David Rivkin and Lee Casey argue that a federal mandate requiring all individuals to obtain health insurance would lie beyond the scope of Congress' enumerated powers. Specifically, they argue that neither the power to "regulate commerce among the several states" nor the taxing and spending power could support such an all-encompassing mandate. Here is a taste of their argument:
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)
Jack Balkin is similarly unconvinced. I generally agree with his bottom line, but would question some of his argument as well. First, he chides Rivkin and Casey for making an argument that would effectively invalidate the New Deal. I am not sure this is true. While some post-1937 programs might be at risk, one might also distinguish Wickard on the grounds that it involved a commodity sold in interstate commerce (wheat), whereas health insurance is a service. One might also argue that there is a difference between seeking to control the conditions of any commodity sale (its price, quantity, etc.) and mandating that a sale take place. This line would be similar to that embraced in some New Deal commerce clause cases that upheld federal regulations setting conditions on the manufacture of goods sold in interstate commerce while ostensibly leaving the manufacture of goods not sold in interstate markets untouched. If I recall correctly, this line was maintained until Maryland v. Wirtz in 1968. So while The Rivkin-Casey argument is aggressive, I don't think it would completely overturn the New Deal.
Balkin also chides Rivkin and Casey for citing Bailey v. Drexel Furniture, "a case from the Lochner Era," to make their case. Well, like it or not, Bailey has never been expressly overturned, and I think there's a good reason for that. In Bailey, the Court held that Congress could not use the taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers. This may well be true. The problem with Bailey, then, is not its view of the taxing power, but rather the Bailey court's restrained view of the federal commerce power. What makes Bailey and other cases largely irrelevant today is that there is so little that the federal government seeks to tax that it cannot otherwise regulate. I'd also note that it is not as if the Court is averse to relying upon other cases with Lochner-era pedigrees. Indeed, Meyer v. Nebraska and Pierce v. Society of Sisters are still good law, and each is closer kin to Lochner than Bailey, as they relied upon Lochner's substantive due process rationale.
Speaking of substantive due process, there may be other constitutional problems arising from national health care reform — but not of the enumerated powers variety. While the federal government may be able to require national health insurance coverage, could it require all individuals to purchase plans that cover certain procedures? What if the guidelines for acceptable plans include contraception, abortion, and certain types of end-of-life care? Could the federal government require devout Catholics to purchase such plans for themselves? Insofar as a new federal entitlement and regulatory scheme severely limits the ability of individuals to make fundamental health-related choices for themselves without undue federal interference, might it also run up against Griswold, Cruzan, etc.? So long as individuals retain a choice of health care providers such concerns may be quite marginal, but were a "public plan" to become a de facto single-payer plan, the constitutional issue could grow. If limitations on abortion procedures must contain a health exception in order to be constitutional under Casey, would this complicate efforts to control costs by excluding some potentially life-saving treatments under s single-payer system? Of course, these sorts of arguments are more likely to come from libertarians than conservatives, as the latter may be uncomfortable with expanding the scope of the Court's fundamental rights jurisprudence.
Over at Asymmetrical Information, Megan McArdle posts an email from a reader responding to a series of posts on the causes and solutions of obesity. The email is bracing and provocative, written from my home town of LA; here is a bit of the email to McArdle:
As someone who works in the entertainment industry in Los Angeles--land of the perfect body--I totally agree that government pressure will do nothing to make people lose weight. People will only give up one pleasure in exchange for a more intense pleasure. And if you're poor and miserable, and eating is the high point of your life, you'll always reach for the cheetos.
I suspect the only way people will change their behavior is a sudden desire to move up the social ladder. Being thin and attractive gives you a competitive edge, especially if you live in a city with lots of talented people. The moment someone I know suddenly gets ambitious, or makes partner, or needs investors, they start losing weight. In California, being fat will hurt any career, whether you're a doctor, lawyer or accountant. We all take our cues from television/movie industry and the message is clear: you must be sexually appealing, no matter what you do. And so we tune out the Dominos commercials and reach for the tuna. Thank God for sushi, or we'd all go crazy.
No one I know is starving, but no one is ever full ...
I'm not quoting this for the substance here or even for the topic of (anti-) obesity as public policy. Rather, I was struck by the first four comments on the post. With a little free interpretation, they offer an intriguing, accidental, array of the forms of explanation that are currently on intellectual offer in our culture more broadly. Not comprehensive, I'm sure, and I have applied some interpetive arm-twisting. But consider (and I'm not picking on people here; all of us engage in most of these forms of explanation freely, and not necessarily inaccurately by any means):
Comment One: The Political. Granted, it is via a skeptical view. Freely restated, it says (more or less): California can't politically govern itself, so why should anyone pay attention to its views on obesity and thinness? I'll take that as a sort of negative political explanation; if it could politically govern itself, then we might have reason to pay attention to what it thinks is the way to combat obesity.
Comment Two: The Cultural. Citing to Virginia Postrel's excellent book on this topic, and the theme of which is, "smart is good, smart and pretty are better."
Comment Three: The Biological. And specifically, the biologically, evolutionarily hardwired - overcoming obesity in LA requires finding a pleasure more intense than eating. Though this comment mingles quickly - as happens in real life too - into the Cultural, because the pleasures that are more intense than eating are not merely physical, but cultural and social - fame, glory, etc., not just sex and mating.
Comment Four: The Economic. And specifically financial - an explanation from the discounted value of future pleasures and, in effect, a NPV of eat-now-to-obesity versus all the other great things LA has to offer provided one stays thin into the future.
I suppose it is in the nature of explanation that, methodologically at least, it strives to be simpler than the phenomenon being explained - Occam's Razor and all that. But there is no a priori reason why that should be the case, and often - as medicine, chemistry, physics, and other physical sciences have shown over the ages - the actual explanation is unimaginably complex. But these comments illustrate a general tendency toward certain well-trod paths these days toward reductionism. I share it - and I bet you do too. It is far from being a bad thing, of course, provided we keep the limits of reduction methodologically in bounds. We share a desire to model potentially complicated things with simple systems that, true, have often served well in other matters. But when I look at actual science of so many things, actual explanations are fantastically complicated and overlapping, not really reductionist at all.
The LA Timesreports on a recent rendition to the United States:
A Lebanese citizen being held in a detention center [in Alexandria, VA] was hooded, stripped naked for photographs and bundled onto an executive jet by FBI agents in Afghanistan in April, making him the first known target of a rendition during the Obama administration.
Unlike terrorism suspects who were secretly snatched by the CIA and harshly interrogated and imprisoned overseas during the George W. Bush administration, Raymond Azar was flown to this Washington suburb for a case involving inflated invoices.
Azar, 45, pleaded guilty Tuesday to conspiracy to commit bribery, the only charge against him. He faces a maximum of five years in prison, but a sentence of 2 1/2 years or less is likely under federal guidelines.
According to the article, Azar and others were caught in a sting for paying kickpacks to a U.S. Army Corps of Engineers official in order to obtain payments to a foreign contractor.
A Justice Department spokesperson says the FBI was just following "standard operating procedures" in how it handled Azar, adding "we take very seriously criminal fraud against the United States government." A representative of Human Rights Watch calls the case "bizarre." Unless there's more to this story, I'm with HRW on this one.
The economics commentator, Irwin Stelzer, has an excellent, plain-spoken article in the Weekly Standard on the issues of executive compensation in the financial institutions. Pay Day. It is an interesting article in part because Stelzer takes as his audience conservatives who are skeptical of government-established restrictions on compensation in the banks and financial institutions:
The Federal Reserve Board's monetary policy gurus are making cash available to banks at almost no cost, it can be re-lent to desperate borrowers at mouthwatering margins, and if anything goes really wrong, the government stands ready to bail you out. Free cash, or almost; high and rising charges to borrowers and consumers; bailouts if assets become toxic--what more can a bank president and his board want in this best of all possible worlds? Freedom to set compensation, that's what.
Stelzer then walks, looking to an audience skeptical of the idea of a government compensation czar, the consequent problems of moral hazard in bank compensation arrangements:
The most important and troubling lesson we have learned is that it is not how much executives in the financial sector are paid, but how that pay is structured. "Incentives matter" has long been a mantra of conservatives eager to allow the invisible hand to work its magic, rather than rely on government to direct economic activities. It was that belief in the ability of proper incentives to produce socially desirable behavior that underpinned conservative plans for welfare reform. With incentives and the public interest properly aligned, markets, not men, should decide on the allocation of a nation's resources, and on the division of the rewards for economic effort. Unless . . .
As Stanford professor Roger Noll put it in a communication he has generously allowed me to quote:
"The financial whizzes did nothing illegal and were responding to the incentives they faced. The system of large cash bonuses for gains coupled with no penalty for losses leads them to play games in which the short-term probability of gain is high but the long-term probability of loss also is high. This is the basic underlying fact behind every financial crisis in the last 25 years. If we persist in a system in which a company makes X a year every year for ten years but then loses 25X in the eleventh, and we give Y in bonuses in the good years and zero in the bad, the whizzes will still prefer boom and bust."
When the pursuit of such incentives harms innocent bystanders, it is difficult to argue that there is no role for government to play in correcting what economists call market failure resulting from externalities, even at the risk of introducing government failure. We don't allow 8-year-old children to spend their days digging coal only because we are humane, but also because such an assault on the health and educational opportunities of these children imposes costs on society that are not borne by mine owners. We don't allow manufacturers to pollute if that damages the health of innocent bystanders, imposing costs on society. And we now know that the structure of financial incentives can lead to risk-taking that has serious consequences for society--for Main Street as well as Wall Street. If compensation is structured so that the rewards of risk-taking go to bankers and their shareholders, but the costs of failure are borne by a wider group, the bankers will take more risks than are economically efficient. And that is without giving weight to Adam Smith's shrewd observation that men tend to be excessive risk-takers even without a skewed reward system: "The overweening conceit which the greater part of men have of their own abilities, is an ancient evil. . . . The chance of gain is by every man more or less over-valued, and the chance of loss is by most men under-valued."
The argument that incentives and inclinations exist that lead to excessive risk-taking is not a moral argument, or a political one, or an argument in favor of a more equal distribution of income and wealth. It is solely an economic argument: Compensation structured as it has been in the financial sector results in an uneconomically excessive amount of risk-taking, just as a failure to make a polluter internalize the costs of pollution provides an incentive for him to produce more than if he had to pay all the costs he imposes on society.
But the solution need not, and should not, be the government pay czar sitting down and figuring out how much is "too much." The point is not how much, but in response to what incentives, what risks, and in what time frame. The fundamental problem is to unite short term and long term horizons. It will have to be less genteel than in the past, for a reason that Stelzer discusses with great acuity - the loss of "reputation" as a deterrent to externalizing losses. Stelzer means this in the classic economist's sense that "reputation" matters if one plans to be a repeat player; lost in the thicket of securitization and complexity and circle-jerk derivatives was any sense of repeat play and attendant reputation.
But Stelzer adds that other sense of reputation - one that interests me a great deal, as it goes to my view that the markets are anchored rather more by a shared, foundational, legitimizing, affective body of the 'moral sentiments' than is typically admitted in economic models. Says Stelzer:
Until now, economists held that the fear of "reputational consequences" would deter such behavior. But most of these transactions that originate with a broker paid up-front are one-off--the same customer is unlikely to return, or learn soon enough the consequences of his brokers' behavior to warn others. Executives who bring down their institutions leave with golden goodbyes and access to talk shows on which they unashamedly--shame being in short supply these days--justify their actions en route to a game of golf at a country club, dues paid by the company from which they departed but at which an office and staff support are still available to make their transition to a new life friction-free.
I exaggerate: Not all cases fit that description. But almost all have one characteristic in common: The cost of the pursuit of the incentives contained in a compensation package, when that pursuit leads to major loss, has not been borne by the pursuer, but by thousands of people he has never met.
Addressing the problem of executive compensation moral hazard through quasi-populist regulation of 'how much' will come to several kinds of grief, in my view. One is that, yes, it is welfare-maximizing, to say the least, to have highly compensated expert risk takers; compensation levels as such are not the issue, moral hazard is.
Second is that such systems of non-market regulation rapidly - are already - leading to crony capitalism, whatever grand names one wants to put on it. Fannie and Freddie showed us the way, and the result is spectacular misallocation of capital, labor, and the loss of investment in the ways most likely, given all the uncertainties, to produce the growth the next generation will desperately need, after paying the costs of seeing off my Baby Boomer generation to its final rest.
Third, I say "quasi populist" because the effort to regulate pay as such is not really about true populism - it is, as David Brooks pointed out a few months ago, much more the revenge of DC's Ward 3 over the bankers of Wall Street. He meant by that the opportunity for the regulatory class of lawyers and senior civil servants of my neighborhood in Washington DC - 20016 - to humble the financial class that for years made them seem like The Stupids for not being on Wall Street. Brooks is best when he skips politics as such to focus on these kind of comic-Veblenesque-sociological reads of the economy, and he captures something exactly. I guess one would call it the deliciousness of a DC government lawyer, well compensated by any standard other than Wall Street's, being able to set, or threaten to set, compensation for these people.
The appeal is irresistible to a certain professional New Class but not exactly populist. The reason these "populists" are stretched is from trying to make tuition payments to Sidwell Friends, National Cathedral School, or St. Alban's - all of whose annual tuitions, so far as I can gather, are slated to hit around $50,000 a year in current dollars by ten years from now. But what appeals to these technocrats is not devising a structure of incentives - it is the naked exercise of moralizing power over paychecks, one group of professionals, exercising political power in the political sphere, over another, the previously untouchable and in every way advancing, winner take all, professional class of financiers.
(More another day on this crucial, under-discussed issue of the New Class. But the social conflicts that Brooks describes, exemplified by the executive pay issues, are really struggles among professionals within the New Class, rather than the New Class versus everyone else.)
(Update, bringing up a comment of mine into the post: The third point is to say, and perhaps I wasn't sufficiently clear, that the people who as the bureaucracy, the permanent government, would have to carry out a program of setting pay as such, do not act as populists in the classic sense - and, this being the point, that affects how they see their interests and motivations in carrying such a policy. It might, I suppose, be a good policy or a bad one - though obviously I think it a bad policy, setting compensation as such. But my third point says, or anyway is intended to say, that it does matter to know the motivations, class background, class interests, and so on of the people to whom such policy is committed. If you assume it is simply that of populists, you might find a very different understanding of What Is To Be Done than if you see them, as I do, as part of the new professional class. The struggle over compensation policy is an internecine one. And did I say that to be a libertarian-conservative in no sense deprives one of Marxian analysis? :)
If you're planning a garage sale or organizing a church bazaar, you'd best beware: You could be breaking a new federal law. As part of a campaign called Resale Roundup, the federal government is cracking down on the secondhand sales of dangerous and defective products.
The initiative, which targets toys and other products for children, enforces a new provision that makes it a crime to resell anything that's been recalled by its manufacturer.
A couple of years ago, I blogged about a group of Palestinian Arabs I encountered in the Galilee who were obviously of African descent. I've stumbled across an academic article (original source unclear) published since then that discusses the history of some of the Palestinians whose recent ancestors were from Africa:
Most contemporary members of the African community came to Jerusalem as pilgrims and workers under the British Mandate of Palestine (1917-1948). They came mostly from Senegal, Chad, Nigeria and Sudan. They regard themselves as Palestinian and played an active role in the Intifada. Some of the Africans arrived as part of the Egyptian led 'Salvation Army' which aimed to liberate the Palestinian areas held by Jews in 1948. After the defeat of that army and its retreat to Egypt many Africans returned to their original countries, while others preferred to stay in Palestine.
In response to the new law, some credit card companies are starting to charge annual fees on their credit cards to protect themselves against potential losses. Others will likely drop their rewards programs, or stop giving customers’ percentage rebates on credit card purchases. For example, I and my wife get 3% to 5% back on most of our credit card purchases.
One of my co-workers just emailed me that since the new law, he will now be charged an annual fee on what he calls “the best reward card I ever found.” It’s the same card I use for many of my purchases.
The new law is supposed to “protect” cardholders. But what it really does is transfer wealth from people who pay off their credit card bills at the end of every month, (or have good enough credit that the credit card company would not likely have increased their interest rate anyway) to people with bad credit who have run up big balances.
If you make it harder for credit card companies to charge risky people higher rates than responsible people, they’ll increase rates for everyone, or make it harder for people to get credit cards in the first place.
Let me stress one point: annual fees are a uniquely pernicious form of term re-pricing by credit card issuers to deal with limits on their ability to price other terms at market rates. First, they dampen market competition because once a consumer pays an annual fee he has essentially made a capital investment and is locked into that card for the year. And if he switches cards, he has to pay another annual fee. Second, they dampen competition because they are a tax on multiple-card holding. Right now card issuers compete for my business every single time I make a purchase and I can decide which card to use for every transaction. Third, consumer surveys over many decades show that annual fees are the least-liked term by consumers of all credit card terms. Finally, as Hans suggests, annual fees are imposed on all card holders, good and bad risks and responsible and irresponsible users alike. Thus, they have extremely questionable redistributional consequences among card users.
More regulations go into effect next year, so look for more offsetting changes to your credit cards: more annual fees, higher interest rates, less-generous rewards, higher penalty fees, lower credit lines, and less access to credit.
Perhaps someday somewhere a free lunch will be discovered, but it won't be with respect to this legislation.
More on gun registration, and guns at POTUS speeches:
Over at at the CBS News blog site, Declan McCullagh has a new article on the constitutionality of gun registration. He has input from Volokh, Kopel (we disagree), and many others.
Also in relation to a topic that I blogged about yesterday, my iVoices.org podcast on guns at presidential speeches is now on-line.
On the one hand, I think that the some folks in the MSM are being self-indulgently paranoid in mis-interpreting these legal displays as threats. And some media have been even worse, in trying to impose a racial narrative on the whole thing.
On the other hand, as I eleboate in the podcast, I think that this form of protest is probably harmful to the Second Amendment cause. It's sort of a Second Amendment version of the gay rights people chanting "We're here, we're queer. Get used to it." This kind of self-expressive demonstration can sometimes be helpful for a cause, and sometimes harmful, depending on the context. In the context of a presidental visit, I think it is harmful.
