Eugene Volokh's Blog, page 2705
September 23, 2011
The Objects of the Fourteenth Amendment
This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it. But it is also important because it frames the organizing dichotomy of constitutional review. The Constitution binds different governmental actors in different ways. And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action. What the Court calls a "facial challenge" is actually a (broad and text-focused) challenge to legislative action. What the Court calls an "as-applied" challenge is actually a (narrow and fact-focused) challenge to executive action.
So, it is essential to know which clauses of the Constitution bind which governmental actors. Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject. "Congress shall make no law … abridging the freedom of speech." "The Congress shall have power … To regulate Commerce … among the several States." Challenges under these provisions are challenges to legislative action. They are inherently "facial" and do not turn at all upon specific facts that arise after the legislature made the law. (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)
Unfortunately, most clauses of the Bill of Rights are not so easy. Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress. This explains the Court's intuition that most constitutional challenges are properly fact-based, or "as-applied".
The Fourteenth Amendment is more difficult still, but in a different way. It is written in the active voice, with an express subject, but its subject is less specific than "Congress." The Fourteenth Amendment says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It is tempting, of course, to say that this provision binds all state actors, and so Fourteenth Amendment rights are rights against all of them. But, unfortunately, the question is more complicated. The Fourteenth Amendment is said to "incorporate" the Bill of Rights against the States. But, as we have seen, the Bill of Rights itself protects rights against particular federal actors. The subject of the First Amendment, for example, is "Congress." It is a prohibition on legislative action. Does it follow, therefore, that the First Amendment as incorporated applies only to state legislatures?
Not necessarily. In his masterpiece, The Bill of Rights: Creation and Reconstruction, Akhil Reed Amar explained how the rights in the Bill of Rights are refined as they are incorporated against the States. Building on Amar's brilliant work, my article explores perhaps the most important refinement of all — refinement of the subjects and objects of the Bill of Rights. The rights as incorporated do not necessarily restrict the state analogues of the same federal actors.
The reason derives from the structural logic of the Constitution. Because the Constitution created the federal government, it could be precisely calibrated to empower and restrain each of the three branches that it created. The Bill of Rights provisions are restrictions on powers granted elsewhere in the document. They are, as Chief Justice Marshall says, "limitations of power granted in the instrument itself." The limitations are, thus, carefully calibrated to the power grants.
But the Constitution did not create the state governments, and it permits a wide variety of state governmental structures—requiring only that those structures be "Republican." So the Framers could not be certain precisely who, at the state level, would pose each sort of threat to liberty. The Fourteenth Amendment restricts state governmental powers that are not to be found in the Constitution itself. These provisions cut across state powers that may or may not be found in various state constitutions and may or may not vary from state to state. Here, the restrictions do not map onto grants of power to particular state officials, and so the restrictions are phrased generally: "No State shall."
For this reason, incorporation of the Bill of Rights may work a refinement of the subjects and objects of the Bill of Rights. Contra the conventional wisdom, different actors may be bound at the state level than at the federal level. For each privilege or immunity, it is essential to ask: privilege or immunity against whom? I venture some answers in The Objects of the Constitution.
The "Whole Constitution Pledge" Revisited
David Gans of the Constitutional Accountability Center, the liberal organization that originated the "Whole Constitution Pledge" has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself:
To take back America's charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution....
We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the "Whole Constitution" pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that, even after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party's vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.
These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back.
I am pleased that CAC wants to continue this discussion, and of course we're always happy to be called "prominent and well-respected." I fear, however, that Gans' defense of the Pledge fails and that he posits greater agreement between us than actually exists. If, as he now writes, Article V of the Constitution is "incredibly important" and the Constitution is — even now — "not infallible," then the Pledge is wrong to call for support of "the whole Constitution" and to attack the Tea Party activists for having the temerity to want to change some parts of it. That was the main point of my original post criticizing the Pledge: that some parts of the present Constitution are indefensible (including by the standards of the political left) and others are at least reasonably debatable. We should not denounce the Tea Party — or anyone else — merely because they don't support "the whole Constitution."
In addition, I am perfectly willing to defend some important aspects of "the Tea Party's vision of the Constitution." As I explain in this article, I think the Tea Partiers are absolutely right to argue that the powers of the federal government should be far more limited than current Supreme Court jurisprudence allows. Indeed, I have been advocating stricter enforcement of constitutional limits on federal power since long before there was a Tea Party. I also agree with the view of many Tea Partiers that the Court has failed to provide anything remotely approaching adequate protection for constitutional property rights and economic liberties. Many other conservative and libertarian constitutional law scholars — both "prominent" and otherwise — hold similar views.
