Political update for October, 2013 - Paradox and the fourteenth amendment

When I was in law school I had no political understanding. I don't mean I didn't have the basic political knowledge we hope (against experience) everyone has, that is, things like separation of powers and the three branches, what democracy is, blah, blah, blah - unless you are resistant, you get that by osmosis and the little bit that is covered in school that even people like me who weren't really listening can't help but absorb. But, I was already heavily invested in the partisan warfare on which I was raised (in my case, very much on the left) and which I now regularly decry and did not understand what lay underneath it all - particularly what the other side thought important. I had long been very conversant with history up to about  the 1700s. But, despite being an American law student, I knew very little about American history. Don't think I was alone - it apparently isn't necessary to know much about history or politics at all to be a lawyer and such knowledge is not even tested in applying to law schools. I also had very little understanding about how law worked. One of the things that some professors would talk about that I could understand intellectually, but not in practical terms, was about how policies and values lay underneath the law. To me and I'm sure many other of my fellow students, it should be black and white.

But, I learned, more from self-teaching and practical experience as a litigator than school.  Now, when I read cases, that is the first thing I try to understand.  When I briefly taught some college classes in constitutional law I tried to imbue that understanding in my students as much as possible for two reasons. One, because I felt I was not taught this very well in college or law school (though I was such a lazy and disinterested student, maybe I just didn't notice) and two, because it is really important. Last, it makes it so much more exciting.

There is a case before the court now that brought all this to mind.  If you don't think it is really about policies and values, take a look at the lead respondent's name:

Bill Schuette, Attorney General of Michigan, petitioner

                                             v.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) et al.

Seriously, that's the name of the respondent. If you were casting a movie, you might market it as a battle between the stodgy legally constituted represented of the state majority and the scrappy minority advocates who could care less about the rules if they hold back what they see as the interests of minorities. Sounds a little like the movie Footloose.

Technically the case is about a constitutional amendment to Michigan's constitution. You may know that Michigan has been the locus of some of the most important Supreme Court educational affirmative action cases.  These cases, of course, concern race.  

In Grutter v. Bollinger (2003), the Supreme Court held in an opinion written by Justice O'Connor (at the time, the swing vote on the court - a conservative who occasionally voted with the liberals) which was joined by the four liberal justices, that Michigan's state law school could have an admissions program that favored underrepresented minorities but also considered many other race-neutral factors, was constitutional because it had a compelling interest in promoting racial diversity, which was the official legalistic question. I'm not going to go into what compelling interest means legally, but just go with this - is promoting racial diversity in colleges so important that we will allow racial preferences for certain minorities even though it violates any reasonable interpretation of the meaning of equal protection under the law in its discrimination against whites and also Asians.

Justice O'Connor started out by discussing the last affirmative action case from 1978, University of California Regents v. Bakke, in which the court banned quotas or set asides for racial or ethnic groups. In a very divided court, Justice Powell wrote an opinion which included a statement that seems like common sense: "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." He also held though, that it there could be racial preferences  if there was a compelling interest that was "precisely tailored" to serve that purpose and which was not unduly burdensome on others who bore no fault in our racially divided history. 

Leave aside the silliness of a majority of judges on a court deciding what is a compelling interest or too burdensome to others rather than state governments, individuals or even congress, but he found only one proffered interest which fit the bill - the schools interest in a diverse student body. He was careful to note that race/ethnicity could only be one factor among other race neutral ones.

Nevertheless, jump back to 2003 when Grutter and its sister case Gratz v. Bollinger were decided. There Justice O'Connor noted that her opinion was a deviation from a central purpose of the fourteenth amendment to do away with racial discrimination of all kinds. It astonished me and many others that, reasoning that it had been about 25 years since Bakke, she concluded that: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In other words, we will continue to break the constitution for twenty five years. After that minorities will be caught up and we can have equal protection as required by the Constitution.

Say, what? Even two of those who joined her opinion, Justices Ginsburg and Breyer, wrote, essentially, how would we possibly know that ("one may hope, but not firmly forecast"). Though it is impossible to listen to Justice O'Connor and feel any personal hubris, this is an incredibly hubristic or arrogant statement. It would be as astonishing as if a president made the statement in 1978: "[W]e entered intervened in Vietnam in the past 15 years or so, and there are many regrets of having done so.  We expect that fifteen years from now the United States will no longer invade other countries."

Of course, other judges opposed to the majority felt very differently. Justice Thomas wrote what I thought was one of the most interesting opinions of the last decade. He quoted the former slave and then abolititionist, Frederick Douglas:

"'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.'  

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the [law school]. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

 The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. . . I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months."

It's ten years later. Now the court is determining whether a state may have a constitutional provision, voted upon by its people, banning racial discrimination. And the respondent not only rejected this constitutional amendment as being discriminatory itself -- but it won. You heard me - it won! The Sixth Circuit court has held that the constitutional amendment is discriminatory and violates the federal constitution, which requires equal protection under the law.

You already know without my telling you that lawyers and judges can so pervert the meaning of the law by  "a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse."  I love to quote Lincoln with these words, though, admittedly, his use of them to argue that he was not for the political or social equality of blacks kind of takes the sting out of it. Nevertheless, the abstract point is, when a court tells us that black means white or wrong means right, we lose faith in the institution.  Yet, the Sixth District Court of Appeals has said so. Will the Supreme Court? As so often has happened since Justice O'Connor's retirement, the answer may fall upon the shoulders of Justice Kennedy, the ultimate swing vote.

I can fantasize that everyone who wants to argue about a case has to read the briefs first.  Hah. And they are interesting here. Michigan argues a common sense reading of the equal protection and case law: "They claim that the elimination of race-based policies is endorsing race-based policies."

The Sixth Circuit relied on what is known as the "political process doctrine." Whenever I write about legal topics I have to do a lot of editing and cutting and foolishly feel as if I should apologize for doing so. I do my best to be fair but even my own self imposed if verbose space limitations don't let me put down what everyone argues and opines, and try to here even if it is an impossible task. In short, the doctrine holds that laws (including State constitutions) which targets a program or policy which primarily benefits minorities or changes the political process in such a way that it puts burdens on a minority's ability to achieve his/her goals through the process, violates the federal equal protection clause. That sounds like it might be fair at first blush - but only in a vacuum.

A former litigant, Eric Russell, submitted a "friend of the court" brief at an earlier stage which provided a litany of reasons that this doctrine leads to absurd results, but I will submit my own summary of his: If  the  doctrine is a fair interpretation of the fourteenth amendment equal protection clause, probably any modern law that tries to eradicate race as a factor automatically unconstitutionally prohibits the many laws aimed at affirmatively benefitting minorities even though, as Justice Powell wrote in Bakke and pretty much everyone agrees, one of the core purposes of the equal protection clause is to eradicate race as a factor in our laws. In fact, if you take this doctrine to its logical conclusion - the equal protection clause would itself present a paradox - by its very own terms it would itself be unconstitutional. Of course, that is not the case once you recognize a point made by Michigan - "To begin, this Court has applied the political restructuring doctrine only to laws that impede protection against unequal treatment, never to laws that preclude preferential treatment." All of a sudden, it makes sense again and I believe that may, if the case goes to the State, will be the deciding distinction.