Missouri Prosecution for Emotionally Distressing a Minor:
Elizabeth Ann Thrasher is being prosecuted under the Missouri felony harassment statute passed in the wake of the Lori Drew case. The St. Louis Post-Dispatch reports:
Elizabeth A. Thrasher, 40, [was involved in] online [bickering] with the 17-year-old daughter of a woman Thrasher's ex-husband was dating.... The teen [then] sent a MySpace message to Thrasher, telling her to grow up.
Thrasher ... then created a listing on Craigslist's Casual Encounters section, investigators said. The listing included the teen's picture, employer, e-mail address and cell phone number. Banas said the posting's language would lead people to believe it was an invitation to sexual contact.
Investigators said men called the girl and sent e-mails, text messages and pornography to her cell phone after Thrasher posted the listing....
Now this is bad behavior, and I'd see no First Amendment problem with criminalizing such deliberate lies about particular other people. They are in any event probably civilly actionable as libel or false light invasion of privacy, and there's no constitutional barrier to making them criminal as well. But the statute under which Thrasher is prosecuted isn't limited to false statements; rather, it provides (in relevant part, as revealed by the indictment),
1. A person commits the crime of harassment if he or she: ...
(3) Knowingly ... causes emotional distress to another person by anonymously making ... any electronic communication; or
(4) Knowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... causes emotional distress to such other person; or ...
(6) Without good cause engages in any other act with the purpose to ... cause emotional distress to another person, cause such person to be ... emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.
2. Harassment is a [class D felony if] ...:
(1) Committed by a person twenty-one years of age or older against a person seventeen years of age or younger ...
As I've noted before, this is an extremely vague and potentially broad statute. It's a crime (perhaps a felony) to purposefully "emotionally distress" someone "without good cause," with the jury deciding what's good cause -- imagine how much speech this can cover. Likewise, under subsection 4 (which doesn't seem to be in play in this particular prosecution, though it's not clear from the indictment) it's a crime to even recklessly cause emotional distress to a minor, under subsection 3 to do so knowingly cause emotional distress to anyone by an anonymous electronic communication, whether or not one has "good cause." And consider how broad "emotional distress" can be.
A great deal of speech, including anonymous speech, emotionally distresses people. That doesn't strip it of constitutional protection, and neither should constitutional protection turn to jury conclusions of which causes are good and which are bad.
So it seems to me that the statute is facially overbroad, and thus violates the First Amendment (at least unless a court can somehow interpret the statute narrowly, which is hard for me to imagine given the breadth of its terms, and the absence of any limitation to lies or other unprotected speech). It therefore can't be applied even to someone -- such as Thrasher -- who could indeed be constitutionally punished under a narrower statute.
Should I be able to set up a Web site called againstvolokhconspiracyblog.com without being challenged?
Of course you should, at least if the content of the site likewise makes clear that it's criticism of the Volokh Conspiracy rather than something endorsed by the Volokh Conspiracy. Why shouldn't you? What readers would be confused? How would we be hurt in any way that the law should recognize as an actionable harm? (Of course we could be hurt by your criticism, even if it's entirely apt, but you should be free to hurt us this way.)
I like my name (though it's one I happen to share with other people). I like the name of our blog. I feel some emotional attachment to both. I can't say I'd be wild about your using it in criticizing me. But so what? If you want to criticize me or our blog, it seems to me hard to see why you should be denied the right to use my name or our blog's name in doing so.
With horror, I'm beginning to realize that classes (at my law school, anyway, and at many others as well) are actually starting up again this coming week, bringing summer '09 to an end, alas. Time for my annual plug for my "Writing Guidelines" -- if you're a beginning law student, or a returning law student, or just someone who writes, you're encouraged to download a copy and look through it. I've put much of what I've learned about writing well over the years in there, and, from the reaction of people who've downloaded it in the past, I think it's a decent guide to the art. (Not, incidentally, as a replacement for Eugene's terrific book on "Academic Legal Writing," but as a supplement, looking at the craft of writing from a somewhat different perspective).
And speaking of classes, I've made the decision this semester to ban computers from my classroom(s). It's something I've been thinking about for a couple of years, and it's not something I've come to (I hope) without giving the matter some serious thought. This is particularly so because this semester one of the courses I'm teaching (and in which I'll be implementing this new rule) is a course on "Cyberspace Law" -- I know it's going to strike some students as bizarre that they won't be allowed to have their laptops in a Cyberspace Law class, but I'm prepared to defend the decision. Simply put, I think they'll learn more without them because they will be forced to engage with the material being presented (or at least they will have fewer alternatives to engaging with the material being presented -- you can lead a horse to water and all that). Several years ago, I sat in on a Law and Economics seminar taught by a colleague of mine at Temple Law School, Dave Hoffman, in which he forbade students from using laptops during class. It was pretty clear to me that the quality of student engagement in the class discussion benefited immensely from the decision. The computer is a powerful distractant -- when the discussion gets messy or difficult (indeed, especially when the discussion gets messy or difficult), it's awfully tempting for students to check out for a few minutes to check their Facebook page, or send out a few emails, or organize their files, or do a little Lexis/Westlaw research, or check the baseball scores, or . . . and then, 9 times out of 10, they're lost for the whole class. I want confused students to tell me they're confused -- to put their hands up and say "Excuse me, but what exactly are you talking about?" They don't need good excuses not to do that.
Wisconsin Attorney General Won't Defend the State Domestic Partnership Law Against a Constitutional Challenge:
A reader passes along this statement from the Wisconsin Attorney General (and news reports seem to confirm that it's genuine):
In November 2006, Wisconsin voters amended our State Constitution to declare that marriage was between one man and one woman. The amendment prohibits our government from recognizing any other legal status substantially similar to marriage. But the general domestic partnership provisions contained in Act 28 do just that -– recognize a legal status that is substantially similar to the legal status of marriage.
That is why I cannot represent the state in this case.
My decision isn’t based on a policy disagreement. As Attorney General, I prosecute and defend laws that I wouldn’t have voted for if I were a policymaker. That is what I believe the job entails.
But I will not ignore the Constitution. My oath isn’t to the legislature or the governor. My duty is to the people of the State of Wisconsin and the highest expression of their will — the Constitution of the State of Wisconsin. When the people have spoken by amending our Constitution, I will abide by their command. When policymakers have ignored their words, I will not.
To defend the law would require me to ignore the command of the voters when they passed the recent marriage amendment or to ignore the expressly stated intent of the legislature in enacting Chapter 770. I am unwilling to do either.
The e-mail from the Attorney General's office containing the statement also contained the following:
BACKGROUND AND BASIS FOR ATTORNEY GENERAL’S DECISION NOT TO DEFEND STATE IN CHALLENGE TO DOMESTIC PARTNERSHIP LAW (CHAPTER 770)
Case and Procedural Posture: The case in question, Appling, et al. v. Doyle, et al., 2009AP001860-OA (Wis. Sup. Ct.), is a petition to the Wisconsin Supreme Court to take jurisdiction as an original action challenging the constitutionality of Chapter 770, which establishes a “legal status” of Domestic Partnerships. The Supreme Court has ordered a response from the state respondents (who include Governor Doyle, Secretary of Health Services Karen Timberlake, and State Registrar of Vital Statistics John Kiesow) which is due at the end of the month. The Court has not yet ruled whether it will consider the petition on its merits. That decision is a matter of the Court’s discretion.
Basis For Decision
Van Hollen declined to represent the state respondents because he concluded Chapter 770 (establishing the legal status of Domestic Partnerships) was unconstitutional.
Article XIII, Section 13 of the Wisconsin Constitution provides:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
The constitutional analysis does not hinge on a comparison of benefits conferred by law to those who are married and those who are domestic partners. The constitutional analysis must focus on the nature of the “legal status” of domestic partnerships and whether that status is “substantially similar to marriage,” as the text directs.
The legislature made clear its intent as to what it believes the “legal status” of a domestic partnership entails. The express purpose of Chapter 770 is to “provide the parameters of a legal status of domestic partnership.” Wis. Stat. § 770.001. It defines a domestic partnership as the “legal relationship that is formed between 2 individuals under this chapter.” Wis. Stat. § 770.01(2). Chapter 770, in turn, does not define the legal relationship in terms of benefits, but in terms of criteria for entering the relationship. Those criteria include (1) two adults, (2) of the same sex, (3) who have the capacity to contract, (4) who are unmarried and not in another domestic partnership, (5) who are no closer in relation than second cousins, and (6) who share a common residence. Wis. Stat. § 770.05.
“Marriage, so far as its validity at law is concerned, is a civil contract … which creates the legal status of husband and wife.” Wis. Stat. § 765.01. A marriage relationship’s criteria requires (1) two adults, (2) of the opposite sex, (3) who have the capacity to contract, (4) who are unmarried, (5) and who are no closer in relation than second cousins. See Wis. Const. Art. XII, Sec. 13; Wis. Stat. §§ 765.01, 765.02(1), 765.03.
These criteria are not only substantially similar to the criteria necessary to enter a domestic partnership, they are nearly identical.
In conclusion, Article XIII, Sec. 13 prohibits the recognition of a “legal status” that is “substantially similar to marriage.” The expressly stated intent of Chapter 770 is to provide the parameters of the legal status of domestic partnership. Those parameters mimic the required parameters of entering into marriage, with the exception that couples in a domestic partnership must be of the same sex as opposed to different sexes and that they must also share a residence at the time the relationship is created. Because the legislature has recognized that Chapter 770 creates a “legal status,” and defines the status with reference to criteria that are “substantially similar” to those criteria required to enter marriage, Chapter 770’s creation of domestic partnerships is unconstitutional.
It also notes, in answering the question, "Will the Law Be Defended?," that "Wisconsin law authorizes the governor to appoint special counsel."
I haven't looked at this closely, and thus have no opinion on whether the Attorney General's position is sound, but the story struck me as interesting, so I thought I'd note it. Thanks to Matt Bower for the pointer.
Mike Rutti sought to bring a class action on behalf of all technicians employed by Lojack, Inc. (“Lojack”) to install alarms in customers’ cars. He sought compensation for the time they spent commuting to worksites in Lojack’s vehicles and for time spent on preliminary and postliminary activities performed at their homes.... [W]e vacate the district court’s grant of summary judgment on Rutti’s postliminary activity of required daily portable data transmissions ....
[Footnote 1:] Although not in the dictionary, this word is used in the critical statute, 29 U.S.C. § 254(a)(2). The statute provides that an employer need not pay for:
activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
There is some inherent ambiguity in this definition. On the one hand, these terms refer to the timing of the activity as either before or after the employee’s primary job functions. On the other hand, the terms appear to be used to distinguish off-the-clock activities for which an employee is not entitled to compensation from “principal activities” for which an employee is entitled to compensation. In this opinion, the terms are used primarily to refer to the timing of the activities in issue.
I often like to note unusual legal words, so that's one reason for the post. But another reason is to remark on the "not in the dictionary" locution. Of course, there is no "the dictionary"; and while the word doesn't seem to be in any of the major online free dictionaries, it is in the Oxford English Dictionary — surely a dictionary, whether or not you see it as the dictionary.
The first definition in the dictionary turns out to be legalese, though quite different from the meaning in the statute. The word "postliminy" is listed in the OED as "Roman Law. The right of a banished person or captive to resume civic privileges and former rights on return from exile (hist. in later use). Hence Internat. Law: the restoration to their former status of persons and things taken in war." "Postliminary" is then defined as "Relating to or involving the right of postliminy."
But the second definition is simply "Coming after, subsequent. Opposed to preliminary." The earliest source is 1826, in a novel by Sir Walter Scott (a pretty good source as sources go), though a Google Books search revealed an 1811 source as well. And of course the existence of the word is to be expected, given the way English words are often formed.
Nor is the ambiguity identified by the court some artifact of the suspect, supposedly not-in-the-dictionary nature of the word "postliminary"; rather, the ambiguity is in the statutory definition, and applies to "preliminary" as well.
Now I wouldn't urge people to use the word "postliminary," unless they're dealing, as did this case, with a particular statute that uses the word. The word strikes me as unidiomatic (that it's not in the standard one-volume desk dictionaries is indeed a sign of that), and as clunky and distracting, even when the meaning is obvious. But it is in at least one pretty important dictionary, and isn't entirely a nonce word on Congress's part.
For some reason, watching the video of the Corvette that Jim links to below makes me think that America doesn't need Cash for Clunkers to get out of this economic malaise. What America needs is a telethon. No, wait, an Americathon! (For more on this 1979 movie, see here).
The University of California, Los Angeles (UCLA) has withdrawn its unconstitutional demand that a former student take down a website criticizing the university. UCLA had demanded that Tom Wilde shut down his private, non-commercial website, ucla-weeding101.info, by last Monday.... [Y]esterday, only a few hours after FIRE publicized Wilde’s case, UCLA informed FIRE that its demands against Wilde were being withdrawn.
“Kudos to UCLA for quickly realizing that the First Amendment protects criticism of the university -- even online,” FIRE President Greg Lukianoff said. “UCLA’s prompt and welcome recognition of the First Amendment freedoms at stake should send a powerful message to other California public colleges that have made similar threats, such as Santa Rosa Junior College, that the law does not support their position.”
Wilde launched the website ucla-weeding101.info last month to argue that he was “weeded out” of UCLA’s Graduate School of Education for his dissenting views. On August 6, UCLA Senior Campus Counsel Patricia M. Jasper sent Wilde a letter arguing that the domain name constituted “trademark infringement and dilution” and suggested the website might be a criminal offense under the California Education Code. Jasper also wrote that UCLA was acting in part to protect its “reputation” and ordered Wilde to shut down the site by August 17.
FIRE immediately wrote UCLA Chancellor Gene D. Block, pointing out that no reasonable person would mistake Wilde’s site as being an official UCLA site or having the college’s endorsement, and that the First Amendment protects the use of organization names on “cybergriping” sites. Further, although a disclaimer for such an obviously unaffiliated site is legally unnecessary, the site now contains a prominent statement explicitly alerting readers that the site is “not supported, endorsed, or authorized by UCLA or the University of California.”
On August 18, Jasper notified FIRE that FIRE’s letter was under review and that she “anticipate[d] having a fuller response ... in the very near future.” Yesterday, FIRE took the case public, and within hours Jasper faxed FIRE to say that, while the university would appreciate more changes to the site, “[i]n any event, the University hereby withdraws the demands made upon Mr. Wilde in our letter to him of August 6, 2009.” ...
My sense is that the original demand was mistaken, for reasons I've discussed before -- the First Amendment protects people's right to use other entities' names (certainly including government agencies' names) in criticizing them.
When the use is commercial and likely to mislead reasonable consumers, for instance if someone sells T-shirts with the UCLA name in a context which leads people to falsely believe the sale is authorized by UCLA, that could indeed be punished. It's possible that such commercial sales might even be punished if there's a disclaimer announcing that the seller is entirely independent of the university (though I think that they shouldn't be, and that people and institutions shouldn't have a monopoly on the use of their names in merchandising, whether under the right of publicity for people's names or under trademark law for institutions and products). But when it's clear that the use is critical of the institution, and especially in a noncommercial context, there seems to me no basis for stripping the speech of constitutional protection.
In any case, while UCLA started out wrong on this, I'm very happy that it has withdrawn its demand.
Disclosure: I will be a keynote speaker at FIRE's 10th Anniversary event this October. Also, as I expect most of our readers know, I teach at UCLA School of Law.
In the Great Depression, the government paid to destroy crops in order to prop up farm prices — about as dumb a policy as can be imagined.
Today the government pays to destroy cars in order to ... frankly, I don't know why.
"Cash for Clunkers" appears to be a bizarre combination of the "broken windows fallacy," the desire to change the climate of the planet, and staggering administrative incompetence. In other words, "Cash for Clunkers" hits the trifecta: bad economics, bad science, and bad government.
Witness the dying gasps of a Corvette. [After the poison is added in the first minute, the engine starts smoking at about 3:40, and gets much worse at about 4:00.]
[Starting again with some brief responses to my engaged and engaging audience. Many thanks to the reader who said, correctly, I did not mean to imply race played no part in voter preferences in the South -- or anywhere else. But, again, I would urge readers to take care in charging racism. Obama ran eleven points behind Kerry among gay voters; are we to conclude that racism is a significant presence in the gay community?
[As to the charge that “Thernstrom and her husband have long been declaring that there is no more racism towards blacks," find me a single sentence (in the thousands of pages on race that we have written) in which either of us make such a ludicrous statement.
[Last point: Preclearance is a provisions whose time has passed, I clearly believe. But of course I am not for repealing the VRA in its entirety. Most of the statute is permanent and should remain so. I wish only to see the Court revisit one of those permanent provisions -- section 2 -- and insist that it be read as originally intended. This is an argument I did not have the space to make in these posts.]
At its inception, the Voting Rights Act stood on very firm constitutional ground; it was pure antidiscrimination legislation designed to enforce basic Fifteenth Amendment rights. A clear principle justified its original enactment: Citizens should not be judged by the color of their skin when states determine eligibility to vote.
That clarity could not be sustained over time. As a result, more than four decades later, the law has become what Judge Bruce Selya has described as a “Serbonian bog.” The legal land looks solid but is, in fact, a quagmire, into which “plaintiffs and defendants, pundits and policymakers, judges and justices” have sunk.
This past term, the Supreme Court had a chance to extricate itself in good measure by declaring preclearance -- intended to be very temporary -- a relic from a previous era.
It took a pass.
Northwest Austin Municipal Utility District Number One v. Holder involved a tiny Texas utility district that was formed in 1987 mainly to provide water to unincorporated areas. Because the Voting Rights Act treats all Texas localities as racially suspect, the Justice Department had to “preclear” the district’s decision to move a polling place out of a private garage and into a public school -- a move “calculated to increase public access to the ballot.”
Preclearance, in the plaintiff’s view, was an irrational and “burdensome imposition” on the district’s “sovereign rights” to manage its own electoral affairs. It had no history of electoral discrimination.
Declaring section 5 unconstitutional was not the Court’s only option. With an interpretive stretch, it could read a “bailout” provision to allow relief from preclearance, and did so. However, Chief Justice John Roberts, writing for the majority, did explicitly say, “The Act’s preclearance requirements and its coverage formula raise serious constitutional questions.” And he spelled those questions out at considerable length.
Another case, another day, a different decision, he implied.
