective than the prior year's. In that case, the press coverage will announce every year that the old law has been gutted and privacy diminished while actually the law will be becoming more privacy protective every year rather than less. If you're an interested citizen and you want to know what's happening in surveillance law, press coverage that uses the pre-sunset baseline is going to leave you with a pretty dramatic misimpression.
I hope this explains to readers why I think the PAA is the right baseline for reporting on the new FISA Amendments. My understanding is that Congress intended it that way; my sense is that such sunsets are here to stay; and I think it leads to the most accurate overall impression of the direction of the law for the public that wants to know where the law is heading. So I think it's the best standard to use.
Finally, let me add that there is an exception to this general rule. In some cases, so much time will have has passed after a provision has expired that the sunset provision will no longer be considered the standard for Congressional negotiations. If Congress lets a sunset expire and then a good chunk of time passes under the reverted law, then eventually the reverted law becomes the standard.
But I don't think that exception means the PAA isn't the standard here. First, while the Protect America Act expired on February 17, 2008, the surveillance orders issued under the Act did not expire. They are valid for a year, and it has been less than a year since the PAA was enacted. Second, my understanding is that Congress did in fact take the PAA as the baseline when the new law was negotiated. Third, it's important to recognize that pre-PAA warrant requirement was a coincidence of technological change, not a knowing Congressional decision. Congress didn't know until the Times story broke in December 2005 that lots of foreign to foreign communications were being routed through the U.S. and that they could be monitored there. As a result, Congress didn't realize that the FISA statute was imposing a warrant requirement on the surveillance of foreign to foreign communications in that setting. The PAA is the first statute that tried to regulate this type of surveillance knowing that the category of surveillance in fact existed. Given that, it seems like a particularly sensible baseline to apply.
Investigating Blog Comments in A Criminal Case:
The New York Times offers up this interesting story about an effort by criminal investigators to subpoena IP addresses of blog commenters from a blogger. The subpoena was withdrawn, so there won't be a court decision on it. At the same time, some of the discussion of the legal principles in the article struck me as a bit off.
In particular, my understanding is that the government has no power (absent statutory authority, which would be subject to serious First Amendment challenge) to order the recipient of the subpoena not to disclose it. According to the Times story, "the subpoena carried a warning in capital letters that disclosing its very existence 'could impede the investigation being conducted and thereby interfere with law enforcement'." No doubt this was written to create the impression that going public with the subpoena could lead to criminal prosecution. But my understanding is that, as a matter of law, it actually has no legal effect. Do others disagree?
Second, there is an important line of cases on how the First Amendment applies to grand jury subpoenas in relatively similar settings that I think would frame any First Amendment issue. See generally Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny, such as The New York Times Co. v. Gonzales, 459 F.3d 160 (2nd Cir. 2006) (allowing grand jury subpoena for reporter's telephone logs). Given those precedents, I don't think the issue here is as novel as the article suggests.
Thanks to Ben Smith for the link. For more on the story, see here.
Jacob Levy offers an alternative take on UChicago faculty opposition to the creation of a Milton Friedman Institute:
Now, if you model academic behavior as rational, mutually-distinterested self-interest, you find that everyone should welcome an inflow of $200 million into another part of their university. You predict that there will be no opposition.
If, however, you model academic behavior as a status game, more concerned with relative position than with absolute position, and you find that your university is going to take the fields that are already very high-status in the world and relatively even higher status within your institution, and symbolically endow them with even greater status by making them more central to the institution's name and identity and campus and budget, then things look very different. The promise of getting the econ department's leftover offices and the spilloff from the interest on the new endowment pale in comparison to what will be lost. You predict that there will, in fact, be opposition.
While Levy and Drezner (both former Chicagoites) place their emphases in different places, I am not sure their accounts are in conflict. Sure some faculty in other departments are envious and fear the new Institute's presence may (further) eclipse their work, but they'd have less to be envious about were they to receive a bigger piece of the pie.
