The Dangers of Political Activity

We are regularly told that we, as citizens, should become more active in public affairs. We are told that this would make us more informed about the issues of the day, and that being more informed, we could make better decisions as citizens, and force our elected officials to make better decisions as well.

By and large, all of this is true. And of course, with blogs, Facebook, Twitter, and other forms of social media, we can be more involved in public life. As individual citizens, we are empowered as never before to impact what goes on in our communities, in our cities, in our states, and in our country.

But any advice to get more involved in public affairs--and to do so with the help of social media--should come with a warning: If you do get involved, be prepared to pay lots of money to be regulated by your state in flagrant violation of past Supreme Court rulings. Be prepared, in short, to have your First Amendment rights ignored and trampled upon by the state.

The Supreme Court has the opportunity to put a stop to this latest example of overregulation and liberty infringement. The question is, will they? Or will the First Amendment become more and more of a dead letter?

What Justice Ginsburg Gets Wrong

Her disparagement of the Roberts Court notwithstanding, it is not an activist Court:

Justice Ruth Bader Ginsburg believes the Roberts Court is “one of the most activist courts in history,” according to a widely cited interview with the NYT‘s Adam Liptak.   ”Activist” is a slippery label, often indicating nothing more than disagreement with a Court’s decision in a given case.  fortunately Justice Ginsburg provided Liptak with a definition.  Specifically, Ginsburg told Liptak that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”  This is one way to define judicial activism, but if this is the definition Justice Ginsburg wants to use, her accusation falls wide of the mark.

If activism is “measured in terms of readiness to overturn legislation,” the current Court is not one of the “most activist courts in history,” at least not compared to others of recent memory.  As Liptak’s own reporting has shown,the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts.  Liptak wrote his earlier story in July 2010, but the conclusion still holds.  Since 2010 the rate at which the Roberts Court has struck down federal legislation has actually declined.  According to the same report, the Roberts Court overturns precedent at a lower rate than did prior post-War courts.

If in calling the Roberts Court  ”one of the most activist courts in history,” Justice Ginsburg meant that the Roberts Court is more activist than, say, the seriatim or Marshall Court, she has a point. If she meant to imply the Roberts Court is any more “activist” than any other court in the past 60 years, she doesn’t.

Maybe the New York Times should correct the record on this point. You know that they would if John Roberts, Antonin Scalia, Clarence Thomas or Samuel Alito made a similar boo-boo.

The New Nobility?

I am pretty sure that I don't agree with Glenn Reynolds's theory that allowing special privileges for government officials may serve to violate Art. I, Sec. 9 of the Constitution. I do believe, however, that allowing government officials to have special privileges to begin with is fundamentally offensive on a number of levels. And hey, if the advocates of a "living, breathing Constitution" are forced to have their interpretive principles used to curb the growth of government--and the power of governmental bureaucrats as well--I guess I might be able to learn to live with that outcome.

What Real Whistleblowing Looks Like

Contrary to what Bradley Manning and Edward Snowden tell us, real whistleblowing does not entail "telling the public about programs that may not be illegal, but are distasteful and morally offensive to the whistleblower, and possibly to a significant portion of the populace." Rather, real whistleblowing entails revealing programs and scandals that are illegal or that subvert the law.

Like, say, this:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."

Read the story, and you will find that prosecutors hate this program as well, since "it can lead to all kinds of problems with discovery and candor to the court." The list of scandals demanding congressional investigation--in the form of open hearings, as I probably ought to emphasize yet again--just seems to be growing, doesn't it?

Admit It: You Thought the Third Amendment Was Outdated and Useless

Well, you thought wrong.

A Much Needed History Lesson on DOMA

Many of the Democrats celebrating the Supreme Court's decision on DOMA would have you believe that they opposed the law from the outset. Zenon Evans performs a mitzvah by reminding all and sundry of what those Democrats desperately want all and sundry to forget:

. . . In response to the ruling, Bill Clinton tweeted that he is “grateful to all who fought tirelessly for this day.” He also released an official statement condemning the discriminatory nature of DOMA. What Clinton failed to mention was that he signed the act into law.

