The Volokh Conspiracy

A few days ago, questions were raised first by Big Journalism and then by me about a story that Michael Bellesiles published in the June 27th issue of the Chronicle of Higher Education: Teaching Military History in a Time of War. I have now read through every DoD casualty report from last fall for both Iraq and Afghanistan and news obituaries for most of them, and I have found none that was even remotely possible as the case that Bellesiles wrote about in the Chronicle. This post discusses the serious questions this raises for the veracity of Bellesiles account.

Continue reading ‘Serious Questions About the Veracity of Michael Bellesiles’s Latest Tale’ »

For background on what this all means, see here. Many thanks to Donna Gulnac of the UCLA law library for turning the spreadsheet into this map.

The case is A.A. v. Needville Indep. School Dist., decided today; the opinion is written by Judge Higginbotham and joined by Judge Wiener, but Judge Jolly dissents. Here is the opening paragraph of the majority opinion:

A Native American boy and his parents challenge a school district’s requirement that he wear his long hair in a bun on top of his head or in a braid tucked into his shirt. We agree with the district court that the requirement offends a sincere religious belief and hold it invalid under Texas law.

For more details on American religious exemption law, see here.

While this is certainly a question that no-one is asking, there is an answer. The latest episode of Colorado Inside-Out, from Colorado Public Television channel 12 in Denver, is our annual “time machine” program. This year’s show is set in 1935. I’m Westminster Law School bankruptcy professor Israel Ben Koplowitz. Patricia Calhoun (real-life publisher of the weekly Westword newspaper) plays Denver Post heiress Helen Bonfils. Kevin Flynn, of the late Rocky Mountain News, plays the great Rocky Mountain News reporter Robert Chase. Dani Newsum, like me, plays a fictional predecessor of her present self. We discuss the Dust Bowl, the New Deal, Colorado’s attempt to limit immigration from Oklahoma and Mexico, the Italian invasion of Ethiopia, and other topics.

Sound engineer Larry Patchett did a fantastic job. The show is recorded with authentic microphones from the thirties, and those of you will acute hearing will notice the difference.

A commenter faults me for saying “to effectuate the legislature’s likely intent,” and suggests that “to effect the legislature’s likely intent” would “surely” have been better. This led me to a bit of research that I thought might be worth reporting, just as an example of a particular approach to usage that I tend to like.

To begin with, I never even thought of saying “to effect the legislature’s likely intent”; that struck me as wrong. But looking both terms up in the dictionary, I saw that effectuate was essentially defined as “effect” (as a verb, of course).

But while the dictionary is a good measure of actual usage — and itself helps guide actual usage — these days one has more direct measures, and measures that are more closely tied to specific phrases. And a Google search reveals 21,500 ostensible hits for “effectuate the legislature’s intent” versus 32 for “effect the legislature’s intent”. The “effectuate” version is idiomatic, and the “effect” version is unidiomatic. And since I, with Horace, like to follow “the will of custom, in whose power is the decision and right and standard of language,” “effectuate” it is. All else being equal, I’d prefer to use the shorter and less fancy-sounding option, but the Google search results suggest that all else is not equal here. (Oddly, the ratio is less skewed when I search through Westlaw’s Allcases database, but it’s still more than 10:1 in favor of “to effectuate the legislature’s intent,” except in Kansas; of the 51 court decisions that say “to effect the legislature’s intent” since 2000, 37 were in Kansas courts.) 

Of course, sometimes fresh figures of speech are more vivid and more effective than customary ones. But I think this is so only for more substantive inventions than “to effect the legislature’s intent,” inventions that I would want people to notice and focus on. In the original post, I didn’t want people to focus on the words “to [effectuate/effect] the legislature’s intent”; I just wanted people to get my substantive message, and despite the commenter’s reaction, I suspect that the more common “to effectuate the legislature’s intent” conveys that message better than “to effect the legislature’s intent.”

UPDATE: The original commenter follows up with this:

Continue reading ‘The Horace/Google Principle and “to Effectuate” vs. “to Effect”’ »

The Louisiana cyber-tormenting statute also has an error in it: It says that “The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana,” but the religious freedom provision of the Louisiana Constitution is in section 8, and section 18 is the right-to-bail provision. Whoops!

Still, I assume that courts would be willing to effectuate the legislature’s likely intent by reading the provision as referring to “section 8,” under the “scrivener’s error” doctrine. I also called it in to the Louisiana Public Update Legislative Services line, so maybe the Legislature can somehow fix that, though I don’t know how likely that is.

A newly enacted statute, Rev. Stat. 14:40.7 provides, in relevant part:

A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.

B... (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service....

F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.

The penalty is up to 6 months’ in jail (or an up to $500 fine or both), except that under-17-year-old offenders are routed to the juvenile justice system.

This is not bad as the earlier version, which also applied to speech intended to “embarrass, or cause emotional distress.” But it’s still pretty bad, especially because it leaves unclear what exactly is a “malicious and willful intent to ... abuse [or] torment.”

Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to ... abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.

Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to ... abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?

So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.

The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).

UPDATE: Some commenters suggested that “malicious” is sufficiently well-defined because it arises often in legal contexts.

But the trouble is that means different things in different contexts. In the law of homicide, for instance, the “malice aforethought” that distinguishes murder from manslaughter is a term of art that means (more or less) extreme recklessness, knowledge, or purpose that the result will be brought about, plus absence of certain kinds of immediate provocation. This would indeed cover the examples I gave, since there it may be very likely that the speaker does indeed want to make the listener feel “abused” or “tormented” (if that’s what’s required), and that there was no immediately preceding provocation.

In the constitutional law of libel, “actual malice” means simply reckless or knowledge about the falsehood of the statement, pretty clearly not what’s intended here. In tort law, “malice” sometimes does mean, mor or less, “ill will” towards the target — but that too might be satisfied in the examples I gave: Someone writing an online article excoriating a young criminal may well feel ill will towards the criminal, and might well want the criminal to feel ashamed and “tormented” by guilt or by a sense of public condemnation. And sometimes “malice” means something else, such as “reckless disregard of the law or of a person’s legal rights,” which in this context is circular.