But surely, long before section 5 expires in 2031, the Court will be asked once again to review the constitutionality of preclearance, perhaps in a case that will raise the central question: the racial sorting of voters in a legislative quota system.
The picture that Congress accepted in 2006 of an America still spinning its wheels in the racist muck of its Jim Crow past is absurd, I argued in my previous post. Blacks are enfranchised. And thus the federalism concerns that Justice Black raised in 1966 (see my first post) are legitimate today.
African Americans and Hispanics have become politically powerful. In addition, an army of activists and lawyers monitor American elections closely. Most important, how many Americans would even want to return to the days of old? Today, the question is how best to arrive at the point at which politics are truly racially integrated.
By now, the Voting Rights Act arguably serves as a barrier to greater racial integration. Race-based districts have worked to keep most black legislators clustered together and on the sidelines of American political life -- precisely the opposite of what the statute intended, and precisely the opposite of what is needed now.
Majority-minority districts appear to reward political actors who consolidate the minority vote by making the sort of overt racial appeals that are the staple of invidious identity politics. Harvard law professor Cass Sunstein describes a larger phenomenon that is pertinent: People across the political spectrum end up with more extreme views than they would otherwise hold when they talk only to those who are similarly minded.
Districts drawn for the sole purpose of maximizing the voting power of a racial group surely encourage voters to talk only to the similarly minded. Arguably, elected representatives are left insufficiently tutored in the skills necessary to win competitive contests in majority-white settings. It is a self-fulfilling prophecy: Very few black candidates risk running in majority-white constituencies; majority-minority districts thus become the settings in which blacks are most frequently elected.
In safe minority constituencies, aspiring politicians are under no pressure to run as centrists, and are most often pulled to the left. Their politics, along with a reluctance to risk elections in majority-white settings, perhaps explain why so few members of the Congressional Black Caucus have run for statewide office
As of 2006, the entire CBC was more liberal than the average white Democrat, limiting the appeal of its members to white voters, particularly in the South.
Politicians outside the mainstream can play an important role in shaping legislative debate. But when a group that has been historically marginalized as a consequence of deliberate exclusion subsequently chooses the political periphery, it risks perpetuating its outsider status. Reinforcing the sense of difference compromises the goal of the Voting Rights Act.
Not all black politicians have been trapped in safe minority districts; the point should not be overstated. President Obama’s political career actually began with his successful bid for the Illinois state senate, running from a majority-black district. But Obama was a uniquely gifted political entrepreneur with the skills to reach across racial lines. Thus, he created, saw, and seized opportunity where others have not.
Other black politicians have succeeded in majority-white settings. Journalist Gwen Ifill has described a number of such candidates in her recent book, The Breakthrough: Politics and Race in the Age of Obama. Mike Coleman was elected in 1999 as the first black mayor of Columbus, Ohio. She describes his strategy: “Woo the white voters first . . . then come home to the base later.”
Nevertheless, such candidates remain the exception. The Voting Rights Act was meant to level the political playing field, so that blacks would become a political faction with the ability to enter and exit coalitions as other citizens do -- that is, if they chose to define themselves as members of a likeminded political interest group. Its ultimate goal was full political assimilation.
Instead, the law -- with its continuing stress on the urgent need for maximizing the number of safe black constituencies -- implies that most black politicians need majority-black settings in order to win.
In other respects, as well, the law today serves as a brake on black political progress, as I discuss in more detail in my book.
Thanks for listening. Thanks for responding. And much gratitude to Eugene; I was honored to be his guest for the week.
in helping to find our way through the economic crisis? The economists are evident, even if in some kind of professional and ideological disarray and angst. But where are the law professors? And what expertise do they - should we - bring to the table of policy, law, action, and reform? As Judge Posner says, the whole affair bristles with legal questions. But they are ones requiring not just lawyers as particularly clever scribes but, instead, legally trained academics who are able to bring the skills of legal training together with economic policy ... well, where are the legal academics? As he says, writing in July at his Atlantic blog, the training and orientation of academic lawyers suffers from limitations in assisting in the practical and policy work of reform:
[R]ecruitment of academics from practice has declined, as academic law has become progressively "academified" and specialized. Increasingly, in imitation of more conventional academic disciplines, legal academics are expected to focus the research component of their work (and this inevitably influences the teaching component) on specialized research the results of which are publishable in academic journals read mainly by other academics in the author's specialized subfield. The preparatiion and publication of such research are time-consuming endeavors and therefore are ill adapted to responding constructively to rapidly evolving current issues, especially ones that cross disciplinary and subdisciplinary boundaries.
As a result, with a few notable exceptions, such as Lucian Bebchuk, Edward Morrison, and Steven Schwarcz, academic lawyers (and Bebchuk and Morrison have Ph.Ds in economics, as well as law degrees) have not made a contribution to the understanding and resolution of the current economic crisis, even though it bristles with legal questions. And I don't mean only or primarily legal questions that can be readily answered on the basis of orthodox legal materials; for those questions can be answered adequately by the large, sophisticated law firms engaged in a commercial or corporate practice. I mean rather legal issues that cannot be resolved intelligently without consideration of issues of policy--in the present instance issues of economic, including macroeconomic, policy. And not only legal issues, but issues of economic policy to which legal knowledge is relevant, even if the issue itself is, for example, legislative in character, rather than requiring the application of existing law.
I think there actually are a lot of legal academics doing this kind of policy work, and not merely as a new academic subspeciality (what would we call it? A new Bepress journal, perhaps, Studies in Armaggeddon?). Hal Scott, Todd Zywicki, Elizabeth Warren, my new WCL colleague Anna Gelpern, Bill Bratton, Joe McCahery - I take Dick's point, but think that there are more than meet the eye, particularly in DC. HIs post then goes on to raise a number of specifically legal issues, such as the authority of the Fed in its lending programs, and whether it is genuinely authorized by its statute, etc. But it seems to me that these examples take too narrow an approach. Both the roles of the professors Dick names, and the role of the legal academy, should be different. It is not simply answering a question as to whether the law covers something or doesn't cover something, or should or should not, and how you would draft it.
Rather, what legal academics presumably bring to the policy table is a particular expertise in certain forms of institutional behavior under incentives, an understanding of how regulatory and legal structures actually, as distinguished from theoretically, structure risk taking and risk shifting, particularly in institutional settings that participate in broader markets. This differs, partly in principle but partly in just general acculturation in my experience, from the economist's expertise. In my experience, at least, academic lawyers, particularly if they do have some practical experience, tend to be far more attuned to the nuances of institutions, their internal incentives, disincentives, actual behaviors, etc., than the economists tend to be. The economists in my experience, for what it's worth, tend to be better at understanding financial markets as systems - but it leads them to make many simplifying assumptions about the internal behavior of institutions, including the behaviors of agents in compensation arrangements, etc.
I think that legal academics will have much to contribute in the reform of finance in the remaking of institutions and markets with fewer panglossian assumptions about how they will find optimal solutions on their own, and with fewer panglossian assumptions that they will do so as a matter of natural necessity. But I also think, even more strongly, and will raise it in some subsequent posts, that lawyers will bring to the table an understanding of the unquantified risks and uncertainties that are written into financial contracts - derivatives, securitizations, etc. - that financial analysts, economists, many other non-lawyer actors, took for granted as not having any effect. Covenants and conditions with particular wording - how do you quantify those contingencies? Behold the fat tail, it exists after all, and bears gifts, sort of, if you count as a gift the arrival of Shiva, dancing on the back of the world.
Put another way, a certain fluidity in the analysis, and risk pricing, across instruments in the financial markets depended upon an easy assumption that certain instruments were economically or financially 'equivalent' to other instruments. And so to facilitate pricing ... these preferred stock instruments are functionally equivalent to certain kinds of debt instruments and so we can use them just as if they were, or price other instruments as though they were, etc. But from a strictly legal, doctrinal standpoint they might not be equivalent, should it ever come to a legal fight over the terms, at all. Or at least it raises a level of uncertainty that is not part of the "equivalence" analysis.
I plan to do some posts here, and eventually perhaps write a short paper, with the title, When Financial Equivalents Are Not Actually Legal Equivalents ... and perhaps I'll be able to persuade Judge Posner to comment, either here or at his Atlantic blog.
Does the Automobile Exception Permit a Search of Computers Found in a Vehicle?:
Under the so-called "automobile exception" to the warrant requirement, the police can search a car for evidence without a warrant — including any containers in the car — if they have probable cause to believe that evidence is in the car and that evidence could be located in the place they search. But does this apply to computers? That is, if the police find a laptop in a car, can they search the laptop without a warrant under the automobile exception?
I'm not aware of any court having ruled on this issue before, but last week the Tenth Circuit came close: Its opinion in United States v. Burgess spent several pages pondering this question before deciding not to decide the issue. If you're interested, check out the discussion at pages 13-20. The opinion also has a very interesting discussion about different ways of limiting the scope of computer searches later in the opinion.
Dealers in various states, including New York and New Mexico, have decided to withdraw from the "cash for clunkers" program due to delays in government reimbursements -- and perhaps not a moment too soon, as the Department of Transportation announced the program would end Monday (two months early) because it's again out of cash.
President Obama gave advice via conference call to one thousand liberal rabbis regarding how to push for his health care reform efforts at high holiday services (which have by far the largest synagogue attendance of the Jewish year) without seeming partisan:
"I am going to need your help," the president told a telephone audience of about 1,000 rabbis on Wednesday morning, according to the Twitter feed of Rabbi Jack Moline of Alexandria, Va., who added that Mr. Obama advised the group to share stories of health care dilemmas with congregants to illustrate what is at stake in the current debate.
Many religious leaders prefer not to make overtly political pitches to their congregations, and one rabbi asked Mr. Obama how to reconcile the sanctity of the high holidays with the partisan politics of the health care reform fight. The president responded, another participant said, by framing it as a moral rather than a political question, stressing the 47 million Americans who lack insurance.
I don't see anything terribly scandalous about this; the scandal would be if rabbis abuse their pulpit by pushing a political agenda, not the president (who, after all, is a politician, so what can you expect?) asking them to do so.
But I will note that if President Bush had urged a huge group of conservative ministers or priests (there is no such group of rabbis) to subtly use their Christmas or Easter sermons to push for tax cuts, or the Iraq War, there would have been howls of outrage from certain circles that I predict will be utterly silent over Obama's actions.
UPDATE: Courtesy of a commenter, here's an interesting take on the call by an Orthodox rabbi who participated. More rabbis should heed this wisdom: "Rabbis have enough difficulty understanding the nuances and intricacies of their own religion to be promoting specific policies in areas for which they have no expertise."
A quick post script to my previous post on David Wessel's economics column in today's WSJ concerning the stimulus. Wessel quotes Barney Frank in passing:
Not for the first time, as an elected official, I envy economists. Economists have available to them, in an analytical approach, the counterfactual. Economists can explain that a given decision was the best one that could be made, because they can show what would have happened in the counterfactual situation. They can contrast what happened to what would have happened. No one has ever gotten reelected where the bumper sticker said, "It would have been worse without me." You probably can get tenure with that. But you can't win office.
I didn't include this in my discussion, as I found it a bit tangential. However, when I saw that Professor Mankiw had linked to it, I decided to revisit it.
Leave aside as too ad hominem whether Congressman Frank's own statements regarding his role in Fannie and Freddie have any element of counterfactual. I understand that what some people, certainly in his Congressional district, find clever, I find too clever by half, but okay - that is really not my interest here, and please, not in the comments.
Is it really true, as a general proposition, that politicians have no recourse to counterfactuals? What about, for example, the famous claim of "saved or created" four million jobs? As accounts of the President's February 9, 2009 press conference had it:
Question: The American people have seen hundreds of billions of dollars spent already, and still the economy continues to free-fall. Beyond avoiding the national catastrophe that you've warned about, once all the legs of your stool are in place, how can the American people gauge whether or not your programs are working? Can they — should they be looking at the metric of the stock market, home foreclosures, unemployment? What metric should they use? When? And how will they know if it's working, or whether or not we need to go to a plan B?
Answer: I think my initial measure of success is creating or saving 4 million jobs. That's bottom line No. 1, because if people are working, then they've got enough confidence to make purchases, to make investments. Businesses start seeing that consumers are out there with a little more confidence, and they start making investments, which means they start hiring workers. So step No. 1, job creation.
The expression "create or save," which has been used regularly by the President and his economic team, is an act of political genius. You can measure how many jobs are created between two points in time. But there is no way to measure how many jobs are saved. Even if things get much, much worse, the President can say that there would have been 4 million fewer jobs without the stimulus.
An actual answer to the question "What metric?" could have taken the form: "If the unemployment rate on [insert date] is below [insert threshold], I will judge the plan to be a success." Given the uncertainties inherent in the economy, however, no sensible politician would hold himself to such a measurable standard. But the President also wanted to avoid sounding like he was avoiding accountability. So he gave us a non-measurable metric. A clear and specific benchmark, without any way of ever knowing whether it has been reached.
A completely honest (but perhaps politically ill-advised) response to the question would have been, "Geez. I am only President of the United States. I cannot be held responsible for everything that what happens with the economy!" If he had said that, I would have agreed with him.
Update: A regular reader of this blog (who deserves anonymity) misinterpreted my meaning, so let me clarify: The 4 million job number is a counterfactual policy simulation of what the stimulus will do based on a particular model of the economy. As such, I have no objection to someone citing it in a policy discussion. In fact, macroeconomists use models to generate figures like this all the time. I have even done it myself.
But as an answer to the question "how can the American people gauge whether or not your programs are working?... What metric should they use?", citing the 4 million job figure is a non sequitur, or more likely a diversion. A metric has to be measurable, and the actual number of jobs "created or saved" by the policy will never be measurable from any data source.
The more I think about it, the more I think, contra Frank, that politicians of all ideological stripes get elected on counterfactuals all the time. Am I right about that - not about Barney Frank, please - or not? Other examples of politicians offering counterfactuals? And are counterfactual arguments always bad, while we're taking up the abstract category? When and how, or not?
Update: While I am at it, let me ask what the abstract nature of counterfactual argument is. What makes a counterfactual argument a counterfactual? I usually think of them as "but for" arguments - but maybe that is too quick. What is the abstract structure of a counterfactual? And what, in that case, makes for a good as opposed to bad counterfactual argument? Finally, does this bear any relationship to argument from analogy, and if so, how?
National Review Online just posted a piece that I did on the Medicare Catastrophic Coverage Act, and its implications for our latest efforts at health (insurance) reform.
Here's the conclusion of the piece:
No one can predict whether the latest effort at health-care reform will meet a similar ignominious defeat. But this story does hold lessons for the current debate.
First, health care is personal. If you mess with people’s health coverage, they won’t just write a nasty letter to the editor. They will show up at demonstrations with home-made signs, scream at you, chase you down the street, and maybe vote you out of office. So you’d better have a good reason for doing what you’re doing, and a compelling explanation of how your plan would personally benefit your constituents.
Second, framing is critical. The Obama administration has shifted ground several times, trying to find a frame that will persuade voters. It remains to be seen whether the latest frame — it’s about providing people with insurance; insurers are evil, and the reforms will make them behave — will stick.
Update: today's new framing is that health reform is "a core ethical and moral obligation."
Third, don’t assume that people who disagree with you are stupid, misinformed, greedy, or evil. They may just have different preferences about health insurance, taxes, income redistribution, or the role of government in health care. If preferences differ, telling people they can’t understand the complexities won’t help matters. Such condescension just makes aggrieved citizens angrier.
Fourth, be lucky. The administration had better hope that the elderly don’t figure out that reform will be paid for, in part, with hundreds of billions in “savings” from cutting Medicare. (In past years, Democrats routinely savaged Republicans for proposing far smaller Medicare cuts.) If seniors figure this one out, support from AARP’s national office won’t be any more help this time than it was last time — even if AARP stays on board, and there are already indications that it won’t.
Finally, embrace your sense of humor and irony. The administration of a former teacher of constitutional law complains about Americans exercising their constitutional right to petition the government for redress of grievances. A party that elected a community organizer president complains about organized communities. One of the architects of the Democrats’ current health-care strategy (Rep. Jan Schakowsky) is the very community organizer responsible for the horde of seniors that surrounded Rostenkowski’s car. Last year, dissent was the highest form of patriotism. Now, dissent is un-American, and reporting dissent is suddenly patriotic. Who knows what fresh irony tomorrow will bring?
Economics editor of the WSJ, David Wessel, has a fine column today on p.2 talking about why the stimulus has been growing in unpopularity. I raised the policy issue of the stimulus earlier in the summer in a post asking whether we should simply cancel the rest of it - a discussion, it seems, that a lot of folks have also been having, at least informally or in their own heads. The comments to my post were very interesting, which is why I'm revisiting the issue here.
Wessel's column seems to be partly a reaction to polls published in USA Today and elsewhere apparently showing that most people don't see the stimulus working and doubt that it is doing anything for them - or that it will. There is also this poll, cited by Wessel:
The fiscal stimulus, however, is increasingly unpopular. When The Wall Street Journal/NBC News poll asked in January if the stimulus was a good idea or not, respondents said yes by 43% to 27%. When the question was asked in July, only 34% said yes and 43% said no.
The point of the column is to say that, perception aside, the stimulus is doing approximately what it was supposed to do:
The case that fiscal stimulus was a mistake altogether is weak. A decade ago, economists counseled that politicians should leave recession-fighting to the Federal Reserve and its interest-rate cuts. With the average length of a post-World War II recession at 10 months, downturns usually ended before Congress acted.
This time was, truly, different. The recession was more than a year old when Mr. Obama took office, the Fed already had cut interest rates to zero and the economy was still in free fall. "If ever there was a case for a fiscal stimulus, this was it," says Alan Auerbach, a University of California, Berkeley, economist who will kick off an appraisal of the stimulus at this weekend's Fed retreat at Jackson Hole, Wyo.
The problem, Wessel says, is really marketing - marketing the stimulus to the public - rather than the policy itself:
Marketing, it turns out, matters. Promising that the stimulus would save or create 3.7 million jobs, as the White House did, was bound to backfire, and it has. As Citigroup's Steven Wieting observed recently, the first installment of the stimulus — about $75 billion in tax cuts and one-time payments for individuals — is widely assumed to have had no effect. But a $1 billion "cash for clunkers" program gets credit for turning around an auto industry that was selling so few cars that an upturn was inevitable at some point. Maybe Mr. Obama should have mailed coupons instead of reducing the tax bite on paychecks.
