Archive for the ‘Law and Civil Liberties’ Category
CPAC Panel on the Constitutionality of Obamacare Has No Lawyers
Some libertarians boycott CPAC because it’s “too conservative,” others embrace it to try to steer the conservative movement in a more liberty-minded direction (on which, see Reason.tv’s excellent interview of Sen. Jim DeMint). I have no principled feelings on the subject. I’ve never attended – wasn’t really on my radar in college, couldn’t make it to DC during grad/law school, then was too busy lawyering, and now it would feel odd just to hang out rather than be part of the program — but I know lots of folks who enjoy it.
One thing I noticed about this year’s program — other than that my colleague Neal McCluskey is on an education policy panel at 10:30am on Friday — is that there’s a panel on the constitutionality of Obamacare (1:25 on Friday). Curiously, there aren’t any lawyers on this panel. C’mon, CPAC, I know this isn’t a Federalist Society convention, but it would seem useful to have people actually grappling with the legal issues educating your attendees about it. Not all of us have problems communicating with non-JDs; do I have to issue another Obamacare debate challenge?
This Month’s Cato Unbound: What Is Due Process?
What is due process?
Virtually everyone would agree that “due process” refers to a set of judicial procedures that create at least a strong tendency toward fair results.
But why do we have these procedures and not some others? Why do we have trial by jury, and not trial by fire? Why not just flip a coin? In this month’s Cato Unbound, our lead essayist, Timothy Sandefur, says that we have the procedures we do for one very simple reason: We recognize them as fair.
In other words, “due process” ultimately points back at a larger — and much thornier — legal and philosophical issue, that of fair treatment itself. If it didn’t, “due process” would just guarantee some empty (or possibly harmful) rituals.
So far, so good. Sandefur doesn’t stop there, however. He adds that the Fifth and Fourteenth Amendments’ guarantees of due process mean “not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”
In other words, due process is a check both on the procedure of the judiciary and on the substance of legislation. Some kinds of laws, Sandefur argues, cannot be implemented by any fair process — there’s no good reason for them, and there’s no lipstick enough for pigs like these. In such cases, the guarantee of due process is either a mockery of itself — or it’s enough to strike down the law. Sandefur picks the latter.
Is he right? Professor Lawrence Rosenthal of Chapman University disagrees, writing:
Deciding whether a law is supported by “good reason” is the essence of policymaking. Our Constitution guarantees a republican form of government, and in a republic, policy is made by those who are politically accountable for their decisions. Sandefur’s conception of due process of law, however, creates a judicial platonic guardianship that must approve every policy decision.
One side risks judicial overreach. The other side risks the tyranny of the majority. Which one is right? Stay tuned for the rest of this month’s Cato Unbound, which will also feature commentary by legal scholars Ryan Williams of the University of Pennsylvania and Gary Lawson of Boston University. Legal scholars will also want to review Sandefur’s paper in the Harvard Journal of Law and Public Policy (pdf), which develops the argument in fuller detail.
Gay Marriage Still Has an Uphill Climb
The right answer to the same-sex marriage question is to remove government from the marriage business altogether. That’s a legislative matter, however, and not something the courts should decree. Until then, because state and federal laws confer benefits based on marital status, the equal protection provisions of the Fifth and Fourteenth Amendments require that same-sex couples not be subject to discrimination in receipt of those benefits. But that issue was not addressed by the U.S. Court of Appeals in California—a state that permits gay unions and does not discriminate against such unions in conferring “marital” benefits. The specific issue the court decided was whether the label “marriage” could attach to heterosexual but not homosexual partnerships. Quite properly, the court ruled that it could not. That’s a narrow but important step in the right direction. But it does not settle the more significant question whether states may grant benefits to heterosexual couples while granting less or no benefits to homosexual couples.
In fact, there’s a negative aspect of the court’s ruling, which essentially declared Prop 8 unconstitutional because California went further than other states in allowing civil unions. The court held there’s no rational basis for allowing such unions but requiring that they carry a different label. That’s quite different from invoking the Equal Protection Clause to forbid a state from denying gays a right to the benefits of marriage. That issue didn’t arise because California grants such benefits to gays. Regrettably, other states may be dissuaded from following the California civil union model because their voters wish to limit the definition of “marriage” to exclude gays. In this instance, the better may become the enemy of the good.