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions ... agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   Continue reading ‘Financial Regulation Reform — AALS Call for Papers’ »

So we’re down to the final question: Who to root for on Sunday? [And who will win? See below] It’s a pretty complicated tangle. If it were a simple question (as it usually is, for me) of “Who’s playing the most beautiful and creative football?,” it would be easy to get behind Spain, who were magnificent in their semifinal against the Germans. 

But the Dutch, surely, have a deeply rooted claim to our affections and whatever good karma we can send their way. The Dutch are to beautiful and creative football what Little Richard and Muddy Waters are to rock and roll. The great Dutch teams of the 70s, led by the incomparable Johann Cruyff, defined a style (“Total Football”) that was as mesmerizing and melodious, in its way, as the Brazilians’ jogo bonito, a flowing symphony of short passes and diagonal runs and relentless attack . . . 

But the gods of soccer, who should have showered them with riches and rewards for their contribution to the game, have been cruel — crueler to them, probably, than to anyone. One major tournament championship, the European Cup in 1988, in the 36 years since Total Football was unleashed on the world in the 1974 World Cup. [The 1974 final, Holland v. Germany, was the first soccer game I ever watched; I was at a hotel in Nairobi, Kenya (long story), and the game happened to be on, and even for someone who knew not the slightest thing about the game, it was clear that the Dutch were up to something special. Plus, who could root against the Dutch playing the Germans, a mere 29 years after the end of WWII?] Always the bridesmaid, playing the beautiful soccer, never the bride. Time and time again, they’d get close, and fail. I was at the Ajax Stadium in Amsterdam for the semifinals of the Euro 2000 championship; the Dutch had murdered their opposition (6–1 in the quarters against Yugoslavia) and had a team with sublime talent all the way through; with 50,000 orange-clad fanatics in the stands, they lost their nerve, losing to Italy on penalty kicks after a 0–0 draw, in the course of which game they missed five penalty kicks!! Five!! Two during the match, three more in the shootout. The subway back to Amsterdam after the game was full of very, very unhappy people.]

So let them win already! Who could wish it otherwise? 

The problem, though, is that this year’s version of the Dutch team is playing a most unimaginative brand of football — mostly dull and defense-oriented, lots of pushing and shoving and fouling, pretty predictable in attack. It’s the Spanish who are the new Dutch — at their best (and, as I predicted, they were at their best against Germany) playing with the kind of abandon and flow that characterized the great Dutch teams of the past. [Brian Phillips, over on Slate, has some interesting thoughts on this point] [And ironically enough, the Spanish wouldn’t be playing as beautifully as they are now were it not for the Total Football of the Dutch, which Cruyff brought to Barcelona as player and coach in the ‘70s and ‘80s and which has remained the touchstone of the Barca style [and with six players on the Spanish starting 11, the Barca style has become the Spanish style — and just this year, Cruyff was made Honorary President for Life of Barcelona FC . . . ]. While the Dutch spend a huge amount of time whacking their opponents on the shins, or feigning agony after being whacked themselves, the Spanish are all business, all about the game; the most remarkable thing about the Spain-Germany semifinal was that there wasn’t a single foul called in the first 25 minutes or so, and only maybe 8 or so the whole game, no diving, no writhing around, no yellow cards handed out, nothing but soccer — kudos to the Germans, too, for that). In the great battle for soccer’s heart and soul between the Realists and the Romantics, the Dutch have switched sides, ceding the Romantic banner to their opponents in Sunday’s game, and a victory for Holland on Sunday will — more irony! — be taken by many as additional proof that too much beauty is incompatible with bringing home the trophy. 

It’s a bit of a conundrum. This is going to be one of those games where I’m truly glad I don’t have any actual say in who wins and loses — if those soccer gods were to come to me and tell me that it was my decision, I’d be truly unhappy. It would be nice if Spain got this year’s Oscar for Best Team, and the Dutch got their Lifetime Achievement Award, but it doesn’t work like that, alas. 

As to what will actually happen . . . I think the Spanish will prove too patient and too clever for the Dutch defense, and they’ll win 3–1. [And though I’m really not given to bragging, I have to congratulate myself here for the prescience of my earlier observations and predictions. I didn’t get everything right — but I had Spain and Holland as two of the four teams capable of winning it all, Italy and France and England going out early, the Brazilians not that impressive, the Africans as a group doing badly, . . . not bad!] But I won’t be heartbroken at all if I’m wrong and it goes the other way. [Especially since I put money on each of them to win — Spain at 8–1, Holland at 12–1 — at the beginning of the tournament!]

[Update: And many thanks to Visitor Again for his comment on the Magical Magyars, who were indeed before my time but who were, as the comment reminds us and legend has it, a sight to behold ]

The AP reports:

[T]he two prominent Moscow art curators who put on [an art] show are facing the prospect of three years in prison ... [under] the law against inciting religious hatred....

In one [painting in the show], Christ appeared to his disciples as Mickey Mouse. In another, of the crucifixion, the head of Christ was replaced by the Order of Lenin medal, the highest award of the Soviet Union.

[One curator, Yury] Samodurov, who was the museum’s director from its founding in 1996 until he stepped down in 2008, had already once been convicted of inciting religious hatred and fined the equivalent of $3,600 for an exhibit in 2003 called “Caution: Religion!”

The exhibit was closed a few days after it opened after a group of altar boys defaced many of the contemporary paintings, which used religious allusions to express attitudes toward religion, culture and the state....

Religious ultra-nationalist groups won the support of the Russian Orthodox Church in pushing prosecutors to bring charges in 2008 ....

Yerofeyev said the aim of the “Forbidden Art” exhibit, which comprised works that had been banned from shows at major museums and galleries in 2006, was to show the reality of censorship. Religion was not the intended theme, he said.

The trial is nearly over, and a decision from the judge is expected July 12. I refer to this as a blasphemy prosecution, because the underlying statute — which I’ve seen described in the Russian press as applying to incitement of hatred or hostility — seems to be being interpreted as a blasphemy law: Use of religious symbols in a way that highly offends members of the religion is being treated as punishable even when the symbols are unlikely to provoke hatred against members of that group. (I oppose incitement-of-hatred laws, too, but I just wanted to note that here the law is being interpreted considerably more broadly, a tendency that is itself one of the reasons to oppose such laws.)

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From the KCRA TV site:

Faced with the potential loss of 300 deputies due to budget cuts, the Sacramento County sheriff may consider issuing more concealed weapons permits....

