[Eugene Volokh, July 31, 2009 at 1:09pm] Trackbacks
No "Person(s) Posed in an Immodest or Sensuous Manner" on Alcohol Ads:

That's the rule in Alabama, and it's apparently being enforced against a wine that bears this label:

Seems pretty clearly unconstitutional; though commercial advertising (which would include product labels) is less protected by the First Amendment than most other speech, it generally can't be restricted on the grounds that it's offensive. Nor do I see any reason why nudity would be any different. Such depictions of nudity are generally constitutionally protected (see Erznoznik v. City of Jacksonville), and would presumably be no less protected on commercial advertising.

It's possible that some material that is constitutionally protected against obscenity prosecutions might still be so sexually explicit that it can't be displayed where unwilling viewers — and especially children — might see it. But I doubt that the picture above would qualify as "so sexually explicit," especially given Erznoznik's holding that mere nudity can't be restricted on such grounds. And in any case I see no constitutionally sufficient justification for banning such material on offensive grounds on alcohol advertising but not on other forms of advertising.

Thanks to Graham Simms and Dr. Vino for the pointer.

/:
Seems pretty clearly unconstitutional

"Congress shall make no law..." specifically refers to the federal legislature.
7.31.2009 1:15pm
ShelbyC:
I like it. I'm gonna order a bottle.
7.31.2009 1:17pm
AJK:
Doesn't Alabama also limit beer to 6% ABV or something like that?
7.31.2009 1:18pm
Kevin R (mail):

"Congress shall make no law..." specifically refers to the federal legislature.


Welcome to 1868. (Or 1925, anyway.)


Anyway, I guess if it's not on alcohol advertising it's ok, but just in case, don't let them see the Virginia state flag. The Virtue personification isn't being very modest.
7.31.2009 1:26pm
Eugene Volokh (www):
/: It certainly does! Do you have any thoughts, though, on what I might have in mind with the post? Any reason to think that the Constitution might indeed have been interpreted to cover more than just the federal legislature?
7.31.2009 1:27pm
/:
Any reason to think that the Constitution might indeed have been interpreted to cover more than just the federal legislature?

Because it increases power -- what dolt could ignore that?

Why should someone interpret "Congress" to mean "Congrees and States and municipalities"? Because they're obviously stuck in the 19th Century. I mean, ratifying and repealing amendments is tiresome, and sometimes they don't even desire to progress (explain that!). It's much more beneficial to simply ignore the subject of a sentence in a fundamental law of the land and pretend it isn't there.

After all, legislation is what courts are designed for.
7.31.2009 1:35pm
ray_g:
IIRC, the BATF can disapprove labels on alcoholic beverages on very similar grounds. If the the feds via BATF can do it, I would think that a state legislature could also. Could someone with knowledge of BATF regulations comment on this?
7.31.2009 1:41pm
Eugene Volokh (www):
/: Does the Court's modern free speech case law really "interpret 'Congress' to mean 'Congress and States and municipalities'"? Or might it be interpreting some other provisions? To be sure, one could argue whether that interpretation is indeed correct (though the argument is largely moot as a practical matter, and has been for many decades). But it seems to me that one should acknowledge that there's potentially more than just the text of the First Amendment in play here.
7.31.2009 1:42pm
BT:
Isn't the "person" in question a depiction of a person and not a real person? How does the enter into the question?
7.31.2009 1:45pm
BT:
I will answer my own question:

(d) No advertisement may include any illustration(s) of any person(s) consuming alcoholic beverages or any person(s) posed in an immodest or sensuous manner, nor shall any advertising contain profanity or offensive language.
7.31.2009 1:47pm
John Armstrong (mail) (www):
HAH! I've got an unfolded case of that wine providing a surface on some portable wire shelving in my apartment. Does this mean I can't move to Alabama?
7.31.2009 1:59pm
sk (mail):
Just curious:
If Alabama prosecuted the bottler, arrested him, imprisoned him for 14 days, fined him $2000 and assigned him 200 hours of community service, then took his liquor license away (and only returned it 7 years later), would you accept it as a reasonable outcome?