He wasn't alone in his silence. Other leading Democrats who supported it include Vice President Joe Biden, who voted for DOMA as a senator. Sen. Harry Reid (Nev.), who said, “The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd,” also forgot to note that he voted for DOMA. Sen. Chuck Schumer (N.Y.) released a statement praising the forward thinking of the Supreme Court. “The march towards equality... moved forward again today... The Supreme Court did the right thing here and helps us understand that the march to equality in America is unstoppable.” He made no mention of the fact that he, too, voted for the act and against "the march to equality." Sen. Bob Menendez (N.J.) patted himself on the back: “As a member of Congress who signed the amicus brief urging this decision [to repeal DOMA], I am thrilled that the Supreme Court took a strong stand for marriage equality." Menendez saw no need to clarify that this was only after he voted for DOMA in the first place. Sen. Tom Harkin (Iowa) voiced his support yesterday saying, "I am glad that the court recognized that all American families deserve the same legal protections," but made no mention of why his point of view flipped.

As in so many such cases, it is as though some people believe that their past positions cannot be accurately Googled by others.

Remember Kelo v. City of New London?

If not, read Wikipedia, or better yet, read the actual decision.

Done? Lovely. Now read this. The barbs and sarcasm contained in the following excerpt are, of course, entirely justified:

Eventually, something will probably get built on the site. But in the meantime, it will have lain empty for many years, probably at least a decade in all. In addition to the financial and emotional costs imposed on the people who lost their homes, this hiatus ensures that the takings will be a net loss when it comes to promoting development for the city as well. It is actually quite common for economic development takings to end up destroying more development than they create.

Fortunately, the eight year wait was not a total loss. Feral cats have been making use of the land where Susette Kelo’s house once stood. But I suspect that the city could have built an even better home for the feral cats for a lot less than $80 million, and without condemning any private property.

Appreciating Justice Thomas

A very good blog post by law professor Mike Rappaport. No excerpts; just read the whole thing.

The Supreme Court and Same-Sex Marriage

I support the policy outcomes in both of the same-sex marriage cases before the Supreme Court. I believe that the Defense of Marriage Act was bad law that treated people differently for no good reason whatsoever, and I am glad to have seen it overturned in the Court's decision in Windsor. As law professor Randy Barnett, who wrote an amicus brief in the Windsor case, points out,

. . . DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.

I agree with this reasoning, and although--as Professor Barnett points out--Justice Kennedy's opinion adopted this reasoning "with a twist," the fact remains that "federalism wins out in theory as well as in practice" when it comes to the same-sex marriage cases, which is good both for federalism, and for the cause of equality in general.

A very good analysis of the DOMA case is offered by Timothy Sandefur, who--while agreeing with the policy outcome of the case--does state his belief that "the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent." And I also agree with the way that Ilya Shapiro has put things:

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for.

As for the Perry case, which leaves California's Proposition 8 invalidated due to a standing issue, I am glad that the decision functionally means that same-sex couples are able to get married in California, but of course, the fight in California is not over. I imagine that opponents of same-sex marriage will try to find another way to invalidate same-sex marriage in California, and I think that the only decisive way to beat back such an effort is for proponents of same-sex marriage to win a ballot fight on the issue at the polls. In fact, in general, it is preferable for same-sex marriage advocates that this issue is fought and won at the polls from now on, and kept out of the courts as much as possible. Only by winning at the polls will same-sex marriage advocates be able to show that their cause--which I support--is supported by the American people in general; any victory in the courts, no matter how decisive, will continue to cause opponents of same-sex marriage to claim that the right is being validated because of the actions of unelected judges.

Oh, and two quotes that I saw on Facebook are worth repeating here. Here is the first: 

Clinton signed DOMA into law. The Koch Brothers favored same-sex marriage before it became fashionable. But it's not like you'll update your priors based on that.

The second one makes the same point, and is from law professor Jonathan Adler: 

Nice to see so many friends of mine on the Left cheering a Supreme Court decision striking down a federal law enacted by a broad, bipartisan majority and signed into law by President Clinton. (Oh, and did I mention that this decision was supported enthusiastically by the Koch Brothers and urged by Koch-funded entities?)