“With the anticipated decrement in patrol staffing, and the resultant potential for inadequate patrol officer staffing, I will have to reconsider the criteria for issuance of CCWs [concealed weapons permits]. Nothing is etched in stone, but as circumstances change, we need to address public safety in an environment with too few patrol officer positions to meet traditional expectations,” [Sacramento County Sheriff John] McGinness said in a statement.

Currently, only about 260 people in Sacramento County carry concealed weapons and their required permits.

“I have to be open to the potential that there will be more people in need of the ability to protect themselves as individuals,” McGinness said....

It doesn’t sound like a ringing endorsement of concealed carry by citizens — but it does sound like an acknowledgment that people may need guns in public when the police aren’t there to help them. And it of course raises the question: Even if no police officer is laid off, wouldn’t there still be plenty of “people in need of the ability to protect themselves as individuals” for those times when they’re attacked and no police officer is present?

Thanks to Peter Buxtun for the pointer.

This is an impressive list: Hayek, Friedman, Murray, Olson, and Postrel.  Perhaps even more amazing is that I believe him when he says he has actually read and appreciated these books, which is not something that I could say about most politicians.

In a recently published book, Nullification, author Tom Woods maintains that states have a power to nullify laws that exceed the powers of Congress to enact. This claim has a long history, some of it distinguished–as in the case of Wisconsin’s resistance to the Fugitive Slave Act of 1850–some of it not. But is the claim warranted? Last week, I was on Freedom Watch, Judge Andrew Napolitano’s new show on Fox Business Channel to discuss the matter. Judge Napolitano blurbed Woods’s book and the segment was devoted largely to him making his case. I got to make 2 statements to the contrary. (Interestingly, Monica Crowley, a conservative commentator billed by the intro as a nullification supporter, only maintained that states absolutely could challenge some unconstitutional laws in court–something no one denies. She either did not understand the nullification position or was diplomatically ducking the question.) 

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

I realize this is only one statement by one founder. But if James Madison’s most famous defense of the earliest alleged act of state nullification expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states, then I would need to see pretty compelling evidence of original meaning to the contrary. And recall that no other state supported the Virginia and Kentucky resolutions. Indeed, Madison’s report was written to respond to criticisms lodged against the effort. 

With this as background, here is the clip of the segment highlighting Woods, with me chiming in near the end.

When evaluating claims of constitutionality, there are always three ways to examine the matter: (1) What does the Constitution say and mean? (2) What has the Supreme Court said and meant? and (3) Are there now five justices to sustain the claim? For example, while I do not believe the original meaning of the Commerce Clause includes the power to regulate the insurance business (Issue 1), the Supreme Court has allowed Congress this power since the 1940s (Issue 2) and there are unlikely to be five justices willing to reconsider that New Deal era precedent (Issue 3). Therefore legal challenges to the health insurance reform bill should not be based on this claim, and none is so far as I know. 

The strongest claims of the opponents of “Obamacare” is that there is no precedent upholding the individual mandate and a mandate of this kind is an improper means of exercising a federal power. And by conditioning 100% of Medicaid funding on states either setting up insurance exchanges or greatly expanding Medicaid coverage, Congress is “coercing” the states (See South Dakota v Dole in which conditioning 5% of highway funds was deemed to be insufficiently coercive) and thereby unconstitutionally “commandeering” their legislative and executive branches (see New York v U.S. [no commandeering of state legislatures] & Printz v U.S. [no commandeering of state executives]). Will there be five votes for either of these claims? No one really knows for sure, which makes these viable constitutional claims that are also consistent with original meaning.

Political activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws that, for better or worse, have long been rejected by the Supreme Court–as Wisconsin’s was in Ableman v. Booth–that five justices certainly would not today support, and that rest on dubious claims about original meaning. 

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel. 

Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads. 

Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:

(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)

 That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:

a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of  traditional governmental functions.

The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.

Massachusetts District Court Judge Joseph Tauro issued two decisions in companion cases Thursday striking down Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.  It’s the first time any federal court has declared any part of DOMA unconstitutional. One decision, Gill v. Office of Personnel Management, did so on equal protection grounds (via the Fifth Amendment). The second decision,  Massachusetts v. Dep’t of Health & Human Services, did so on federalism grounds. In this post I’ll concentrate on the equal protection decision. In a separate post I’ll have some reactions to the federalism decision.  (The decisions do not affect DOMA Section 2, which allows states to refuse to recognize SSMs from other states.)

Gill was filed last year by Gay & Lesbian Advocates & Defenders, the same group that sued Massachusetts for same-sex marriage and won a huge victory in 2003 in Goodridge. It was brought on behalf of seven same-sex married couples and three survivors of same-sex spouses who applied for, and were denied, various federal benefits to which opposite-sex married couples would have been entitled.  The various benefits are described at pp. 6–14 of the opinion, but are only a few of the 1,138 benefits identified by the U.S. Government Accountability Office that arise from federal law alone.

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.  

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved. 

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.  

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28–35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality). 

The relatively recent enactment of DOMA, the legislative history, and the specific purpose of excluding gay couples, may make an animus conclusion more likely in the case of Section 3 (or Prop 8, or a state DOMA) than in the case of a simple, long-standing state definition of marriage. Add to that the passage of DOMA against a tradition of almost total federal deference to the states in recognizing marriage, and you have the possibility of a holding limited to the DOMA context.

I say “possibility” because I think that reading of Gill is probably not the one either side in the debate will readily adopt, and not the one that will prevail. Gill is the potentially more radical of Thursday’s decisions for SSM in the sense that its rationale could be used by other federal courts to strike down state marriage and state DOMA laws (and could provide one more paragraph in Judge Vaughn Walker’s expected decision striking down Prop 8, coming soon to a blog near you).  Thus, it also stands a better chance of being reversed by the First Circuit or, failing that, by the Supreme Court.  

HHS, the federalism decision, is more limited for SSM since its rationale wouldn’t apply directly to state marriage or state DOMA laws. But its potential effects on federal control over federal programs, especially those administered by the states, raise large questions of their own.

Either way, I have a hard time believing that DOMA Section 3 will be struck down without some input from the Supreme Court. And taken together, the decisions today present a bit of an irony: what the court giveth to the states in HHS (the full power to decide for themselves the meaning of marriage, as against Congress) it taketh away from the states in Gill (the full power to decide for themselves the meaning of marriage, as against federal courts).