Or do judgements of 'reasonableness' depend upon whether you personally like the defendant?

Sk
7.31.2009 2:03pm
ShelbyC:

"Congress shall make no law..." specifically refers to the federal legislature.


1924 just called... It wants its legal theory back :-).
7.31.2009 2:05pm
Seattle Law Student (mail):
Alabama - Who is surprised?
7.31.2009 2:06pm
JK:
Damn /:, I was starting to think you might be an acceptable, if sub-par, counterweight to Sarcastro, but this is pathetic.
7.31.2009 2:06pm
some dude:
That's a woman on Virginia's flag? Thanks for the info.

I don't know if that brand of wine is privately owned, but corporations have no inalienable rights, free speech or otherwise. The Constitution addresses human individuals.

That image also doesn't appear to be anatomically correct.
7.31.2009 2:15pm
Mark Creatura:
Isn't this simply the "liquor exception"?
Amendment 21 (I am checking here, yep, that would be later than 1 or 14) seems to bear on this, Sec 2:
"2. The transportation or importation into any State . . . of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
The much-loved nude dancing cases authorize states to ignore (okay, that is too strong, should I say "dance around") the 1st amendment in barrooms.
I am thinking, just off the top of my head, of California v LaRue, Paps 2AM, and New York State Liquor Authority v ____.
Somebody tell me what I am missing.
7.31.2009 2:16pm
Le Messurier (mail):
I would think that the wine might be sold in interstate commerce, thus making it's advertising subject to 1A. Is this off the mark?
7.31.2009 2:17pm
ShelbyC:

Somebody tell me what I am missing.


Well, the ban applies to advertizing, not lables, and I imagine happens to apply here because labels are advertizing. But you do make an argument that Alabama could ban importing wine with imodest labels, if it chose.
7.31.2009 2:20pm
ShelbyC:

I don't know if that brand of wine is privately owned, but corporations have no inalienable rights, free speech or otherwise. The Constitution addresses human individuals.


Nor do they have the ability to speak, nor do they care if their punished. The individuals whose interests they represent, however, do.
7.31.2009 2:22pm
Porkchop:
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) is a bit confusing, but I think a majority of the court concluded that the 21st Amendment does not qualify the protections of the 1st Amendment re freedom of speech. In that case, though, the prohibition was on advertising of actual pricing information, not showing consumers "dirty pictures" (as judged by Alabama's ABC authority) - does that make a difference in the commercial speech context?
7.31.2009 2:24pm
Jonny Scrum-half (mail):
Can Alabama prohibit a manufacturer from selling its products in containers that depict the statue of David, which shows full-frontal male nudity? Does a work of art lose First Amendment protection when it's used for commercial purposes?
7.31.2009 2:31pm
Oren:

I don't know if that brand of wine is privately owned, but corporations have no inalienable rights, free speech or otherwise. The Constitution addresses human individuals.

And corporations consist of what, chopped liver?
7.31.2009 2:31pm
Oren:
On a less snarky note, the interaction of the 21A and the rest of the Constitution is a longstanding dispute. See, e.g. Craig v. Boren

The operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case. The Court has never recognized that application of that Amendment can defeat an otherwise established claim under the Equal Protection Clause, the principles of which cannot be rendered inapplicable here by reliance upon statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups.

If it doesn't alter the EPC, one would think it didn't alter the DPC under which the 1A is made applicable to the States (&their subdivisions).