I think Wessel is obviously right - and that Auerbach is right and that most economists would agree - in saying that there was a strong case for stimulus. January (or, really, earlier) was it. But beyond that, the article is mostly talking about the right way and wrong way politically to market a stimulus, and on that, I don't think Wessel is quite as persuasive. The reason is that one can describe it as "marketing" and then, as the article does, talk about whether the stimulus was "owned" by Congress or by the President, and all sorts of other public-perception issues. But the fundamental issues were (are) three - tightly interrelated with each other. They run not to marketing, and not to perception, but to underlying policy and purpose.
The first is whether stimulus spending is intended to be genuine demand-side stimulus or, instead, whether it is intended to be some long-term investment in supply, whether in the form of public or private infrastructure that, on this view, boosts productivity down the road. The former is what is meant by stimulus in the textbooks; the latter might be true on some set of arguments, but requires a different rationale.
The second is whether the stimulus spending is intended to be received and spent by private actors or public ones. The most important debate over the nature and design of the stimulus was over whether it should simply put money into private hands, immediately and as cash, or whether it should be spent over a longer period of time by public agencies via Congress (and much of it by the states). The arguments in favor of immediate private spending were that it could happen much more quickly and that if immediate demand was the real purpose, the quickest way to do it was simply stop collecting, for example, social security and other taxes for some period, among other things. No need to send out checks or delay - just stop collecting the taxes and leave that much more money in people's pockets.
The principled (and perhaps winning, but perhaps not) argument against was that an over-indebted public would use the funds to pay down debt, not to pick up demand. The (unprincipled) political argument was that if the money was simply left in private hands, Congress would not get to say how it was spent, with the many 'public choice' issues raised over how Congress and the administration would use the funds to reward favored constituencies. That argument was decisively answered by Congress, unsurprisingly, in favor of public, rather than private spending, and in favor of it, rather than individual consumers, deciding what to spend money on.
The third is a spin-off from the earlier two. Is stimulus spending intended to be, as it appears, public rather than private, rather more long-term than short-term? (Or perhaps to use the anticipation today of future long-term spending as a substitute for actual spending today? Is that realistic in an environment set by a massive credit crunch?) And is the nature of this long-term public spending to be justified not as (merely) propping up demand, but instead as an "investment" in infrastructure? Not - 'you guys dig holes, and you other guys fill them up, and here, everyone gets paid, so go spend' - but instead projects that are justified in part because they are supposed to repair long-neglected public infrastructure and lay the foundation for longer-term productivity growth. The long-term public infrastructure argument can certainly be made, and in my view can have a certain merit, up to a point - the problem is that as a rationale it is radically different from stimulus arguments.
It tends to lead to a worst-of-both-worlds, a sort of bait-and-switch: When I want you to answer my objections that the stimulus needs to happen fast (e.g., don't collect taxes for a while), you say, well, we need to spend on projects that don't just spend money, but do so in a way as to give us a long-term productivity return as well. When I wonder whether all this money appropriated by Congress in haste can possibly be well spent to produce those public infrastructure investments that actually enhance productivity down the road, you say, well, this isn't really about that, it's about quick spending, don't ask questions about long term productivity costs and benefits, this is just about spending money to create demand.
I suspect that the public dimly senses this bait-and-switch argument, and that this is part of what drives its skepticism. Public skepticism says, in effect, I don't really get all these complicated arguments, but I'm suspicious of the sense that, somehow, they always come back to saying, spend whatever and on whatever Congress and the administration say. What they say, though, always turns out to be public and long-term, and if I don't buy one rationale for it, here's another, and then back again. An increasing amount of the public seems to be saying, even if we mere civilians don't understand all this, there's an alternative answer to what feels too much like a bait-and-switch game, and the alternative answer is to reject both. That is, say on the short-term stimulus rationale - yeah, but it isn't that, at least not any more. And then say to the long-term public infrastructure rationale - yeah, but that's not how you allocate money for things if they are really supposed to justify themselves as productivity gainers over the long term, not in an instant debate characterized as a national economic emergency.
I think that's part of the public's inchoate concern - it's certainly mine. If that's the case, however, the problem is much more than marketing. It is a question of whether the stimulus is actually designed as a stimulus or not, and whether the remaining zillions of spending presumed to happen in the next few years in its name are actually about stimulus at all, propping up the economy or instead (one might at least wonder) propping up Congress. It seems to me that this is the debate that needs to happen concerning the remainder of the stimulus spending, not about whether the administration and Congress have explained themselves well to the public or not. There's a genuine public debate to be had - but it's not about perception and marketing, it is genuinely about the nature of the policy, and the nature of the stimulus, now and going forward.
In that context, Wessel's column frames a different kind of question. He frames the question mostly as a matter of skepticism as to whether there should have been a stimulus at all, which allows for an easy answer, at least according to most economists and one which certainly I share. But that's a different question from asking whether this "stimulus" is that, currently and over the next few years - and even if the public doesn't know now to frame that question, it is not answered by saying, of course there had to be a stimulus.
It is quite possible to say, yes, there needed to be a stimulus, but whatever stimulus effect, in a pure demand sense, well, it either happened by now or it didn't. There is at least room for a genuine question and debate over whether spending all the rest of it has anything to do with stimulus arguments in the classic demand sense - or is instead about either public infrastructure arguments or Congressional public choice or both. You don't get at that - current - question by framing it as a question as to whether there should have been a stimulus in the first place.
Update: Judge Posner comments over at his Atlantic blog, "Honesty about the stimulus." (H/t Glenn Reynolds.) The post ranges across many stimulus related issues besides what I quote here, and it is well worth reading the whole thing:
No one has the faintest idea what effect the stimulus has had. My guess is that it has had some positive effect, because of its confidence-enhancing character that I mentiioned earlier and because some of the $100 billiion--though no one seems to know how much--has been spent rather than saved. But it is impossible to determine the net impact of the stimulus on GDP or employment because so much else has been happening to stimulate an economic recovery. Some people have had to dissave--turn savings into expenditures--because their income has fallen (maybe because they have become unemployed) below the level necessary to cover their basic expenses. Some people have had to replace durables that wore out. Foreign demand for U.S. products has risen some. (Dissaving, replacing durables, and export growth if the domestic currency loses value are standard nongovernmental spurs to recovery from a depression.) And the government has been doing a lot to stimulate recovery besides the stimulus--has in fact expended or guaranteed trillions of dollars in an effort to increase the amount of lending, which is essential to economic activity.
Bogus Claims About Health Care Proposals Persist:
CNN has some coverage here. The debate over health care legislation reminds me of the debate over the USA Patriot Act back in 2001 (albeit with the politics more or less flipped). In both cases, the legislation was very technical and difficult for a non-expert to understand. In both cases, you had a lot of vocal critics with only a marginal understanding of the law who were more than happy to be loose with the facts in their criticisms. And in both cases, you had a lot of members of the public willing to believe just about any claim about the law, no matter how outlandish.
UPDATE: A commenter points out another parallel: Many critics seem focused on whether the legislators have personally read the latest text of the bill (as compared to reading summaries of it, reports about it, etc.) I suppose one easy prediction is that if the health care bill passes, it will have a patriotic acronym name, and critics will then complain that the bill passed only because the Senators and Representatives couldn't possibly vote against a bill with such a patriotic name.
To make it more challenging, let me predict a name: I think the bill will be called the "American Medical Excellence Reform In Caring for All" Act -- the AMERICA Act. I mean, who could vote against the AMERICA Act?!?!
The Nightmare of Every Rookie Prosecutor:Ouch. From Kozinski's majority opinion:
The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That’s no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants’ rights.
As an aside, it's interesting that Judge Bybee wrote the more pro-defendant opinion (see his partial dissent).
I've been experimenting with my Comments policy for the last few months. Comments are a blessing and a burden. The burden is that we have moderated comments on this blog, moderation takes time and effort, and there is no way with our current setup to effectively ban any given abusive commenter, so one is left to manually delete his comments one by one.
So I've decided to open comments when I feel like opening comments, which will depend on (a) how interested I am in seeing the comments; (b) how productive I think the discussion will be; (c) how likely I think the particular topic will be to attract cranks who need to be moderated; and (d) how pressed for time I am. I also may open comments for a time, and then close them if I either get too busy to moderate, or the comments have devolved into crankdom.
7th Circuit Says Gun Registration is OK. Guns at Obama protests:
Last week, the 7th Circuit Court of Appeals decided a case involving the Cicero, Illinois, gun registration ordinance. Full coverage of the decision is available in an article for CBS News, by Declan McCullagh. (And be sure to check out Declan's new Taking Liberties weblog.) The decision is written by Supreme Court short-list Judge Diane Wood.
The Wood opinion first cites circuit precedent, accurately, for the fact that the Second Amendment is not incorporated in the Seventh Circuit. The decision goes on, however, to declare that the Second Amendment would not be violated even if it did apply. That portion of the decision has very little reasoning; it simply says that Cicero (unlike D.C., in Heller) does not ban guns. Ergo, the Cicero registration law is constitutional.
The Wood opinion quotes some language from Heller, which provided a non-exhaustive list of presumptively constitutional gun control laws. Yet this list, to the extent that it is relevant, cuts against the Cicero ordinance. Included in the Heller list are: "laws imposing conditions and qualifications on the commercial sale of arms." This would suggest that the gun registration system created by the federal Gun Control Act of 1968 would probably be upheld. The gun is registered at the time of sale, and the registration paperwork (the federal 4473 forms) must be retained by the dealer. The forms are available to law enforcement, without need for a warrant, in the course of bona fide criminal investigations. The 1968 GCA was a compromise; it created registration (which was the primary objective of gun control advocates at the time) but had the registration records maintained in decentralized locations (at the dealers) rather than consolidated by the federal government (since Second Amendment advocates worried that centralized registration might one day be abused in order to implement gun confiscation, as it had been under Nazis).
Cicero's ordinance, however, goes far beyond registration of "commercial sale," and requires that anyone who simply possesses a gun must re-register it every two years. Accordingly, the Cicero ordinance is not within the scope of Heller's presumptively constitutional laws. The Wood court, if it wanted to provide dicta about the constitutionality of registration, should have provided some legal analysis, rather than merely asserting that the Cicero ordinance was constitutional. (The CBS article explains some other features of the Cicero law; the ban on laser scopes strikes me as almost certainly unconstitutional, and the ban on slingshots seems dubious.)
A second issue in the news has been the fact that when President Obama spoke at the Phoenix Convention Center recently, several protestors on the sidewalk outside the center carried firearms openly, as is lawful in Arizona. I've been the Phoenix Convention Center, which is immense. There is no possibility that a person with a gun outside the Center could pose the slightest threat to a person speaking in one of the rooms inside the Center. The White House, commendably, said that the President had no objection to the protesters. However, I think that the protesters probably hurt, rather than helped, the Second Amendment cause. This article in the Christian Science Monitor quotes me to that effect. I did an iVoices.org podcast on the topic, to which I will provide a link when it is uploaded.
Finally, shame on MSNBC for dishonestly injecting racism into the controversy, and claiming that the gun carrying may have had "racial overtones." Actually, as Newsbusters has pointed out, the black rifle was being carried by a black man.
There is no doubt that Justice Holmes was a powerful rhetorician: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"; "It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"; "Three generations of imbeciles are enough"; and so forth.
But along with his penchant for the flip but memorable aphorism, Justice Holmes's opinions reflect what one historian calls his "disdain for facts" and his lack of interest in legal reasoning. Consider Buck v. Bell, the eugenics case.
Despite his reputation as a fierce skeptic, Holmes credulously accepted the junk science of early twentieth-century eugenics without question. Moreover, he evinced no concern for the actual or potential abuse of the sterilization power. Holmes failed to meaningfully inquire as to whether the procedural protections granted Carrie Buck amounted to more than a sham, and whether the evidence that she was both feebleminded and descended from other mental incompetents was legitimate (they were a sham, and it wasn't legitimate).
Meanwhile, Holmes articulated an idea severely at odds with the American constitutional and natural rights traditions---that because the state may draft individuals to defend the country during war, it may demand any lesser sacrifice from its citizens, including forgoing their ability to bear children.
Finally, he drew an analogy between compulsory vaccination, previously upheld by the Supreme Court, and compulsory sterilization. He wrote, "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This analogy utterly fails. In the smallpox case, failure to comply with the vaccination law at issue led to a fine, not to mandatory vaccination. And while mandatory vaccination and mandatory sterilization involve invasions of bodily integrity, the results are quite different--no smallpox in the one case and no children in the other. In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party.
Buck is just one example of what I consider Holmes's failings as a judge, putting aside what I consider the grotesque immorality of many of his beliefs.
Justice Holmes Rocks:
As this seems to be WDYTOJOWH week at the Volokh Conspiracy — "What Do You Think of Justice Oliver Wendell Holmes?" — I thought I would risk annoying Ilya and David B by saying that I'm a big fan of Holmes. He was a marvelous legal thinker for his day, a true intellectual, and a gifted writer.
Granted, I don't agree with Holmes about everything. But then I've never agreed with anyone about everything, and I've never come close with those who had the misfortune of living a century ago. Plus, I'm not sure that the degree to which someone agrees with me is a reliable indicator of how great they are. Whether different people really should be fans of Holmes (liberals, conservatives, left-handed people, etc.) is a question I'll leave to others to debate. But looking at his work as a whole, I find a great deal to admire in it. One of the Great Justices, in my view.
In my view, Oliver Wendell Holmes is one of the most overrated justices ever to sit on the Supreme Court, and H.L. Mencken's contemporary critique of Holmes, linked by co-blogger David Bernstein, is a good explanation of why. As Mencken put it, Holmes was no "advocate of the rights of man," but rather "an advocate of the rights of lawmakers." With rare exceptions, he ruled that legislators could do almost anything they wanted, even if it violated the plain text of the Constitution, or the original meaning. Mencken accurately points out that under Holmes' judicial philosophy, "there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu."
Progressive contemporaries and later liberals defended Holmes because he upheld economic regulations against challenges under the Fourteenth Amendment. But he also deferred to the legislature in upholding forcible sterilization in Buck v. Bell(the famous "three generations of imbeciles is enough" case), and also dissented in landmark civil rights cases such as the peonage cases (which helped prevent southern blacks from being dragooned back into a forced labor system). As Mencken points out, Holmes also upheld fairly egregious restrictions of First Amendment rights during World War I and at other times. His reputation as a free speech civil libertarian mostly rests on a few instances where he deviated from his general pattern.
Perhaps Holmes' ultradeferential jurisprudence could be defended if it were compelled by the text or original meaning of the Constitution. In reality, however, many of his decisions went directly against the text and purpose of the constitutional provision in question. For example, he voted to uphold racially restrictive zoning and peonage laws despite the fact that the Fourteenth Amendment was clearly intended to forbid government-mandated racial discrimination in property and contract rights, and voted to uphold peonage laws despite the plain text of the Thirteenth Amendment, which unequivocally forbids "involuntary servitude."
One could also defend Holmes on the ground that he was merely a product of his times. On many of these issues, however, he was actually in dissent, which suggests that he wasn't merely reflecting the consensus view of the day.
Finally, one could respect Holmes more if he upheld these abhorrent laws despite his personal distaste for them. In many of these cases, however, he either approved of the laws in question or was indifferent to them. His enthusiasm for mandatory sterilization in Buck v. Bell is well-known. But he was also indifferent to or mildly supportive of even very extreme segregation laws, and various harsh restrictions on freedom of speech and press. More generally, Holmes was a kind of Social Darwinist of the political process who believed that majority rule was a force of nature that must almost always be deferred to.
It is understandable that early 20th century Progressives admired Holmes. In addition to supporting expanded government control of the economy, many of them also supported eugenics, restrictions on civil liberties, and government-mandated segregation (seen as a way of promoting social order and preventing the white race from being swamped by "inferior" groups). Even those inclined to be sympathetic to African-American rights or freedom of speech tended to subordinate these causes to what they considered to be the more important objectives of increasing government economic regulation and strengthening the power of labor unions. It is far more difficult to justify the admiration for Holmes that persists today among many modern liberals, and some conservatives.
UPDATE: Although I don't have the space and time to document it in detail, I think that Holmes' reputation for cogent legal reasoning is also overblown. Setting aside the often flawed conclusions of his opinions, he also routinely failed to address important arguments on the other side. Many of his most famous opinions, including the much-praised Lochner dissent (which simply ignored the evidence suggesting that the Fourteenth Amendment was intended to protect economic liberties, and gave short shrift to relevant precedents going against him) suffer from this weakness. Holmes' opinions often seem better-reasoned than they really are because his great rhetorical skill masked their substantive weaknesses.
UPDATE #2: The original version of this post incorrectly stated that Holmes dissented in the important civil rights case of Buchanan v. Warley (a result of faulty memory on my part). I have now corrected the mistake.
There are several prominent left-leaning blogs by Jewish authors that write a lot about anti-Semitism, or, more precisely, are very quick to denounce what their authors see as exaggerated or false claims of anti-Semitism made against critics of Israel.
So I find it interesting to notice how these blogs have covered, or more precisely, not covered, the story of the leading Swedish left-leaning newspaper that published ridiculous, and rather obviously anti-Semitic (given first, the history of blood libels against Jews, and second, that the basis for the "credibility" of the article is that one American Jew from the New York area was arrested for being involved in an organ black market), allegations that the Israeli military is kidnapping Palestinians to harvest their organs. (The newspaper, by the way, continues to stand by its story.)
Of course, no individual blogger has an obligation to blog about any given story. But it's rather remarkable that despite international headlines and thousands of blog posts on the Swedish story, none of the lefty Jewish bloggers who take the time, to, say, denounce Jewswho criticized the award of the Medal of Freedom to Mary Robinson, or to defend Mearsheimer and Walt from charges of anti-Semitism, attack the ADL for its (largely justified) criticism of Joe Klein, and to generally complain about "neoconservative Israel-fanatics" who are said to promiscuously accuse critics of Israel of anti-Semitism, has had anything to say about the fact that the highest circulation newspaper in a Western country--and a left-wing newspaper at that--is unapologetically spreading blood libels.