As Gans notes in regards to the effort to repeal the Seventeenth Amendment, I do not agree with the Tea Party on every constitutional issue. Indeed, it would be impossible for me to do so, since there is considerable internal disagreement in the movement. Not all Tea Partiers support repeal of the Seventeenth Amendment, for example, and it's not even clear whether a majority do so. But I do think that the rise of a popular movement emphasizing stronger enforcement of constitutional limits on federal power is a positive development, even if I don't agree with all of its specific proposals.
Finally, it's worth noting that Gans is wrong to describe Jonathan and myself (and probably also Eugene) as "conservatives." We are in fact libertarians. That distinction matters here because there are some important differences between libertarian and conservative views on constitutional reform. For example, few if any libertarians support efforts to repeal the birthright citizenship provision of the Fourteenth Amendment. The backing for that idea comes almost entirely from conservatives, because the latter tend to be more wary of immigration than libertarians are.
UPDATE: It's not entirely clear from the context whether Gans meant to describe Jonathan Adler as a conservative in addition to Eugene and myself. If he did not, then I retract that part of my critique of his post.
UPDATE #2: Jonathan Adler has responded to the part of Gans' post criticizing him here.
Starting Sentences with "And," "But," or (Less Often) "Or"
I occasionally run across people — including law review editors — who seem to take the view that there's something wrong with starting a sentence with "and," "but," or "or." I don't see any basis for that view. As Merriam-Webster's Dictionary of English Usage notes, this doesn't violate any established usage or grammar practices. It's commonplace in edited writing, including in legal writing; for instance, a Lexis search for caps(but) and date(> 1/1/2000) in the Supreme Court database found over 900 results since 2000, and a Lexis search for caps(but) and date(> 9/16/2011) in the New York Times database found over 1100 results in just the last week. Nor is this just something new; the Constitution contains sentences that begin with "and" and "but," as do the works of Dickens and many others.
Moreover, starting a sentence this way is useful: An initial "and," "but," or "or" is a good transition that shows the relationship of this sentence to the previous one, with as little formality and complexity as possible. The usual alternatives, such as "however" or "moreover" strike me as stuffier, though sometimes "moreover" adds an emphasis that "and" doesn't.
Now if you just find these locutions aesthetically displeasing, and want to avoid them in your own writing, there's not much I can say about that. But I see no basis for faulting others' use of them, or for editors' trying to edit them out.
IBC Bank Announces Closure of 55 Branches and Elimination of 500 Jobs
As predicted.
I actually recorded the interview a few days ago but it was just posted yesterday so I had no inside knowledge that this was in the works.
UC Irvine Students Convicted for Disrupting Speech
The AP reports:
A California jury found 10 Muslim students guilty Friday of disrupting the Israeli ambassador's university speech about U.S.-Israel relations, a case that stoked a debate about free speech....
They were charged with misdemeanor counts after standing up, one by one, and shouting prepared statements such as "propagating murder is not an expression of free speech." ...
Prosecutors said the students broke the law by interrupting Oren's speech on U.S.-Israel relations and cutting short the program, despite calls to behave from campus officials. Defense attorneys argued the students had a right to protest....
Prosecutor Dan Wagner ... showed video footage of university officials pleading with students to behave, but they kept interrupting the lecture. Wagner also showed emails sent among members of UC Irvine's Muslim Student Union planning the disruption and calculating who was willing to get arrested....
From press accounts about the incident about the trial, it strikes me that the verdict is sound, and not a First Amendment violation. Here's what I wrote in February, when the charges were filed, about the California meeting disruption law involved in this case — a law that I think is a constitutionally permissible content-neutral speech restriction:
1. The relevant statute, Cal. Penal Code § 403, says: "Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character ... is guilty of a misdemeanor." In re Kay (1970) held that, to be convicted under the statute, the prosecution must show "that the defendant [1] substantially impaired the conduct of the meeting by intentionally committing acts [2] in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known," and [3] "the defendant's activity itself — and not the content of the activity's expression — substantially impairs the effective conduct of a meeting."
2. In re Kay concluded that, in that case, the defendants' rhythmic clapping and heckling was not punishable:
After Congressman Tunney had given a portion of his speech, a comparatively small part of the total crowd, between 25 and 250 persons, engaged in rhythmical clapping and some shouting for about five or ten minutes. This demonstration did not affect the program. Congressman Tunney, who had been using a microphone, finished his speech despite the protest, pausing to assure those protesting that they had a right to do so and to urge them to be grateful that they live in a country whose Constitution protects their right to demonstrate in that manner. At no time did either the speaker or the police ask the protestors to be silent or to leave. Following the end of the protest and of the congressman's speech, the fireworks were shown. The police made no arrests during or immediately following the protest; the prosecution filed charges only some two weeks later....