On the whole, I don’t think Gill is one of the stronger judicial opinions supporting SSM.  Its reasoning is too cursory.  It doesn’t rely on the more obvious and to me more defensible argument: that discrimination against gays and lesbians is constitutionally suspect, deserving strict scrutiny.  And unless reversed by the First Circuit, Gill could turn out to be a short-lived and expensive victory for SSM when it reaches the Supreme Court (assuming the Prop 8 case doesn’t get there first).

I’m not referring to the temperature, but this man’s age.  I see Instapundit has linked to it — but I saw it on a video at my gym this afternoon, where they were running it nonstop.  As a middle-aged guy striving only partly successfully and mostly unsuccessfully to get in shape, lose weight, eat healthy, and all that, this was inspiring.

My gym, probably like a lot of gyms in upper middle class urban professional neighborhoods, has been trending to an older and older population.  In the daytime, especially, a fair number of elderly people doing post-stroke, post-heart attack recovery.  Intellectually and morally, I’m sure I admire them — walking with a cane around the track, sometimes accompanied by a nurse — especially as I’ll be that age soon enough.

But ... I’m shallow.  I can’t help it.  I work out much harder, much stronger, and push myself much, much, much, much more when I’m not the youngest and fittest person in the gym.  I work out much, much, much, much, much harder when I’m surrounded by the young and nubile.  The rub, of course, is that the young and nubile also prefer to work out among the young and nubile, and not among the middle-aged like me.  The one thing I can say is I’m sure, 100% certain, Glenn Reynolds feels exactly the same way I do.

Update:  Glenn comments:  “Actually, at my gym, if you see a mother and teenage daughter working out together, the daughter is usually 10 or 15 pounds overweight, while the mother is usually really hot.”  My experience, too.  Apparently, however, the appearance of the word ‘nubile’ in this post has generated a certain amount of excitement.  Calmness.  When at the gym, I am like a couple of the commenters — I get completely inside myself, isolate myself in my Ipod, a little like physical meditation.  It is quite the opposite of a social experience.  That said, however, however ‘inside’ me I am while working out, I can also tell that at a certain level I’m not unaware of the median of those working out around me.  They are not inconsistent.

Anyway, it’s not really the young and nubile that most interest me here.  It’s the opposite phenomenon — the transformation of a gym, in particular kinds of socio-economic environments, into a sort of geriatric rehab center, at least during certain hours of the day — but all the while looking to market itself to aging boomers as something else, definitely not as elder-care, even though that is what it is.

That, and the always interesting phenomenon of the effect of the median — I respond to the median that is around me, and if it is much older and unhealthier, I respond in relation to that mean.  Likewise the other direction, however.  But this leads to a certain social, rational choice paradox:  what happens when everyone is seeking the median that gets the best out of themselves individually?  I gravitate to the young, healthy and, yes, nubile.  They, however, gravitate to still healthier and fitter medians that pull the best out of them, and if ‘gym resources’ are scarce, would prefer all things equal that I not pull down the median.  “Resources” here includes the psychological effects of the median that surrounds one, however — people are influenced simply by who is around them and how they perform, most notably on a team where that is part of the purpose, but also more generally, whether in gyms or classrooms or other social settings.

That is so if the underlying purpose is to extract maximum absolute individual performance, however — rather than instead maximizing performance relative to the group, in which case, you want many people like me to drag the median down.

One of the underlying assumptions here — well borne out in both everyday life in sports and formal behavioral economics — is that the group behavior and participation and sense of the group mean matter to how individuals respond.  The group send signaling behaviors about things like how hard to exert oneself.  Of course, this is also true of things like math and reading and schools, and lots of other things.

Update 2:  I also saw in the comments that someone mentioned Jack LaLanne — curious if anyone has a link to how he is doing. 

From Leonard Baker,  Brandeis and Frankfurter: A Dual Biography (1984), p. 341. On June 18, 1930, Justice Brandeis (who was the best-known Zionist in the United States) met with the U.K.‘s Ambassador to the United States, Sir Ronald Lindsay:

Brandeis told Sir Ronald “that it was wholly contrary to any conception of civil rights with which I was familiar, through study of the Anglo-Saxon institutions and the American experience, that when a government found itself unble to afford protection, citizens should not be permitted to protect themselves.” The English did not protect the Jews, nor allow the Jews to arm themselves against the Arab threat.

Or as Brandeis also said, “We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force...” Alfred Lief, The Brandeis Guide to the Modern World (1941), p. 212.

Tags: Louis Brandeis, Zionism

The case is Gill v. Office of Personnel Management (D. Mass., decided today). The court reasons that, at least as to various benefits provided by the federal government, the distinction that DOMA draws between opposite-sex married couples and same-sex couples married under the laws of those states that recognize same-sex marriage is irrational, and thus violates the equal protection component of the Due Process Clause. And while the opinion discusses the federal government’s traditional reliance on state definitions of marriage, the underlying reasoning in the opinion is broader than that: As I read the opinion, the reasoning is broad enough to require states to recognize same-sex marriages (or at least civil unions), since under the court’s reasoning an opposite-sex-only marriage rule would be similarly irrational.

The rationale is not that different from that given by those state courts that have struck down opposite-sex-only marriage rules; but those have done so under their state constitutions, so there was no chance of review by the U.S. Supreme Court. (Each state supreme court is the ultimate interpreter of the state’s constitution, and the U.S. Supreme Court won’t disturb such an interpretation unless it violates some person or entity’s federally secured rights.) Here, the federal government would presumably appeal to the First Circuit, or face a great deal of public criticism if it declines to appeal. If the First Circuit affirms, then the government would ask the Supreme Court to review the case, and the Court will likely agree to do so.

Thanks to commenter ruuffles for the pointer.

UPDATE: I just noticed that Dale beat me to it; please post comments there.

That’s the decision this afternoon, based on equal protection principles applied to the federal government through the Fifth Amendment’s Due Process Clause.  Section 3 of the Defense of Marriage Act of 1996 established a federal definition of marriage for the first time.  This meant that the federal government could refuse to grant validly married same-sex couples the federal benefits and privileges accorded opposite-sex married couples.  I’m still looking at the decision and will probably post soon.

UPDATE: In a companion case, the same judge has ruled that DOMA intrudes on the Tenth Amendment powers of the states.  Very interesting.