Same story with Granholm, except with the commerce clause in the background.
7.31.2009 2:45pm
Curmudgeonly Ex-Clerk (www):
some dude wrote:
I don't know if that brand of wine is privately owned, but corporations have no inalienable rights, free speech or otherwise. The Constitution addresses human individuals.
This view is mistaken. For example, in Ex parte Ellis, 279 S.W.3d 1 (Tex. App.--Austin 2008, ), the court wrote:
Corporate First Amendment Rights

The State counters that the election code's restrictions on corporate campaign contributions and expenditures do not implicate any First Amendment interests--and we should apply only a "rational basis" test in our constitutional review as opposed to a higher standard of scrutiny--because "corporations have no constitutional rights independent of the rights of the individuals who comprise them." However, this is inconsistent with the controlling decisions of the United States Supreme Court with respect to the constitutional rights of corporations. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (applying strict scrutiny when analyzing Michigan ban on corporate independent expenditures in candidate elections; "[t]he mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment."); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 777-84, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (acknowledging "a corporation's right to speak on issues of general public interest" and invalidating restriction on corporate contributions in constitutional amendment election); see also Santa Clara County v. Southern Pac. R.R. Co., 118 U.S. 394, 6 S.Ct. 1132, 30 L.Ed. 118 (1886) (Privileges and Immunities clause extends to corporations). The United States Supreme Court has recognized that corporations enjoy First Amendment free speech protections. In Bellotti, for example, the court struck down a Massachusetts statute under a strict scrutiny analysis that prohibited corporations from making expenditures in a referendum election unless they could prove a material effect on their businesses or property. The Court noted:
[T]here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
Bellotti, 435 U.S. at 776-77, 98 S.Ct. 1407 (internal citations and quotations omitted); see Citizens Against Rent Control/Coal. For Fair Housing v. City of Berkeley, 454 U.S. 290, 296-97, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) (invalidating limits on corporate contributions to political committee established to oppose ballot measures); see also California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (acknowledging corporations' First Amendment right to petition legislative and administrative bodies); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-38, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (same). In addition, to prevent potential chilling of protected expressive activity, the court has applied the express advocacy limiting construction of Buckley to statutes regulating direct campaign expenditures by corporations. See Wisconsin Right to Life, 127 S.Ct. at 2666-67; Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-49, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (applying express advocacy doctrine to regulation of corporate independent expenditures "in connection with" any federal election). This same analysis has been applied by the Texas Ethics Commission to the prohibition against corporate political expenditures in section 294.094. Op. Tex. Ethics Comm'n No. 198 (1994); see Osterberg, 12 S.W.3d at 51 (placing "great weight" on Texas Ethics Commission Opinion No. 198).
279 S.W.3d at 13-14.
7.31.2009 2:45pm
GMUSOL05:

"Congress shall make no law..." specifically refers to the federal legislature.


Indeed! As luck would have it, I plan on using precisely the same argument when I and my godless atheist majority takes over the Virginia state government, amends our state constitution, and declares Christianity illegal and punishable by death. After all, it's not Congress filling the gas chambers.
7.31.2009 2:46pm
More Importantly . . .:

And corporations consist of what, chopped liver?


Maybe the ones that import pâté.
7.31.2009 2:47pm
Connie:
The woman in that photo is clearly not nude--she is wearing a flesh-colored dress; look at the folds of fabric around her legs.
7.31.2009 2:51pm
Safety Czar:
The nudity is not the problem. She is on a bike without a helmet. What will they do next? Show people smoking, or show people reading books printed before 1985?

Won't someone think of the children?
7.31.2009 3:13pm
some dude:
Corporations don't have a vote.
7.31.2009 3:14pm
JK:

Indeed! As luck would have it, I plan on using precisely the same argument when I and my godless atheist majority takes over the Virginia state government, amends our state constitution, and declares Christianity illegal and punishable by death. After all, it's not Congress filling the gas chambers.

Let's not forget banning guns GMUSOL05! No second amendment for you 14A denialists!
7.31.2009 3:14pm
ohwilleke:
The 21st Amendment argument is possibly stronger in this case, which arguably more closely interfaces with liquor regulation motives that drove prohibition in the first place, than the limitations in 44 Liquormart.

It might, at least, undermine the dormant commerce clause arguments in this case, leaving a pure First Amendment case to be decided instead.
7.31.2009 3:23pm
some dude:

ShelbyC:
Nor do [corporations] have the ability to speak, nor do they care if their punished. The individuals whose interests they represent, however, do.



