Eugene Volokh's Blog, page 2656
December 9, 2011
Proposed Constitutional Amendment Would Ban Editorials About Candidates or Ballot Measures by Nearly All Newspapers
That's one of the effects of HJR 90, proposed by Reps. Theodore Deutch, Peter DeFazo, Alcee Hastings, and Jim McDermott, and a similar Senate proposal by Sen. Bernie Sanders:
Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.
Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.
Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate's own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.
Nearly all newspapers, TV stations, cable networks, and rations (except of course for nonprofits such as NPR) are organized as corporations or other entities established for business purposes. Under section 3, they "shall be prohibited" from making expenditures "in any election of any candidate ... or the vote upon any ballot measure." Since to write or print or broadcast anything, newspapers, networks, and broadcasters must spend money, this would ban — not just authorize Congress to ban, but itself ban — editorials supporting or opposing a candidate or a ballot measure. ("Shall be" in the Constitution is generally language that indicates that something becomes the law without further Congressional action, e.g., "This Constitution ... shall be the supreme Law of the Land" and "The executive Power shall be vested in a President of the United States of America.")
To be sure, section 2 does say that such entities are "subject to regulation ... through the legislative process so long as such regulations ... do not limit the freedom of the press." But section 1 tells us that business entities do not have constitutional rights; presumably, then, the freedom of the press (one of "the rights protected by the Constitution") doesn't extend to them. And since section 2 applies "the freedom of the press" just to regulations "through the legislative process," and section 3 prohibits expenditures through the constitution itself, it appears that section 2's supposed protection for the liberty of the press doesn't even purport to limit section 3's prohibition. Certainly nothing in section 3's flat ban has any proviso saving the "freedom of the press."
Now perhaps one could argue that, notwithstanding sections 1 and section 3, business entities retain the "freedom of the press" even though they lose all other constitutional rights. But, as I've discussed in considerable detail in this article, the "freedom of the press" has throughout American history meant the freedom of all to use communications technology, not a freedom limited to any specific industry. So if business entities do still have "freedom of the press" rights, which leaves the New York Times free to exercise such rights, then other business corporations would have the same rights as well, including the right to rent space or time in newspapers and television and radio programs to express their views, much as newspapers, cable networks, and broadcasters have the right to use such space or time.
On top of that, the proposal would mean that any government could take corporate property — whether of big businesses or small closely held corporations — without paying any compensation at all, could take corporate property without due process, and more. That would be quite a constitutional amendment.
December 8, 2011
Laws about gun ownership in early America
Regarding Eugene Volokh's post below about an NYU L. Rev. article, "The People" of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.
To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:
Women: No restrictions. Of course they did not serve in the militia. Laws requiring "householders" (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).
Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.
Slaves: Several states banned gun ownership, or allowed ownership only with the master's permission.
Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns ("public arms") for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with "freedom dues" so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.
The author of the NYU article asserts that "arms bearing was considered congruent to voting, holding public office, or serving on juries." That's incorrect for "bearing" in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if "bearing" is meant in the restrictive sense of "bearing for militia service." Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., "Let every man who fights or pays, exercise his just and equal right in their election." Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.
Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.
Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.
The author's thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical "gendered,and class-stratified understanding of persons permitted to own guns." The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.
Possible Supreme Court Case to Watch
From the Wall Street Journal:
The Ninth Circuit Court of Appeals is often a source of national amusement, but if one of its recent decisions on the Clean Water Act is allowed to stand, it will wreak havoc on the timber industry and damage other agricultural management as well. Today the Supreme Court is likely to decide whether to hear the appeal on a case that could reinterpret a longstanding classification in environmental law.
In Georgia Pacific v. Northwest Environmental Defense Center, the question concerns whether rural roads used for hauling timber should be subject to the same stringent environmental permitting process as major industrial sites and municipal systems.
An environmental group claimed that water runoff from logging roads was getting into fish-bearing streams. The District Court said there was no case but in its ever-willful way the liberal Ninth Circuit overturned, ruling that the roads should fall under so-called "point source" standards, which require special permits from the EPA.
The stricter classification is a perennial on the wish list of environmentalists because it would introduce an army of lawyers and specialists every time a new logging road was built. Under the roads' historical Clean Water Act classification as "non-point source," storm-water runoff on the roads is regulated by the states, which develop their own requirements and restrictions on road use. The stricter category would delay the process as the permits themselves become a new locus for additional environmental litigation.