The case is Dorr v. Weber, decided yesterday (some citations omitted); the court ordered the sheriff to grant the permit, but also wrote:

Paul [Dorr] was denied a permit precisely because Sheriff Weber believed that his free speech rights offended the majority of voters in Osceola County....

In denying Paul a concealed weapons permit, Sheriff Weber single handedly hijacked the First Amendment and nullified its freedoms and protections. Ironically, Sheriff Weber, sworn to uphold the Constitution, in fact retaliated against a citizen of his county who used this important freedom of speech and association precisely in the manner envisioned by the founding members of our Nation who ratified the Bill of Rights on December 15, 1791. In doing so, this popularly elected Sheriff, who appears to be a fine man and an excellent law enforcement officer, in all other regards, blatantly caved in to public pressure and opinion and, in doing so, severely trampled the Constitution and Paul’s First Amendment rights to freedom of speech and association. This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views....

[Footnote:] Following trial, the court alerted the parties to the possibility that it might order Sheriff Weber to take a class to educate him on the First Amendment. It provided the parties with 10 days to file briefs relating to the court’s authority to order such remedial relief. Sheriff Weber did not file a brief.

Sheriff Weber’s dramatic and stunning failure to appreciate, and to protect and defend, Paul’s basic First Amendment rights, compels remedial relief.... Sheriff Weber ... must complete [a class that] ... must provide college level instruction on the United States Constitution, including — at least in part — a discussion of the First Amendment. Sheriff Weber shall attach his transcript or other proof of completion to the affidavit — Sheriff Weber must obtain a passing grade or obtain an otherwise satisfactory assessment of his participation in the class.

More of the court’s legal analysis follows:

Continue reading ‘Iowa Federal Court Finds Sheriff Denied Concealed Carry Because of Applicant’s Political Activity, Orders Sheriff to Take a First Amendment Class’ »

From Bohmfalk v. City of San Antonio (W.D. Tex. magistrate report adopted by the district court June 29, 2010):

This case arose from an incident in which plaintiff David Bohmfalk left his home in Hondo, traveled to the Alamo Plaza, and burned a flag of Mexico to “demonstrate and protest against Senate legislation granting amnesty to illegal aliens....” Bohmfalk was cited under the City’s fire code for “illegal burning within the City limits.” [The charge was later dismissed. Unsatisfied with this result, Bohmalk sued the City of San Antonio (the City), two of the City’s park rangers, [and others].

The court upheld the illegal burning ordinance — which made it “unlawful for any person to burn or cause to be burned, any trash, brush, tree limbs, grass, trees, leaves, paper, boards, planks, shavings, or any other combustible materials whatsoever within the corporate limits of the City, without first having a permit” — against a First Amendment challenge and a vagueness challenge. Seems correct to me. See also City of Columbus v. Meyer, 152 Ohio App. 3d 46 (2003), which likewise upholds the application of a similar general ban on open burning, not limited to flags.

Temple University law professor Peter Spiro, friend and Opinio Juris co-blogger, was interviewed by one of the Wall Street Journal blogs on the likely holdings in the Arizona lawsuit by the federal government.  Parts of his WSJ response can be found here at Opinio Juris. Peter expands in a later Opinio Juris post.  (I do not have a view on the likely outcome in the courts at this stage, so am interested in reading expert views on this, here at Volokh and elsewhere.)  Writes Peter:

The bottom line: I think there’s a pretty good chance the S.B. 1070 will be enjoined before it goes into force.

Here is DOJ’s press release and supporting documents, including the complaint and brief, both of which are nicely crafted and which persuade me that in one crucial respect the AZ law is too clever by half.

The state law closely tracks federal law (the drafters were advised by UMKC lawprof Kris Kobach, and it shows).  It doesn’t criminalize illegal presence per se, but rather a failure to possess alien registration documents (which undocumented aliens will never have).  Under federal law, presence in the US in violation of immigration law is itself not a criminal offense; failure to carry registration documents is.  But the latter is almost never enforced.  The AZ law is thus technically consistent with federal law, but only technically.  In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.

That said, the argument that S.B. unconstitutionally interferes with foreign relations strikes me as a stretch, for all the reasons that Crosby and Garamendi are weak decisions and the “one voice” mantra (see the brief at 24) is obsolete.  Where the brief cites the 1941 decision in Hines v. Davidowitz to the effect that “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government,” you can see how we’re in another world.  S.B. 1070 may be an agenda item in US-Mexico relations, but it’s unlikely to open up a third front.  If it’s such a big problem, the political branches are free expressly to preempt the state measure.

The Washington Court of Appeals in yesterday’s Reynolds v. Hendrix declined to decide this, because it concluded that the plaintiffs — a former member of Earth, Wind & Fire and his son — didn’t properly raise the claim. 

The defendant (Jimi Hendrix’s sister) was married to Reynolds when he got the paternity test results revealing that he was the father; but Reynolds “could not understand [the results] and asked Hendrix for help.” Reynolds claimed Hendrix falsely told him the results showed that he was not the father; Hendrix says she said the results were confusing, and that he should follow up the lab (which he didn’t). Reynolds eventually learned the son was indeed his son, and sued Hendrix, after the two had separated.

Incidentally, Reynolds originally “did not believe [the child’s mother] for several reasons, including the fact that she had unsuccessfully sued another musician for paternity of another child.” Also, “Reynolds claims to have relied on Hendrix because, during their marriage, Hendrix was involved in two paternity suits against the Jimi Hendrix estate that involved DNA tests.”

I report below on the data reported by this Washington Post article, but I also wanted to comment about the way the article frames the issue:

Labor unions have dominated spending on independent campaign ads so far this election season, despite a recent Supreme Court decision that freed spending by corporations, a Washington Post analysis shows....

In January, the Supreme Court struck down laws and previous cases that prohibited corporations from paying for hard-hitting campaign ads. But some argue that corporations are still likely to begin spending heavily on campaigns....

Why “despite a recent Supreme Court decision that freed spending by corporations”? The decision freed spending by corporations and unions, by striking down a statutory provision that barred general-treasury-fund independent expenditures both by corporations and unions. 