It's almost as if discussion of anti-Semitism is only important when it fits the "Progressive" political agenda, which amounts to being anti-anti-anti-Semitism to undermine supporters of Israel. Acknowledging real anti-Semitism when it is entwined with hostility to Israel doesn't fit the narrative.
UPDATE: Plenty of Huffington Post commenters believe the Swedish story, so it's not like the lefty bloggers' audience wouldn't benefit from some enlightenment.
We are not talking about a Saudi newspaper or Hamas radio station but a Swedish newspaper. We are not talking about a neo-Nazi rag but a daily closely tied to the Swedish Social Democratic Party. And we are not just talking about an obscure item but an article that received top billing.
On August 18, Aftonbladet published an article by a man named Donald Boström. The editor responsible is named Åsa Linderborg. She is the newspaper’s cultural affairs’ editor.
This was no random decision for her. When asked once: "What do you wish for most in life right now?" She answered: "What a simple question. What I want is a free Palestine."
ANOTHER UPDATE: Meryl Yourish notes that the Swedish foreign ministry criticized its staff in Israel for denouncing the article, on the grounds that Sweden believes in free speech. However, the Swedish foreign ministry has had a very different conception of its obligations with regard to free speech when it comes to denouncing articles and pictures that offend Muslims.
[Note to my lively, thoughtful readers: Your remarks deserve longer responses than I have room for. Very briefly, I agree with the comment: “Since the political makeup tends to correlate at least somewhat with the racial makeup, it is frequently difficult to distinguish these two things,” and I do talk about the issue in my book.
[And I also believe that Obama probably performed worse than John Kerry in the South for reasons other than race. To the more conservative southern white ear, Obama must have sounded weak on national defense, and far to the left on domestic policies such as health care. He was not a decorated war veteran. Etc. (More on this point in the book.)]
[And to clear up a confusion: Yes, I do say in Tuesday’s post that the preclearance requirements are exceedingly vague, and then asserted yesterday that Georgia’s original plan had met the demands of the law. It is the DoJ regs that provide no guidance to the states, but the Supreme Court’s standard in Beer v. U.S. (1976) was clear, and it remains the controlling decision. DoJ has created detours around that decision.]
In 2006 the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act” (VRARA) was passed with almost no dissent. It amended and renewed section 5 for another quarter century. By the new expiration date, electoral arrangements in the South, the Southwest, Alaska, and a collection of arbitrarily selected counties elsewhere will have been under federal receivership, in effect, for a total of sixty-six years.
Congress had been persuaded that at least until 2031 minority voters in the covered jurisdictions (covered by a formula last updated in 1975) would remain unable to participate in American political life without the benefit of electoral set-asides. Such pessimism is not benign; it distorts public discussions and the formulation of policies involving race.
A serious disconnection from reality surrounds the Voting Rights Act today. By every measure, American politics has been transformed since the 1960s. Blacks hold office at all levels of government, and have reached the pinnacles of virtually every field of private endeavor. Racial prejudice has fallen to historic lows. Yet the passage of the 2006 VRARA was preceded by a sustained, meticulously organized campaign by civil rights groups to persuade Congress that race relations remain frozen in the past, and that America is still plagued by persistent disfranchisement.
Activists were determined to garner such overwhelming support for the act’s renewal that no one would dare stop to consider whether these provisions were still appropriate in the twenty-first century.
In passing the VRARA, Congress signed on to a picture that reflected conventional wisdom in the civil rights community and the media. “Discrimination [in voting] today is more subtle than the visible methods used in 1965. However, the effects and results are the same,” the House Judiciary Committee reported. “Vestiges of discrimination continue to exist . . . [preventing] minority voters from fully participating in the electoral process,” the statute itself read.
Surely, rarely in the rich annals of congressional deceit and self-deception have more false and foolish words been uttered. No meaningful evidence supported such an extraordinary claim.
It cannot be said too strongly or too often: The skepticism of those, like Georgia representative John Lewis, who cannot forget the brutality of those years is understandable. But the South they remember is gone. Today, most southern states have higher black registration rates than those outside the region, and over 900 blacks hold public office in Mississippi alone.
Massive disfranchisement is ancient history—as unlikely to return as segregated water fountains. America is no longer a land in which whites hold the levers of power and black and Hispanic political representation depends on the exercise of extraordinary federal intervention, constitutionally sanctioned only as an emergency measure.
In the presidential election of 2004, a stunning 68.2 percent of the black population in original section 5 states was registered to vote, a rate a few points higher than that in the rest of the country. Black turnout rates, as well, have been impressive.
Whether candidates preferred by the group are able to win elections is another test of electoral progress. By 2008, there were forty-one members of the Congressional Black Caucus. Almost 600 African Americans held seats in state legislatures, and another 8,800 were mayors, sheriffs, sheriffs, school board members, and the like. Forty-seven percent of these black public officials lived in the seven covered states, though those states contained only 30 percent of the nation’s black population. The rate of black progress in winning election to state legislatures is also striking.
My book contains much more data -- not all of which paint quite the same rosy picture. But the bottom line is indisputable: black officeholders today have political power. In fact, black voters are the Democratic Party’s most reliable constituency. Their unwavering loyalty makes them indispensable to the party’s fortunes.
Voting rights advocates argue that elections are still racially polarized. But the highly questionable definition of white bloc voting most commonly used -- whites and blacks generally preferring different candidates -- means it can be found wherever black candidates run campaigns unlikely to attract a majority of whites. By definition, then, all districts in which whites tend to be more politically conservative than blacks are racially polarized.
Without the threat of federal interference, would southern state legislatures feel free to engage in all sorts of disfranchising mischief? It seems wildly improbable. Not even Mississippi -- the state that Martin Luther King, Jr. in 1963 described as “sweltering with the heat of injustice, sweltering with the heat of oppression” -- can peddle backward. Blacks are today embedded in its political culture.
As a Clarksdale, Mississippi, newspaper editorial noted in June 2008, “There’s probably less chance today of election discrimination against minorities occurring in Mississippi—given the high number of African-Americans in elected office, including as county election commissioners—than in many parts of the country not covered by the Voting Rights Act.” Yet, section 5 “presumes that minorities are powerless to protect their own election interests in places where they actually have the most clout.”
Racial progress rapidly outpaced the law, and the voting rights problems that are now of greatest concern—hanging chads, provisional ballots, glitches in electronic voting, registration hassles, voter identification, and fraud prevention measures -- bear no relationship to those that plagued the South in 1965. Nevertheless, the most radical provisions of the statute live on, addressing yesterday’s problems.
Fifteen years ago, one of the most liberal members of the Court came close to describing blacks and Hispanics as members of normal political interest groups. “Minority voters,” Justice David Souter said, “are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.”
America has changed; the South has changed, and it’s time to revise the Voting Rights Act as well.
The confidential settlement in Klein v. Amtrak — a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire — included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw....
A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to "direct" Lexis and Westlaw to remove them from their databases....
[A] spokeswoman for Westlaw said Stengel's request to remove the opinions would "absolutely" be honored, and that any instance in which a judge vacates a published opinion automatically leads to its withdrawal from Westlaw's database.
Calls to Lexis were not returned by press time.
It seems to me that it would be very helpful for scholars to have these opinions available somewhere, even if lawyers might find them less useful because they were withdrawn. I've therefore downloaded several of them and placed them here:
[UPDATE: Maxwell S. Kennerly (Litigation & Trial) links to most of these, plus two Oct. 2, 2006 orders and an Oct. 10, 2006 order, but not the Feb. 9, 2006 and Jul. 13, 2006 orders. Thanks to commenter Mike& for the pointer. I had also originally linked to a Dec. 16, 2005 document, but as commenter troll_dc2 pointed out, that was a motion for summary judgment with a proposed order, so I've removed it from the list.]
Of course, it would be best if they were stored somewhere where they could more easily be found. Perhaps it might be some central repository for such documents that professors, students, and lawyers will know to search when they're looking for such things. Or perhaps if such deletion of opinions proves to be quite rare, some journal will want to publish these, so that the opinions will be findable using Lexis and Westlaw law review article queries even if not the case law queries. Or perhaps someone else is already providing copies of the opinions, in which case I'll happily link to those copies [UPDATE: I've done this, having learned of Litigation & Trial's post]. So I'd love to hear others' suggestions about what should be done in cases such as this.
(By the way, even district court opinions that haven't been withdrawn are generally only persuasive precedent, not binding precedent; and an opinion withdrawn pursuant to a settlement shouldn't lose any of its persuasive force. But I expect that most judges would still decline to pay attention to an opinion that the authoring judge has vacated, which is why I think the opinions are probably mostly useful for scholars, not for practitioners.)
Many thanks to Kevin Gerson of the UCLA Law Library for his help.
Reflections on the Revolution in Europe: Immigration, Islam, and the West. While I have been trying hard not to keyboard very much this summer, I have been doing some reading. This new book by Christopher Caldwell is hands down the most interesting and important I have read, all year - and given my interests in financial crisis and regulation reform and all, that's saying a lot.
(Update: On reflection, I am not turning on comments on this post, because I would rather wait and see if we can get something directly from Christopher.)
I know Christopher well and have a high opinion of him and his writing, and if the Senior Conspirator says okay, and Christopher is amenable, perhaps I'll ask for a guest post on this book. Here is a bit of Claire Berlinski's review in the Washington Post:
"Reflections on the Revolution in Europe" — an allusion to Burke — is the latest in a series of pessimistic books, my own included, treating the conflict between a post-Christian Europe and a resurgent Islam. Christopher Caldwell, an editor of the Weekly Standard and contributor to the Financial Times, makes arguments that have been made elsewhere: Mass immigration has changed Europe's demography and is rapidly changing its culture. Many immigrants to Europe have not assimilated; many retain or have developed an Islamic identity antithetical to liberal European values. But Caldwell makes these arguments unusually well, in a book notable for its range, synthesis of the literature, analytical rigor and elegant tone.
In 1968, Britain's Shadow Defense Secretary, Enoch Powell, described Britain's immigration policy as "mad, literally mad," and warned of a day when native-born Britons were "strangers in their own country . . . their homes and neighborhoods changed beyond recognition." He invoked the prophecies of the Sybil in the Aeneid: "I seem to see 'the River Tiber foaming with much blood.' " Widely viewed as outrageously racist, this minatory speech destroyed his career.
In Caldwell's view, "All British discussion of immigration has been, essentially, an argument over whether Enoch Powell was right." The answer, he says, depends whether we mean right in the moral or factual sense. Caldwell agrees that the language of the speech was inflammatory and malicious, but he argues that Powell's demographic projections and visions of blood were — factually — correct. The story, Caldwell observes, has been similar throughout Europe, an assertion he documents with a catalogue of ties between immigrants who do not seem to love their new homes and violence, crime, rioting and terrorism.
He does not argue that there is a monolithic Islamic identity or a single set of European values, although it is inevitable that he will be accused of this. He argues rather that there is enough of an Islamic identity, and enough left by way of European values — attenuated though these may be — that they are not easily reconciled and, if reconciled at all, will not necessarily be reconciled in Europe's favor. He engages carefully with counter-arguments that there is no cause for alarm, and rejects most of them. He is particularly strong in dispatching the claim that, on balance, immigration is economically necessary and advantageous for Europe.
Ted Olson, Law vs. Policy, and the Role of Courts vs. Counsel:
Like my co-blogger Dale, I was very interested in today's New York Times article on Olson's decision to argue in favor of a constitutional right to same-sex marriage. The Times mostly covers the story as "prominent conservative takes liberal view and thereby annoys conservatives." That's a significant part of the story. At the same time, the fact that a prominent conservative lawyer like Ted Olson is personally in favor of same-sex marriage isn't particularly newsworthy. I haven't done any formal study on this, but my rough sense is that opinion on that policy question is somewhat divided among Federalist Society types, especially among younger members. Social conservatives tend to be "against," while more libertarian members are often "for."
What makes Olson's involvement in the same-sex marriage litigation so interesting — and among right-of-center lawyers, controversial — is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. The Times story touches on this, but I would add a bit more detail. Those who have watched Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.
The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long. It's the juxtaposition that is surprising. Of course, different people will disagree on which Ted Olson is right. Some will say he was wrong before and right now; others will he was right then and wrong now. But however you look at it, it seems hard to reconcile the two.
I personally don't see anything wrong with that. Olson is a lawyer, and he's not under an obligation to maintain consistency between what he says when he speaks for himself and what he says when he speaks for a client. Most attorneys who are also public figures at some point make legal arguments that they themselves would reject if they were judges. This is plainly true with Olson: As Solicitor General in 2003, Olson defended campaign finance laws; this Term, as counsel for a private client, he is attacking the very same laws he defended six years ago. Clearly in at least one of those cases he is making an argument that he finds unpersuasive. So from the standpoint of Olson as a lawyer, there's nothing so surprising here. Still, from the standpoint of Olson as a public figure, it's a surprising move.
UPDATE: I fiddled with the 1st paragraph of the post for reasons of accuracy.
My colleague David Schleicher referred to this amazing takedown of Holmes, and the bizarre affection "liberals" had for him, by H.L. Mencken. A taste: "If what he said in some of those opinions were accepted literally, there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu."
This morning's Times has a lengthy story about how Ted Olson came to file a federal lawsuit challenging the constitutionality of Prop 8 and, by implication, all laws limiting marriage to one man and one woman.
One interesting thing about the article is how few right-leaning commentators are cited as publicly criticizing Olson, a stalwart of the Federalist Society and the conservative/libertarian legal movement since the Reagan era. Robert Bork doesn't want to get into a public argument about it. He just wants to know why Olson joined the other team. William Bradford Reynolds mildly chides Olson for taking "a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take."
A quote from Steve Calabresi implies that Olson's lawsuit might echo "a certain libertarian squishiness at the Office of Legal Counsel [in the Reagan Justice Department] under Ted." I take Calabresi's suggestion at two levels. First is the idea that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes. That's debatable given the experience of recent years, but let's leave to one side the overlay of the judicial role specifically in bringing same-sex marriage. One could fully support same-sex marriage, for any number of reasons, libertarian or otherwise, and still not believe the judiciary should impose it.
The second implication is that libertarians support gay marriage. I think that's descriptively true: libertarians are far more likely than traditional conservatives to support same-sex marriage. But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us to lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc. In part because of its channelling and traditionalizing potential, same-sex marriage is a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this.
So what explains libertarian support for SSM? Libertarians have been more willing than traditional conservatives to oppose government-sponsored discrimination against gays and lesbians. Libertarians are also less likely to allow their religious views to dictate their public-policy preferences and are also less likely to presume that traditional practices should enjoy any presumption.
These considerations might lead a libertarian to support same-sex marriage as long as state-sponsored marriage remains, as seems likely. But I would think that's a second-best world for most libertarians, who would prefer a more privately ordered state of, shall we say, affairs.
It's also possible that some libertarians might support same-sex marriage as enlarging the "liberty" or choices of gay persons. But again this libertarian gain should be qualified: same-sex marriage is an induced choice to enjoy "liberty" within a very constrained and state-designed system of official recognition and obligation. In the popular conception, libertarianism is often confused with libertinism, perhaps because libertarians tend to support things like legalized prostitution and drug decriminalization. At the same time, gay marriage is sometimes identified with "sexual liberty," as one prominent academic supporter recently characterized it. But marriage would provide no sexual liberty gays do not already enjoy. Married gays are not really "free at last." They're more aptly described as unfree at last.
So I would not identify support for same-sex marriage with libertarian squishiness, or libertarian firmness, or libertarian anything. That doesn't especially bother me, since I'm not a libertarian. I'm at most a conservative with libertarian leanings, a faint-hearted libertarian. But I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds.
Since I have been out of the country in Japan and Korea, I only just now noticed that Rose Director Friedman passed away yesterday. Rose was, of course, best known as Milton Friedman's wife of 68 years. But she was also a successful economist in her own right, and coauthor of some of her husband's most famous works, including Free to Choose, probably the most successful popular work defending free market economics. She was also, along with Milton, a prominent advocate of numerous important pro-liberty causes. In her last years, she helped found and lead the Friedman Foundation, an organization devoted to promoting school choice.
I would like to extend my sympathies to Rose Friedman's family, friends, and colleagues. She will be sorely missed.
Asa Linderborg, an editor of the newspaper's culture section which printed the story, told Haaretz that the publication "stands behind the demand for an international inquiry [regarding Israel's alleged body-snatching]."
"We had many discussions on whether to publish the article or not, and to the best of my knowledge, there are no facts there that are incorrect," Linderborg said.
Right, because it's inherently plausible that Israeli soldiers kidnap young Palestinians, steal their organs, and then return them to their families, sans organs.
And the world's tiniest violin award goes to the author of the article, who tells Ha'aretz, "I'm very sad to hear people accuse me of anti-Semitism."
UPDATE: The author now adds that he interviewed a "Palestinian witness," but "whether it's true or not - I have no idea, I have no clue." This wouldn't exactly be the first time credulous (or worse) reporters spread malicious gossip based on "Palestinian witnesses"--remember, for example, the nonexistent "Jenin massacre?, or the purported "medic" killed by Israel who had posed for a Hamas website a rocket-propelled grenade launcher and a Kalashnikov assault rifle?--but that doesn't seem to give many Western media outlets any pause.
[Note to readers who have responded so thoughtfully to my previous posts. A number of issues raised will be addressed in this and my subsequent two posts. For instance, I do talk about the collaboration between the Republican Party and the civil rights groups in this post. In fact, I was the first -- in the mid-1980s -- to say that Republicans were laughing all the way to the political bank with racial gerrymandering, and at the time my point was generally dismissed as laughable. As for data, in my Thursday post, I will provide some. But in less than 1200 words a day, of necessity I am barely skimming the surface. Readers interested in my fully developed arguments -- and the evidence upon which I rely -- need to look at the book.]
Changes in the method of voting are usually submitted to the Justice Department for preclearance as my first post noted. The use of the D.C. court quickly became the rare exception. The administrative route is faster and cheaper.
The Justice Department was expected to function as a surrogate court -- with the legal standards articulated in judicial opinions guiding administrative decisions. The reality has been quite different.
That reality was spelled out clearly in a 1995 Supreme Court decision, Miller v. Johnson. The issue was Georgia congressional districting, and the case tells a remarkable story of a lawless Republican Department of Justice that forced a state to accept a plan drawn by the American Civil Liberties Union in its capacity as advocate for the black caucus of the state’s general assembly.