On top of that, if the doctrine applies as the schools and other advocates desire, then neither the democratically elected legislators of a state, nor the people through an amendment of the constitution have no say once an unelected state administrator puts a policy into affect that favors a minority.

The respondents in the appeal - that is the successful plaintiff in the case - argue in a different tone than the state, though much in that of some quite famous civil rights advocates. Yes, it argues black letter law it interprets as supporting it - but it starts with a quotation from one of our presidents that I believe states one of the basic tenets of what we call liberalism or progressivism:

"Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. It is stretched or stunted by the family you live with, and the neighborhood you live in--by the school you go to, and the poverty or richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man. . .

For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences--deep, corrosive, obstinate differences--radiating painful roots into the community, the family, and the nature of the individual. . .

Freedom is the right to share, fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to school.  It is the right to be treated, in every part of our national life, as a man equal in dignity and promise to all others.

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please.

You do not take a man who, for years, has been hobbled by chains, liberate him, bring him to the starting line of a race, saying "you are free to compete with all the others," and still justly believe you have been completely fair.

Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result."

And should this case go in favor of the schools and groups advocating for minorities, I believe that perspective will be the deciding factor.

But, I want to argue something more. The two different perspectives in this case are central to the two prevalent ideology's views on the equal protection clause when it comes to discrimination.

In the general conservative's perspective, the clause requires equal treatment now, incorporating only present intentional discrimination, and not taking into consideration the past inequities of our country's racially unfair past. No one starts in a precisely equal status or providential circumstances with anyone else - and that is life - what counts is that they now have equal opportunity under the law. Thus, racial preferences are not permitted because they unfairly prejudice others who have no deserved guilt of their own in past unfairness.

In the general liberal perspective the past matters because it must by necessity have an effect on present circumstances. Where all cannot start in as equal circumstances, we must remedy it by providing benefits which are apparently unequal but allows for groups that have been traditionally discriminated against and have not flourished to do so. Most especially it must remedy past inequities due to skin color and ethnicity, even where the beneficiary has less merit than an excluded majority party or has not suffered at all from racial prejudice.

You could phrase the central issue a number of ways - for instance, you could say that one side sees "equality" as meaning everyone now has the same rules, though it be inherently unequal in result, and the other side believes equal means that past inequities must be remedied, perhaps hypothetically perfectly, even if it means that different rules apply to different races.  

 

You can agree or not with these perspectives. I believe they are presently considered more important in our national debate than any other constitutional issue and I am including those surrounding abortion. They have now been so engrained in us that they dominate the conversation legally, politically and culturally. I am not arguing here that it is deserving of this primacy or not.  It just is.

Ironically, the two perspectives are also completely the opposite of  the chronological directions the two ideologies traditionally look to - conservatives backwards and progressives forward.  But, this is no surprise as rule number one of partisan ideologies - they can switch their policy preferences on a dime if it suits them politically. But that is not the point of this piece and I'll visit it again another day.

While writing this post I happened to also watch Bob Costas give a little opinion piece on sport team names which contain indigent Americans or Indians references.  Costas clearly aimed at being balanced and first argued that while a number of teams have changed their names, those that remain are generally devoid of any ill intent. In fact, they were admiring and respectful just as are team names like The Patriots and The Pirates. This perspective is in accord with conservative perspectives. Then he said, but look at the name "Redskins." It is different than other similar team names and there is nothing respectful about it. It is still a slur even if the present usage is purely benign. Can we imagine a team named black skins or white skins? This perspective, which ignores whether the intent is innocuous or not, is from the liberal ideology - past prejudice counts and is not wiped clean by present intentions. Again, agree or disagree. My point is the centrality of the issue in our lives.

And though it is certainly  far more complex and concerns any number of issues, the central political debate this past month also is affected by this argument. For, much of the question of whether the government spends too much and whether it is worthwhile to suspend some of our government in order to demonstrate the importance of reducing spending, often concerns the issue of so-called entitlements and protecting the economic prospects of the lower class, a high proportion of whom are minorities.  

This debate should not be unexpected. It was inevitable. There was no equal protection clause in the original Constitution or Bill of Rights. It was written in the fourteenth amendment primarily in order to protect the rights of black Americans after the slaves were freed. Nevertheless, we could apply it as it is written, neutrally, without favoring any group. It is a basic tenet of equal protection cases that it protects individuals, not groups anyway.  But, on the other hand all three post Civil War amendment had remedial clauses empowering congress to enforce its provisions, and, logically, this can only be done by legislating as to groups, not individuals. For some, it takes little legal razzle dazzle to apply that to judges who now regularly act as legislators. The puzzle is endless as what doing so can result in is appointed judges not subject to election determining the validity of their constitution amendment as directly voted upon by the people of the State of Michigan, and, in the name of equality, ruling that only inequality of law is necessary to achieve a hoped for equality in fact.

As they say about quantum physics - if it makes sense to you, you don't understand it all.

Syria

This is a post on our supposedly imminent attack on Syria.It is rare I find a political matter which is on so many people's lips. In the past week at least several friends, a couple of whom I would never expect to ask me what I thought about some political  topic, asked me what I thought. Whatever congress decides, I think we are going to attack. Despite the fact that Pres. Obama can't seem to get any backing from the west other than France (about fricking time, but of course on the WRONG one.)

To do anything short of some kind of physical attack might be too embarrassing for the president to consider. Somehow I can't imagine we are going to hear him say - well, congress doesn't want it, the people of the United States don't, and very few of our allies do - so let's just forget it. And, if it's only a few shots over the bow, that would be more of a cause for laughter than to say he reconsidered. Hence, there will be an attack. The question is, in doing so, will he cause further dissension in our country and, despite all the clamor about how Pres. Bush hurt our national prestige, lower that too.

There is little doubt that this president feels he can pretty much do what he wants regardless of what a majority or congress thinks because, one, he has done it before (e.g., declaring congress in recess, attacking and then continuing to attack Libya, the health care reform) there are enough people, not to mention the media, who agree with him in general to give him the political cover he needs. And once the military goes into action and the flag is up, many citizens rally to it. That might be sufficient. As even McCain says, boots on the ground would mean impeachment, but I don't think he has any intention of that.

Don't do it. I'll jump to the conclusion first. I think striking Syria is a mistake for the reasons given below. I broke this up into sections, which do not follow a formal plan so much as just covering my thoughts:

Perspectives and biases: I like to know every author's biases and general perspectives because I find it helps me interpret their work. Therefore, I often start my own opinions that way. Generally speaking, I am more a hawk than a dove. Even when a bleeding heart liberal in my youth, I was one. I was too young when Vietnam was happening - a teenager when it ended - to have an opinion. But, from the 80s on I have been fairly hawkish.

But, being a hawk doesn't mean that I just want us to get into fights for the heck of it or that I think we should involve ourselves in military matters that are not our own concern or that I agree with every action we take. I was no! on Panama, for example and no! on Libya. I've never been in a war, but I have read more than enough from those who have been to know it is literally hell on earth and no reasonable person should seek it or glorify in it. I am no Theodore Roosevelt believing that our country will grow weak if didn't go to war every once in a while.    