Corporations do not represent anyone's interests in their entirety. They represent people's financial interest. If you told a shareholder to pick a label for a bottle of wine and everyone would know who it was that picked the label, would they pick a label with a naked lady knowing that their friends, family, and peers would know they picked the naked lady? Possibly not. The corporation provides a bit of cover. The shareholder is not making that specific decision.

Even the people in the corporation who chose the label have a bit of cover. "I'm just doing my job. Looking out for the interests of the company. If it was my bottle of wine, I wouldn't necessarily put a naked lady on it."

Corporations provide a lot of cover for behavior that avoids personal responsibility. Actions of corporations are not subject to the same level of personal responsibility that actions of human beings are. Corporations have no inalienable rights.
7.31.2009 3:30pm
Joshua (mail):
Safety Czar: Won't someone think of the children?

Well, it's not as though children are allowed to drink the stuff in the first place. And obscure wines like this aren't exactly the drink of choice for 99.99% of underage imbibers anyway. So if the intent of the law is to prohibit sensuous advertising of alcohol to minors, enforcing it in this case is just plain silly.
7.31.2009 3:31pm
some dude:

GMUSOL05:


"Congress shall make no law..." specifically refers to the federal legislature.



Indeed! As luck would have it, I plan on using precisely the same argument when I and my godless atheist majority takes over the Virginia state government, amends our state constitution, and declares Christianity illegal and punishable by death. After all, it's not Congress filling the gas chambers.


You should be able to do that, according to the US Constitution. It has the advantage of sequestering your insanity to Virginia. You have announced your plan. If the people of Virginia know your intentions, and know that no help will be forthcoming from the Federal Government, they might get a little nervous, and get it into their heads that it is up to them and them only to determine if they are really going to sit back and let you do that, or perhaps possibly not vote for you.

Having the Federal Government be the rights police sets up a bit of moral hazard. Especially since the Federal Government cannot possibly protect everyone's rights to their satisfaction. It is an empty promise.
7.31.2009 3:41pm
Anatid:
Huh. I've been drinking Gladiator Cabernet for years now, and I can't say I've been inspired to moral degeneration by squinting at the lady on the bottle.

The artwork is from 1895 by Parisian artist G. Massias. This painting is far from the most risque example of portrayal of the female figure at the time, in that art movement. For a hundred years, we've accepted this as legitimate art. Now it's obscenity?

Thanks, Alabama.
7.31.2009 3:47pm
Oren:

The shareholder is not making that specific decision.

Of course he is -- he determines both the structure and specifics of the governance of the corporation.

Despite your childish assertions, corporations do, in fact, have inalienable rights that derive from the simple fact that they are (like Soylent Green) made of people.
7.31.2009 3:55pm
ShelbyC:
some dude:

Even the people in the corporation who chose the label have a bit of cover. "I'm just doing my job. Looking out for the interests of the company. If it was my bottle of wine, I wouldn't necessarily put a naked lady on it."


That has nothing to do with whether or not the folks involved are affiliated with a corporation. Two people colluding in picking a label, where one person says, you find a label that will sell wine, and I'll pay you, that's an expressive act whether or not the individuals are affilitated with a corporation. And if you fine a corporation for speech it engages in, you are punishing individuals for the speech of them or their affiliates.

Corporations don't have rights, but the people behind them do.
7.31.2009 4:17pm
Rock On:
I've always held the opinion that the US would have eventually devolved to an EU-like confederation of independent states had the Constitution not been incorporated against the states. In some ways this might be better, actually. But, not it's not the way it happened, and it's almost certainly never going to change, so get over it denialists.
7.31.2009 4:26pm
J. Aldridge:
EV says, "To be sure, one could argue whether that interpretation is indeed correct (though the argument is largely moot as a practical matter, and has been for many decades)."