An 1831 Source Supporting the Individual Rights View of the Second Amendment:
I should stress that this is a small thing compared to the very solid body of evidence that's already been uncovered in this direction. Still, I came across it, and thought I'd mention it. This is from Judge John Reed's Pennsylvania Blackstone (1831), "A Modification of the Commentaries of Sir William Blackstone, with numerous alterations and additions, designed to present an elementary exposition of the entire Law of Pennsylvania." Reed was the President Judge of the Court of Common Pleas of the Ninth Judicial District of Pennsylvania, and the founder of the oldest law school in Pennsylvania, the Dickinson School of Law. Here is his elaboration of the passage in Blackstone that discusses the English right to have arms:
5. A fifth right of every citizen, "is that of having arms for his defence." By the constitution of the United States, "the right of the people to keep and bear arms, shall not be infringed;" and by that of Pennsylvania, "the right of citizens to bear arms in defence of themselves and the state, shall not be questioned." These provisions also, were no doubt intended, to avoid a recurrence of the restrictions, on this subject, found in the English laws. By the forest and game laws, in England, the right of keeping arms is effectually taken away from the great body of the people; and, in another place in the Commentaries, it is said, "that the prevention of popular insurrections, and resist[ance] to government, by disarming the bulk of the people, is a reason oftener meant, than avowed, by the makers of such laws.
So Judge Reed is clearly treating the Second Amendment as (1) being based on the English right to have arms (something that Justice Stevens' Heller dissent largely denies), (2) being similar in scope to the Pennsylvania right to bear arms in defence of themselves as well as of the state (again something that Justice Steven's dissent seems to deny), and (3) not being dependent on membership in a government-defined militia (since the right is "of every citizen," and is a "right of keeping arms" that the government may not "take away from the great body of the people").
Is Schumer to blame for IndyMac’s collapse? Not really.--
Senator Chuck Schumer (D-NY) is being blamed -- somewhat unfairly -- by federal regulators for causing the collapse of the bank IndyMac:
Pasadena-based IndyMac, with $32 billion in assets, was seized by the government Friday. The loss-ridden mortgage lender had faced an outflow of deposits since Schumer on June 26 made public a letter he sent to the Office of Thrift Supervision and the Federal Deposit Insurance Corp., saying he was "concerned that IndyMac's financial deterioration poses significant risks to both taxpayers and borrowers."
Schumer’s decision to go public with those comments triggered a firestorm in Washington. Regulators on July 2 said he was contributing to "rumors and innuendo" about the bank that could hasten its demise.
On Friday, regulators specifically fingered Schumer for IndyMac’s failure. The Office of Thrift Supervision said in its statement announcing the seizure that "the immediate cause of the closing was a deposit run that began and continued" after Schumer went public with his concerns.
"This institution failed due to a liquidity crisis," OTS Director John Reich said Friday. "Although this institution was already in distress, I am troubled by any interference in the regulatory process," a reference to Schumer.
The FDIC estimates that IndyMac’s failure will cost the agency between $4 billion and $8 billion as it unloads bad loans and makes insured depositors whole.
One should distinguish here between causing the bank’s failure and triggering it. Schumer triggered the bank’s collapse, but he did not cause it. Reckless lending caused the collapse.
Unless the housing market turns around quickly, IndyMac would almost certainly have failed in the next year, with or without Schumer’s comments. Whether Schumer saved the government money or cost the government money depends on whether IndyMac was likely to lose even more money between this month and its eventual failure later this year or early next year.
Badly run businesses go out of business, especially during slowdowns in the business cycle. And banks go out of business during very deep recessions in housing.
The regulators should be focusing instead on preventing the many bank failures yet to come (perhaps by encouraging mergers where possible).
Where to begin? First let’s stipulate that Fannie and Freddie never did “any subprime lending” … but not for the reason Krugman states. Freddie and Fannie never do any lending: They buy mortgages from lenders only, so that those lenders have more cash to make other loans (like subprime ones). But Krugman is either lying or being intentionally obtuse when he says “Fannie and Freddie buy only mortgages issued to borrowers who made substantial down payments and carefully documented their income.” The Washington Post reports:
In 1995, President Bill Clinton’s HUD agreed to let Fannie and Freddie get affordable-housing credit for buying subprime securities that included loans to low-income borrowers. The idea was that subprime lending benefited many borrowers who did not qualify for conventional loans. HUD expected that Freddie and Fannie would impose their high lending standards on subprime lenders.