When I say I am a hawk I mostly mean that I believe we should have the best military on earth, that we should spend more on it than any other country, that other nations and groups should fear getting into military contests or our allies, but that we should use this power reluctantly only when necessary to defend ourselves, our allies and occasionally, when we can stop genocide or other horrific mass murders. If we do, it should be done as quickly as possible, foregoing nation building unless a country wants to be re-built and ultimately pay or side with us on account of it (and how likely is that right now).  J. Q. Adams was mostly right that we shouldn't go about the earth seeking monsters to destroy - but like most policies, there's also an inexpressible rule of reason and a vague balancing of values. In other words, sometimes his statement is not right. Were he able to know the killing power of modern technology, he might agree today that those countries that can do something about genocide or monstrous behavior should not sit idly by when the worst people on earth seek to wipe out or destroy others for their own personal gain or sheer insanity.

And, hawk or not, we all know that having the most powerful military on earth doesn't make a country omnipotent or invulnerable. Our involvement in war can cripple us in many ways. Our punch is also much stronger than our chin, as 9/11 showed. And, as Muhammad Ali once put it (I think it was him, but can't find a quote online), even a baby can hurt you if it puts its finger in your eye. Maybe it was Bruce Lee. Anyway, I learned that myself when a wee lad, having tormented my little brother one time too many.  He told me that I had to sleep sometime and he was right. Let's just say it was a painful lesson and if I told it in detail, male readers would be crossing their legs involuntarily.

Sure, if we put our might behind it, no country on earth could withstand us save probably Russia and China because of their own atomic weapons, military might and geographical size, ensuring that even a victory for us would be pyrrhic at best.  But, leaving them aside, just because a country can't withstand us militarily doesn't mean that we can rebuild their cultures the way we want. We can't stop people from murdering each other short of a type of tyranny and control that mirrors those dictators we are so fervently opposed to. No solution to the internecine Islamic hatred between Shia and Sunni can be had by bombing or shooting, unless one side wins overwhelmingly, and that also seems too unlikely. The only way it ends is with a long period of enlightenment such as the west underwent or one side completely or almost completely destroying the other.

Being a hawk also includes wanting congress to declare war

The constitution makes it clear who declares war - Congress. Period. Amen. It has been pretty much accepted from day one though the present that the president, by virtue of being the military leader of a sovereign nation, has the power and duty to defend the country in case of attack. It would be idiotic to think you needed to wait for congress to do so before we acted in that manner. But, because the constitution names the president as commander and chief of the military (not us civilians, as some people seem to think) and in times of war, the state militias, there has been a debate as to just where the line is. Few people think FDR's secret help to Britain was crossing the line (but see, e.g., http://www.ihr.org/jhr/v04/v04p135_Weber.html). But, other decisions to go to or incite war (and, attempts to call military actions other than war are reprehensible) were dicier. So, congress passed a law near the end of the Vietnam War which they thought might help. It attempted to share power between the executive and congress, with congress having the final word. They gave the president power to act in certain circumstances for a little while before he had to come to congress and get permission. No president, including Nixon, who vetoed it only to see his veto overridden, has agreed it is constitutional. But, to some degree they have abided by it. Basically, a president has to notify congress within 48 hours of a conflict (which today means 47 hours, 59 minutes and some seconds after the first tweet from a combatant or witness goes around the world) has 60 days to act unilaterally. If not approved they have another 30 more days to withdraw, which, if just an air war, should really mean instantly.

Many in congress don't like it either because they feel it should be, absent self defense, totally congress's call. I support that. Either we trust congress for this (not that they are generally trustworthy) or we amend.  But, as Senator Paul pointed out the other day in committee, the WPA does not give the president carte blanche to attack other countries. It only allows him to act if congress declares war, he has some type of statutory authority, or if he is defending the nation. With Libya none of those three were present and eventually, the Republican dominated house censored the president for his violation. That is almost forgotten now.  And we know that Obama's not going to care if he gets dragged into a much longer war than he expected. Remember, he said Libya would only be a few days.

Thus, in my opinion, short of a declaration of war or similar statutory undertaking by congress, if Pres. Obama goes to war with Syria at all - it is a constitutional violation. I ask any American who thinks it is okay because he trusts or likes Obama, how he will feel when it is done by a President he or she does not support?

Gas attacks do not legally justify this act by America under international law

I cannot find a single article on Syria or politician who will tell you the following. This entire adventure is based upon a U.N. protocol that is being grossly misinterpreted. The protocol in question is the  Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, was initially signed in Geneva, Switzerland in 1925, five years after WWI and its horrific use of poison gas ended. John Kerry likes to say almost 100 years ago, an exaggeration. Although I guess it is the closest large rounded number we would not say that an 88 year old is almost 100. It is just the typical political hyperbole. Here are the important points with respect to Syria.

You can easily find this online. It is a protocol which countries have to sign onto.  It is not self executing and it does not apply to any country that does not sign. In its opening clauses it states that it is the general opinion of the world that the use of poisonous gas is condemned by the civilized world, that it has been prohibited in many treaties and that the protocol is made to "the end" that the "prohibition shall be universally accepted." Note, it does not say that it is universally accepted or that this is some blanket prohibition against all poison gas or bacterial warfare in general.   

Syria is one of the signatories (to join, a country signs and deposits it in France). But, does that mean that America or even United Nations forces is justified in attacking Syria under this protocol? No. Here's why.  Read the important part of the text:

"That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.

The High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. . . ."

They are "bound as between themselves" and they will try and induce other states to accede to it. This means two things to me. First, there is no general international law forbidding the use of chemical weapons, only this voluntarily assumed protocol. If there was a general sort of international or customary international law, why would treaties or a protocol be necessary at all? Second, the parties "agree to be bound as between themselves," not as between themselves and the world or non-signatories. Certainly not as between themselves and their own citizens. The Syrian rebels, whatever you think of them, are not signatories. Only the Syrian nation is recognized as a member and is bound as a signatory. 

There were enough deficiencies with it that a Chemical Weapons Convention was brought about in the 1990s. Almost every country in the world signed and ratified it. It has a much broader mandate - the signatory can't make, store or use chemical weapons. However, one of the very few countries which didn't sign and ratify it is Syria.  Again, why pretend that it is important countries sign if we pretend they are bound when they don't?

Don't go thinking I'm pro poison gas. There's a good reason it is generally agreed upon in the world that it should not be used. I'm all for its abolition. I don't want any country using it (it can't be well controlled as Syria has shown) any more than I want them using the atom bomb. But, that is not the same as saying that a U.N. protocol for forbids it or that Syria has agreed to forego it.

If you want to say here, look, international law is what the powers that be who can enforce their will say it at any given time, then fine. Say that. And, so long as congress, not the president, declares war on our account, that's acceptable too, though I think it a bad idea. But, we don't say that. We pretend that there is international law Syria is boycotting.

But, when it comes to actual law either the U.N. 1925 protocol forbids Syria from using these weapons against its own people or it doesn't. And, it doesn't. Either Syria has signed the Chemical Weapons Convention, or it hasn't. And it hasn't.