The enforcement of the Voting Rights Act has long made for strange bedfellows --although only superficially. In the Georgia case, John Dunne, the assistant attorney general for civil rights from 1990 to 1993, was an unambivalent champion of race-based districting to maximize minority officeholding. His alliance with the ACLU and the state black caucus served the Republican Party’s interests, as well: What the ACLU called a “max-black” plan was also “max-white” -- more black voters in some districts meant fewer in others, and, in the South particularly, districts that had been “bleached” were fertile ground for Republican political aspirations.
Of course, redistricting is not the only area in which Republican have failed to oppose what Chief Justice John Roberts has called the “sordid business . . . [of] divvying us up by race.” But seldom is the magnitude of the gap between alleged principle and a quite different reality so fully on display as it has been in some of the redistricting cases.
The Georgia House and Senate redistricting committees, when they began the map-drawing process following the 1990 census, had no idea of the roadblocks that lay ahead. They drew one map and then another, both of them increasing the number of majority black congressional districts from one to two.
The state, in fact, had no obligation to draw a map that gave minorities more safe districts than they previously had. The point of preclearance had been to prevent racially suspect states from depriving blacks of the political gains that basic enfranchisement promised, not to ensure a “fair” number of legislative seats, the Supreme Court had held in its controlling 1976 decision, Beer v. U.S.
Georgia had clearly met the demands of the law. Nevertheless, the Justice Department found both maps in violation of section 5. John Dunne informed the state that it had not adequately explained its failure to create a third majority-minority district.
Dunne wanted, among other changes, a reshuffling of black and white voters. But his reconfiguration would have created a district (CD 11) that connected black neighborhoods in metropolitan Atlanta and poor black residents on the coast, 260 miles away and “worlds apart in culture,” as the Supreme Court put it in Miller.
“In short,” the Court continued, “the social, political and economic makeup of the Eleventh District [told] a tale of disparity, not community.” Dunne’s insistence on heavy-handed racial gerrymandering forced candidates to run in four major media markets, while leaving CD 2 still only minority-black.
Dunne’s communications were entirely guided by ACLU attorney Kathleen Wilde, who had drawn up a “max-black” plan. As the district court noted, “Throughout the preclearance process, from this first objection letter to the final submission, [DOJ] relied on versions of the max-black plan to argue that three majority-minority districts could indeed be squeezed out of the Georgia countryside. Ms. Wilde’s triumph of demographic manipulation became the guiding light.”
Georgia legislators and staff who met with Justice Department attorneys in Washington were “told to subordinate their economic and political concerns to the quest for racial percentages.”
These legislators on the redistricting committee, many of whom were veteran mapmakers, were essentially cut out of the districting process by the Justice Department. Excluding them raised grave constitutional questions. As the Court stated, rejecting the “max-black” plan as unconstitutional, “Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.” Plainly, judicial or Justice Department review “represents a serious intrusion on the most vital of local functions.”
To make matters worse, DOJ attorneys had cultivated “informants” within the state legislature; “‘whistleblowers’ became ‘secret agents,’” the district court found. One of these informants described one black state senator who had not toed the line as a “quintessential Uncle Tom” and “the worst friend of blacks in Georgia.” By contrast, attorneys from the ACLU and the voting section of the DOJ’s Civil Rights Division were characterized as “peers working together.” They discussed the smallest details of the Wilde plan and its revisions, with the result that “there were countless communications, including notes, maps, and charts, by phone, mail and facsimile.”
In fact, the lower court found, the “DOJ was more accessible -- and amenable -- to the opinions of the ACLU than to those of the Attorney General of the State of Georgia.” The DOJ’s March 1992 objection letter, quoted above, actually arrived at the state attorney general’s office after members of the Georgia black caucus were already discussing it with the press, since the Justice Department attorneys had told the ACLU lawyers of their decision before informing any state official. The court found this “informal and familiar” relationship between federal attorneys and an advocacy group “disturbing” and an “embarrassment.”
The preclearance process was not supposed to work as it did in Georgia in the early 1990s, as well as in countless other jurisdictions, large and small, in the 1980s as well. By 1991, when the Justice Department reviewed the Georgia plan, the initial vision of the department as a more accessible court had completely broken down. The voting section of the Civil Rights Division was operating as a law office for minority plaintiffs, working as partners with civil rights advocacy groups.
As UCLA law professor Daniel Lowenstein has written, “Much is at stake for politicians and the interests they represent in a districting plan, and enacting a plan is typically a difficult and contentious process. Once they strike a deal, they want it to stay struck, and therefore they tend to be risk-averse with respect to possible legal vulnerabilities in a plan.”
A risk-averse plan was one that accepted racial quotas, which the Justice Department believed in as a matter of principle through the 1980s and 1990s. Blacks here, whites there, in just the right numbers to ensure the election of blacks to public office roughly in proportion to their population numbers. In all likelihood, that commitment to proportionality will resurface in the enforcement of the Voting Rights Act under the current administration.
For those who remember Paradine v. Jane (1648) from your contracts classes; if I'm not mistaken, it's still in some casebooks, or has been until recently:
1. What the parties said.
Jane refuses his rent to pay.
'I have no kine, nor corn, nor hay;
Rupert the alien came my way,
Cared not a button
For rights of property. No, the thief
Carried my harvest every sheaf,
Turned my oxen into his beef,
Sheep into muttion.
'Fields are ravaged and homestead burned,
Out of my lands by the alien turned,
Nought can I pay where nought is earned,
So I go free.'
'No,' said Paradine, 'I'm afraid
I must ask you for rent unpaid:
No conditions in lease were made.
Hear Court's decree.'
2. What the Court said.
'This is no duty by law created,
Else had vis major the charge abated.
This is a contract. The terms are stated.
Nought do they say
Of risks excepted which loss prevent,
Nor yet of conditions subsequent.
Such should be mentioned if such were meant;
So Jane must pay.'
3. The rule and its exceptions.
Thus and well do the Courts decide.
Make conditions lest ill betide,
Else by your promise you must abide.
Yet I'll remind you,
Where the thing to be dealt with is destroyed,
Or Parliament makes your promise void,
Or illness shatters the skill employed,
Contract don't bind you.
With these exceptions, you can't be heard
To say that, from things which have since occurred,
It isn't convenient to keep your word.
Unto the letter.
And, with this knowledge, I may opine
That the case of Jane and of Paradine
Will never be either yours or mine;
No! we know better.
From Sir William Reynell Alson, Ballads en Termes de la Ley (1914).
An amusing passage from The Ancient Economy (by M.I. Finley):
Even the rare figure to which an ancient author treats us is suspect a priori .... [W]hen Thudycides (7.27.5) tells us that more than 20,000 slaves escaped from Attica in the final decade of the Peloponnesian War, just what do we in fact know? Did Thucydides have a network or agents stationed along the border between Attica and Boeotia for ten years counting the fugitives as they sneaked across? This is not a frivolous question, given the solemnity with which his statement is repeated in modern books and then used as the basis for calculations and conclusions.
Sotomayor Joins Stevens, Breyer, and Ginsburg in Unsuccessful Effort to Stay Execution:SCOTUSblog has the scoop. David Savage offers some context.
UPDATE: I personally don't see very much in this: Recall that one of Justice Alito's very first votes was a vote against lifting a stay of an execution when the other conservative Justices voted to lift the stay. It makes sense that a new Justice with little experience in capital cases would be extra cautious, so it's hard to read much into this, I think.
The county‟s assertion that the law of the Hmong governs is not implausible, but it is not supported by any authority that demonstrates that the county has correctly described the law of Thailand. The county did not offer any expert testimony regarding the legal effect of the Conflict of Laws Act and its application to Hmong living in Thailand, and appellant‟s expert on Hmong culture testified that he had no knowledge of Thai law regarding adoption. Even if the county is correct that the Conflict of Laws Act applies, the language of the act, on its face, suggests that to determine what law applies, more must be known about the facts of the case than that Yang, Lee, and Y.P.L. are all Hmong. Therefore, because the county has neither produced a foreign country‟s adoption decree for Y.P.L.‟s adoption nor demonstrated that the adoption satisfied the legal requirements for an adoption in Thailand, we conclude that the district court correctly determined that the county did not prove that the cultural adoption is recognized in Thailand as valid.
The backdrop, of course, is that people who move to America bring their legally defined family relationships (marriages, adoptions, and the like) with them. When American courts must then apply American law (e.g., child support law) that turns on those family relationships, they must determine and apply often obscure foreign law rules in the process.
A leading Swedish newspaper reported this week that Israeli soldiers are abducting Palestinians in order to steal their organs, a claim that prompted furious condemnation and accusations of anti-Semitic blood libel from a rival publication. "They plunder the organs of our sons," read the headline in Sweden's largest daily newspaper, the left-leaning Aftonbladet, which devoted a double spread in its cultural section to the article.
A wise man once said: You don't have to be anti-Semitic to be anti-Israel, but it just so happens that you are.
UPDATE: Google translation of the last (sarcastic) line of a rival newspaper's condemnatory editorial: "Anti-Semitism? No, no, only Israel Critique."
The capitulation of Yale University Press to threats that hadn't even been made yet is the latest and perhaps the worst episode in the steady surrender to religious extremism -- particularly Muslim religious extremism -- that is spreading across our culture. A book called The Cartoons That Shook the World, by Danish-born Jytte Klausen, who is a professor of politics at Brandeis University, tells the story of the lurid and preplanned campaign of "protest" and boycott that was orchestrated in late 2005 after the Danish newspaper Jyllands-Posten ran a competition for cartoons of the Prophet Mohammed....
Yale University Press announced last week that it would go ahead with the publication of [The Cartoons That Shook the World, a book about the Mohammed cartoon controversy], but it would remove from it the 12 caricatures that originated the controversy. Not content with this, it is also removing other historic illustrations of the likeness of the Prophet, including one by Gustave Doré of the passage in Dante's Inferno that shows Mohammed being disemboweled in hell. (These same Dantean stanzas have also been depicted by William Blake, Sandro Botticelli, Salvador Dalí, and Auguste Rodin, so there's a lot of artistic censorship in our future if this sort of thing is allowed to set a precedent.) ...
Islamic art contains many examples... of paintings of the Prophet, and even though the Dante example is really quite an upsetting one, exemplifying a sort of Christian sadism and sectarianism, there has never been any Muslim protest about its pictorial representation in Western art.
If that ever changes, which one can easily imagine it doing, then Yale has already made the argument that gallery directors may use to justify taking down the pictures and locking them away. According to Yale logic, violence could result from the showing of the images -- and not only that, but it would be those who displayed the images who were directly responsible for that violence.
Let me illustrate: The Aug. 13 New York Times carried a report of the university press' surrender, which quoted its director, John Donatich, as saying that in general he has "never blinked" in the face of controversy, but "when it came between that and blood on my hands, there was no question." ...
It was bad enough during the original controversy, when most of the news media -- and in the age of "the image" at that -- refused to show the cartoons out of simple fear. But now the rot has gone a serious degree further into the fabric. Now we have to say that the mayhem we fear is also our fault, if not indeed our direct responsibility. This is the worst sort of masochism, and it involves inverting the honest meaning of our language as well as what might hitherto have been thought of as our concept of moral responsibility.
Last time this happened, I linked to the Danish cartoons so that you could make up your own minds about them, and I do the same today. Nothing happened last time, but who's to say what homicidal theocrat might decide to take offense now. I deny absolutely that I will have instigated him to do so, and I state in advance that he is directly and solely responsible for any blood that is on any hands. He becomes the responsibility of our police and security agencies, who operate in defense of a Constitution that we would not possess if we had not been willing to spill blood -- our own and that of others -- to attain it. The First Amendment to that Constitution prohibits any prior restraint on the freedom of the press. What a cause of shame that the campus of Nathan Hale should have pre-emptively run up the white flag and then cringingly taken the blood guilt of potential assassins and tyrants upon itself.
As I mentioned before, I have some sympathy for entities that refuse to distribute the cartoons. I would not fault them too much for that judgment, though "[i]t seems to me that leading bookstores [in that instance, Borders and Waldenbooks], like leading universities, need to take some risks -- and, yes, even risks that involve potential risks to customers and employees -- in order to protect the marketplace of ideas that sustains them."
Yet framing it as a matter of trying to avoid having "blood on [their] hands" is, for the reasons Hitchens gives, deeply wrong, and dangerous, because it lends Yale's credibility to the theory that we have a moral imperative to shut up, not just that this is one tolerable option. The next time someone does decide to publish the cartoons, and thugs decide to react by rioting, the publisher can be told, "Even Yale University Press agrees that what you did leaves you with blood on your hands."
Is that the message that our leading academic institutions should be sending? Not just that it's so easy to force Americans into silence, but that the threat of criminal violence is enough to make us morally obligated to be silent?
The Ninth Circuit's Erroneous Analysis of Computer Searches in United States v. Payton:
The Ninth Circuit recently issued a remarkable decision on the search and seizure of computers in United States v. Payton. I suspect this case may go en banc, as the issue is pretty important, so it may not be the last we've heard about it. Still, I wanted to flag the many errors in this opinion for readers in case the case stays on the books. You can read the appellant's opening brief here, the government's brief here, and the reply brief here; you can listen to the oral argument here. (I would have blogged about it earlier, but I was on my blogging hiatus when it came down on July 21.)
The facts of the case are simple. The police had reason to believe that Payton was selling drugs from his home, and they obtained a warrant to search his home for drugs, sales ledgers relating to drugs, and financial records for the person who lived in the home. The affidavit of probable cause specifically requested permission to search any computer located in the house. The affidavit explained that based on the officer's experience, financial records were likely to be found on a computer, and so it requested permission to search any computers on site and seize any machines if evidence was found on them.
During the search, an officer saw a computer in the bedroom that was "on" but had its screensaver up. The officer moved the mouse, which removed the screen saver. He then clicked open a file, and saw that it contained child pornography. Further investigation confirmed that Payton had other images of child pornography on his computer, leading to child pornography charges. No drugs or records about drugs were discovered.
In a decision by Judge Canby, joined by Judge Wardlaw and District Judge Mills, the Ninth Circuit suppressed the child pornography discovered in the computer. According to Judge Canby, the high storage capacity of computers made it constitutionally unreasonable to search a computer in those circumstances. Although the affidavit requested permission to search computers discovered when the warrant was executed, the affidavit was not incorporated: The warrant itself did not explicitly authorize the search of computers.
Further, there was no specific evidence found in the home near the computers that suggested that the evidence such as financial records were stored in the computer. The officers did not find any other evidence within the scope of the warrant elsewhere in the home, and that made it unlikely that there would be evidence described in the warrant inside the computer. The court concluded: "In the absence of any circumstances supporting a reasonable belief that items specified in the warrant would be found on the computer, the search did not meet the Fourth Amendment standard of reasonableness."
Judge Canby also commented on the policy consequences of a contrary rule:
Our confidence in our conclusion is buttressed by contemplating the effect of a contrary decision. In order to uphold the search in this case, we would have to rule that, whenever a computer is found in a search for other items, if any of those items were capable of being stored in a computer, a search of the computer would be permissible. Such a ruling would eliminate any incentive for officers to seek explicit judicial authorization for searches of computers. But the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches, to protect privacy and other important constitutional interests. We believe that it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers. If unwarranted searches of computers are automatically authorized by upholding the search in Payton’s case, that option will be lost.
It's hard to know where to begin with the number of problems with this opinion. I think I'll start with the big-picture conceptual issues; then turn to Supreme Court precedent; and then go to Ninth Circuit precedent.
1) To begin with the most basic conceptual error, the Fourth Amendment simply does not require warrants to list the items to be searched. As the text of the Fourth Amendment makes clear, warrants must "particularly describ[e] the place to be searched and the persons or things to be seized" (emphasis added). The Fourth Amendment requires a description of the things to be seized, not a description of containers that are searched during the hunt for the things to be seized. I don't think I have ever seen a warrant that specifically listed the items to be searched: There isn't even a place for that on the standard warrant form.
The text of Rule 41, the rule that governs search warrants, makes this point plain: It requires warrants to list the property that the agents want to "search for and seize." Note search "for," not search. (This was a state warrant, to be clear, so Rule 41 isn't directly applicable; I point it out only to emphasize that there is no requirement that warrants list the items to be searched.) When the officer moved the computer mouse and saw the image, he didn't seize a computer. He didn't even seize the image. Rather, he searched the computer without seizing anything. It was unneceesary to get prior authorization to seize a computer because no computers were actually seized.
2) Now I'll move on to Supreme Court precedent. There is no specific Supreme Court precedent on how the Fourth Amendment applies to the search of computers. But it's worth noting that the Supreme Court has been clear that a warrant to search a place for specific evidence permits the search of anything in that place where the described evidence could be located. Here's Justice Stevens making the point pretty forcefully in United States v. Ross, 456 U.S. 798 (1982):
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found, and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
It seems to me that Judge Canby's decision in Payton tries to create just such a "nice distinction" for computers. But I think it's hard to square with the Supreme Court's view in Ross.
Further, in response to the policy argument the panel offers, the Supreme Court has also indicated that warrants should not try to regulate the way that warrants are executed. The most recent statement of this was United States v. Grubbs, 547 U.S. 90 (2006), when the Supreme Court overturned the Ninth Circuit's attempted limits on how agents could execute anticipatory warrants. The Court explained, quoting past cases, that "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the requirements set forth in the text, search warrants also must include a specification of the precise manner in which they are to be executed." This is a general principle, not a specific rule, but it significantly cuts against the permissibility of the kind of limitation that the Payton panel wants to permit.
3) Finally, the Payton opinion purports to root its approach in a recent Ninth Circuit decision, United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). This doesn't work, however, because the legal issue in Giberson was very different. The question in Giberson was whether the police could seize computers onsite and take them away for later search pursuant to a second warrant when the initial warrant was for physical documents. The warrant didn't ask for permission to seize computers, but the agents did seize them, figuring that the computers might contain those documents in physical form. They then obtained a second warrant to search the computers. Thus the question in Giberson was whether the seizure was permissible when the first warrant did not explicitly authorize it: The Giberson court concluded that, in the context of that case, it was.
