Eugene Volokh's Blog, page 2565
April 28, 2012
Public Pension Problems
The Manhattan Institute’s Steven Malanga has an eye-opening WSJ op-ed on the depth of the looming fiscal dsiasters some states face due to public pensions. As he describes it, the gulf between those states that have been (relatively) responsible and those that have not is huge. For instance, Malanga reports, “Indiana’s debt for unfunded retiree health-care benefits, for example, amounts to just $81 per person. Neighboring Illinois’s accumulated obligations for the same benefit average $3,399 per person.” As much as I love Chicago, I’m not sure I’d want to live there right now:
Dana Levenson, Chicago’s former chief financial officer, has projected that the average city homeowner paying $3,000 in annual property taxes could see his tax bill rise within five years as much as $1,400. The reason: A 2010 Illinois law requires municipalities to raise the funding levels in their pension systems using property tax revenues but no additional contributions from government employees. The legislation prompted former Chicago Mayor Richard Daley in December to warn residents that the increases might be so high, “you won’t be able to sell your house.”
Elizabeth Warren Herself Claimed “Minority” Status
A controversy has broken out in Massachusetts over the fact that Harvard Law School has claimed professor and current senatorial candidate Elizabeth as a minority member of the faculty based on apparent (but as yet unconfirmed) Native American ancestry. The Brown camp seems to think this is big news, Warren responds that she’s unaware that Harvard claimed her as a minority professor, but that she’s proud of her Indian ancestry. Her colleague Charles Fried, who was chair of the appointments committee when she was hired, claims that Warren’s Native American ancestry never came up in the hiring process, and that he only became aware of it later.
My contribution to this controversy is that there seems to be some disingenuousness going on. Warren says that she could not “recall” ever listing her Native American background when applying for college or a job.
The old AALS Directory of Faculty guides are online (through academic libraries) at Hein Online. The directories starting listing minority faculty in an appendix in 1986. There’s Elizabeth Warren, listed as a professor at Texas. I spot-checked three additional directories from when she was a professor at the University of Pennsylvania, including 1995-96, the year Harvard offered her a position. Elizabeth Warren, Elizabeth Warren, Elizabeth Warren.
So, we know one thing with almost 100% certainty: Elizabeth Warren identified herself as a minority law professor. We know something else with 90%+ certainty: (at least some) folks at Harvard were almost certainly aware that she identified as a minority law professor, though they may not have known which ethnic group she claimed to be belong to, and it may not have played any role in her hiring.
But it gets even more interesting: once Warren joined the Harvard faculty, she dropped off the list of minority law faculty. Now that’s passing strange. When the AALS directory form came around before Warren arrived at Harvard, she was proud enough of her Native American ancestry to ask that she be listed among the minority law professors. (Or, in the unlikely even that she just allowed law school administrators to fill out the forms for her without reviewing them, they were aware that she claimed such ancestry, and she didn’t object when she was listed.) Once she arrived at Harvard, however, she no longer chose to be listed as a minority law professor.
Hmmm.
April 27, 2012
What To Do With a 10-Year-Old Boy Who Sexually Molests a 7-Year-Old Boy?
A sad question, which is the subject of today’s Doe v. Sex Offender Registry Board (Mass. App. Ct. Apr. 27, 2012) [UPDATE: link fixed]:
The plaintiff, who was at the moment of interest a ten-year-old boy, appeals from a Superior Court judgment affirming his classification as a level two sex offender. That publicly available classification required the youngster to register annually with the Sex Offender Registry Board (SORB) and with the police department in the city or town where he lived. The classification also required him to appear each year at a police station so that police could update his photograph and fingerprints….
On this record, there is no question that the plaintiff is a troubled youngster deeply in need of the services he is receiving and from which one hopes that he will benefit. But the classification decision rested on unreliable hearsay and the application without explanation of predictive criteria that do not on their face take account of sexual activity between prepubescent children….