When I hear John Kerry up there waffling about international law, pulling the wool over people's eyes, it makes me mad. Because when we make believe about international law, we weaken its importance overall.

Encouraging Iran

One of the things Kerry insists on is that if we don't attack, we encourage Iran. I don't really see it that way. Let's presume they are building a bomb. I don't know that, but presume it for the moment. If we attack Syria, which really can't defend itself against us, wouldn't that tend to make Iran think it better build a bomb as fast as possible so that they have the power of atomic blackmail to call upon? It got respect for North Korea. You might argue that they are going to build one no matter what, but then you also eviscerate Kerry's argument.

John Kerry Speaking of the Secretary of State, I make no bones about it, he has long been one of my least favorite politicians. On the right, only Newt Gingrich matches him in my low estimation. Although they have different aspects to them, both shine in hubris, backstabbing, overt partisanship and dishonesty departments.  As bad a president as I thought George Bush to be, I could not consider voting for Kerry in 2004, even though I thought his being "swift-boated" was reprehensible too. I generally don't trust Kerry and though I hardly think he is evil or anti-American, but I would prefer if he wasn't in government at all.  As bad a president as I think Obama is, given the choice only between him and Kerry, I'd prefer Obama. And that is a pretty low standard. While I do not approve of ad hominem arguments to debate actual points, when the subject is the speaker himself, I have no problem with characterizing individuals by appraising their character or credibility, etc.

I have listened to Kerry for over a week now on this topic. He has a resonant, unique and powerful voice and commands attention when he speaks. So what? So did Hitler and Mussolini. Even with Kerry, of course, the comparison to them ends there. But, everything he says seems sly to me or a given with a wink or promise to back it up later or is based on secret information. I listened to his initial speech regarding Syria's use of chemical weapons and he was so emphatic that it sounded so much more convincing than General Powell's disreputable speech at the U.N. to promote the war against Iraq. Then I remembered that it was Kerry speaking and thought about it again. There were no facts, just conclusions.  

Asked in the Senate if he could guarantee the outcome if we attacked, he admitted no, he couldn't. But, he couldn't leave it at that. He said if we don't go, he guaranteed it would be done again by Syria. Perhaps he has secret wiretaps of Assad saying, If the U.S. backs off we will use these weapons again. I wouldn't know. But, even that does not permit a guarantee it will be done, just the likelihood. No one can guarantee that. Why couldn't he merely say, we have a lot of evidence it would get worse if we do not punish the behavior? Because he is Kerry. And he has the hubris of Agamemnon.

Kerry said today that a political solution is required in Syria. I don't think so. While there have been political solutions in the middle east, they are rare. It seems that there is relative peace only when one side wins outright. That might lead to tyranny, but, unfortunately, it seems to be the way things work over there. This will be over when Assad is dead or jailed and some group, possibly a jihadist one, fights its way to the top, or, Assad prevails, destroying and intimidating his enemies. An international force coming in to do the job, as in Libya, is also a possibility, but would probably require another foolish chemical attack.

Putin says Kerry is a liar. Perhaps it is only national chauvinism right now prevents me from taking Putin's word over Kerry's. I actually trust him less because he does not even remotely have U.S. interests at heart and routinely backs the bad guys in the world.  Us mere mortals do not get to see the evidence Kerry says he has. However, whatever that evidence is, it does not seem to have particularly persuaded all that many congresspersons. Makes you wonder. While it seems hard to believe that Syria, which is virtually an outlaw nation with respect to chemical weapons has not used them, we all know the power of the media and our government to persuade us of the certainty of events that just aren't so. We saw that at the beginning of the Zimmerman case recently. This is part of the problem when we have politicians in power we just can't trust.

Rand Paul

Even as Kerry managed to sink lower in my estimation during this debate, Sen. Paul rose in it. I am not a convinced supporter, though I think right now he is the most interesting potential presidential candidate. I was pleased to see that he appeared measured and reasonable. More, he made arguments rather than used hyperbole. He seems to have actually read not only the constitution but the war powers act. I have hopes he might have actually read the relevant U.N. protocol and convention too but asking a Senator to read something for a few minutes is probably not very reasonable. I was encouraged he has sought to clarify the war powers of the president. But that has been tabled by the foreign affairs committee he sits on for now (which might mean forever or a long time).

This debate might help Paul as he moves towards 2016. It's a long way away, of course, and it might be long forgotten by 2015. And, there are still some things I am not in love with about him. I once listened to him argue against a proposed bill in the Senate in a way I thought dishonest, pretending it threatened acts that were expressly prohibited. Nor am I sure he will be able to hold off the religious mania that grasps the GOP every presidential election season. There's time to determine all that though.

But, I liked what I saw in this debate.

A few quickies - This is getting longish, so I'll wrap it up.

WWII paradigm rules

It is not surprising that past experience colors what we do now, hoping not to repeat history. The experiences in the run ups to WWII, now over 70 years in the past, Vietnam, Iraq and Afghanistan still have an enormous effect on us.  Munich and the fear of encouragement through appeasement is brought up again and again. Countering that is the sobering fear of the endless morass and the failure of nation building, such as in the latter wars.

Watch Obama, Boehner and Pelosi

Want to see something funny? Recently Pres. Obama was recently flanked by Boehner and Pelosi, both who are supporting him with respect to Syria. But, as Obama did a What me worry? Boehner had a ever changing look of contempt, suspicion and discomfort on his face. Pelosi had a frozen look that looked like it was the product of more than a little surgery. It was just weird. But funny. The video was funnier but this photo is the best I can do.

 

 

Partisanship

Anyone who ever reads my political posts knows how I feel about mindless partisanship. Sometimes it seems like that is all I care about. I'm happy to say that so far, though you cannot expect to avoid it altogether, there has been a lot less of it in debating this issue than is common. Congressmen, whatever they decide, actually seem to be thinking about it.  That could disappear in a moment particularly if it seems to mean advantage to one party or the other. But, for right now, it's nice to see.

Give me your stuff, sayeth Uncle Sam

Our Supreme Court appears to have had far more power than it appears the founders thought it would. Alexander Hamilton, for one, wrote in Federalist no. 78:

“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” (footnotes omitted).”

Let me shrink that down for those of you who go pale at the sight of anything longer than a text message. The judiciary is the weakest of the three branches because it is powerless to attack the other two branches, can barely defend itself, and really can’t harm the people as long as it remains independent from the other branches. Because it is so weak, the judges need to be appointed for life, which is indispensible to keep their independence.

But in the next paragraph Hamilton states the very reason, unbeknownst to him, that the Supreme Court would later become so powerful in spite of its expected weakness:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Which means that since the Constitution make the power of the legislature limited – for example, it forbids making something already done illegal (no ex post facto laws) - the only way to keep it that way is for the independent court to declare any such law void – or unconstitutional.