The U.S. Forest Service says that if the ruling stands, it would have to obtain more than 400,000 permits, working with 46 states, a process that could take 10 years. And that's the green goal: to create enough delay and bureaucracy that timber harvesting will cease to be profitable.
According to Oregon Democratic Senator Ron Wyden, the Ninth Circuit's radical interpretation "would shut down forestry on private, state and tribal lands" in the states where it applies....
Seems like a pretty high-probability grant to me; I'm certainly no environmental law expert, but the case looks like a big deal (it drew a 25-state-AG amicus brief, which I think is rather rare at the cert stage), and SCOTUSblog includes it on its "petitions to watch" list. So if there's a grant, remember that you heard it here first (or maybe second). If there's a denial, then — prediction? What prediction? Disclosure: My colleague Tim Bishop at Mayer Brown is– on the case, though I didn't work on it personally.
A Liberal, PPACA Supporter's Case for Kagan's Recusal
Eric Segall, a self-described "liberal constitutional law professor" who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
I explained why I don't think Justice Kagan needs to recuse here, though I believe it's a closer case than some have acknowledged.
May Sex Crime Complainant Testify in Criminal Prosecution Wearing a Facial Veil?
From The Globe & Mail (Toronto):
The Supreme Court of Canada will attempt to balance Islamic beliefs against the bedrock elements of a fair trial on Thursday in major clash of constitutional rights.
At the centre of the case is a sexual assault complainant known as N.S., who does not want to testify against two men accused of raping her unless her face is obscured by a religious veil, or niqab.
The defendants assert that the Charter of Rights and Freedoms guarantees them the right to confront their accuser and observe her facial nuances as she testifies.
However, lawyers for N.S. say facial expressions are frequently misleading and that Islamic rape victims will be reluctant to go to police if they may later be ritually "stripped" in a courtroom....
For those interested in how the U.S. Constitution treats this: Maryland v. Craig (1990) upheld by a 5–4 vote a procedure in which children who were allegedly sex crime victims could testify through one-way closed circuit video, in which they couldn't see the defendant; but the Court stressed that (emphasis added),
We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation — oath, cross-examination, and observation of the witness' demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.
Craig drew a sharp dissent from Justice Scalia, joined by Justices Brennan, Marshall, and Stevens; the dissent argued that the Confrontation Clause required face-to-face confrontation.
I can't speak to what is called for by the original meaning of the Confrontation Clause, what is the proper interpretation of the Canadian Charter of Rights and Freedoms, or more broadly what is the right approach as a matter of policy in such cases (especially given recent psychological arguments about how good or bad jurors are at weighing witness demeanor in evaluating the witness's truthfulness). But I thought the issue was likely to be interesting to our readers, so I thought I'd blog about it. Thanks to Ken Braithwaite for the pointer.
House Passes REINS Act, President Promises Veto
Yesterday, the House passed the REINS Act on an almost exclusively party-line vote, 241–184. All the House Republicans voted for the bill, as did four Democrats. Thought the bill passed the House, it's not about to be enacted into law. The Senate is unlikely to take up the bill and President Obama has promised to veto the REINS Act should it somehow reach his desk.
My posts on the REINS Act are indexed here.
A Cautionary Note for Readers of "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. Rev. 1521 (2010)
I've just published this article at the Legal Workshop, the online site run by the NYU Law Review and several other journals; the author of the article to which I responding published a gracious reply to my piece.
Here's the opening of my article, plus a few items from the rest of the piece (which is only a few pages long); please go to the Legal Workshop site to read the rest, including the footnotes, and of course please also read the author's response to my piece:
* * *
I read with interest "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article's historical assertions.
The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls [emphases added]:
"[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests."
"From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession."
"The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation.... [S]ince only "First-Class citizens" were allowed to vote, bear arms, and serve on juries, many other citizens — poor whites, women, minors, free blacks — were denied many fundamental rights presently associated with citizenship."
"Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender."
"Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites."
"By the time of the Constitution's framing, statutes in the several states made guns a privilege of 'First-Class Citizens,' meaning that only select citizen males could legitimately exercise the right to bear arms."