Higher Registration Requirements for Male Sex Offenders Who Committed the Offense Against a Male Victim
803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):
In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.
The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed…. Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers, prepubescent children, non-consenting males, [or] vulnerable persons…. The [b]oard otherwise, or unless indicated in this [subsection], does not consider sexual gender orientation of either the offender or the victim in determining the risk to reoffend [or] degree of dangerousness posed.”
We have no difficulty concluding that the regulation serves a legitimate State interest and does not seek to punish, or impose an adverse classification on, the sexual behavior of consenting male adults. It follows that cases relied on by the plaintiff, see Lawrence v. Texas, 539 U.S. 558, 563 (2003), and State v. Limon, 280 Kan. 275, 284 (2005), do not support his equal protection claim.
Is this right? In particular, should this be viewed as discrimination based on sexual orientation, or discrimination based on the offender’s sex, which is subject to a rather demanding form of “intermediate scrutiny” under the U.S. Constitution and “strict scrutiny” under the Massachusetts Constitution? And even if heightened scrutiny is required — whether because this is a sex classification, or because you think that sexual orientation classifications should be subject to heightened scrutiny — should that scrutiny be satisfied if there is indeed sufficient evidence that male offenders against male victims are especially likely to repeat their crimes?
Hispanics on Arizona’s Anti-Illegal-Immigrant Statute
From a Quinnipiac poll, conducted April 11 to April 17:
47. As you may know, in 2010 the state of Arizona passed a law that requires police to verify the legal status of someone they have already stopped or arrested if they suspect that the person is in the country illegally. Do you approve or disapprove of Arizona’s immigration law?
The answers by race/ethnicity: Whites approve 66%-28%, blacks approve 55%-37%, and Hispanics disapprove 49%-47%. I thought the near even division among Hispanics was noteworthy, and indicative of just how broad anti-illegal-immigration sentiment is, including among the group whose citizen and legal resident members are most likely to suffer the side effects of such enforcement (e.g., extended detention if there’s some mistake, or possibly a stop that is motivated partly by a concern about the person’s possibly being an illegal immigrant).
On the other hand, that a May 7-12, 2010 AP-Univision Poll poll, which asked, “Do you think that local police forces should have the power to enforce immigration laws, or do you think the job of enforcing immigration laws should be reserved only for the federal government?,” reported that 16% of Hispanics said local police should have such power, and 81% said it should be reserved for the federal government. (There was similar hostility to the Arizona law in particular, but without details on what the Arizona law does.) I’m not sure how to reconcile these results with the Quinnipiac results, though obviously the text of the question must make something of a difference.
Incidentally, the 2010 AP-Univision poll concluded, among other things, 52% of Hispanics said the U.S. government “should do more to keep illegal immigrants from entering and staying in the U.S.” (42% disagreed), even though 74% of Hispanics said that on balance “illegal immigrants mostly make a contribution to American society [rather than being] mostly a drain on American society” (21% said they were mostly a drain). The sense that the laws need to be enforced — setting aside the question of who should enforce them — is, I think, pretty powerful, even among those who seem to be skeptical of the merits of the laws.
Thanks to Mickey Kaus for the pointer.
Questions About Whether the Sex-With-Dead-Spouses Law Has Actually Been Proposed in Egypt
AllahPundit (Hot Air), Andrew Sullivan, and Dan Murphy (Christian Science Monitor) question whether a bill allowing people to have sex with their dead spouses (for up to six hours after the death) was indeed proposed in the Egyptian Parliament. The story apparently began in the Al Ahram newspaper, and was then taken up by the Al Arabiya newspaper; AllahPundit suggests they are not to be trusted:
Al-Ahram is controlled by the Egyptian government, which I assume means it’s heavily influenced by the ruling military junta. And the junta, of course, is invested in discrediting the Islamists in order to defend its prerogatives against parliament’s growing power. (It’s worth noting too that Al-Arabiya, which picked up the story from Al-Ahram, is a Saudi outfit and the Saudis are mighty anxious about the idea of Islamist populists seizing power from sclerotic tyrannical regimes.)