What, the court can do no wrong because it would be "moot" to question a badly flawed interpretation?
7.31.2009 5:05pm
u. saldin (mail):
How, exactly, is nudity harmful to children?
7.31.2009 5:12pm
Louis Bonham (mail):
The Alabama regulators are pikers when it comes to this kind of foolishness. Recall what the geniuses at the Texas Alcoholic Beverage Commission tried to do a few years ago, when they refused to approve the distribution of Dixie Beer's "Blackened Voodoo Lager" (which had nothing even remotely suggestive on the label):

http://www.lewrockwell.com/blog/lewrw/archives/027108.html

Fortunately, the ensuing media storm embarrassed them into backing off. Hopefully, that'll happen in this case as well.

LKB
7.31.2009 5:23pm
/:
but this is pathetic.

Sorry, I'm not a lawyer. It takes effort to maliciously lie about a plain sentence for most people. I'll try harder next time. Do I still get a ritualistic paddling?

Indeed! As luck would have it, I plan on using precisely the same argument

Your venom is disgusting, which is why the republic of Virginia, which is the only form it's obliged by the Constitution to take, wouldn't go for it. Do you have anything but hate and power in mind? I guess not; you entertain using the Constitution to do the opposite of what it says.

Welcome to 1868.

My internal image of where the the meaning of "land of laws" was destroyed has already been pushed to before that date, but thanks for trying.
7.31.2009 5:25pm
J. Aldridge:
In Bellotti, for example, the court struck down a Massachusetts statute under a strict scrutiny analysis that prohibited corporations from making expenditures in a referendum election unless they could prove a material effect on their businesses or property. The Court noted: [T]here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs.

That is the truth as far as what the meaning behind the words mean but not the whole story. The 1A exists to prove the federal govt has no power over speech or the press and not a declaration of some principal.
7.31.2009 5:27pm
PersonFromPorlock:
EV, why liquor ads in particular are singled out is easily understood: in the Bible Belt Noh that plays out in (some) southern legislatures, liquor is 'sin' and naked women is 'sin': therefore, a liquor bottle with a naked woman on it is sin squared, much more deserving of censure than mere nudity.
7.31.2009 5:37pm
PCachu (mail) (www):
Look at how they're exploiting and objectifying that bicycle.

Sickening.
7.31.2009 5:58pm
einhverfr (mail) (www):


Corporations do not represent anyone's interests in their entirety. They represent people's financial interest. If you told a shareholder to pick a label for a bottle of wine and everyone would know who it was that picked the label, would they pick a label with a naked lady knowing that their friends, family, and peers would know they picked the naked lady? Possibly not. The corporation provides a bit of cover. The shareholder is not making that specific decision.


I dunno. I see no reason the individual might be dissuaded from choosing such a label. Maybe I live in a different part of the country though.
7.31.2009 5:59pm
einhverfr (mail) (www):
u. saldin:

How, exactly, is nudity harmful to children?

Because it's an unnatural part of a lifestyle. If nudity wasn't harmful to children, God would have had children born nude.
7.31.2009 6:02pm
ArthurKirkland:
The collision of the 21st Amendment-related police power exercised (or sometimes not) by states with other (usually federal) legal provisions -- bankruptcy laws, for example, or antitrust laws -- generates some tricky legal issues.

Mix that complicated legal context with 'bama-backwater prudism and you might get a time-machine trip directly back to the 1930s.

At the practical level, Alabama embarrasses the nation, and the person who complained about that label embarrasses Alabama.
7.31.2009 6:07pm
ShelbyC:

If nudity wasn't harmful to children, God would have had children born nude.


Reminds me of how folks were saying that viewing bare breasts was harmful to children back during the Janet Jackson thing. We wouldn't have gotten too far as a species if that were true.
7.31.2009 6:14pm
JK:

Sorry, I'm not a lawyer. It takes effort to maliciously lie about a plain sentence for most people. I'll try harder next time. Do I still get a ritualistic paddling?

It really has to be spelled out for you doesn't it. I usually don't take it upon myself to purely inform, but I did get kind of snarky, so maybe I owe it.

Amendment 14:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law"

Now maybe you honestly think that neither the "privileges and immunities" or "due process" clauses prohibit state governments from imposing any restrictions at all on speech. Maybe you even believe that such a reading is so unreasonable that it would be a "malicious lie about a plain sentence," but you didn't even make that argument, you just stated that "congress" in 1A means the federal legislature, ergo there are no (US) constitutional issues regarding state laws that restrict free speech.