"[A]rms bearing was considered congruent to voting, holding public office, or serving on juries — rights associated with each other and denied even to many citizens."
"Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century."
"This racialized, gendered, and class-stratified understanding of persons permitted to own guns — and exercise other core political rights — began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic].... Individual state constitutions codified restrictions on 'Negroes, Mulattoes, and Indians' serving in state militias or expressly limited firearms to 'free white men.'"
"This 'lone-democracy' syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of 'First-Class Citizens' and could be denied to most Blacks, women, and aliens." [Footnote: This appears to be an assertion that certain people were restricted from owning guns, as the "discussing gun-ownership restrictions in early republic" quotation shows; it does not seem to be just an assertion that they lacked a constitutional right to own guns and were thus vulnerable to such legislative restrictions. Indeed, the analogous behavior to which the passage points — voting by blacks, women, and aliens — was actually prohibited in many or nearly all jurisdictions [citations omitted].] Elsewhere, the article refers to this passage using the parenthetical "discussing gun-ownership restrictions in early republic."
These statements are claims about restrictions on civilian gun possession — about who was "permitted to own guns," who was "prohibit[ed]" from owning guns, who was subject to "firearms restrictions" and "gun regulation," whose "disarmament" was "allowed" by various "laws," and so on — and not merely about who could be excluded from militia duty.
Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article's assertions.... The article [does cite one contemporary source], which says that "the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period." But, however the "meaning" of the right may have been "colored," that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens....
The article does include a footnote that says, "I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways." So the careful reader might grasp that the article's claims about women — but not the article's claims about poor whites and noncitizens — are not what they first appear.
But I am afraid that some readers might understandably miss that footnote. And if they see it, they might understandably be confused, because it is difficult to reconcile that footnote with the article's statements that:
"[S]ince only 'First-Class citizens' were allowed to ... bear arms ..., ... women ... were denied many fundamental rights presently associated with citizenship."
"[G]un regulation [depended] on a conception of membership in the national community con¬tin¬gent upon ... gender."
"[O]nly select citizen males could legitimately exercise the right to bear arms."
"[A]rms bearing was considered congruent to voting."
"[F]irearms ... could be denied to most ... women."
These statements do seem to assert that "women were [legally] prevented from owning arms."
It is of course possible that custom or informal social understandings might have imposed de facto restrictions on gun ownership, even if the law did not. But none of the sources that the article cites offer evidence of that possibility, either.
When the article was available in draft on the Social Science Research Network (SSRN), I e-mailed the author asking whether he had found some sources showing that women, poor whites, and noncitizens had indeed been disarmed by law. I asked again after the Law Review published the article. But while the author kindly and promptly replied to my e-mails, neither response pointed to any sources that actually showed that women, poor whites, or noncitizens were legally constrained from owning guns.
It thus seems to me that the article may leave the reader with a mistaken understanding of the matter. I thought this was worth communicating to readers....
December 7, 2011
Did Newt Gingrich Break the Law with his Bolton Promise? No.
Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so. I think they are wrong — indeed, pretty clearly wrong. As Mitu Gulati and I pointed out in a paper entitled "Mr. Presidential Candidate: Whom Would You Nominate?", the relevant statute is ambiguous and, more importantly, applying the statute to a public promise like this one would violate the First Amendment.
And, as the title of our article suggests (and as we discuss at some length in the article), a presidential candidate identifying whom he would appoint is valuable to voters and should be encouraged. Indeed, in this specific case Gingrich has conveyed useful information to voters. Newt (and all other presidential candidates), please tell us more about whom you would nominate!
For what it's worth coconspirator Eugene provided us with excellent comments on our draft and disagreed with our policy prescription, but I don't recall him disagreeing with our legal analysis on this point (though Eugene can set me straight if I'm misremembering).
The statute, 18 U.S.C. § 599, provides in relevant part:
"Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both."
As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is "procuring support in his candidacy." Is this trigger procuring support from the public for his candidacy or instead procuring support from the potential nominee (or perhaps the potential nominee's associates) for his candidacy?