In 2000, as HUD revisited its affordable-housing goals, the housing market had shifted. With escalating home prices, subprime loans were more popular. Consumer advocates warned that lenders were trapping borrowers with low “teaser” interest rates and ignoring borrowers’ qualifications.
HUD restricted Freddie and Fannie, saying it would not credit them for loans they purchased that had abusively high costs or that were granted without regard to the borrower’s ability to repay. Freddie and Fannie adopted policies not to buy some high-cost loans.
That year, Freddie bought $18.6 billion in subprime loans; Fannie did not disclose its number.…
But by 2004, when HUD next revised the goals, Freddie and Fannie’s purchases of subprime-backed securities had risen tenfold. Foreclosure rates also were rising.
In 2003, the two bought $81 billion in subprime securities. In 2004, they purchased $175 billion — 44 percent of the market. In 2005, they bought $169 billion, or 33 percent. In 2006, they cut back to $90 billion, or 20 percent.
Let’s review that last paragraph again. Krugman is trying to convince his readers that Freddie and Fannie are only innocent bystanders in the housing bubble. Fannie and Freddie purchased 44 percent of the subprime securities in 2004. Does that sound like the behavior of an innocent bystander to you?
Tip When Checking Old (Late 1700s and Early 1800s) Sources:
When looking at alphabetized indexes, don't assume all the entries are in strict alphabetical order. Indexes that purport to be alphabetized generally alphabetize things accurately by the first letter, but within each letter the entries are sometimes out of order. I just noticed this in several indexes from that era, and thought I'd pass it along.
May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?
The Ninth Circuit's Berger v. City of Seattle decision earlier this year seemed to authorize such broad bans, on a "captive audience" rationale; today, the Ninth Circuit agreed to rehear the case en banc. Here's my earlier criticism of the decision, which still strikes me as correct, and which leads me to hope that the en banc court will reject the panel's reasoning:
It seems to me pretty clear that [the government may not restrict advocacy near movie theaters, outdoor restaurants, and the like], because such [speech, including picketing, performance, and other genres] -- whether related to labor issues, the merits of the movies the theater was showing, or whatever else -- is protected by the First Amendment, at least in traditional public forums such as parks or sidewalks.
The law may restrict the volume of the picketing, or the size of the group, especially if there's a serious security threat that may stem from the presence of a large group, or if the group is likely to block pedestrian traffic. In some situations, the law may create a 36-foot buffer zone if there's a serious risk of picketers' blocking entrances, and narrower restrictions have proven unavailing. The law may also require that people not approach within a few feet of a particular person to talk to the person without the person's permission. And the Court has upheld restrictions on residential picketing, stressing the special role of the home as a place where people should be able to retreat from controversy. But as a general matter, people -- especially in small groups -- are free to express their views in front of places of commerce and entertainment, even when offended listeners might be present.
The Ninth Circuit, though, held last week (Berger v. City of Seattle) that it's constitutional to ban speech to strangers -- even speech by one person -- within 30 feet of "any captive audience," including "patrons waiting in line for events" or eating in a seating area. The particular rule involved restrictions in a park, but a city sidewalk is just as much a traditional public forum as a park.
So this means that picketing, demonstrating, and the like, on city sidewalks -- even when engaged in by one person -- can be forced 30 feet away from any movie theater line, any outdoor restaurant seating area. Likewise, I take it that such speech can be forced 30 feet away from any employee whose job requires him to stand near a sidewalk, for instance a hotel doorman, an employee working as a sidewalk vendor, a maintenance worker, and the like. Those employees are, after all, even more "captive" than diners or people standing in line.
What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic." The Ninth Circuit thus seems to suggest that an audience may be "captive" even to speech that it only needs to see briefly. If that's so, then any picketing or demonstrating outside any business would be seen as involving a "captive audience" of business employees and vendor employees who have to come and go through the front door, and perhaps of customers, too.
This strikes me as a pretty clearly mistaken result. It might not have been intended by the judges in the Ninth Circuit panel majority, who were talking about restrictions in a park and not on a sidewalk -- but, as I mentioned, parks and sidewalks are both treated as the same sort of place by First Amendment law (a traditional public forum), and if a restriction is allowed in a park, it would presumably also be allowed on a sidewalk. (If anything, restrictions on sidewalks may often be more justifiable because pedestrian traffic problems tend to be more serious on sidewalks.)