You don't have to be a lawyer, but we do ask that you read the whole Constitution. That also includes Art III sec 2: "The judicial power [of the US Supreme Court] shall extend to all cases... arising under this Constitution." If only the founders had the foresight to name you the ultimate arbiter of disputed consititional language, but alas.
7.31.2009 6:27pm
Siskiyahoo:
"...ritualistic paddling" indeed. I thought this wasn't that sort of website.

On a more serious note (I assume for the purposes of sanity that /:'s suggestion wasn't serious or wasn't, how shall I say, witting), it isn't just 'Bama that embarasses its denizens. (Please note the correct non-use of an apostrophe) Has anyone else noticed that the Mount Shasta Brewery has recently been engaged in a flap with the ABC officials of the State Formerly Known As Golden. Wanted to put the word "Weed" on their bottle caps. Weed, California is a tiny city named for Abner Weed, and is where the microbrewery is located.
7.31.2009 6:27pm
J. Aldridge:
JK says: "You don't have to be a lawyer, but we do ask that you read the whole Constitution. That also includes Art III sec 2: 'The judicial power [of the US Supreme Court] shall extend to all cases... arising under this Constitution.'"

I think you omitted something important like the power is limited to "Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
7.31.2009 6:55pm
SFH:
Connie:
The woman in that photo is clearly not nude--she is wearing a flesh-colored dress; look at the folds of fabric around her legs.

? I don't see any folds of fabric. Are you sure you're not looking at her right leg?
7.31.2009 6:55pm
ChrisIowa (mail):

How, exactly, is nudity harmful to children?

Sunburn
7.31.2009 7:17pm
wunderola:
Best publicity this winemaker has ever had ... too bad the wine really is nothing special.
7.31.2009 7:50pm
q:

"I'm just doing my job. Looking out for the interests of the company. If it was my bottle of wine, I wouldn't necessarily put a naked lady on it."

Corporations provide a lot of cover for behavior that avoids personal responsibility. Actions of corporations are not subject to the same level of personal responsibility that actions of human beings are. Corporations have no inalienable rights.

Wrong. Corporations operate within markets, so if anything, their actions are far more scrutinized than any individual. Why would someone say they wouldn't put a naked lady on their wine bottle? I presume it's because whatever social circles he belongs to in would object to that. Such stigmatization applies to corporations to a greater degree, as the "social circles" they operate in are generally more widespread. If a naked woman on a label has large mental negative externalities, then corporations will be punished accordingly in the market. Individuals are far more insulated as they tend to only care about the opinions of those nearest to them.
7.31.2009 8:27pm
/:
Now maybe you honestly think that neither the "privileges and immunities" or "due process" clauses prohibit state governments from imposing any restrictions at all on speech.

Yes, that's exactly what I meant when I said that the first amendment refers specifically to the federal legislative body, necessarily excluding States'.
7.31.2009 8:41pm
Norman Pfyster:
The BATF has been doing this for years. See 27 CFR 4.39(a).
7.31.2009 8:48pm
ShelbyC:
JK:

"The judicial power [of the US Supreme Court] shall extend to all cases... arising under this Constitution."


Good God, man, don't do that. It's the judicial power of the United States. The whole next paragraph talks about the jurisdiction of the supreme court.
7.31.2009 8:51pm
Oren:

What, the court can do no wrong because it would be "moot" to question a badly flawed interpretation?

Sometimes an error the lives long enough becomes part of the truth, at least in the sense that we are much more likely to keep the doctrine of incorporation until the dissolution of the Union than to repeal it.
7.31.2009 9:07pm
JK:
Oh, there's a few more steps (it was a side point), but do I really need to explain why SCOTUS has jurisdiction over constitutional cases? Really?
7.31.2009 9:27pm
J. Aldridge:
Oren, don't think you can label incorporation as flawed interpretation because it exists not from interpretation but from activism.
7.31.2009 9:54pm
/:
don't think you can label incorporation as flawed interpretation because it exists not from interpretation but from activism.