Of course, it doesn’t actually say in the Constitution that the Supreme Court can do this, but in the seminal case of Marbury v. Madison, which was most brilliantly covered in this blog on 10/29/10, Hamilton’s protégé, Chief Justice of the Supreme Court John Marshall made this part of his argument when he declared it the courts’ business to say what the law is and garnered to them the ability to declare the laws made by the other two branches unconstitutional.

Of course, like our congress and our executives, the Supreme Court can be pretty boneheaded and it makes me happy to point it out when they are. Here are five bad cases by the court (I’d do the traditional ten, but I’m so damn wordy) which have worn away your property rights. You might agree or not with the court. I don't.

1. Wickard v. Filburn (1942)

One of the issues that has been fought the longest in Supreme Court history is over the meaning of the interstate commerce clause, found in Article 1, section 8 of the constitution, which expressly gives congress the right to regulate interstate commerce. Often in cases, it is couple with the “necessary and proper” clause, which gives the congress the right to make laws which are not technically within their expressed power, but which are necessary and proper to carry them into execution (at an early point, “necessary” was interpreted to mean “convenient” - but I'm not going there). Over the course of two centuries, that commerce clause's meaning has been tremendously expanded, as the commerce clause was interpreted not just to mean congress should be the umpire and make the states play fair with each other, but to cover any activities which were in some way related to commerce taking place in more than one state or even locally if it might have an affect on interstate commerce, no matter how remotely. I don’t mean to argue out the merits of the two sides, as it has really been long decided. But, some cases do go just too. Wickard was an extraordinarily bad decision in my book.

During the depression, the federal government restricted the growing of wheat because it actually wanted to control the price of it (basic economics – supply and demand affect price). Roscoe Filburn – what a great name – was a farmer who grew a little extra wheat on his farm to use to feed his family and his livestock. He was limited by the federal government to growing wheat on about 11 acres, but used about 23. Since he wasn’t selling this wheat on the market, let alone the interstate market, he questioned how the federal government could tell him what to do with his own property.

At the time, in constitutional law, there were still some division between whether activities were local or non-local, and whether they had a direct or indirect effect on interstate commerce. Those activities which were local and had an indirect effect on interstate commerce were outside of the power of congress to control.

Although the idea had been brewing for a while, this case blew the doors off on restrictions of congress’s power under the commerce clause. The court ruled that it no longer mattered whether activity could be said to local or had an indirect effect on interstate commerce. “That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if [someone’s] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if [the activity] exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”

Wow, so, even if congress is empowered only to regulate commerce that is interstate, it no longer matters if it is commerce or interstate – so long as it has a direct or indirect effect on interstate commerce. Yeah, they say "substantial" effect, but anything they decide is substantial is substantial.

When you consider the nature of the world, and how almost any activity can be made to relate to some other distant activity if one uses their imagination, it gives the government powers over the individual which are startling. Only in the 1990s were any brakes on this put at all, and those were not well made brakes. But, it is the line that has defined commerce clause litigation ever since.

In Filburn’s case, the food was for his family’s and animal’s consumption. The court reasoned that if he is feeding them, that means he is not buying the stuff on the market. And, though that might be a small amount, if you add it up with what everyone else might do, the activity would keep the government from regulating the price (in other words, preferring the command economy to the capitalist market economy).

Taking this case to its logical conclusion, the federal government could, in effect, tell you that you may not hunt, you may not fish, you may not eat the carrots in your garden plot. In effect, you buy what we want at the price we tell you that you must, or you starve. How far is this from the idea that the government is there to be the honest broker, and to make sure there is a level playing field? How far is it from what the Sheriff of Nottingham did in the tales about Robin Hood? Not very.

2. Daniel v. Paul

From time to time in this blog I believe I have mentioned my view of the use of the commerce clause to enforce anti-discrimination law, particularly the 1964 Civil Rights Act which forbids even private persons in interstate transportation or accommodation from discriminating based on color among other reasons. I believe the law, as applied to private citizens or companies, is unconstitutional, and the congress’s interstate commerce clause power does not extend so far as to force private citizens not to discriminate. On the other hand, I also feel that these were necessary laws and were among the best laws passed by congress in our history. It is a paradox, I know, but, I am not the first or will be the last to feel that way. Without going into it fully here, the reason is because of the nature of our initial constitution and culture, and the difficulties in race relations which have stemmed from it. But, that's for another day.

As to the 1964 act, probably the most famous case which came out this legislation was Heart of Atlanta Motel v. U.S. (1964). There the court  found that congress did have such a power under the commerce clause. However, it must be noted that in that case not only was purposeful discrimination admitted by the defendant, but the motel also acknowledged that it was definitely acting in interstate commerce. So, I am skipping to a much less well known case which you will rarely ever see written about, but which was a much worse decision by the court.

That case is Daniel v. Paul (1969). In this case a husband and wife ran a private club in the middle of the woods connected to the world by little local country roads, which had a 25 cents membership, and where locals would go to swim, dance, eat and the like. Unlike the Heart of Atlanta Motel case, it was not near any interstate highways, and there was no admission of interstate commerce activity. In fact, it was found in the lower court that there was no proof that anyone ever went there from out of state.

The court, now several years after the Civil Rights Act of 1964, just didn’t care. They were going to find interstate commerce no matter how remote. Without any evidence, they just decided that it was foolish to think no one from out of state ever went there. They decided that somehow advertising in Little Rock Today and The Little Rock Air Force Journal (papers I’m sure y’all’ve read) were seeking interstate business, and they pointed out that since the incidental paddle boats, juke box and vinyl records must have been made out of state and at least some of the ingredients in their bread and soda too, that was good enough for them to find a connection of interstate commerce.

This, of course, makes a farce of the Act and the constitution. It means that no one can ever say that their business is purely local unless they neither have nor use any product in their establishment which was made out of state. And if there is such a business, if they use the telephones or have a television, I’m sure they would decide that was good enough too. Perhaps a wise man sitting on a mountain top in homespun cotton who does not advertise, have running water or a phone might qualify.

Even such a civil rights advocate as Hugo Black (please don’t point out he was momentarily in the Klan when he was young – yawn) thought this was just ridiculous and he dissented. First, he pointed out that every bit of evidence the court relied on was actually not in the record, not the food or juke box or records or boats. There was no proof at all about it. More, even if there were, this is just not good enough to find interstate commerce applies. He quoted Sen. Hubert Humphrey, a major supporter of the law, who stated in congress that it wasn’t meant to cover every business. The court did not care. Black wrote:

“It seems clear to me that neither the paddle boats nor the locally leased juke box is sufficient to justify a holding that the operation of Lake Nixon affects interstate commerce within the meaning of the Act. While it is the duty of courts to enforce this important Act, we are not called on to hold, nor should we hold, subject to that Act this country people's recreation center, lying in what may be, so far as we know, a little "sleepy hollow" between Arkansas hills miles away from any interstate highway. This would be stretching the Commerce Clause so as to give the Federal Government complete control over every little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States. This goes too far for me.”

It should be noted that Black, and also William O. Douglas, who concurred in the judgment, both thought the 14th amendment applied and would have made the law constitutional. I disagree there as well. There are better arguments on the side of the property owners there than on people who might want to use their property.