The Payton court reasons that if Giberson was fact-specific, then there is a general reasonableness test applicable here: Accordingly, there must be facts according to which the search and seizure of a computer with a warrant was unreasonable. It then announces that this is such a case. But whether the Fourth Amendment allows a seizure of an item not named in the warrant is very different from whether the warrant allows a search for evidence described in the warrant that happens to be on a computer. As I explained above, the Fourth Amendment requires a description of the items to be seized, and limits the permitted seizure to those items, but the Fourth Amendment does not require a description of the items to be searched. Rather, so long as the police have a valid warrant, they can search anywhere in the place to be searched that could store the items to be seized.
I should add that I am quite sympathetic to the concern motivating the panel: As the oral argument makes clear, the judges were concerned with the core problem of computer search and seizure of how to limit computer searches. I'm concerned about that, too, and have written an article on how best to approach the problem. But the Payton court's effort to address the problem just doesn't work: In addition to its many practical problems, which I'll leave out for now, it's pretty clearly inconsistent with the text of the Fourth Amendment and Supreme Court precedent. The panel instead should have dealt with this problem as a plain view issue, and analyzed whether the opening of the files was justified as within the scope of the warrant based either on the subjective approach of United States v. Carey (10th Cir. 1999), the objective approach used outside the computer setting, or using some other approach to plain view.
Joe Stork, Human Rights Watch's deputy director for the Middle East, has been attacked in the blogosphere for his anti-Israel views. Much of the attack is justified. Stork has spent much of his career attacking Israel, has made some rather vicious and inaccurate statements that he seems to have never recanted, is a current supporter of the campaign for a worldwide boycott of Israel, and has no apparent qualifications for his position beyond his history of Israel-bashing.
However, one thing that Stork did NOT do, but that he has been widely accused of doing since an article in Ma'arivaccused him of it, is support the 1972 Munich massacre of Israeli athletes by Palestinian terrorists. I went back and read the relevant article. First of all, the article is billed as a a collective statement by the journal's editors, but is not signed by any of them. Therefore, one can't say for sure that Stork supported the entire editorial, or any given line in it. The most one can say is that he didn't publicly object.
Second, while the editorial does apologize for the Munich massacre, and does say that it gave Palestinians a needed morale boost, and further adds that Israel has engaged in much worse crimes, it ultimately says, as a bit of an afterthought, that all of these factors do not justify it. This hardly amounts to the sort of unequivocal condemnation one would expect from people with any decency, but it's simply inaccurate to say that this amounts to "supporting" the massacre.
I've noted before occasions on which critics of Israel have mistranslated, distorted, or otherwise mangled things to serve their political agenda (e.g.). Indeed, Stork's critics have noted that he once spread the lie that Menachem Begin called Palestinians "two-legged beasts" when Begin was clearly referring specifically to Palestinian terrorists who murdered children. It's not any better when "our side" engages in similar behavior.
On Friday, in Oryszak v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit rejected a secret service agent's challenge to the revocation of her security clearance, and consequent dismissal. Judge Ginsburg wrote the majority opinion, but also wrote a separate opinion arguing that a case's lack of justiciability does not necessarily indicate a lack of jurisdiction, and urges the court to clarify the issue en banc when presented with an "appropriate case."
That a plaintiff makes a claim that is not justiciable because committed to executive discretion does not mean the court lacks subject matter jurisdiction over his case, as the opinion of the court helps to clarify. Upon a proper motion, a court should dismiss the case for failure to state a claim. It follows, however, that a court must decline to adjudicate a nonjusticiable claim even if the defendant does not move to dismiss it under FED. R. CIV. P. 12(b)(6). . . .
That the nonjusticiability of a claim may not be waived does not render justiciability a jurisdictional issue, and this court has been careful to distinguish between the two concepts. . . .
That the court may in its discretion address a threshold question before establishing that it has jurisdiction does not render the question jurisdictional nor, significantly, does it mean the court must address that question at the outset of the case. Because justiciability is not jurisdictional, a court need not necessarily resolve it before addressing the merits. A court may, for example, dismiss a case for failure to state a
claim while reserving the question whether that sort of claim presents a nonjusticiable political question. A court might thereby avoid a constitutional ruling regarding separation of powers and resolve the case upon a solely statutory basis. . . . For a court
to retain this discretion it is important to distinguish among failure to state a claim, a claim that is not justiciable, and a claim over which the court lacks subject matter jurisdiction.
We have not always been consistent in maintaining these distinctions. . . . For that reason, I urge the en banc court to clarify the relationship of justiciability to jurisdiction when an appropriate case arises.
Over time, the Voting Rights Act morphed in an unanticipated direction -- a change that had both benefits and costs. The act’s original vision was one that all decent Americans shared: racial equality in the American polity. Blacks would be free to form political coalitions and choose candidates in the same manner as other citizens.
But in the racist South, it soon became clear, that equality could not be achieved -- as originally hoped -- simply by giving blacks the vote. Merely providing access to the ballot was insufficient after centuries of slavery, another century of segregation, ongoing white racism, and persistent resistance to black political power. More aggressive measures were needed.
In response, Congress, as well as courts and the Justice Department, in effect amended the law to ensure the political equality that the statute promised. Blacks came to be treated as politically different -- entitled to inequality in the form of a unique political privilege. Legislative districts carefully drawn to reserve seats for African Americans became a statutory mandate. Such districts would protect black candidates from white competition; whites would seldom even bother to run in them.
The new power of federal authorities to force jurisdictions to adopt racially “fair” maps was deeply at odds with the commitment to federalism embedded in the Constitution, and the entitlement to legislative seats designed to elect members of designated racial groups was equally at odds with traditional American assumptions about representation in a democratic nation.
In 1965, however, a century of Fifteenth Amendment violations demanded what might be called federal wartime powers, and, as on other occasions when wartime powers were invoked, the consequence was a serious distortion of our constitutional order. It was fully justified in 1965; it is not today.
The history of whites-only legislatures in the South made the presence of blacks both symbolically and substantively important. Racially integrated legislative settings work to change racial attitudes. Most southern whites had little or no experience working with blacks as equals and undoubtedly saw skin color as signifying talent and competence. Their stereotypical views changed when blacks became colleagues.
In addition, southern blacks came to politics after 1965 with almost no experience organizing as a conventional political force. Thus, race-based districts in the region of historic disfranchisement were arguably analogous to high tariffs that helped the infant American steel industry get started: They gave the black political “industry” an opportunity to get on its feet before facing the full force of equal competition.
Most Americans do not like public policies that distribute benefits and burdens on the basis of race and ethnicity. But, while it is relatively easy to take an uncompromising stance against racial classifications in higher education, for instance, it is more difficult when the issue is districting lines drawn to increase black officeholding.
Context matters. Racial preferences at, say, the University of Michigan were not dismantling a dual system. Moreover, the alternative to preferences in education has never been all-white schools, as William G. Bowen and Derek Bok, in their 1998 book, The Shape of the River, acknowledged. They calculated that approximately half the black students in the selective schools they studied needed no distinctive treatment to gain admission.
Finally, there is strong evidence that racial preferences in higher education don’t even work as advertised. The rich empirical work by UCLA law professor Richard Sander, for instance, has shown that black students preferentially admitted to law schools have disproportionately low rates in passing the bar exam. It is possible, he finds, that racial preferences have reduced, rather than increased, the supply of black attorneys.
The contrast with the realm of politics is marked. There are no objective qualifications for office -- the equivalent of a college or professional degree, a minimum score on the LSATs, a certain grade-point average, or relevant work experience.
Race-based districts also work precisely as intended. They elect blacks and Hispanics to legislative seats. In the South such descriptive representation has had an importance far greater than increasing the number of black and Hispanic students at, say, Duke University.
In suggesting that race-conscious maps were a temporary necessity, I do not defend what are often called bug-splat districts -- constitutionally problematic, racially gerrymandered constituencies. They were the product of an aggressive Justice Department that labeled districting maps as intentionally discriminatory if the ACLU and other civil rights groups had come up with what they regarded as a superior plan.
Nor do I deny the serious costs that accompanied race-driven districting -- costs that have increased in importance as racism has waned.
Such districting continues to reinforce old notions that blacks are fungible members of a subjugated group that stands apart in American life, requiring methods of election that recognize their racial distinctiveness. In 1993 Justice Sandra Day O’Connor described race-driven maps as “an effort to ‘segregate . . . voters’ on the basis of race.” As such, she said, they threaten “to stigmatize individuals by reason of their membership in a racial group.”
Racially gerrymandered districts flash the message “RACE, RACE, RACE,” voting rights scholars T. Alexander Aleinikoff and Samual Issarcharoff have written. Racial sorting creates advantaged and disadvantaged categories -- groups that are privileged and groups that are subordinate, they argued.
The majority-minority districts upon which the DOJ insisted have become safe for black or Hispanic candidates, as intended, but they have also turned white voters into what these two scholars called “filler people.” Whites have become irrelevant to the outcome of the elections in districts designed to elect minorities, unless they serve as the swing vote in a black-on-black contest.
America has experienced an amazing racial transformation in the decades since 1965, and race-conscious districts are no longer necessary. Today, their costs outweigh their benefits. Indeed, they have become a brake on the pursuit of political equality -- tending, as they do, to elect representatives who are generally too isolated from mainstream politics and on the sidelines of American political life.
Black political progress might actually be greater today had race-conscious districting been viewed simply as a temporary remedy for unmistakably racist voting in the region that was only reluctantly accepting blacks as American citizens.
This is a point I will address more fully in my fifth post -- at the end of the week.
Yesterday's fishing on the lower Yellowstone River was for the birds. Despite favorable weather conditions, we caught very little. I did, however, snag this picture of a bald eagle perched in a tree along the river.
The fishing on the upper Yellowstone was much better today. Casting hoppers all day, I caught browns, rainbows, and a cutbow. As for the birds, we passed under a tree in which two bald eagles were perched. It was a magnificent sight, but I was too slow to grab a picture.
Now it's back to the real world, where incomplete manuscripts and a massive stack of FAR forms await.
Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon Caldara.)
Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:
1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.
2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.
3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.
4. It violates the Tenth Amendment by commandeering state governments.
A couple caveats: It's a blog post, not a law review article, so it just sketches out the above points briefly. It's obviously written in the spirit of starting a public dialogue conversation. In the spirit of constructive dialogue, we promise not to say that we "don't want the folks who created the mess to do a lot of talking." (By "created the mess," I mean the people who created the legislation with little apparent consideration for constitutionality, and who appear to have operated from the presumption that Congress can exercise powers which are not enumerated.)
Also, when Rob writes something on a blog, he is not setting out an official Independence Institute position, nor does he purport to do so. (The same goes for what I write on VC.) And while Rob and I agree on many constitutional issues, we do not necessarily agree on all of them; for example, he does not believe that the 14th Amendment, properly interpreted, protects unenumerated rights, whereas I do.
I hope to have the chance to interview Rob on an iVoices.org podcast in the near future, and will certainly study the Comments to look for serious, challenging questions to ask.
What a difference two months can make. While the DOJ hasn't retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs' lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.
Consider this almost apologetic, but also uncontroversial, passage:
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.
There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration's anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn't say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of "federalism."
Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:
Unlike the intervenors here, the government does not contend that there are legitimate
government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman.
This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.
Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:
Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological
Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn't know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states' judgments that traditional families are best. While the DOJ hasn't exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.
Finally, the DOJ brief shows that Justice Scalia's dissent in Lawrence v. Texas is coming back to haunt the opposition to SSM. Recall that in Lawrence Justice Scalia warned that the Court was dismantling the constitutional structure supporting traditional marriage. Why? Because, Justice Scalia argued, if traditional moral opposition to homosexuality is no longer a valid basis for law, there remain no other good constitutional reasons to oppose SSM — even on rational basis review. Scalia specifically mentioned that gay couples' inability to procreate — a critical point to "natural law" theories against SSM and to some courts — would be insufficient. Now comes the DOJ armed with arguments from Justice Scalia:
Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged
in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because "the sterile and the elderly are allowed to marry." For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality.
While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA (see here and here), and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.
A Supreme Court Without Stare Decisis:
I sometimes come across arguments by lawyers or bloggers that the Supreme Court should not rely on the doctrine of stare decisis. (For nonlawyers, a rough definition of stare decisis is the practice of following prior court decisions unless there are very unusual circumstances.) The argument against stare decisis is a simple one: It's the Supreme Court's job to get it right, and the Justices can't get it right if they follow past decisions that may have gotten it wrong. As a result, the Supreme Court should always try to get it right, and it should only follow past cases to the extent the current Justices think the old decisions are correct. The goal should be loyalty to the Constitution, not loyalty to old cases by old courts.
This argument has some surface appeal, but I'm curious what a Supreme Court without stare decisis would look like. The problem is that most legal disputes are built on and framed by the precedents of dozens of previously decided disputes, and they only make sense in the context of those decisions. It seems to me that a world in which there was really no stare decisis at the Supreme Court, and every decision was reached de novo, with no deference to prior decisions, would be a serious mess. It would be sort of like a world without language: There would be no common ground to understand and frame legal disputes or to establish basic rules of the road.
Perhaps the best way to see this is with a simple example. Imagine a police officer pulls over a car for having a broken taillight. The driver looks very nervous, so the officer orders the suspect out of the car. The officer sees a bulge in the suspect's jacket that looks like a gun, so he frisks the man and finds a loaded pistol. A bit of research reveals that the driver is a felon, leading to charges for being a felon in possession of a weapon. The defendant files a motion to suppress, and the issue before the U.S. Supreme Court is whether the evidence should be suppressed.
How should the Justices rule? In a world without stare decisis, all nine of them need to start from scratch. They each need to answer the following questions, among others:
1) Does the Fourth Amendment confer a personal right?
2) If the answer to (1) is yes, does the Fourth Amendment apply outside the warrant context?
3) If the answer to (1) and (2) are yes, does the Fourth Amendment apply (either directly or through incorporation) to a state police officer?
4) If the answer to (1), (2), and (3) are yes, does the scenario described above reveal any searches or seizures? (And implicitly, what is a search? What is a seizure?)
5) If the answer to (1), (2), (3), and (4) are yes, what makes a search or seizure reasonable or unreasonable? Does a police officer have the power to pull over a car for a taillight violation? Does a police officer have the power to order a suspect out of the car? Does he have the power to frisk a suspect for weapons? Did any of these violate the Fourth Amendment?
6) What is the remedy for a violation of the Fourth Amendment, and how does it apply here? Is there a suppression remedy? Is there a fruit of the poisonous tree doctrine?
In a world with no stare decisis, each of the nine Justices would have to start from scratch in each case. Presumably there would need to be briefing and argument on all of these issues. Even if the Justices agreed as to a result, they would likely divide as to the rationale in every case. The emerging rule of law would often be unclear if not nonexistent.
Further, even if the Justices reached a majority rationale, it's unclear that this would matter. After all, the recognized legal significance of a majority rationale from the Supreme Court is itself a matter of stare decisis, which would have no weight. In the extreme version where there is no stare decisis at all, every Supreme Court case would be a shot to entirely reinvent everything about the law. Nor would the Justices have to comply with legal niceties we know of like the case or controversy requirement, standing, etc., unless they personally agreed with them and their application, as these doctrines are routinely followed today largely as a matter of (you guessed it) stare decisis.
You could imagine a much less extreme version of a world without stare decisis, to be sure. Perhaps the Supreme Court could only grant certiorari on very limited questions, explicitly keeping all else fixed. For example, in the Fourth Amendment case above, the Court could grant certiorari and decide only one of the very discrete questions listed above, leaving all the rest for another day. But if you really oppose stare decisis, I would think this is a terribly unsatisfactory answer: It's just stare decisis masquerading as cert jurisdiction. Stare decisis would apply de facto to every issue that the Supreme Court did not specifically agree to review, because the lower courts would still be bound by whatever the Supreme Court didn't agree to review.
Of course, this doesn't mean that stare decisis is invariably a good thing. Lots of people have different views about when and where the Supreme Court should rely on it, and my argument here isn't addressed to those judgments. My point is narrower. In my view, the debate should be on how much and how strongly the Supreme Court should rely on stare decisis, not whether it should be applied at all.
New Way to Resolve Actual Innocence Claims in Capital Cases?:
Today the Supreme Court took a step I don't think I have ever seen before: When faced with an actual innocence claim in a capital case that was filed as a result or an original habeas corpus case, the court transferred the case to the relevant district court and ordered the trial court to figure out the merits:
The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence. JUSTICE SOTOMAYOR took no part in the constion or decision of these motions and this petition.
Justice Scalia and Thomas dissented. The dissent begins:
Today this Court takes the extraordinary step—one not taken in nearly 50 years—of instructing a district court to adjudicate a state prisoner’s petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court’s Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court’s discretionary powers,” petitioner’s claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment. I respectfully dissent.
Justice Stevens, joined by Breyer and Ginsburg, respond to Scalia and Thomas in a concurring opinion:
The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869 (1962).
Over at Crime & Consequences, Kent Scheidegger offers some perspective. It's worth reading the whole thing, but here is a taste:
And now, for something completely different...
The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus — "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.
It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.
The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.
Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.
Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.
And now comes Troy Davis.
It's interesting to note that eight Justices were on this, and two voiced a dissent. I wonder if the three liberal Justices who were on the case persuaded Kennedy to join them, setting up an awkward 4-4 showdown. If the court had split evenly, that would have set up an interesting question: What happens when a petitioner files an original case in the Supreme Court and the Court divides evenly? It's not like there is a lower court to affirm. Roberts and Alito went along, though, making this a 6-2 vote in favor of the transfer.
Second Circuit rules in favor of firearms dealers on procedural due process:
Spinelli v. City of New York was decided on August 7, by Judges Calabresi and Walker. Judge Sotomayor had been on the panel, but did not participate in the decision, due to her elevation to the Supreme Court.
Angela Spinelli had been doing business a licensed firearms dealer in the Bronx for decades. Pursuant to New York City law, the police conducted an unannounced inspection of her premises in October 2001. They found security violations, seized all her firearms, and suspended her license for selling firearms. Spinelli fixed the security violations, and 58 days after the suspension, her license and firearms were restored.