In applying [section 403 as we have interpreted it], the nature of a meeting necessarily plays a major role. The customs and usages at political conventions may countenance prolonged, raucous, boisterous demonstrations as an accepted element of the meeting process; similar behavior would violate the customs and usages of a church service. Audience participation may be enthusiastically welcomed at a bonfire football rally or an athletic contest, but considered taboo at a solemn ceremony of a fraternal order. Explicit rules governing the time and place of permitted nonviolent expressions may in some circumstances fix the limits of permissible conduct. Violation of such customs or rules by one who knew or as a reasonable man should have known of them would justify the application of section 403. Thus, rather than enacting monolithic standards, section 403 draws its content from the implicit customs and usages or explicit rules germane to a given meeting.
In the instant case the application of section 403 must in the first instance be examined in the light of the nature of the meeting involved here: a large, public celebration held outdoors in a public park, featuring, in the course of a political campaign, a public official as the principal speaker. Informality characterized this public rally: people could come and go as they pleased; members of the audience could move at will to other areas of the "meeting." By custom and usage nonviolent demonstrations of political views are reasonably to be expected at such a gathering. As the evidence at trial disclosed, our history reveals that heckling and disputatious remarks at such affairs are commonplace occurrences. Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression. The prosecution offered no evidence that clapping, flag waving, and sloganeering are not generally accepted and permitted at a public meeting, addressed by controversial elected officials, such as the instant one. Since the nature of that meeting contemplated acceptance of the nonviolent expression of alternative viewpoints, the petitioners' protest did not impair the conduct of the meeting but instead constituted a legitimate element of it.
Moreover, the prosecution failed to show that the activities substantially impaired the conduct of the meeting. Not every violation of a general custom or of an explicit meeting rule becomes so grave as to warrant application of criminal sanctions; nor does section 403 contemplate such extensive coverage....
Whether a given instance of misconduct substantially impairs the effective conduct of a meeting depends upon the actual impact of that misconduct on the course of the meeting; the question cannot be resolved merely by asking persons present at the meeting whether they were "disturbed." In the instant case, the questioned conduct continued for only a few minutes, Congressman Tunney was able to complete his speech, and it does not appear that a large part of the audience could not hear his remarks. We conclude that the state failed to meet its burden of establishing a substantial impairment of the conduct of the meeting.
Finally, we do not believe that there was a sufficient showing that the defendants disturbed the meeting within the constitutionally permissible limits of the statutory term "disturb." Generally, if disturbances are occasioned by nonviolent exercise of free expression, section 403 will require that defendants be shown to have engaged in such conduct with knowledge, or under circumstances in which they should have known, that they were violating an applicable custom, usage, or rule of the meeting. [Footnote, slightly moved: Meeting rules are rarely carefully spelled out or well known to the audience. In many cases these rules consist of aged and infrequently used by-laws or tacit understandings and habitual practices, or are otherwise cloaked in obscurity and uncertainty. Even if clear rules can be found, the officials of a meeting commonly suspend or simply ignore such rules to expedite the work of the meeting. Silence of meeting officials in the face of unusual or raucous activity necessarily suggests that the rules of the meeting permit the activity or that the officials do not intend to enforce prohibitory rules to the contrary....] In instances in which the appropriate standard of conduct lies in doubt, a warning and a request that defendants curtail their conduct, either by officials or law enforcement agents, should precede arrest or citation.
3. I'm inclined to think that the situation here is quite different from that in In re Kay. First, the customs of presentation at universities seem to me to be much less tolerant of heckling; there is plenty of time for audience participation during Q & A, but shouting during the speech is not at all customary. (Perhaps the California Supreme Court got it wrong in interpreting the statute in a way that requires a determination of the particular customs of a certain kind of event; but that seems to be required under the Kay decision.)
Second, and relatedly, the university administrators repeatedly stressed to students that such interruptions were improper. To the extent that Kay focused on what was said by the authorities during the meeting as evidence of custom ("Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression"), this cuts the other way here.
Third, while it's hard to tell exactly how disruptive the hecklers were in Kay, it appears from accounts of the Irvine meeting and the court's account in Kay that the Irvine hecklers were much more disruptive, and did indeed "substantially impair[] the conduct of the meeting."
For a more recent, but factually rather different, § 403 case, see McMahon v. Albany Unified School Dist. (2002).
"Judges Compete for Law Clerks on a Lawless Terrain"
Today's New York Times has this story on the federal law clerk hiring process. It's old news for some of us, but probably of interest to others.