I don’t have to like or go to the Lake Nixon Club (and, incidentally, it looks like it is now a summer camp with an internet presence, but I have no idea who owns it, and I really doubt almost 50 years later they would still hold the same views) but if some people who live on a country road in Arkansas want to be prejudiced and keep blacks, gays, Jews atheists or far worse, bad dressers, off their property, that should be up to them, not me.

3. Flood v. Kuhn (1972)

This is one case in this series where I am not questioning the court’s use of the commerce clause, but its making an exception for one activity against all logic and reason. In doing so, it shows how subjective our supposedly objective court really is.

Curt Flood was a pretty good baseball player, maybe a great one. I will defer to commenters on that. At some point, inspired by the civil rights movement of the 1960s, he decided that Major League baseball’s reserve clause which enabled the first team to sign a player his keeper for his entire career, if it so desired, was akin to slavery. Flood wrote the following letter to Commissioner Bowie Kuhn:

"December 24, 1969

After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season."

The commish said no and Flood sued, taking the case all the way up to the Supreme Court. The argument was that the Sherman anti-trust law (based on the commerce clause) prevented baseball from this policy as it stifled competition. It actually was a matter that had been ruled on twice before by the court. In the first case, they decided that baseball was exempt from the federal anti-trust law because the business of baseball, wrote Justice Oliver Wendell Holmes (to show how little he knew of the game, he made baseball into two words), was a purely state activity. This was in 1922, and the court had yet to fully revolutionize the meaning of the interstate commerce clause. Thus, the federal government couldn’t make laws affecting state acts. It was a unanimous decision. That all changed dramatically in the following decades, as what was deemed interstate grew with the changing economy, and being local was no longer a bar to the commerce clause power. Yet,  still, in a 1952 case, the court stuck with its decision. This time two judges dissented, writing that times have changed and major league baseball was inarguably an interstate business. By, the 1970s, it was pretty clear that major league baseball was about as interstate a business as you can get, at least under the modern interpretation of the commerce law. This time three judges dissented, including William O. Douglas, who regretted his decision in favor of the baseball leagues in the previous decision twenty years before.

But, since the court ruled again for the leagues on the doctrine of stare decisis – that the matter was already decided in a previous case - why is it such a bad decision? Two main reasons. First, the Flood majority admitted that baseball was interstate commerce. They also admitted that they were basing their decision purely on stare decisis even though they had already decided in two other previous cases that boxing and football would not be exempted from the anti-trust law. It was a weak argument as well that if congress had meant to include baseball, it would have changed the law after the 1922 case. The second reason this decision was so bad is more style than substance. In his majority opinion, Justice Harry Blackmun wrote a seven page love letter to baseball, even listing his favorite great players, many of whom I never heard of. Other justices and commentators felt this was not real dignified or judicial. What was he thinking? For these reasons, many think it a worse ruling than his Roe v. Wade opinion.

4. Kelo v. The City of New London (2005)

This one really made people angry. Even people who never listened to politics, didn’t really know what the Supreme Court was, were angry.

The City of New London decided to take some property from some homeowners. Government generally has that right under a doctrine known as eminent domain. However, the constitution states that if private property is taken for public use, there has to be reasonable compensation. This applied to the federal government. But, in what I believe was the earliest example of the high court deciding that some rights under the constitution were so important, they would be applied against the states, it was made to so apply in a railroad case in 1897, although as early as 1798 the court had indicated that this would be the case.

One of the questions arising out the “takings clause” is - what is public use? Sometimes that is an easy question. A public park, or a courthouse makes it easy. In Kelo though, the city wanted to take the properties and give it to a private corporation for a redevelopment plan. They wanted to bulldoze the old neighborhood, let Pfizer, the chemical giant, build a plant there, and put up new apartments for their employees. It was figured that this would increase the city's tax base. Pfizer, however, was given a few years  tax exemptions to induce them to come.

Why in the world would it be okay for a government to take one person’s private property and give it to another private entity – here a corporation? Some of the people involved had lived in their homes their entire lives. It just seems wrong, never mind the law.

So, why did five Supreme Court justices decide that it was okay? Like in most situations, there was precedent. In one case the court allowed the government to take property to eliminate a blighted neighborhood. In another case, Hawaii was actually allowed to redistribute the state’s land because almost three quarters of it was owned by just twenty two landowners. But, Kelo seemed like a great extension of this policy because the use would not really be public. The city just wanted to do it because they thought it might help and they claimed that if the purpose is public, even if private entitities benefitted, that was satisfactory.

The majority, including the usual swing vote, Justice Kennedy, decided that “public purpose” was good enough to satisfy “public use” in the takings clause. It was a terrible decision in my book. As strange as the Hawaii case was, the government was remedying an absurd and intolerable situation, made possible by land ownership before Hawaii was even a state, near the beginning of its existence. In the other case, the feds were using their power to get rid of a blighted area where over 64 percent of the properties were beyond repair and another 18 percent or so at least needed major repairs. Neither situation is comparable to Kelo.

As a result of Kelo, almost all the states revised their own eminent domain rules. President Bush issued a presidential order (which any president could change) essentially ordering the federal government to avoid this situation.

And what about The City of New London? Did they increase their tax base? Of course not. The redeveloper could never raise the money after the area was bulldozed, and Pfizer, which moved in – they moved out before their tax exemption was up.

Total cost to New London – 78 million dollars.

8. Wilkie v. Robbins (2007)

This case barely got any attention compared to Kelo, but it is even worse in my mind. It is one of those decisions which makes you question the separation of powers as having any real meaning.

Like Kelo, it involves private property. But, in Kelo, at least the people whose property was taken got paid something. In Wilkie, the rancher got nothing. And, it wasn’t an eminent domain case. The federal government just pretty much wanted to steal it after they screwed up.

First, I have to explain what a Bivens case is. In Bivens v. Six Unknown Agents (1971), the Supreme Court ruled that if there is an important constitutional right – in that case the 4th amendment rights to privacy – a person could sue the federal government even if there was no federal statute gave them that right expressly. And this seems only just – the constitution is the supreme law. If the federal government violates someone’s constitutional right then that person should have relief even if government doesn’t care to put one into law. However, it must be acknowledged that they haven't allowed it with every constitutional right.

Here’s what happened, as succinctly as I can put it. The government worked out a public easement with a Wyoming rancher, so that it could increase the public access to a national forest. So far, okay. But, the government forgot to file its easement, and the property was sold by the rancher to Frank Robbins, who was unaware of the easement. The government called on him and insisted he give them the same easement. He was willing to negotiate, but the Bureau of Land Management (BLM) decided he should pay for their mistake (and it was not denied he was right under the law). In fact, the agent who called told him the federal government doesn't negotiate.

So, in the words of one BLM employee, they decided to “bury” him. As put by Robbins' lawyer, here’s how they did it. “The agents’ independently unlawful actions included intentionally trespassing on Robbin’s land, inciting a neighbor to ram a truck into Robbins while he was on horseback, breaking into his guest lodge, filing trumped-up felony charges against him without probably cause, and pressuring other government agents to impound [his] cattle without cause. . . cancel[ed] the right-of-way previously negotiated with [the prior owner] that was to have run with the land, filing doubtful administrative charges against [him] and selectively enforcing others, and they relying upon these charges to deny [him the recreational use and grazing permits essential to his cattle drive business, refusing to keep the main access route to Robbin’s property passable while fining Robbins for repairing the access road that the previous owner had been allowed to maintain, and interfering with his business by ‘videotap[ing] ranch guests during [a cattle] drive, even while the guests sought privacy to relieve themselves.’”