Moreover, while the particular plaintiff in the Ninth Circuit case was a street performer who made balloons, apparently performed magic tricks, "talk[ed] to his audience about his personal beliefs, especially the importance of reading books," and seemingly accepted contributions, the panel's rationale wasn't limited to people like plaintiff (nor am I quite sure just how it could be so limited). The panel upheld the captive audience rule on its face, and treated it (in relevant part) as banning "speech activities 'within thirty (30) feet of any captive audience ....'" It did not limit its decision to rules banning speech activities that solicit (expressly or implicitly) the immediate handing over of money, or to rules banning balloonmaking and magic tricks but allowing political or social advocacy. The decision is thus a precedent for restrictions that cover many more people than "Magic Mike" Berger.
Finally, I should note again that the Court has indeed accepted some kinds of restrictions on picketing in public places, as I said in the second paragraph of this post. The Ninth Circuit's decision is thus not a completely radical new step. But it does go far beyond, I think, the narrow restrictions that have been upheld, and covers speech that poses no real security risk, no threat to individual privacy, no material threat of blocking entrances, and no inherent danger of people trespassing on others' personal space (this is a 30-foot exclusion zone, not a requirement that one stay 8 feet away from people whom one is approaching).
And to the extent that one does see this as a logical extension of past decisions, that should be a reminder that the slippery slope from narrow restrictions to much broader ones is a real risk in a legal system that's built on analogy and precedent. Even when the precedents by no means require a particular result, and even don't justify it in the minds of many, some decisionmakers (here, judges) may read them that the precedents may end up justify many more restrictions than the precedents' drafters contemplated.
Interesting Tidbit on Racism and Reagan's 1980 Victory:
One reads quite often that Reagan successfully captured the southern Wallace/anti-civil rights/racist vote, thus forever tainting his victory with the stench of racism. So I was surprised to read that white voters over sixty in the eleven ex-Confederate states gave Carter a small plurality of their votes, a greater percentage for Carter than he received among such voters elsewhere in the country. Meanwhile, Reagan received overwhelming support from 18-39 year old white southerners. Bruce J. Shulman, From Cotton Belt to Sun Belt 215 (1994). Unless one wants to defend the proposition that the over-sixties were less racist than their much younger counterparts, the standard narrative seems incomplete at best.
UPDATE: Not surprisingly, some commenters below raise the issue of a speech Reagan gave in July 1980, that has been portrayed as "Reagan launching his campaign in Philadelphia Mississippi where three civil rights workers were killed with an overt appeal to southern racism by declaring his fealty to states' rights." As I've explained previously, this is an inaccurate representation of what happened.
In fact, the speech wasn't in, but near, Philadelphia, at a state fair that many other candidates, including Michael Dukakis, have attended. The speech didn't "launch" his campaign as it the timing was understood at the time (when campaigns weren't "launched" until Labor Day), and the reference to "states' rights" was a fleeting (but foolish) reference in an entirely non-racial context.
Here's what I think is an accurate portrayal of the event:
"in the downtime between the Republican and Democratic conventions, Reagan was desperately at this time seeking to attract some black votes in the North, while some of his advisers held out hope of winning some southern states. Some of his campaign advisers were savvy enough to realize that the Mississippi speech would create problems for the first goal. .... Indeed, instead of "Reagan deliberately spoke in racist code to pursue a southern strategy" it's more like "Reagan stupidly undermined his own campaign strategy through an ill-conceived reference to 'states rights' just before a major speech to the Urban League."
You can listen to the speech for yourself here. The audio of the speech wasn't discovered until January 2007, which gave plenty of time for myths about its content to circulate.
In any event, if Reagan was trying to make appeals to southern racists, the voting data above still suggests that a very large percentage of them voted for Carter nevertheless.
Jamie Gorelick's ties to Fannie Mae and What She's Doing Now--
In reading this article about Crony Capitalism at Fannie Mae (tip to Instapundit), I noticed that Jamie Gorelick was one of the Fannie executives who benefited from inflated bonuses based on Enron-style accounting. She was Vice Chairman of Fannie Mae from 1997 to 2003 (Fannie’s fraudulent accounting scheme was made public in 2004).