Shelby County v. Holder: Ilya Shapiro's Take

Probably the most sane analysis of the Supreme Court's holding that I have seen: 

In striking down Section 4 of the Voting Rights Act, the U.S. Supreme Court has restored a measure of constitutional order. Based on 40-year-old voting data that doesn’t reflect current political conditions, this provision subjected a seemingly random assortment of states and localities to onerous burdens and unusual federal oversight.

To be clear, neither minority voting rights nor the ability of the federal government to enforce those rights were at stake in Shelby County v. Holder. Both of those were, are and will be secure regardless of this case and its consequences.

Instead, the court was considering whether the “exceptional conditions” and “unique circumstances” of the Jim Crow South still exist such that an “uncommon exercise of congressional power” is still constitutionally justified -- to quote the 1966 ruling that approved Section 5 of the Voting Rights Act as an emergency measure.

As Chief Justice John Roberts wrote for the court in 2009, the last time it looked at this law, the “historic accomplishments of the Voting Rights Act are undeniable,” but the modern uses of Section 5 -- which requires federal “pre-clearance” of any changes in election regulation in certain jurisdictions -- “raises serious constitutional concerns.” The provision maintains antiquated assumptions and flies in the face of the 15th Amendment’s requirement that all voters be treated equally.

Yet Congress renewed Section 5 in 2006 without updating Section 4’s coverage formula, and it ignored the court’s warning that “the Act imposes current burdens and must be justified by current needs.”

That second paragraph is especially important to keep in mind, as is the fact that Congress can always rewrite the pre-clearance sections of the Voting Rights Act in order to accurately reflect current circumstances. But neither Congress, nor the Court, nor all of the people who offer outraged commentary on the holding of the case can ignore the very basic fact that the country has changed since 1965. And I don't know why we would want to ignore that fact, as it has changed for the better. Recognizing that change is not an admission of defeat for civil rights advocates--and I count myself as one. It is a declaration of victory, the kind that we have long waited to make.

Corporations and Other Business Entities Should Be Treated Like Natural Persons

Senators Jon Tester and Patty Murray are out to deprive corporations and corporate entities of constitutional rights. Eugene Volokh explains why this is an absolutely terrible idea. From his conclusion, discussing what would happen if the Tester-Murray amendment is adopted:

. . . goodbye, First Amendment protection for the New York Times, CNN, the ACLU, the NRA, and the Catholic Church. Goodbye, any right to just compensation when a corporation’s property is taken — whether the corporation is a large business or a small mom-and-pop company. Goodbye, any rights to due process when a corporation’s property is seized. Goodbye, any protection for corporations (again, even small family-run businesses) from unreasonable searches and seizures, or excessive fines. That’s what Senators Tester and Murphy’s amendment calls for.

Read the whole thing to see why the conclusion is entirely justified. And remember: Those who call for the curbing of corporate rights and the rights of other business entities as a way of enhancing the rights of natural persons will only end up trampling on the rights of both corporations/business entities and natural persons.

Facebook and the First Amendment

I am as much of a First Amendment absolutist as you will find, and I believe wholeheartedly in the notion that the best way to combat bad speech is with more speech. That's why it should surprise no one to find out that I am in favor of affording First Amendment protections to likes on Facebook. 

No Good Deed Goes Unpunished

To wit:​

Benjamin Srigley saw several pit bulls attacking an 11-year-old boy, so he ran into his home, retrieved his handgun, ran back, and shot one of the dogs. A bicycle policeman arrived on the scene shortly thereafter and shot the other two dogs. 

Here comes the twist: This incident happened in Washington, D.C., and even though the Supreme Court declared the city’s gun control regulations unconstitutional in 2008, the city government is still quite hostile to gun ownership. How hostile? Well, prosecutors offered Srigley a “deal”: pay a $1,000 fine and they would drop criminal charges against him. Turns out Srigley had lawfully purchased firearms when he lived outside D.C., but he had not registered them when he moved into D.C.