Prof. Rick Hasen, the author of Election Law Blog and no fan of Citizens United, tells me that unions had spoken more than corporations before Citizens United, apparently because they were “more willing to skirt the line on what 527s could do with union money than corporations were willing to do.” But Citizens United nonetheless freed unions as well as corporations to use their general treasury funds without worry, a pretty important right that makes speech much easier for those organizations. Simply saying “freed spending by corporations” and “struck down laws and previous cases that prohibited corporations from paying for hard-hitting campaign ads” strikes me as rather incomplete.

The Washington Post reports on the post–Citizens United spending:

So far this year, $24.7 million in independent spending has been reported to the Federal Election Commission, campaign filings show. Unions have spent $9.7 million (or 39 percent of the total), compared with $6.4 million (26 percent) spent by individuals and $3.4 million spent by corporations.

Not all spending on political ads is included in the totals. Issue ads, which mention candidates and their positions but offer no candidate endorsement, do not have to be reported to the government unless they run directly before an election.

These results are of course limited in scope; it’s hard to tell what will happen over the coming decades (or even, as the article points out, in the general election campaign as opposed to the primaries). But they are consistent with the data I reported in February about the California experience (even before Citizens United, California didn’t limit independent spending by corporations and unions):

[T]he California Fair Political Practices Commission has published a report that is quite critical of independent expenditures, but which also reports a good deal of data about them. To be sure, California is doubtless different from other states in important ways, and federal elections may be different still. Nonetheless, I think the reports might be a helpful source of data (and I’d welcome pointers to other such reports from other states).

The report goes into particular detail on the top 10 funders of the top 25 independent spending committees (who account for $37M of the $88M independently spent to support or oppose candidates for office from 2001 through 2006).... [T]here’s lots of union money ($17.2M), tribal money ($9.6M), individual money from two spenders who (see below) were a business partner of the candidate and the partner’s daughter ($8.5M), and money from consumer lawyers, which might have come from professional corporations (hard to tell) ($1.7M). But ordinary business corporations aren’t by themselves providing enough funding to register on the top 10.

I also looked at just the top 10 independent spending committees, and drawing inferences about the funding. This money broke down into 

• Corporate: $6.85M
• Union: $16.6M
• Individual: $8M
• Indian tribe: $10.75M

I was asked to write a 3000-word entry on the First Amendment for the Encyclopaedia Britannica. I think I came up with something suitable, but as usual it’s hard for an expert author to tell whether the product is clear to readers who are not experts.

I’d therefore love to have feedback from a few 11-to-17-year-olds who can read the draft and tell me whether it is clear to them, and how it can be made clearer. And if they can understand it, my hope is that a typical adult reader can understand it, too.

So if you know of a 11-to-17-year-old who might view reading and commenting on the draft as something fun rather than as a chore, please e-mail me at volokh at law dot ucla dot edu, and I’ll send either you or the 11-to-17-year-old a draft. I would prefer, though, readers who are not already constitutional law buffs (that’s in some tension with the “view reading and commenting ... as something fun” requirement, I realize). I would also need feedback by next Monday, since the final draft is due July 15.

For whatever it’s worth, I have eight extra copies of my First Amendment casebook, which contains an outline of the law together with excerpts from leading cases. I would happily send a copy of the book to the first eight reviewers who can help me with this. Or if the reviewer is interested chiefly in the free exercise of religion and the establishment of religion, rather than in free speech and press, I’d be happy to send copies of my Religion Clauses casebook (I have a couple of dozen of those). And of course I would publicly thank the reviewers on the blog, if they so prefer (again, for whatever it’s worth) and if their parents agree.

UPDATE: Just to make clear, the Encyclopaedia isn’t aimed at 11-year-olds, and I don’t want the entry to be targeted at the average 11-year-old. But my expectation is that the typical (say) 15-year-olds who are willing to take time to review the entry are probably unusually academically and intellectually inclined. That’s great for them, but it also makes them unrepresentative of the typical reader, who will often be a high school student who has to read the entry for some class project. That’s why I didn’t want to ask only older teenagers for help: My thinking is that if a smart and studious 11-year-old finds something unclear, then it’s a good bet that an average 15-year-old will as well.

Uruguay’s loss to the Netherlands in yesterday’s World Cup semifinal may perhaps have been foreordained, given how deeply they had offended against the gods of soccer. For those of you who missed it, at the very end of the previous game, the Uruguay-Ghana quarterfinal, a tense back-and-forth affair which was tied 1–1 in the closing seconds of the 30-minute “extra time” period tacked on to the first 90 minutes, Ghana was awarded a free kick; the ball was sent into the box, and one of the Ghanaian players launched a shot that was clearly goal-bound but which Luis Suarez, the outstanding Uruguayan forward, punched away. It was an excellent save — except that Suarez is not the goalkeeper, and not entitled to use his hands. The ref spotted it immediately, Suarez was given his red card and expelled, and Ghana was awarded a penalty kick — which Asamoah Gyan pomptly clanged against the crossbar. The final whistle blew, the game went to penalties, and Ghana lost. 

It was — to put it mildly — an excruciating moment. [A perfect illustration, by the way, of Post’s First Law of Soccer: that we don’t love watching soccer because it is “fun,” we love watching soccer because it is compelling drama. There will not be many times you’ll see, in public, pain like that; with a billion people or two watching, including just about everyone in Ghana that he knows or has ever known, with the ability to put an African team into the World Cup semifinals for the very first time in history (and on African soil, with the crowd going completely crazy with the possibility), and he hits the crossbar . . . I doubt that even the most passionate Uruguayan supporters would say that was “fun” to watch. But if you’re watching, it touches something that a great performance of Lear touches — I’ve seen some actors who can make me actually feel Lear’s pain the way that I felt Asamoah Gyan’s, but not many.]

But beyond all that, an interesting Internet kerfuffle has arisen concerning the “meaning” of Suarez’ action. Mind you, this wasn’t a case of someone sticking out his elbow a few inches to try to push a ball away and getting called for it, Suarez behaved just like a goalkeeper, throwing both arms at the ball and punching it away. To some (including Suarez, who talked about the incident after the match), he did the right thing (and would/should do it again in the same circumstance). If that ball goes in, which it will, Uruguay loses; if he punches it away, he’ll get a red card but his team is still in the game and might win (as it did). If you can’t do the time, don’t do the crime — Suarez was prepared for the punishment and accepted it as the price to save his team. Way to go, Luis!