This is the same Jamie Gorelick who was Deputy Attorney General in the mid 1990s and was reported to have been the author of the Clinton Administration’s WALL against sharing intelligence data between foreign and domestic agencies. Without the policies instituted by Gorelick still in place in 2001, officials might have learned more about the 9/11 attacks before the planes hit the buildings.
"In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.
"When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.
"At that time, a frustrated FBI investigator wrote headquarters, quote, 'Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' "
So what’s Jamie Gorelick doing now? Do we have to fear for the health of any other major US institutions on her account?
“We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation" (emphases added).
U.S. Attorney Mary Jo White, who was prosecuting the chief anti-terrorism case in NY, responded to Gorelick’s memo by writing to Gorelick, urging changes in her restrictive policy. The rejection of White’s recommendations was written by Michael Vatis, a conclusion endorsed in "Gorelick’s handwritten note to Attorney General Janet Reno. Ms. Gorelick wrote, 'I have reviewed and concur in the Vatis/Garland recommendations for the reasons set forth in the Vatis memo.'"
Sen. John Cornyn “said, the newly released memos raised apparent conflicts with statements Ms. Gorelick has made recently defending herself and her role in the Clinton Justice Department.
‘These documents show what we've said all along: Commissioner Gorelick has special knowledge of the facts and circumstances leading up to the erection and buttressing of 'that wall' that, before the enactment of the Patriot Act, was the primary obstacle to the sharing of communications between law enforcement and intelligence agencies,’ Mr. Cornyn said.”
Gorelick’s Wall was a prominent example of the role of lawyers hampering anti-terrorist activities before 9/11, a problem outlined by Michael Scheuer (former head of the Bin Laden desk and no friend of the Bush Administration):
SCHEUER: Well, we had—the question of whether or not we could have prevented the attacks is one you could debate forever. But we had at least eight to 10 chances to capture or kill Osama bin Laden in 1998 and 1999. And the government on all occasions decided that the information was not good enough to act. . . .
The U.S. intelligence community is palsied by lawyers.
When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden‘s safety and his comfort than they were with the officers charged with capturing him. We had to build an ergonomically designed chair to put him in, special comfort in terms of how he was shackled into the chair. They even worried about what kind of tape to gag him with so it wouldn‘t irritate his beard. The lawyers are the bane of the intelligence community. . . .
2. Financial Irregularities at Fannie Mae.
Perhaps some of you may not remember what Fannie Mae was caught doing after a whistleblower exposed the fraud (and was fired in retaliation). It was obvious that the books at Fannie Mae were being cooked:
The magnitude of Fannie's machinations is stunning, and in two key areas in particular they deserve to be better understood. By improperly delaying the recognition of income, it created a cookie jar of reserves. And by improperly classifying certain derivatives, it was able to spread out losses over many years instead of recognizing them immediately.
In the cookie-jar ploy, Fannie set aside an artificially large cash reserve. And — presto — in any quarter its managers could reach into that jar to compensate for poor results or add to it to dampen good ones. This ploy, according to Ofheo (Office of Federal Housing Enterprise Oversight), gave Fannie "inordinate flexibility" in reporting the amount of income or expenses over reporting periods.
This flexibility also gave Fannie the ability to manipulate earnings to hit — within pennies — target numbers for executive bonuses. Ofheo details an example from 1998, the year the Russian financial crisis sent interest rates tumbling. Lower rates caused a lot of mortgage holders to prepay their existing home mortgages. And Fannie was suddenly facing an estimated expense of $400 million.
Well, in its wisdom, Fannie decided to recognize only $200 million [of losses], deferring the other half. That allowed Fannie's executives — whose bonus plan is linked to earnings-per-share — to meet the target for maximum bonus payouts. The target EPS for maximum payout was $3.23 and Fannie reported exactly . . . $3.2309. This bull's-eye was worth $1.932 million to then-CEO James Johnson, $1.19 million to then-CEO-designate Franklin Raines, and $779,625 to then-Vice Chairman Jamie Gorelick.