Is it okay to think it flawed because it's policy that rewrites the Constitution without editing the document, which sets a precedent for the same, given that precedent is given weighty consideration when convenient, because high courts prefer the comfort and legitimacy of precedent to reasoning from principles?
7.31.2009 10:04pm
Freed Hops:
@AJK: "Doesn't Alabama also limit beer to 6% ABV or something like that?"

Yes, or at least we did. The great thing about living in a state that enforces arcane or silly laws is being a part of a movement to change them. "Free the Hops" was a grass roots movement to get the limited alcohol content law changed. It gave rise to fantastic little festivals to "FREE THE HOPS." Anyway, it is the kind of cause that brings together pretty normal folks who just want to have a good time. It succeeded. The hops was freed. I am currently sipping on a Duvel that is well past the old alcohol limit. Very tasty and more rewarding because of the history.

This new "controversy" has great possibilities for fun. Now, where is that old email list. It is time to get started.
7.31.2009 10:25pm
Anonymouse:
/: "Republic of Virginia"

Now I know you're a troll.
7.31.2009 10:47pm
/:
Anonymouse,

I did not capitalize the 'r', so whatever paranoid fantasies you have about beating down rebels will have to stay in your diary. Currently, a State in the Union is required to be a republic by law; referring to a real or hypothetical State government as "the republic of" is common (and sometimes official). GMUSOL05's hypothetical mentioned "[taking] over the Virginia state government", in response to which I emphasized the republican form of government to counter the tyrrany he ejaculated.

I hope you appreciated this response, but I know it wasn't everything you hoped because I didn't respond to your malicious edit of my comment with some emotional rise. If it's any consolation, I appreciate the quality of your spelling.
7.31.2009 11:11pm
xin (mail):
I read in the papers that some state govt. forbid some alcoholic beverage's design. It also mentioned the federal Alcohol and Tobacco Tax and Trade Bureau, which regulates alcohol sales. I suppose the design of labels can be regulated.

http://online.wsj.com/article/SB124779531662955515.html
7.31.2009 11:37pm
Danny (mail):
Hahaha, Alabamans would die if they went to Italy, you can see topless women in the newspaper and on TV.
7.31.2009 11:46pm
Matthew Harris (mail):
"Incorporation" is a load of hogwash. The text of the First Amendment specifically limits the scope of the Amendment to "Congress . . . ." The Fourteenth Amendment was never intended to specify a basket of rights that the states must provide their citizens.

The Fourteenth Amendment states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This amendment was clearly not intended to specify that each state must guarantee certain rights to its citizens; rather, it was intended to ensure that each state granted its (newly emancipated) former slaves all of the rights it granted its white citizens.

In other words, the Fourteenth Amendment specifies that each state must treat all citizens equally. It contains nothing more, and nothing less. Any other notion is mere hogwash.
8.1.2009 12:37am
arbitraryaardvark (mail) (www):
They could update the label to say "banned in alabama"; would probably be good for sales.
The company is unlikely to sue. But it seems to me any alabama consumer (21+) would have standing. Anybody here licensed in Alabama?
8.1.2009 1:19am
arbitraryaardvark (mail) (www):
Alabama has the world's longest constitution, still, i was able to find this. I don't know whether freedom of the press includes a wine press.
SECTION 4
Freedom of speech and press.
That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
8.1.2009 1:22am
Fed Courts Textbook:
J. Aldridge says:

I think you omitted something important like the power is limited to "Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."


I think JK asked that you read the *whole* Constitution. The enumeration of types of controversies are not limits on the power to hear cases arising under the Constitution and federal law. Here's a tip: go look up "Federal Question Jurisdiction."

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
8.1.2009 6:38am
Oren:

Oren, don't think you can label incorporation as flawed interpretation because it exists not from interpretation but from activism.

You were the one that applied that label, in your 7.31.2009 5:05pm post.