AllahPundit counsels skepticism, but is not sure:
[N]one of this is to say the story isn’t true — the part about the marriage age being lowered is all too plausible — but it’s not hard to see why Mubarak allies might want to make something up or inflate something one of the fringier parliamentarians said in order to galvanize international opinion against the Muslim Brotherhood and Salafists. It is, however, hard to see why the MB would allow parliament to entertain a law like this at a moment when they’re busy gladhanding westerners to reassure them that the Brotherhood are “modern” Islamists who are worthy of foreign aid and trade deals. If this really is being kicked around by MPs, I’d bet it’s the Salafists who are pushing it. But we’ll see.
Sullivan and the Monitor seem to go further. I don’t know who’s right and who’s wrong, but thought I’d note the possibility that Al Ahram and Al Arabiya may not be accurate on this.
UPDATE: The Daily Mail reports:
[S]ources inside the Egyptian Embassy in London have said the claims were ‘completely false’, ‘forbidden in Islam’ and ‘could never imagine it happening’.
The source said the proposal, if it even existed, had not reached the parliament — although it was also admitted it could be the work of an extremist politician.
My Interview at Harvard Law With Dean Minow
A few weeks ago, the Harvard Federalists invited me to be interviewed by Dean Martha Minow in the Ames Moot Court Room. She was wonderful, though the interview turned out to be far more substantive than I anticipated. She really put me through my paces. Now the HLS website has posted a video of the interview here. Unfortunately, they don’t have an embedding option, so you have to (shudders) actually click through to watch it. You can decide for yourself, but here is what they chose as the highlights:
Barnett characterized his ongoing constitutional challenge to the individual mandate as a rather lonely one when he took it up 2 ½ years ago after lawyer David Rivkin raised the issue in a Wall Street Journal op-ed piece and launched an online legal-blog debate.
“There was another law professor on that blog who posted a very snarky ‘Nobody can be serious about a constitutional challenge here,’” Barnett said. “And I just sort of decided, ‘Well, maybe I should say something.”
Since then, Barnett said, his argument has gained constant momentum, culminating in a historic examination of the issue by the Supreme Court last month. The Justices gave attorneys more than six hours for oral arguments over three days—the most time they’ve allowed for oral arguments since their consideration of Miranda v. Arizona in 1966.
This time, the justices are reviewing Department of Health and Human Services v. Florida, and NFIB v. Sebelius in which the 11th U.S. Circuit Court ruled in January, 2011 that the mandate falls outside the federal authority contemplated by the commerce clause in the Constitution.
One of the central issues examined during the Supreme Court hearings was whether the Anti-Injunction Act, which prohibits taxpayers from challenging a tax until it goes into effect, applies to the health-mandate requirement in the Affordable Care Act.
The argument that the Anti-Injunction does apply—and therefore renders the constitutional challenge moot—is widely held in legal academia, Barnett contended.
“It’s an argument that’s so beloved by professors, but there was not a single justice who was even interested in the tax-power argument in six hours of oral presentation,” he said. “If any justice liked the tax-power theory, you would have expected to hear from her or him during the discussion of the Anti-Injunction Act.”
“The justices were debating among themselves about why it didn’t apply. There was nobody saying it did apply.”
Barnett said he is cautiously optimistic about how the justices will rule. He said he had the sense from the justices at oral arguments that they may believe the Affordable Care Act goes too far.
“If it were actually accepted by the Court, they would basically be saying that Congress has unlimited power to do whatever they want as long as they limit these sanctions to a monetary fine collected by the IRS,” he said. “That would be a startling claim of power.”
“This is a claim of power by Congress that is literally unprecedented. Never before in history has Congress required individual citizens to do business with private companies as a means of exercising its commerce powers.”