To others, though, he’s a cheater and to be roundly condemned for his act. [Much of the discussion in the blogosphere has focused on whether FIFA should enhance his penalty over and above the usual one-game suspension for a red card — perhaps suspend him from the rest of the tournament] Nobody but the keeper can touch the ball — that’s as fundamental a rule as there is in soccer, and Suarez knew it. The rules don’t establish an “exchange” (break rule/get punished), they establish principles of right and wrong, and what Suarez did was simply wrong; the act of murder is wrongful, even if done for good reasons and even if the perpetrator is prepared to pay the price for it. 

Not at all sure where I stand on this one, to be honest.

[And, incidentally, as noted in an earlier posting, I’m picking Spain in today’s match. Not just because I will win a pile of dough if Spain wins, having bet on a Spain-Holland final back at the beginning of the tournament when the odds were 23–1; and not, certainly, because Spain has looked better than Germany up to this point. Quite the contrary — the Germans have been revelatory, while Spain hasn’t quite clicked. But there’s just something that tells me they’ll start clicking today. The Germans will not be able to do to the Spanish defense — which is outstanding — what they did to the Argentine defense (especially without the (unjustly) suspended Thomas Mueller), and I think the Spaniards will get their offensive machine in gear. We shall see.]

The Centre Daily Times reports, apropos the story noted here yesterday, and notes:

The Judge [Judge Thomas King Kistler] said he learned that a total of 41 expungement orders submitted to the courts by Amendola’s office named the CDT and the Collegian, a Penn State student-run newspaper, among the agencies ordered to expunge information about the defendants from their records.

In most, the addition of the newspapers to the agencies affected by the expungement order went unnoticed by the county Prothonotary’s office. Five were seen, however, and the CDT received notification of those orders last week....

Kistler said the court administration is working to find and account for all orders. Once they are found, Kistler said, they will be rescinded or revised, as appropriate.

Expungement orders are routinely used to direct agencies — such as police, that keep records related to criminal proceedings — to clear the records of information about people when charges are dismissed, withdrawn by prosecutors, or after they successfully complete a probationary program called ARD....

Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant — let’s assume it’s a criminal defendant who was convicted under a state nuisance statute — raises 2 issues: that the statute in question is unconstitutionally vague, or, in the alternative, an unconstitutional abridgement of the freedom of speech. Two of three judges, after due consideration, believe the statute is not unconstitutionally vague. Two of three judges believe the statute is not an unconstitutional abridgement of the freedom of speech. The defendant’s appeal, however, is successful and his conviction is overturned. How can that be?

The answer is pretty simple. The three judges divide this way:

Is the statute unconstitutionally vague?

Judge A NO

Judge B NO

Judge C YES 

Is the statute a violation of the First Amendment?

Judge A YES

Judge B NO

Judge C NO 

Two judges (A and C) will vote to overturn the conviction, and therefore they will prevail and the conviction will be overturned, even though “the court as a whole” thinks the statute is neitherunconstitutionally vague nor a violation of the First Amendment.

It’s an interesting problem, and a pretty knotty one when you start to look closely at it. First of all, what’s the “right answer” in the case? Given this distribution of reasoning among the three judges, what’s the “correct” outcome? Should the conviction be overturned, or not? Secondly, if the conviction is indeed overturned and the judges disclose their reasoning in an opinion (or several), how the hell do we interpret the result? Does this case “hold” that the statute is not unconstitutionally vague, and that it is not a First Amendment violation? [And if so, why isn’t the defendant in jail?]

Salop and I had some ideas about how to handle this problem (a number which, incidentally, I no longer think are valid . . .), but neither of us did much follow-up work on the problem after the paper came out. It turns out that the problem has spawned a little bloom of literature, and there’s now a fair bit of thinking about the problem out there (though I don’t think there’s a real consensus about how to deal with it).

I bring all this up now because over at SCOTUS, David Cohen asserts that McDonald v. City of Chicago represents an illustration of the paradox at work. 

To illustrate this phenomenon, imagine explaining the result of the case in a different way. After stating the basic holding that the Second Amendment is incorporated, someone responds, “Interesting. How is it incorporated?” The answer to that question reveals the paradox.

Is it incorporated through the Due Process Clause? Well, no, it’s not, as a majority of the Justices concluded that the Due Process Clause does not incorporate the Second Amendment. The four dissenters (in two separate opinions) rejected the right as fundamental under Duncan v. Louisiana (1968). Justice Thomas, in his separate concurrence, rejected Due Process incorporation for non-procedural rights altogether. To be sure, the four plurality Justices believed that the Due Process Clause incorporated the Second Amendment, but they were in the five-four minority on this point.

Is it incorporated through the Privileges or Immunities Clause? Again, no, it’s not, as a majority of the Justices rejected that claim as well. The plurality of four refused to revisit the Slaughter-House Cases (1873) or United States v. Cruikshank (1876) (on the Privileges or Immunities question), and the four dissenters also rejected this claim. Only Justice Thomas endorsed overturning Slaughter-House and reinvigorating the Privileges or Immunities Clause as the mechanism for incorporation. However, he was in the eight-one minority on this issue.

Thus, even though, as we all now know, the Second Amendment is in fact incorporated against state and local governments, a majority of the Court rejected incorporating it through the Due Process Clause and a majority of the Court rejected incorporating it through the Privileges or Immunities Clause.

I haven’t actually read the opinions yet, so I can’t vouch for Cohen’s characterization myself. These cases have a tendency to become interpretive nightmares as courts and commentators try to parse through the meaning of the paradox, so if his characterization is correct, I predict that you Con Law types are in for a bit of a rough ride on this one.

[Thanks to Chaim Gordon for the pointer]

Mario Rizzo and Gerald O’Driscoll point to dueling letters to the editor from 1932 in The London Times by John Maynard Keynes and F. A. Hayek on whether government spending can help cure contemporary economic woes.  The letters, unearthed by Richard Ebeling, show that today’s debates over economic policy are, in many respects, a rerun of the debates of the 1930s.  O’Driscoll writes:

Prof. Ebeling’s rediscovery of these letters has unleashed a torrent of comments on blog sites. As New York University economist Mario Rizzo put it, “The great debate is still Keynes versus Hayek. All else is footnote.” Economists have clothed the debate with ever greater mathematical complexity, but the underlying issues remain the same.