As for other losses, they were routinely mischaracterized so that they could be amortized over years, not realized fully as they were supposed to be. By this method, the Fannie Mae management siphoned off millions of dollars in excess compensation to top management, including Gorelick.
It is certainly possible that the culture at Fannie Mae was so thoroughly corrupt that Jamie Gorelick did not know that cooking the books in this fashion was illegal, but it strains credulity to suppose that she did not know that the books were being cooked. I doubt that Gorelick was so stupid or incompetent not to notice that Fannie Mae profits were regularly reported in such a way as to maximize her bonuses.
And you would think that, as Vice Chairman and a lawyer, she would be one of the people who most clearly should have known that the fairly obvious cooking of the books was indeed improper.
3. Duke Hoax Lawsuit.
From the comments, I see that Jamie Gorelick is representing Duke in lawsuits filed by the Duke Lacrosse players. You can follow her exploits on that case at Durham in Wonderland.
[UPDATE: The decision below was filed July 7, and PACER, which I checked before posting the post, echoes this. Nonetheless, as two commenters pointed out, the decision is dated June 25, one day before Heller was handed down. If anyone could explain why there'd be a two-week delay between the signing of the written decision and the filing — something I generally haven't found to be the case in district court — I'd love to hear it.
It may be that my condemnation of the court was mistaken or at least overstated, given the June 25 date; on the other hand, Heller was big news the very next morning -- and anticipated to be coming down then -- so if the district court decision wasn't officially filed until July 7, I wonder why there wouldn't be an opportunity to correct it. In any case, I'd love to hear what people who are knowledgeable on such matters, especially in the Northern District of California, could tell me.]
Bates was formerly a sergeant with the San Jose Police Department. He was granted a disability retirement from the department in April 2004, due to the fact that the City could not accommodate the work restrictions placed upon him by his physician, at least in part to “avoid psychologically or physically stressful work.” Upon receipt of this information, defendant Amoroso, then deputy chief, denied Bates a concealed weapon permit under Cal.Penal Code § 12027.1(e) which prohibits the issuance of a permit to carry a concealed weapon to any officer who has retired “because of a psychological disability.” ...
Bates now sues the City, Davis and Amoroso for violation of his civil rights to freedom from deprivation of due process of law, freedom from summary punishment and freedom from the deprivation of the right to bear arms for failing to initially grant him a concealed weapons permit under § 12027.1. [Footnote:] The denial of a concealed weapons permit does not constitute a deprivation of the right to bear arms. Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir.1996), cert. denied, 519 U.S. 912 (1996)....
But Hickman expressly rested on the view that "the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen" — a view D.C. v. Heller expressly rejected. As one might guess, while district courts are generally bound by circuit precedent, "where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority" — including when the irreconcilability is in the "mode of analysis" and not just square conflict in the specific holdings — "a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003). And it's not like Heller was a low-profile case that judges and clerks would routinely miss, or that the conflict between Heller and Hickman> was somehow subtle.
Now it may well be that under Heller, concealed weapons bans remain constitutional; there's language in Heller that suggests this. I should also note that all the briefing in this case came before Heller, so the parties technically didn't raise Heller; and more broadly, my skim of the plaintiff's opposition to the city's motion for summary judgment didn't really discuss the Second Amendment. If the court had made any of these points, that would have been fine. But simply relying on a precedent that Heller swept away strikes me as wrong, though of a piece with other recent decisions (see here and here).
Since the New Yorker thought Obama's words after the attack were important enough to quote, I thought I'd quote some similar (and at least as strong) language I found on Westlaw a few weeks ago, published in the October 17, 2001 Chicago Defender:
“Sen. Obama : Barriers ‘sad, symbols of fear.’”
The "ugly" barriers that have been erected outside of the Sears Tower, the Federal Building, the Daley Plaza and other city buildings in downtown Chicago following the Sept. 11 terrorist attacks are "sad, symbols of fear" and constant reminders of just how vulnerable America is, Sen. Barack Obama (D-13th) said Monday.
. . . [T]he fact that they are there is troubling to many, including Obama.
The story then quotes Obama at length, starting with his views on the security barriers:
"I think that is the saddest situation and after effect of the Sept. 11 tragedy other than the obvious loss of lives and families.”