Sickening, right? One BLM employee even retired over the abuse and testified for Robbins. Sounds like a Steven Seagal movie, right?

The court ruled against Robbins suit for retaliation by the government for his insisting on his 5th amendment right to compensation for the taking (by the way, you can argue that Robbins could have taken one for the team and that he had received the benefit without the burden of the deal, but it was acknowledged that the law was in his favor and this was a “taking”).

Despite 35 years of Bivens claims at that point, the court decided that he could not use that process, even though he was undeniably harassed by government agents for the purpose of forcing him to give up a property right. Justice Souter, who wrote the majority opinion, stated as follows, which I believe sums up their reasoning:

“But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.”

This is, of course, just double speak or mere rhetoric. They were punishing him for trying to exercise a constitutional right too. In Souter's first clause, he is speaking of what the government illegally does in punishing a person for exercising the write, but in his second clause, he switches to speaking of what the government’s legitimate purpose might be. But, in both instances the government might have legitimate purpose but unlawfully punish the person. If the government is trying to maintain public support for a war, which is legitimate, it still can’t deny you your speech rights (at least, pretty much not any more). If it needs to house soldiers, a legitimate purpose, it can’t choose your living room. If the government is trying to get a serial killer of the street, obviously a legitimate purpose, it can’t plant a bug in your living room without a warrant. Just the same, it is absurd to write that since urging someone to grant an easement is legitimate, the government can harass someone into doing so.

One of the reasons Bivens type relief was not given was because most of the harassments he suffered could be or were handled by some formal administrative remedy or case. In fact, the government even charged Robbins with a felony, and he had a trial at which the jury took only 30 minutes to acquit him, and after which one of the jurors stated that they had been shocked by the behavior of the government.

Justice Souter even admitted that “[a]gency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse.” Worse, he essentially acknowledged that constitutional rights were violated, and that Robbins would have relief for some of the acts – but not the cumulative pattern of harassment. What? If it is illegal for the police to turn your power off once a day to get you to confess to a crime, – is it not illegal to do it every day and bankrupt you by making complaints and going to court.

While it is admitted that the court has not allowed Bivens relief for every type of federal violation of constitutional rights, where there is proof that a concerted effort is made to violate a person’s rights by the federal government “by a thousand cuts,” of course a right to Bivens relief should stand. At this point, now that Robbins is decided, why should any federal agency not act like the BLM did in this case? If it wants your property, it will just wear you down and out, and even if you can prove it, there is nothing you can do about it. Bad decision. 

We demand (somewhat limited) free speech

Imagine it is 2004 and you read that Michael Moore was arrested for making Fahrenheit 9/11 or his comments about the Bush administration. Or, more topical, that Scott McClellan's recent book led to his arrest for maligning the administration during wartime or some such nonsense.

These suggestions seem improbable nowadays in our society. After all, we have free speech. Always have, always will, right? Possibly, first amendment rights are actually deemed by Americans to be the most important of all our rights (leaving aside those passionate gun advocates spurred on by the present partisan debate that feel the second amendment should be first).

It should be noted at first that there was, and sometimes still is, a debate as to whether it was necessary to have a bill of rights, including the first amendment, at all. Alexander Hamilton, for one, believed it would be counterproductive. These rights against the federal government were already in existence, he argued, as well as others. If some of them are set out in constitutional amendments, then the others might be deemed not to exist. He had a point, and it has been argued, successfully and unsuccessfully.

Literally, the first amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This post deals with the second clause of that amendment, "abridging the freedom of speech," sometimes called freedom of expression.

The law on this subject is vast, and no attempt here will be made to do anything but just lightly touch upon some aspects of it it is hoped you might find interesting.

Just to simplify the arguments here, we will take "speech" to mean "expression," as it is commonly accepted (although I know one thick headed Montanan reader who might give me grief about it). Thus, accept for the sake of argument that pictures, writings, symbolic actions, etc., have at least some first amendment protection.

I am actually using the first amendment as an example to make a point that is actually a political heresy, possibly unique to myself. We are trained to say only worshipful things about the constitution and to give credit to the founders for their unworldly foresight. I would argue that it never worked in a myriad of ways. However, this is not an anti-patriotic or anti-constitutional scree. It merely reflects that the constitution was made by failable men who compromised in order to get the job done, and who had no crystal balls which would enable them to write for the ages.

Faced with text that just didn't work in many situations, judges, throughout the two hundred plus years of the country's history, have interpreted the constitution as they saw fit, sometimes reflecting the changing culture and sometimes leading it. While many argue that we need to stick to the meaning of the founders, or, for others, the intent of the founders, I do not believe that even the most assiduous of proponents of this view stick to it when the result would not please them. After all, Thomas Jefferson coined the phrase "strict construction" but derided such lack of flexibility as soon as he obtained the high office.

Even the godfather of modern originalism, Antonin Scalia of The Supreme Court of the United States (and coincidentally the college roomate of my boss in my first law job), acknowledged at his Senate hearing that he understood, for example, that although lashing was not deemed to be cruel or unusual punishment to the framers, he would be happy to draw a line there and forbid it now. It is a fair question (which I would have asked, were I Senator [brief pause for laughter]) to ask if he was willing to draw a line where he thought necessary, how could he complain on principal when others draw different lines? Originalism, although a great theory, falls in upon itself the first time it is comprised.

Frankly, it is a good thing that the "freedom" of speech (or expression) is not taken literally. It would not satisfy any of us if we could say what we wanted but not write it or paint what we wished. The converse is true as well. Imagine a world where no expression could be infringed by the government. Perhaps that sounds great at first. Although in that world, no president could speak in public for the hecklers, no teacher could silence a student in order to teach, no police officer could stop verbal threats, no pornography could be banned in any environment including prime time television, no court, indeed, could carry on its mission if those who chose to speak determined to do so in court. And so on.

Because society could not function were total freedom of speech allowed and culturally seemed not to be able to bear certain other speech (obscenity - but has the internet made that law obsolete outside of child porn and public displays?) various devices were created by judges so that society could, in fact, infringe upon speech all the time. Yet, none of it is found in the constitution.

Despite the appearance of the amendment in 1791, when it definitely only applied to the federal government, it was not until the 1920s when it even began to have much effect and even to be applied to the states through a highly questionable series of judicial rulings that makes sense only if you disregard what the constitution says and just want the world to be a certain way.

Most famous historically speaking, is, of course, the alien-sedition act of the Adams administration which permitted some actual imprisonment of the press (freedom of the press is linked with speech in the first amendment) under limited circumstances.