Appeals Court Upholds Gay Marriage, Sort Of
Today’s victory for equal liberty was narrow, but important nonetheless.
All that Prop 8 did was to deny gay couples the right to have their relationships labeled “marriage,” without any effect on the rights, privileges, and responsibilities attending that marital designation (which legal incidents California had already granted to gays who entered into civil unions). As the court noted, there is no purpose in denying the use of the word “marriage” other than “to lessen the status and human dignity of gays and lesbians in California.”
Unfortunately, this technically good result might create perverse incentives for states who wish to give gay people substantive but not symbolic equality: the court did not say whether government can still give limited or no rights to gay unions, as long as it doesn’t give everything except the word “marriage.”
But that just goes to highlight the messiness inherent in government involvement in a given policy area: were government out of the marriage business altogether, courts wouldn’t have to split hairs and legislatures wouldn’t have to gnash teeth.
Let people decide for themselves how they want to live and whose recognition they value. In the meantime, this case may be complete — the already hesitant Supreme Court may refrain from reviewing such a narrow ruling (which the Ninth Circuit could still take up en banc) – but the controversy will not soon end.
Our Constitution Is Out of Step with the Rest of the World
Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?
Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:
“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”
To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.
It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.
The Circuit Court Ruling on Proposition 8
A three-judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same-sex marriage — enacted in 2008 in a popular vote on Proposition 8 — violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a Reagan-Bush appointee, that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court.
The American Foundation for Equal Rights is the sponsor of the case, Perry v. Brown (originally Perry v. Schwarzenegger). Cato Institute chairman Robert A. Levy is co-chairman of AFER’s Advisory Board. He and co-chair John Podesta wrote in the Washington Post in 2010:
Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, Loving v. Virginia, ended bans on interracial marriage in the 16 states that still had such laws.
Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law…. The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.
Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at this Cato Institute forum. And Levy also wrote about the case in this New York Daily News column.
In this 7-minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law:
Milwaukee Man Shoots Armed Robber
A Milwaukee man only recently acquired his permit to carry a concealed handgun and then found himself in the middle of an armed robbery. As the robber threatened a store clerk with a shotgun, the permit holder was able to draw his weapon and shoot the culprit. The Milwaukee District Attorney said: “He disrupted an act that potentially exposed himself and others to great bodily harm.”
Last week, Cato released a new study concerning the frequency with which citizens use guns in self-defense, along with a map to track such events. We’ve already received many suggestions from readers all over the web and we’ll be updating our map regularly.
(H/T Ann Althouse)
E.J. Dionne on Campaign Finance as Class Warfare
E.J. Dionne was in high dudgeon at the Washington Post this morning over Citizens United, the Supreme Court’s January 2010 campaign finance decision that ever since has driven the Left into fits of apoplexy. Taking his cue from Obama’s infamous State-of-the-Union condemnation of the Court shortly after the decision came down, plus the class warfare meme at the core of Obama’s reelection campaign, Dionne attacks not only the Court’s wisdom but its motives:
A more troubling interpretation [than “naiveté”] is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.
Indeed, the Court’s decision “should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents,” Dionne continues. Pointing to recent state legislation aimed at ensuring electoral integrity, such as voter ID laws, he charges that “conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other.”
Reading this screed you’d think that the moneyed classes, including corporations, were all on the Right. Yet as the Post itself reported last fall, “despite frosty relations with the titans of Wall Street, President Obama has still managed to raise far more money this year from the financial and banking sector than Mitt Romney or any other Republican presidential candidate.” Indeed, “Obama has outdone Romney on his own turf, collecting $76,600 from Bain Capital employees through September – and he needed only three donors to do it.”
So let’s get that white-hat/black-hat silliness out of the way and turn to the charge that the Court “set out to remake our political system by fiat.” The charge, if you read the majority’s opinion, is preposterous on its face. Only Justice Stevens has clung to the idea that money is not speech. (Want proof that it is? How much speech have you heard from the presidential campaign of former Louisiana Governor Buddy Roemer, who accepts no contributions over $100?) Well if money is speech, then the First Amendment tells us, straightforwardly, that “Congress shall make no law abridging the freedom of speech.”