"Those barricades are a symbol of the fear that people are experiencing. I recognize the need for such precautions, but my strong hope is that over time, we're able to diminish the daily threat of violence and return to the sort of openness and freedom that is the hallmark of our society.”
”We're engaged in a military operation. I don't know how effective that operation is, but it's absolutely vital that we pursue a military response and a criminal investigation to dismantle these organizations of violence that have cropped up.”
"We should also examine the foreign policies of the the U.S. to make sure that we occupy the moral high ground in these conflicts. In particular, we have to examine some of the root causes of this terrorist activity."
"For nations like Afghanistan, Pakistan, Indonesia, or much of the Middle East, young men have no opportunities. The only education they are receiving is that provided to them by religious schools that may not provide them with a well-rounded view of the world.”
"They see poverty all around them and they are angry by that poverty. They may be suffering under oppressive and corrupt regimes and that kind of environment is a breeding ground for fanaticism and hatred.”
"It's absolutely critical that the U.S. is engaged in policies and strategies that will give those young people and these countries hope and make it in their self-interest to participate and create modern, open societies like we have in the U.S."
When I get the chance, I like to watch Prime Minister's question time on C-Span. For readers who may not know, Prime Minister's question time is a longstanding institution in the British House of Commons where the PM is required to answer questions put to him by the leader of the opposition and other members of Parliament.
I don't know whether Prime Minister's Question Time actually improves the quality of British government. But it's vastly more interesting than the deadly dull floor speeches made by members of the US Congress. In addition, I get the strong impression that top-level British MPs on average are far more knowledgeable about public policy than US senators and representatives. While many of the questions put to the prime minister are just thinly veiled rhetorical attacks, many others are actually substantive, and the British prime ministers I have seen (especially Margaret Thatcher and Tony Blair) usually know enough to give detailed and even thoughtful answers. There is also, I think, some symbolic value in forcing the chief executive to publicly answer questions put to him by his political opponents.
I don't necessarily advocate instituting a similar practice in the US. Among other things, it would probably require a constitutional amendment to do so. And the benefit of passing such an amendment probably wouldn't be worth the cost. But it sure is fun to watch.
The standard line of many liberal bloggers on any issue that in any way involves regulation or deregulation is that the evil Bush Administration, in league with free market ideologues, has thwarted very efforts at sensible regulation of large corporations.
In the specific case of Fannie Mae and Freddie Mac, however, it appears that, among others, the Bush Administration, free market think tanks, and Alan Greenspan (and, to be fair, the Clinton Administration) have been calling for years to rein in these institutions, only to be thwarted by Congress, with Democrats especially willing to protect Freddie and Fannie from oversight and reform. See articles from the Times ("attempts to push through stronger oversight were stymied because few politicians, particularly Democrats, wanted to be perceived as hindering the American dream of homeownership for the masses") and the Post.
Kudos to any liberal bloggers who acknowledge that this particular example of corporate malfeasance doesn't follow their script. It does, however, illustrate a potential pitfall of deregulation or privatization or public-private enterprise or whatnot: never privatize the profits while socializing the risks.
Let's say you represent a condo board. The board has forcibly removed at least two mezuzot from the homes of Jewish families in the building. The families sue, claiming intentional discrimination in violation of the Fair Housing Act. The condo board claims it is just enforcing a neutral rule. In your reply brief, you are looking for a literary allusion to describe what you believe is the illegitimate request the plaintiffs have made for money damages. Perhaps it would be wise not to suggest that the plaintiffs are [like Shylock] trying to extract a "pound of flesh" from the defendants.
(See Judge Diane Wood's dissent in this very interesting case.)
UPDATE: I see from the comments that David Lat beat me to it, with a rather similar, albeit shorter, post on Friday. David apparently heard about this case through an item on the WSJ law blog, but I saw it at Haaretz.com (which I can't link to because the site seems to be down).
John McCain was interviewed Friday by the New York Times, which published a summary in this morning's edition. The Times recounted a question-and-answer with McCain on the subject of gay adoption as follows:
Mr. McCain, who with his wife, Cindy, has an adopted daughter, said
flatly that he opposed allowing gay couples to adopt. "I think that
we've proven that both parents are important in the success of a
family so, no, I don't believe in gay adoption," he said.