John Mearsheimer Update
Lots of folks couldn't believe that John Mearsheimer, distinguished international relations professor at the University of Chicago, would endorse an anti-Semitic book by fringe kook anti-Semite Gilad Atzmon. Perhaps he was misquoted, or simply blurbed the book without realizing what he was doing? Surely he would retract once a public controversy erupted?
Nope. Blogger Adam Holland:
I had trouble believing that a distinguished professor at one of the world's greatest universities would link himself to a hatemonger like Atzmon. So I sent Professor Mearsheimer an email quoting the blurb and asking him to verify it's accuracy. I also gave him an opportunity to amend it or add to it.
But Mearsheimer didn't take the opportunity to save what's left of his reputation. He wrote back: "The blurb below is the one I wrote for 'The Wandering Who' and I have no reason to amend it or embellish it, as it accurately reflects my view of the book."
Richard Epstein Reflects on His Academic Success
From Epstein's remarks on accepting the Bradley Prize in May:
The great advantage that I had was no strong mentor, so I went off at my own pace in my own direction. The combination of philosophy, ancient law, and some economics that I picked up along the way set the stage for my work.
If asked to name my comparative advantage, it was a combination of curiosity and superficiality, both which led me to teach pretty much anything. One of my early University of Southern California colleagues, the late Gary Bellow, cautioned me against this approach, saying that "no utility infielder ever made it into the Hall of Fame."
I disregarded his advice, and have taught a bewildering array of courses on a lick and a promise, nothing more. The challenge of integrating new information to old theories was I think the real spark for what I did.
Certiorari or En Banc for Individual Mandate Appeal?
Politico reports that the Department of Justice has until Monday to decide whether to file a petition for en banc review in Florida v. HHS, the successful challenge to the constitutionality of the individual mandate in the U.S. Court of Appeals for the Eleventh Circuit. If the Department of Justice does file such a petition, this will significantly decrease the likelihood that the Supreme Court will hear a challenge to the individual mandate in the 2011-12 term. For a variety of reasons, including the range of issues presented and the participation of a majority of the states, the Eleventh Circuit case remains the most likely vehicle for eventual Supreme Court review. Therefore, whether the Department of Justice seeks en banc reconsideration in the Eleventh Circuit or certiorari in the Supreme Court is likely to control the timing of eventual Supreme Court review.
Relatedly, according to the ACA Litigation Blog, the Justice Department's deadline for filing a response to the petition for certiorari in Thomas More Law Center v. Obama, the case in which the U.S. Court of Appeals for the Sixth Circuit upheld the mandate, is Wednesday, September 28.
Cities Face New Emission Controls Even Without Tighter Ozone Standard
Earlier this month President Obama asked the Environmental Protection Agency to shelve a proposal to tighten the National Ambient Air Quality Standard for ozone this year. The Administration was apparently concerned about the cost a tighter standard would impose, and the EPA is required to consider revising the standard in 2013 anyway. Does this mean metropolitan areas are off the hook for additional environmental controls? Nope. Even without a tighter standard, many metropolitan areas will have to adopt more stringent pollution controls in order to meet the revised ozone standard adopted by the Bush Administration in 2008, as EPA Administrator Lisa Jackson confirmed in House testimony yesterday. The WSJ reports:
Testifying before a House subcommittee, Ms. Jackson said her agency would enforce an ozone standard of 75 parts per billion, adopted by the EPA in 2008. Until now, the standard had been suspended because of the EPA's intention to introduce a more stringent measure, and the 1997 standard of 84 parts per billion prevailed.
There are 52 areas where air quality fails to meet the 2008 standard, the EPA said in a memo to state officials. Among them are Baltimore, San Diego, Dallas-Fort Worth and parts of Los Angeles. Ms. Jackson said the EPA would enforce the standard in a "common-sense way" to minimize the burden on state and local governments.
In practical terms, this shows how the Obama Administration's decision not to tighten the ozone standard this year will not have a significant environmental effect in the near– to medium– term. Those areas with the worst ozone pollution do not meet either standard, so such areas would be required to adopt more stringent regulations either way. As for areas that meet the 2008 standard but would fail to meet more stringent requirements, the compliance date for a revised standard would be years off anyway, so if a more stringent standard is adopted in 2013 as many expect, the practical effect will be small.
While the EPA now plans to enforce the 2008 standard, there is some question whether it will be the standard for long. Not only is a scheduled revision only two years away, but legal challenges against the rule by both environmentalist and industry groups are pending in federal court as well. Given the EPA's poor record of defending Bush-era air quality rules, it's certainly possible one of these challenges will succeed.
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