So, aside from attacking me for using a term quoted directly from your own post, you fail to respond to my assertion that incorporation has a much better chance of surviving till the end of the Republic than getting repeal.
8.1.2009 11:15am
Oren:

Alabama has the world's longest constitution, still, i was able to find this. I don't know whether freedom of the press includes a wine press.

I don't know about wine, but surely it includes the right to well-creased trousers!

Even if the State doesn't respect that, I think we can find a right to look snappy in the liberty protected by the 14A. Maybe it's a privilege and immunity (from poor taste?)
8.1.2009 11:46am
J. Aldridge:
Fed Courts Textbook said: "I think JK asked that you read the *whole* Constitution. The enumeration of types of controversies are not limits on the power to hear cases arising under the Constitution and federal law. Here's a tip: go look up 'Federal Question Jurisdiction.'"

hahahaha since the court says EVERYONE has Fourteenth Amendment rights, jurisdiction questions is extended to just about any controversy (sky is the limit).

Oren says: "So, aside from attacking me for using a term quoted directly from your own post, you fail to respond to my assertion that incorporation has a much better chance of surviving till the end of the Republic than getting repeal."

Incorporation will die before the Republic does because there is no non-fictional foundation to support it. Most scholars I think are against incorporating through "due process," which began with a very bad assumption. Incorporating through the P&I's is even more awkward because of the clear distinction between citizens of a state and of the united states.
8.1.2009 4:37pm
Oren:
How much do you want to wager on that swagger?
8.2.2009 11:55am
MBW (mail):
"Incorporation" is a load of hogwash. The text of the First Amendment specifically limits the scope of the Amendment to "Congress . . . ." The Fourteenth Amendment was never intended to specify a basket of rights that the states must provide their citizens."

Really? Are you not familiar with John Bingham, primary author of the 14th Amendment, who specifically stated that the amendment was intended to incorporate the first 8 Amendments against the states? Hugo Black gives a detailed account of Bingham's views in his dissent in Adamson v. California.
8.3.2009 8:08am
J. Aldridge:
MBW writes: "Really? Are you not familiar with John Bingham, primary author of the 14th Amendment, who specifically stated that the amendment was intended to incorporate the first 8 Amendments against the states? Hugo Black gives a detailed account of Bingham's views in his dissent in Adamson v. California."

I'm familiar with Bingham's speeches. You are drawing on words by Bingham that came five years after the debates. You also ignore that he was talking about United States citizens as distingushed from resident state citizens.

Yeah, Black cleverly talked about Bingham, but omitted his most important declarations. Black also ignores the fact Congress did vote to define ALL of the P&I's of United States citizens and codified it. Nothing having to do with any of the first 8 amendments.
8.3.2009 10:09am
ShelbyC:

"Incorporation" is a load of hogwash. The text of the First Amendment specifically limits the scope of the Amendment to "Congress . . . ."


Unfortunately, it seems that that's kinda true, given current incorporation doctrine (i.e.) "due process" incorporation. For example, I've never understood how state endorsement of religion deprives anyone of "life, liberty, or property"
8.3.2009 11:19am
My $0.02:
For the record, this wine is delicious.
8.3.2009 2:14pm
Random Wine Geek:
I'm astonished that no reference has yet been made to the controversy involving the 1993 Chateau Mouton-Rothschild label that included a Balthus sketch of a nude female adolescent, a copy of which can be found here (though I disclaim any support for the hyperbolic description of Mouton's quality included on the page, with the limited exception of the extraordinary 1986 bottling that may actually be the finest wine produced anywhere in the world in that vintage).

Unlike Alabama, the BATF initially approved the Balthus label, though Mouton later requested that the approval be rescinded after allegations were made that the label constituted child pornography. Mouton then registered a label with a blank space in place of the Balthus sketch. Given the relative mediocrity of the 1993 Bordeaux vintage, the controversy and the label switch turned into a marketing bonanza for Mouton, as bottles with the Balthus label commanded a premium at U.S. auctions for at least several years after the vintage was released, though I haven't checked recent auction prices to confirm whether the Balthus label still trades at a premium.
8.4.2009 11:41am

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