We don't know precisely what the Times asked McCain, so we don't know what he means by opposing "gay adoption." There is some ambiguity in the phrase. Does "gay adoption" mean adoption by a single gay person, which is permitted in 49 of the 50 states? Or does it mean legal adoption by same-sex couples, which is permitted in some jurisdictions in about half the states? The Times's summary suggests the interviewers were referring to adoption by same-sex couples, but I'd want to see a transcript to be sure. [See update below.]
Either way, it's a terrible, thoughtless quote. Emphasis on thoughtless, because I don't think McCain has given even a moment of thought to the subtleties of talking about this. The second half of the quote is a non sequitur. Adoption is necessarily a context in which "both parents" are unavailable, so it makes no sense to cite the superiority of biological parents as a reason to prohibit adoption by gay individuals or same-sex couples.
In the context of the culture wars, I think McCain hears a question like, "Do you favor gay adoption?" as, "Do you think gay parents are as good as a married mother and father?" I don't think he hears it as, "Do you think that, once a child is up for adoption because his married mother and father are out of the picture, a gay person should be eligible to adopt that child?"
There is considerable debate about the first question, though even if you think opposite-sex parents are generally better it's not obvious why this should lead you to oppose adoption by gay couples under all circumstances. Hardly anybody answers the second question — whether gay individuals should be able to adopt — in the negative. Only one state does so (Florida). That can't be McCain's position. But his answer has created enough doubt about his position that the burden is now on his campaign to clarify what he meant.
UPDATE: A reader has pointed me to the transcript of the interview. Judge for yourself. It looks to me like McCain is suggesting that gay couples should not be able to adopt children, even if the alternative is foster care. (I wish there had been much more follow-up, since the final question is phrased in terms of McCain's "preference" for "traditional couples.") He says nothing about whether gay individuals should be able to adopt children. If he thinks gay individuals -- but not couples -- should be able to adopt children the upshot is this: McCain believes those kids are better raised by one parent than by two.
Linda Greenhouse reflects on her many years covering the Supreme Court. Her concluding thought: "The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve."
What policies would presidential candidates support if they sought to court the support of economists? Greg Mankiw has a list (all but the last one I basically support):
Support Free Trade
Oppose Farm Subsidies
Leave Oil Companies and Speculators Alone
Tax the Use of Energy
Raise the Retirement Age
Invite More Skilled Immigrants
Liberalize Drug Policy
Raise Funds for Economic Research
On that last one, Mankiw comments:
The government subsidizes economic research through an arm of the National Science Foundation. The amount of money is relatively small — measured in the millions, not billions — and spending has been about flat in inflation-adjusted terms over the last decade. If Senator McCain or Senator Obama wants to endear himself to economists, there is no easier way than by promising an extra few million dollars to improve our understanding of how the economy works.
You might view this policy as nothing more than a way to buy a few votes. Perhaps you view economists as mere mortals, as tempted as anyone else by special interests. Maybe you would regard more funding for economic research as not very different from the billions thrown every year at farmers.
If you are that cynical, I won’t try to dissuade you.
Sunday Song Lyric:
Tony Snow died yesterday at 53. He had a varied an impressive career as a journalist, editorialist, speechwriter, talk show host and White House Press Secretary. As anyone who knew tony could attest, he was full of life, optimism and good cheer, devoted to his family, self-effacing and generous.
Ha'aretz: "Political campaign buttons in Hebrew are a popular way to woo Jewish votes - but sometimes things get lost (or added) in translation. When Democrat John Kerry ran for president in 2004, his transliterated name appeared on thousands of buttons, stickers and coffee mugs. To the amusement of those familiar with Talmudic Hebrew, 'keri' in its phonetic spelling means a seminal discharge."
And learning from the past:
Obama supporter Shahar Golan, of Rehovot, crafted a poster with the Hebrew translation of the slogan "Change we can believe in."... Golan knows that translations can be tricky. On his blog, he elaborated on his choice of words. "Translating 'Change we can believe in' proved to be somewhat of a challenge," he muses, "as the Hebrew word for 'we can' (nuchal) is the exact one for 'crook' (nochel)." Not wanting to repeat past mistakes, he added that "even a hint of such subliminal connections can be bad."