He pointed out that just because something is unprecedented, that doesn’t mean it’s necessarily unconstitutional.
What it does do is render it a case of first impression, “which means that it’s highly unlikely that prior precedents have directly addressed the issue of whether this is OK or not. That’s exactly the reason why this has always been a close case on the merits, and not an easy case.”
April 26, 2012
Conservatives and Immigration
Politico’s Arena site recently asked contributors to weigh in on whether the GOP is likely to be “wounded” by its support for severe restrictions on immigration. My answer is available here:
The real tragedy here is not that the GOP might suffer politically, but that so many conservative Republicans have turned against immigration in the first place. Conservatives claim to support free markets, yet many of them also wish to use massive government intervention to close off an international free market in labor. They extol the virtues of self-help, economic opportunity, and individual achievement. Yet many of them also want to build a wall to keep out immigrants who come seeking greater freedom and opportunity than they could hope for in their native lands.
Had the restrictive immigration policies favored by some of today’s conservatives been in force a century ago, the ancestors of most of those conservatives would never have been able to come to America in the first place….
Ronald Reagan said that America should be “a tall, proud city… teeming with people of all kinds living in harmony and peace.. and … doors …. open to anyone with the will and the heart to get here.” More recently, former Florida governor Jeb Bush urged Republicans to rethink their views on immigration. Conservative Republicans should heed their call.
In this post, I explained why conservatives (and some libertarians) are wrong to worry that increased immigration will lead to a larger welfare state. Evidence from many countries suggests that increased immigration and ethnic diversity actually reduces support for welfare state policies.
For this reason, among others, Jeb Bush is right to urge a change in the GOP position on this issue:
Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy…. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.
The Potential Impact of the People’s Rights Amendment Goes Far Beyond Restricting Freedom of Speech
Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.
Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.
Unfortunately, this dangerous result is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.
Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.
“With the Hopes That Our World Is Built on They Were Utterly Out of Touch”
They denied that the Moon was Stilton; they denied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.
InstaPundit has often cited Rudyard Kipling’s Gods of the Copybook Headings, which led me to reread it and appreciate it yet again. As with many poems, different people can bring different interpretations to it; just who the Gods of the Copybook Headings are and who the Gods of the Market Place are is up to you to decide. As with many poems that are more than a stanza or two long, it also has stronger parts and weaker parts. But in any event I thought it would be worth posting:
As I pass through my incarnations in every age and race,
I make my proper prostrations to the Gods of the Market Place.
Peering through reverent fingers I watch them flourish and fall,
And the Gods of the Copybook Headings, I notice, outlast them all.
We were living in trees when they met us. They showed us each in turn
That Water would certainly wet us, as Fire would certainly burn:
But we found them lacking in Uplift, Vision and Breadth of Mind,
So we left them to teach the Gorillas while we followed the March of Mankind.
We moved as the Spirit listed. They never altered their pace,
Being neither cloud nor wind-borne like the Gods of the Market Place,
But they always caught up with our progress, and presently word would come
That a tribe had been wiped off its icefield, or the lights had gone out in Rome.
With the Hopes that our World is built on they were utterly out of touch,
They denied that the Moon was Stilton; they enied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.
When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”
On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: “The Wages of Sin is Death.”
In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: “If you don’t work you die.”
Then the Gods of the Market tumbled, and their smooth-tongued wizards withdrew
And the hearts of the meanest were humbled and began to believe it was true
That All is not Gold that Glitters, and Two and Two make Four
And the Gods of the Copybook Headings limped up to explain it once more.
As it will be in the future, it was at the birth of Man
There are only four things certain since Social Progress began.
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool’s bandaged finger goes wabbling back to the Fire;
And that after this is accomplished, and the brave new world begins
When all men are paid for existing and no man must pay for his sins,
As surely as Water will wet us, as surely as Fire will burn,
The Gods of the Copybook Headings with terror and slaughter return!
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