In the lawsuit arising from the NYCPD conduct, the Second Circuit ruled:
1. There was no Fourth Amendment violation to the unannounced search, because it was conducted pursuant to the NYC Code, and because firearms dealers, as a pervasively regulated business, have little expectation of freedom from warrantless inspection.
2. Spinelli was not entitled to due process prior to the license suspension and the seizure of her inventory, because of the necessity for rapid action to protect public safety.
3. Spinelli was entitled to post-seizure due process, including notice (of what the specific security violations were) and a hearing. New York City refused to provide this, and accordingly, summary judgement should be entered against the City on this issue, and the district court should make a determination regarding damages. The fact that Spinelli was able to hire a lawyer to negotiate with the City does not cure the City's due process violation.
4. Spinelli had a property interest in her firearms business license. In contrast to a NY State handgun carry license (for which there is nearly unlimited discretion for revocation), a firearms dealer license is a property right, because the grounds for revocation are limited.
5. Because Spinelli has a valid federal claim (post-seizure due process), the federal district court also has jurisdiction over Spinelli's state law claim of tortious interference with business relations. The case in district court should proceed forward on this issue.
Items 3-5 reversed the decision of district court Judge Richard Casey. I have not read the briefs in this case, so it is possible that there are problems in the decision which are not obvious merely from reading the appellate opinion. However, within the four corners of the opinion, the decision seems generally correct based on existing precedent. Not that I necessarily agree with all the precedent, but the Second Circuit's application of that precedent appears reasonable.
FURTHER THOUGHTS: Commenters are arguing a lot about #1, which is fine, although as a matter of law this is well settled. Upon further reflection, I think that if there's a part of the opinion where the Second Circuit could reasonably have ruled the other way, it's #2. The Circuit is of course right that preventing guns from getting stolen (the security violations) is a very important government interest, and all the more so immediately post-9/11. So too, however, is the acquisition of firearms by law-abiding citizens, and all the more so post-9/11. The firearms seizures prevented the acquisition of guns by some customers who had already paid for them (and who were going through the NYC registration process). Accordingly, the better course of action for the NYCPD would have been to tell Spinelli immediately what the violations were (broken fence in the backyard, counter not under constant supervision, safes open), and then give Spinelli the opportunity continue business operations if she immediately cured the security defects. For example, she could have hired 24-hour security guards for the backyard until the fence was repaired; she could have hired another guard to stay at the counter every moment that the store was open, while the store interior was being reconfigured to keep the ocunter in view at all times. And so on. Even if the case did not involve constitutionally-protected items for which lawful sale to the public is itself a matter of improving public safety (e.g., if Spinelli owned a liquor store rather than a gun store), then offering the opportunity for an immediate cure would seem to be the better course for the regulators. Whether the failure to offer the option of an immediate cure rather than a suspension constitutes a violation of constitutional due process is perhaps a more difficult question than the Second Circuit realized, although I would not say that the Second Circuit's decision was plainly wrong as a matter of law.
Fourth Amendment Rights in Online Financial Accounts:
A district court in New Jersey recently decided a case involving law enforcement access to an online financial account. I couldn't find the case online, but the citation is Patel v. Hayman, Civ. No. 08-3586 (D.N.J. June 18, 2009), available at 2009 WL 1748964.
The facts, as alleged in the pro se complaint:
Plaintiff alleges that certain of his family members have opened a brokerage account at Firstrade.com to secure his future. Plaintiff also maintains a “debit card” account at Rushcard.com. Plaintiff alleges that in March and April 2007, Defendant Special Investigations Division Investigator Valentine R. Dolce accessed Plaintiff's account information, through an Internet connection, without a warrant and without Plaintiff's permission. Plaintiff alleges that this action violated his Fourth Amendment right to be free from unreasonable searches.
As I understand the allegation, the criminal investigator Dolce allegedly logged on to Patel's online financial account and viewed its contents. (It's not entirely clear if the allegation is as to the firsttrade.com account or the rushcard.com account or both, but potential standing issues aside, it's not clear it matters.) Did these facts, as alleged, violate the Fourth Amendment? Judge Pisano dismissed the complaint sua sponte on the ground that they did not:
“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed .” U.S. v. Jacobsen, 466 U.S. 109, 113 (1984) (footnote and citations omitted). The Supreme Court has expressly held that a customer has no legitimate expectation of privacy in financial records held by a financial institution and, thus, that a government search of such records does not violate the Fourth Amendment. See United States v. Miller, 425 U.S. 435 (1976). Thus, Plaintiff fails to state a claim for unreasonable search under the Fourth Amendment.
I can understand why Judge Pisano might have been eager to get rid of this complaint. It is a pro se prisoner lawsuit that seems entirely bogus, as it seems extremely unlikely that Dolce actually accessed Patel's account over the Internet (among other things, how would Patel know?). Still, to the extend I understand the alleged facts, I'm not sure the result is correct.
The problem is that, as I have noted before, the general rule for Fourth Amendment searches is that privacy rights normally are determined by the way in which the information is obtained rather than whether the information obtained turns out to be private. This is relevant to Patel v. Hayman because the third-party doctrine cases like United States v. Miller (cited in Patel) involve asking a third party for information that had been disclosed to it. For example, Miller stands for the proposition that if the government asks a financial institution for its records, divulging the records of a particular account holder does not implicate the account holder's rights. The bank is merely disclosing what its employees know.
But that doesn't mean that all financial records are always unprotected by the Fourth Amendment. If the bank sends you your bank statement in the mail, and you open the mail and put the statement on your desk at home, those financial records are just as protected by the Fourth Amendment as everything else in your home. What matters is that the home is protected, not that the records would not have been protected if the government had asked for them from the bank.
In the case of Patel, then, whether the Fourth Amendment would have been implicated by getting Patel's records directly from the ban via a subpoena doesn't really answer whether the Fourth Amendment is implicated by accessing a password-protected account that contains the same information. That doesn't mean the result us necessarily wrong: I would want to know more about these accounts, what kind of information is stored in them, etc. But in my view, the mere fact that they are financial record accounts should not mean that the Fourth Amendment categorically does not apply to accessing them.
A long time ago, I wrote about President Obama’s nomination of Cass Sunstein to head OIRA and noted that some academics and commentators opposed it because of Sunstein’s support for cost-benefit analysis. Sunstein is not yet confirmed many months later, not because of the opposition of critics on the left, but because some senators took fright at Sunstein's views about protecting animals from cruelty. This is hardly germane to the nomination to head OIRA, and one hopes that now that the political point has been made, confirmation will come in due course.
Meanwhile, the academic debate about cost-benefit analysis continues. Critics of cost-benefit analysis have argued that a better approach is to use “feasibility analysis.” Feasibility analysis requires the regulatory agency to identify hazards and regulate the activities that cause them to the extent possible without causing widespread economic disruption—which is cashed out in terms of revenue or profit loss for the affected industry, bankruptcies, or plant closings. My colleague Jonathan Masur and I have written a new paper that argues that feasibility analysis is a conceptually confused and economically incoherent approach to regulation. It should appeal to neither pro- nor anti-regulatory forces. The abstract is below.
Feasibility analysis, a method of evaluating government regulations, has emerged as the major alternative to cost-benefit analysis. Although regulatory agencies have used feasibility analysis (in some contexts called 'technology-based' analysis) longer than cost-benefit analysis, feasibility analysis has received far less attention in the scholarly literature. In recent years, however, critics of cost-benefit analysis have offered feasibility analysis as a superior alternative. We advance the debate by uncovering the analytic structure of feasibility analysis and its normative premises, and then criticizing them. Our account builds on two examples of feasibility analysis, one conducted by OSHA and the other by EPA. We find that feasibility analysis leads to both under- and over-regulation, and we conclude that it lacks a normative justification and should have no place in government regulation.
The Israeli newspaper Ma'ariv has published an article about Joe Stork, deputy director for the Middle East of Human Rights Watch. As Noah Pollack summarizes, Stork has "written in explicit support of terrorism against Israel, who lauded the murder of Israeli athletes at Munich in 1972 as providing 'an important boost in morale among Palestinians,' and who wrote that 'Zionism may be defeated only by fighting imperialism.'"
I thought the article was somewhat unfair, because it relies primarily on quotes that are over thirty years old. So I decided to read some of Stork's more recent writings, from the Middle East Report, which he edited (and searchable back issue of which are available through university library subscription).
I didn't find anything nearly as outrageous as his quotes from the '70s. What I found was someone with fairly standard, far Left anti-Israel views, who was especially exercised by the "special" U.S.-Israel relationship.
Which leads to the question of why Human Rights Watch hired him in 1996 to be a senior member of its Middle East staff, direct from his position as editor of Middle East Report. When HRW hired Stork, as near as I can tell (see his official HRW bio), he had no law degree and had not practiced international law, had never worked for a human rights group, had no military experience or experience with munitions, never held an academic position (he has an M.A. in international affairs), and otherwise had no specific qualifications one could pinpoint that would suggest that he'd be the person an "objective" human rights group would hire to a top position.
Stork did have a great deal of experience, however, as a leftist anti-Israel polemicist, who sought to undermine U.S.-Israel ties. One can only assume that this is why HRW director Ken Roth hired him.
First and foremost, much gratitude to Eugene Volokh for creating space for me on his splendid, indispensable blog.
Voting Rights — and Wrongs is my second effort to understand a statute that has become, in the words of Richard Pildes, “one of the most ambitious legislative efforts in the world to define the appropriate balance between the political representation of majorities and minorities in the design of democratic institutions.”
Defining that appropriate balance was not the original aim of the 1965 Voting Rights Act. Its initial purpose was simple: enfranchising southern blacks ninety-five years after the passage of the Fifteenth Amendment.
The statute has become such an eye glazing mess that it’s easy to forget that in 1965 it was beautifully designed and absolutely essential. Southern blacks were still kept from the polls by fraudulent literacy tests, intimidation, and violence.
Black ballots had been the levers of change that white supremacists most feared, and they were not prepared to go quietly into the night. Enforcing Fifteenth Amendment rights thus required overwhelming federal power — radical legislation that involved an unprecedented intrusion of federal authority into state and local election affairs.
In this first post, I provide a little guide to that radical (and confusing) legislation.
The act put southern states under the equivalent of federal receivership in the conduct of their elections. It suspended literacy tests throughout the region. It provided for the use of federal registrars where necessary. And it demanded that racially suspect jurisdictions submit all proposed changes in their methods of election to the Justice Department (or the seldom-used D.C. district court) for pre-approval — “preclearance.” A statistical trigger that had been reverse-engineered identified the “covered” jurisdictions; the framers of the act knew which states should be covered and arrived at the proper formula.
In states and counties covered by section 5 — initially all in the South — the burden of proving that changes in voting procedure were free of racial animus was placed on them. A city, for instance, that submitted for preclearance a proposed enlargement of its governing council had to prove a negative, an absence of discriminatory purpose or effect. Suspected discrimination was sufficient to sink a proposed change.
The provision compelled states to “beg federal authorities to approve their policies,” and thus so distorted our constitutional structure as to almost erase the distinction between federal and state power, Justice Hugo Black complained in 1966 when the Supreme Court upheld the constitutionality of the statute.
It was a constitutionally serious point, and should not have been forgotten in later years. At the time, however, all other attempts to secure Fifteenth Amendment rights had failed. That, too, is a point that needs to be remembered.
The act very quickly succeeded in meeting its original aim. Southern black registration skyrocketed. But ensuring black electoral equality was more difficult than originally understood. In Mississippi and elsewhere, counties and other political subdivisions began to structure elections to minimize the number of blacks likely to win public office.
In the face of racist maneuvers to maintain white supremacy, in 1969 the Supreme Court expanded the definition of discriminatory voting practices to include devices that “diluted” the impact of the black vote. At-large voting, districting lines, and other election procedures whose impact could deprive blacks of expected gains in officeholding became subject to preclearance.
The Court had put the enforcement of the act on a proverbial slippery slope. Ensuring that black ballots carried proper political weight became the expanded goal of the act. From there it was but a short slide to a constitutionally problematic system of reserved seats for minority group members, even in settings with no history of racist exclusion.
And from there, with another short slide, proportional racial and ethnic representation became the only logical standard by which to measure true electoral opportunity. Anything less than proportional officeholding suggested a “diluted” minority vote — one that was less effective than it could be.
In any case, civil rights advocates saw proportional results as the proper measure of opportunity — in employment, education, and contracting, too — and those who wrote, interpreted, and enforced the law consistently took their cues from these advocates.
Thus, when the Justice Department rejected a districting map as racially suspect, the jurisdiction was obligated to go back to the drawing board. New lines had to be drawn, with the understanding that the maximum number of possible safe black legislative seats would be created.
The original statute was altered in other important respects. Section 5 was an emergency provision with an expected life of only five years. It was repeatedly renewed, most recently in 2006 for another quarter century.
Every renewal became an occasion for amendments that strengthened the act; never did Congress stop to consider whether the statute’s unprecedented powers should, in fact, be pared back in recognition of its success. Thus, as black political participation was steadily and dramatically rising, federal power over local and state electoral affairs was paradoxically expanding.
In 1970 and 1975, new groups and new places came under preclearance coverage. An arbitrary, careless change in the statistical trigger, for instance, made section 5 applicable to three boroughs in New York City (although not the other two), even though black New Yorkers had been freely voting since the enactment of the Fifteenth Amendment in 1870, and had held municipal offices for decades.
In 1975, amendments added Hispanics, Asian Americans, American Indians, and Alaskan Natives to the list of those eligible for extraordinary protection, although their experience with racist exclusion from the polls was not remotely comparable to that of southern blacks.
With more mindless changes to the statistical trigger, preclearance was also extended to Texas, Arizona, Alaska, and scattered counties in California and elsewhere across the nation.
In 1982, Congress rewrote an innocuous preamble, section 2. Preclearance kicked in only when a jurisdiction altered some aspect of electoral procedure. But, as amended, section 2 provided plaintiffs with a powerful tool to attack long-standing methods of election anywhere in the nation that had the “result” of denying the right to vote on account of race or color.
Section 5 had provided a remedy for vote dilution only relative to the electoral strength that blacks and Hispanics enjoyed before a jurisdiction altered a districting map or other voting practices, the Supreme Court held in 1976. It was an interpretation that squared with the structure of the Voting Rights Act, and delegated to Justice Department attorneys and staff remote from the scene a limited, and thus manageable, task: stopping the institution of new electoral arrangements that undermined the force of the 1965 law.
But section 2 guaranteed electoral equality in some absolute sense — undefined and indefinable. The obvious solution, once again, was to resort to proportionality as the standard by which to measure of racial fairness, even though it rests on a profound misconception of the “natural” distribution of racial and ethnic groups across the residential, occupational, and other aspects of the social landscape.
Moreover, racist exclusion, not statistical imbalance, should have been the concern.
At the same time, race-conscious districting brought real gains in political integration — gains that cannot be easily dismissed. But this is the topic of the next post.
I'm delighted to report that Abigail Thernstrom will be guest-blogging this week about her new book, Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections. Dr. Thernstrom is the vice-chair of the U.S. Commission on Civil Rights, and an adjunct scholar at the American Enterprise Institute. She and her husband, Stephan Thernstrom, were the recipients of the 2007 Bradley Foundation prize for “Outstanding Intellectual Achievement.” From 1993 to 2009, she was a senior fellow at the Manhattan Institute, and for eleven years served on the Massachusetts Board of Education. She is also a member of the board of advisors of the U.S. Election Assistance Commission.
The passage of the 1965 Voting Rights Act marked the death knell of the Jim Crow South; American apartheid could not survive black ballots. But ensuring black electoral equality was more difficult than originally envisioned. For good and ill, the statute became the means by which blacks and Hispanics acquired the right to safe legislative seats. Race-conscious districting to protect minority candidates from white competition both integrated and segregated American politics. By now, however, those safe minority constituencies, in marginalizing black representatives, have become a brake on further racial progress, she argues.
Man, "conversation" has become one of those Orwellian words. There it is in Obama's NYT interview, where he's saying something that invites the relabeling that Sarah Palin so effectively slapped on it — "death panels" ...
"I think that there is going to have to be a conversation that is guided by doctors, scientists, ethicists. And then there is going to have to be a very difficult democratic conversation that takes place." [President Obama]
Conversations! Damn! As if the government does not have power! Oh, but it's "not determinative," you say. It's just "some guidance." He said that, see? Ugh! Spare me! We're right to be afraid now, while the man is burbling about conversation. You know damned well he's about to say and now the time for conversation is over, and we must pass legislation. Before, he was all quick, shut up, it's an emergency, pass the legislation. People freaked, so then he deemed the period of freakage part of the conversation, and there, it has occurred, and now: shut up, pass the legislation.
Clinton begins by saying that "whether or not you agree with me, I hope it promotes an
honest conversation among us". It is quickly evident, however, that she intends a
conversation with the parents of America in much the same way that my mother, when I was
a child, intended many conversations with me - the conversation was not "honest" or "over"
until I came to agree with her.
About 10 years ago, when WESTLAW came out with its "Natural Language" search facility, I decided to enter the question, in the Supreme Court decisions database:
How many roads must a man walk down before you call him a man?
The answer my friend, was Terry v. Ohio, which lawyers recognize as the case where the Supreme Court upheld the right of police officers to stop and frisk (in some situations) suspicious-looking characters.
From a UPI story from yesterday:
Police in Long Branch, N.J., say an officer who stopped Bob Dylan in response to a suspicious person call did not recognize him....
"Dylan was really cool about the whole incident," [Sgt. Michael] Ahart told CNN, adding Dylan had been seen looking into the window of an area home up for sale prior to the incident.
But I was particularly taken with this post (and the ones that link to it) on the idea that as a psychological matter, people tend to live "different lives" roughly as a function of our doubling age. On a completely unscientific basis, the idea kinda fits my experience, anyway. Still more interestingly, however, the post links that idea of a psychologically "new" lifetime with every doubling, with the famous Gompertz law of human mortality, which does have a surprising amount of empirical observation. It says that the probability of dying in a given year doubles every eight years. Taken together:
If you try to come up with an equation for probability of survival vs. number of lifetimes lived, you get an almost absurd exponential within an exponential within an exponential. (Cool graph in original post.) That, in my book, is extreme fairness. Virtually all of us get to live to the end of our seventh lifetime, but almost none of us get to complete the eighth [which begins at age 48 and ends at age 96].