Was Keynes correct that savings become idle money and depress economic activity? Or was the Hayek view, first articulated by Adam Smith in the “Wealth of Nations” in 1776, correct? (Smith: “What is annually saved is as regularly consumed as what is annually spent, and nearly in the same time too.”)

Is all spending equally productive, or should government policies aim to simulate private investment? If the latter, then Mr. Obama is following in FDR’s footsteps and impeding recovery. He does so by demonizing business and creating regime uncertainty through new regulations and costly programs. In this he follows neither Hayek nor Keynes, since creating a lack of confidence is considered destructive by both.

Finally, is creating new public debt in a weakened economy the path to recovery? Or is “economy” (austerity in today’s debate) and thrift the path to prosperity now, as it has usually been considered before?

Yesterday the Justice Department filed suit against Arizona’s controversial immigration law, alleging that it is preempted by federal law and seeking an injunction against its enforcement.  The NYT reports:

The Justice Department argues the law would divert federal and local law enforcement officers by making them focus on people who may not have committed crimes, and by causing the “detention and harassment of authorized visitors, immigrants and citizens.”

“Arizonans are understandably frustrated with illegal immigration,” Attorney General Eric H. Holder Jr. said. “But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety.”

The Justice Department suit is also aimed at stemming a tide of similar laws under consideration in other states. “The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country,” the suit says. . . .

In a background call with reporters, a senior department official said the decision to file the lawsuit — and to do so on the ground that it pre-empts federal authority, rather than on civil rights grounds like racial profiling — followed extensive deliberations with the Civil Rights Division and others inside the department, and a trip to Arizona to meet with state officials.

Should the department fail to persuade the courts to block Arizona’s law, the official said, it would closely watch for signs that people of Hispanic appearance were being singled out.

Here is the complaint, supporting brief, and DOJ press release (thanks to SCOTUSBlog).  The WSJ law blog has an interview with Temple’s Peter Spiro, who explains why this is a close case.

UPDATE: Lyle Denniston has more on SCOTUSBlog.

So the New York Times is reporting that President Obama will recess appoint Dr. Donald M. Berwick to be administrator of the Centers for Medicare and Medicaid Services. The agency has been without a permanent administrator since October 2006. The Times reports:

The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information. No confirmation hearing has been held or scheduled.

Looks to me like the Senate went out for an intrasession recess on July 1 and will reconvene on July 12. That’s 11 days under the counting method employed by the Justice Department. While it’s on the aggressive end because it’s relatively short, there certainly are a number of precedents for recess appointments during intrasession recesses of that duration–including, if memory serves, President George W. Bush’s recess appointment of Judge Pryor to the Eleventh Circuit. President Clinton made one recess appointment during a 10-day recess, one during an 11-day recess, and 16 appointments during a 12-day recess. I believe that President George H.W. Bush made one recess appointment during a 13-day recess (although the shortest one I can find at this late hour is 17 days). See the government’s brief in opposition in Miller v. United States (especially pp. 26–27 n.5) and its opp. in Franklin v. United States (pp. 29–30) for more.

It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for “5 or even 10 days” would be too brief to constitute a recess for purposes of using the Recess Appointments Clause.  But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion  pretty much ever since.  And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments.  See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that “one-month recesses seem too short” but acknowledging that the “prevailing interpretation” of the Recess Appointments Clause “allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”).

See here for Jonathan Adler’s post on the President’s last round of recess appointments, back in March.

One judge rescinded the order, which he apparently signed without realizing that it covered the newspapers (it also covered various government agencies); but the other judge has not, though I hope he will shortly. [UPDATE: The second judge has now done so, see here.] The Centre Daily Times (Pennsylvania) reports:

Judge Bradley P. Lunsford has rescinded three expungment orders that had directed the Centre Daily Times to delete archived stories.

Judge Tom Kistler, who signed two more similar orders, has not signed amended ones....

The orders pertained to five defendants seeking to have criminal charges expunged from the courts.

It’s a routine order used to direct agencies — such as police, that keep records related to criminal proceedings — to clear the records of information about people when charges are dismissed, withdrawn by prosecutors, or after they successfully complete a probationary program called ARD. [In this instance, the cases involved either plea agreements or completion of an ARD. –EV]

This time, Lunsford said, the CDT and Penn State’s student paper, The Daily Collegian, were added to the standard list without the court’s permission, by attorney Joe Amendola.

The five defendants named in the orders are all clients of Amendola, who said Friday that he decided to add the two newspapers to the standard expungement order because the media’s First Amendment rights were trumping his client’s right to have their record cleared.

“What’s the sense in having your record expunged if anyone can Google you and it comes up,” he said....

It had nothing to do with trying to sneak something through, Amendola said. “It was there in black and white. It wasn’t like it was stuck through at the bottom on the page.” ...

In two cases, the CDT printed short stories following the defendants’ cases. The other three people appeared only in the weekly court report.

“Facts are facts, and we don’t go back and alter the historical record to suit someone,” said [the CDT’s executive editor]. “Yes, we’re in the age of Google but it all comes down to personal responsibility in the first place. That has not changed.” ...

In addition to being substantively unconstitutional speech restrictions, the orders were also probably procedurally deficient, since it sounds like the newspapers were never given an opportunity to appear in court before the order was issued (and the judges didn’t find any extraordinary circumstances that justified a temporary restraint in the absence of notice to the newspapers). Thanks to Richard Lyon for the pointer.

The veto by Linda Lingle, a Republican, came after the bill had passed the state house, 31–20, and the state senate, 18–7. Now Lambda Legal will sue for civil unions in state court on state constitutional grounds.

The state constitution was amended in 1998 to give exclusive control over the definition of marriage to the state legislature. The amendment was spurred by the decision of the state supreme court in Baehr v. Lewin, holding that the restriction of marriage to opposite-sex couples is a form of sex discrimination.  Because of the amendment, Lambda acknowledges that it cannot sue for SSM under the state constitution. But it will now apparently argue that the amendment does not prevent state courts from ordering the recognition of identical legal rights and obligations under a different status.

Available here. See paragraphs 19–28 for description of which parts of Chicago’s legal regime are being challenged. The National Rifle Association is helping with the funding of the case, but is not a party. Lead attorney is Charles Cooper, so it is certain that the presentation of the plaintiffs’ arguments will be outstanding.