For those of you interest, I quote below the relevant portion of our article (sans footnotes; if you want to read it with the footnotes, click here):
We do not dwell on these arguments regarding statutory interpretation because any attempt at applying this statute to a candidate's promises would violate the First Amendment. In Brown v. Hartlage, the United States Supreme Court confronted a state statute very similar to § 599. A candidate for county commissioner had promised to lower commissioners' salaries if elected, and the Kentucky Court of Appeals found that this violated the following state statute:
"[W]hen a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain."
The Supreme Court reversed, unanimously. The Court treated this regulation of candidates' speech as subject to strict scrutiny (one in a long line of cases so finding), and it invalidated this statute because it failed the first prong of a strict scrutiny inquiry: the identification of a compelling state interest. The Court noted that there was a plausible claim that a promise to accept a lower salary would reduce voters' taxes, but it found that the state's interest in preventing vote-buying was not implicated because "Brown did not offer some private payment or donation in exchange for voter support; Brown's statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens." As the Court emphatically stated:
"Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote. The fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment. We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare. So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one's ballot."
In Hartlage, there was at least a plausible interest that the state could articulate (avoiding vote-buying), even though it was unpersuasive. It is difficult to see any legitimate—much less compelling—interest that the government would have in preventing corruption via prohibiting the naming of cabinet or Supreme Court nominees. Put differently, it is hard to fathom what the state's interest would be. In Hartlage, there was a benefit to voters in the form of reduced taxes, but here there is no benefit to voters other than the likely nomination of appointees whom they would like to see in positions of power—and there is no conceivable state interest in preventing that from happening.
The government might have an interest in prohibiting concealed promises from candidates to potential nominees. Secret promises give no information to voters, so their only benefit is a private one to the candidate and/or to the nominee. That underscores the implausibility of any government interest in preventing the public naming of nominees in advance. There is no corrupting element.
A different way to come at this question is to consider why the First Amendment is treated as placing a high value on electioneering speech. One reason is because an active and full debate among candidates helps voters make more informed choices. The voters are the customers choosing among products in the marketplace of ideas. Reading the statute to prohibit the public disclosure of prospective nominees results in the implicit (and sometimes explicit) bargains between presidential candidates and prospective nominees being pushed underground. And that in turn prevents voters from being able to evaluate the competing bargains that the different candidates have struck—the opposite of what First Amendment values push toward. In effect, this occurred with Earl Warren's appointment to the Supreme Court in 1953. Dwight Eisenhower reportedly promised Earl Warren that he would be appointed to the Court as soon as a seat opened up. The public, though, had no way of factoring this promise into their decision as to whether to vote for Eisenhower.
It is simply impossible to imagine any compelling interest for the application of § 599 to our proposal, much less a compelling interest to which application of § 599 would be narrowly tailored. And it bears noting that in the years since Hartlage, the Court has, if anything, raised the First Amendment bar for regulations on campaign speech. For example, the Court has held that a prohibition on candidates for judicial office "'announc[ing] his or her views on disputed legal or political issues'" violates the First Amendment, despite the obvious state interest in avoiding the appearance of impartiality. The bottom line, then, is that application of § 599 to our proposal would run afoul of the First Amendment...
How the British Gun Control Program Precipitated the American Revolution
That's the title of my new law review article, currently in the editing process at the Charleston Law Review. A draft is available at SSRN, and comments are welcome. The final part of the article suggests how the history might inform our modern understanding of Second Amendment rights.
Police Are Entitled to Evict Occupy Boston
So holds today's Occupy Boston v. City of Boston (Mass. Super. Ct. Dec. 7, 2011) (see this Boston Herald news story): The city's content-neutral ban on overnight sleeping in parks is consistent with the First Amendment. This seems to me to be the clearly correct result, given the Supreme Court's decision in Clark v. CCNV (1984), which likewise upheld a ban on sleeping in parks as applied to a tent city demonstration.
This is the same result reached as to sleeping bans or overnight presence bans in the Occupy Wall Street case and the the Occupy Fresno case, which I blogged about, and in Occupy Minneapolis v. County of Hennepin (D. Minn. Nov. 23, 2011) (motion for reconsideration denied today) and Occupy Fort Myers v. City of Fort Myers (M.D. Fla. Nov. 15, 2011), which I hadn't gotten around to blogging about. (The plaintiffs in some of these cases prevailed on other aspects of their challenges, but all their claims of a right to an exemption from the bans on sleeping or overnight presence in the park were rejected.)
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