The actual results of that act were not extreme, and it was was nothing compared to the federal government's actions during the first world war (I'll skip the Civil War -- but Lincoln's intolerance for free speech and press in wartime is well documented), when a many time socialist presidential candidate, Eugene Debs, was imprisoned for just making a speech during which he tried to be very careful about what he said, when an anti-war Senator, Robert LaFollette, was almost expelled from the Senate for his constitutionally protected words (he eventually shut up and survived) and, even crazier, when a movie maker, Robert Goldstein was actually imprisoned for 3 years (sentenced to 10) for making a film about the American Revolution, The Spirit of '76, in which, naturally, the Brits (our allies in WWI), were the bad guys. LaFollette had an eventual resurgence in his career, but Debs' and Goldstein's lives were destroyed. These are only examples. There were many others.

Although free speech has grown (thanks to judicial activity) the following are situations where the courts have allowed limited governmental infringement of speech despite the first amendment's supposed protection:

-pornography/obscenity
-speech at or near places of government activity
-hate speech/fighting words
-speech in school, both secondary and college
-speech that might disrupt the lives of private citizens (e.g., an injunction
prohibiting speech too close to an abortion clinic).
-private lawsuits against commercial speech (e.g., a suit against a magazine that
published an advertisement for a mercenary, leading to a murder)
-slander and libel
-fraud and deceptive advertising
-time, place and manner restrictions (when, where and how you may exercise your speech rights)
- political speech (e.g., the McCain-Feingold laws)

I would suggest that except for the first and last of that list, virtually everyone agrees (once they think about it) with these limitations. The reason for most of them is simple. As Justice Robert Jackson once wrote (I'm paraphrasing here, a lazy blogger's perogative) -- It's not a choice between liberty and order. It's about liberty with order. He is also sometimes credited with the thought that the constitution is not a suicide pact, although, like the first example, he merely restated the thought in his legal opinion. In other words, in real life, the first amendment (among other constitutional provisions) didn't work.


Similarly, Justice Learned Hand, a favorite of this blog, wrote (again paraphrasing)that without order, liberty becomes a license which would actually lead to the denial of liberty for those without the strength to enforce their will against stronger persons.

The fact that most of us like many of these limitations, although possibly to different degrees, is not surprising. It is also true, and becoming more true, that many people don't mind invasions of their privacy if it means a greater feeling of security. I have a somewhat different opinion about that issue though, which I will not go into here.

Still, the degree of these limitations are bitterly fought over and there will never be agreement on any of them. It keeps the courts busy. One problem is that very often in constitutional law, too much liberty for one person may bleed over into depriving the liberty of someone else. For example, if you tell someone they can't have organized prayer in school because it is unconstitutional, they might feel they are being deprived of their right to free exercise of their religion. If you tell someone they can have organized prayer in school, others feel that government is violating the prohibition on establishing religion.

You'll note, I hope, that the above limitations aren't, for the most part, about the content of the expression (again, excepting the first example and arguably the last one) and shouldn't be. Without freedom of content, at least in an alternate venue, the limitations would be intolerable, atleast to modern Americans, who have become used to it.

School free speech scenarios make good examples of the difficulty of deciding these cases. The Supreme Court ruled on one last year in Morse v. Frederick (aka, the Bong Hits for Jesus case). Contrary to some reviews of it, no new law was made. The court applied what is known as the Tinker test, after another case, balancing the child's right to speech against the school's need for order so that it can fullfil its educational mission.

The court held that the school could prevent the student involved from holding up his "pro-drug" sign during a school event. Although Justice Clarence Thomas would have held that school kids have absolutely no free speech rights to begin with, that is certainly the minority position, and one I don't believe withstands close scrutiny.

I'm guessing, of course, but I think most Americans would agree with the court's decion in Morse v. Frederick case if they didn't know which judges voted which way (thereby ruling out partisan influences). But other similar cases are not so simple. Take a west coast federal case in which a student's tee shirt included, among other anti-gay material, writing saying "BE ASHAMED OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" worn after a pro-gay program in the school district was held.

The federal appeals' court upheld the school's punishment of the "offender," at least in part based on the notion that the message struck at gay students' "dignity and self-worth". Another judge actually wrote that it was ok to protect one student psyche from another student's speech based upon a misinterpretation of the bible. Hopefully, he will be the last judge to base an opinion on his biblical interpretation as opposed to an individual's own view.

The Supreme Court reversed the appeal's court's decision without issuing an explanatory opinion. Maybe they interpreted the Bible the same way the t-shirt wearer did. The important thing to ask yourself is if you were the judge, would your acceptance or rejection of gay marriage or "gay rights" would make a difference to you in coming to a decision.

Even more recently, just earlier this month, in fact, a federal appeals court in the middle of this country refused to allow a school to punish a student who wore a Be Happy, Not Gay t-shirt in response to pro-gay t-shirts that other students wore the day before on a school sponsored pro-gay day. Have the courts gotten the message. You can't stop students from wearing anti-gay t-shirts, particularly if there is pro-gay propagandizing in play. The two anti-gay t-shirt cases have been much discussed in legal circles in publications and online.

There are all kinds of permutations of this. Say a t-shirt reads George Bush Sucks, or, George Bush Rocks, depending on your prediliction, and the school has barred political material on shirts. Recently, an east coast federal court refused to permit a school to punish a student whose shirt mocked the president for being a "chickenhawk". Political speech often gets more protection than any other kind, but what if it were a more popular president and we were engaged in a war eliciting violent riots?

How about the rebel flag example? Can a student wear one on his shirt even if it upsets other students who believe it is meant to be a racist statement? How about if there is a Halloween party that day? How about if it is the first day the first black student starts in that school? How about if the flag has a cross in the corner? Or a picture of Robert E. Lee, who is practically a national hero at this point? How about if there are many types of rebel flags on the shirt in a collage (there actually were many different confederate flags)? How about if the words "Honor, Heritage and Equality" appear on the shirt underneath the flag? What if the wearer goes to school in a town where Robert E. Lee and Stonewall Jackson both used to live and are still celebrated (Lexington, Virginia)?

We could go on in that fashion for quite a while, of course, but will give it a rest there. The point is, go ahead and keep telling yourself that the constitution works just fine without judicial tinkering. You'll be in good company, as almost everyone you know will almost certainly agree with you.

All I can do is disagree with you and hope that judges for the most part interpret cases in a way that makes me comfortable, because no constitution really can work without constant help and fiddling around with its meaning adjusted to the ever changing culture. There is always the danger that they will limit speech beyond our desire, of course, and then we might have to rely more on those self centered, cowardly representatives that we actually democratically elected to make decisions.

Even if we think in the abstract that judges shouldn't be making up law and even when we don't like the decisions, for the most part, be glad they do. Because whatever administration is in power, it is not likely to give a lot of thought to your liberty. And on the whole, we have much greater speech rights now thanks to judicial intervention than we did two hundred or a hundred years ago.

Dedication to democracy is crucial as is dedication to liberty; Both are impossible to perfect and the pursuit of each sometimes conflicts with the other, almost requiring some error by courts in making a decision. When there is friction between them, and the answer is not clear, put one finger, and one finger only on the scale for liberty.

I invite your voracious disagreement. It's a difficult subject and you might actually convince me I'm wrong.