Regrettably, despite that simple imperative, the Court has allowed numerous restrictions on the contributions side of the campaign finance ledger. But in Citizens United it opened the door to those who speak through their corporations or unions (the Left’s outrage is directed only to the corporations side of the decision, of course), provided the spending is not coordinated with the candidate. Thus, far from having torn down “a century’s worth of law” – Dionne alludes to the 1907 Tillman Act, which banned corporations from giving directly to candidates – Citizens United simply repealed a provision of the 1947 Taft-Hartley Act that prohibited corporate and union expenditures on independent, non-candidate coordinated campaigns.
But Dionne’s confusion doesn’t end there. Like almost every other Leftist, he attributes the rise of super PACs, his main target, to the decision in Citizens United. But it was the March 2010 DC Circuit’s decision in Speech Now v. FEC that brought about those entities. And almost all super PACs are funded by individuals, not corporations or unions. What Speech Now did was lift the ban on individual contributions of more than $5,000 when individuals get together to speak through Political Action Committees that are independent of candidates.
Dionne abhors those PACs, of course. So do the candidates, because they have no control over what “their” PACs say. (“Save me from my friends!”) Far better it would be if contributors were able to give directly to a candidate’s campaign. This is a big country, with over 300 million people and millions of corporations and unions. Are we really to believe, with so many potential contributors, that candidates for federal office would be easily bought and sold if that were allowed? Well in states with few campaign finance restrictions for state offices – where the number of potential contributors is substantially smaller – the evidence simply does not support the wild charges of corruption that so animate the Dionnes of the world. But what is evidence when your real agenda is class warfare?
As It Turns Out, Money Is Speech
Those who advocate for more restrictions on campaign finance generally practice a populist politics. They fulminate against the influence of money, demonize donors, and ascribe all the nation’s problems to Citizens United. Once you have read an example such reformist rhetoric, you have read all of them. (But if you must read more, here’s E.J. Dionne’s recent, especially over-the-top offering in the genre).
But not all critics of campaign finance are so intellectually empty. Consider the recent op-ed by liberal law professor Geoffrey Stone. He addresses the question: “Is money speech?” For the conventional reformer, of course, money is not speech. Some even wish to amend the Constitution to recognize what they take to be the obvious truth that money is not speech. Stone shows why they are wrong. He remarks, “Not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech.”
Stone says the correct question to ask is “When should the government be allowed to regulate political contributions and expenditures — even if they are speech?”
Regarding expenditures, the Supreme Court has for some time answered this question with “never.” Limits on spending abridge the freedom of speech. That answer makes sense. If any speech implicates “the freedom of speech,” political speech does. If spending funds political speech, the “make no law” admonition in the First Amendment applies to such spending.
The Court has also been especially hostile to government regulations of the content of speech. But campaign finance regulations are always content-based. Most seek to advance a partisan cause expressed in speech. Others seek to suppress speech critical of current officeholders. The rest hope to cut funding to speech that they see as ideologically “incorrect.”
Let’s face it: few would care about campaign finance regulations if such rules did not give hope of suppressing speech they disdain and thereby the triumph of a cause they hold dear. Campaign finance regulations should always be suspect in a nation that values in fact as well as words “the freedom of speech.”
The ‘Law of Nations’ Is What It Was in 1789
One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations” — an old way of saying “international law” – and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law.
Kiobel v. Royal Dutch Petroleum presents the question of whether, under the ATS, the law of nations can be applied against an entity that is not a natural person: a corporation. In this case, 12 Nigerians sued Royal Dutch and its Shell subsidiaries, alleging that Nigerian soldiers committed human rights abuses on the companies’ behalf between 1992 and 1995, purportedly in response to demonstrations against oil exploration.
The district court dismissed most of the claims but let certain others proceed. The Second Circuit dismissed the case entirely, holding that the ATS’s jurisdictional grant does not extend to cases against corporations, which are not liable for crimes under the law of nations. The Supreme Court agreed to review the case.
Cato has now filed a brief arguing that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant. This interpretation, supporting the Second Circuit’s ruling, maintains the Constitution’s separation of powers — which gives Congress the power to determine the scope of federal courts’ jurisdiction. Allowing courts to expand their jurisdiction without Congress’s consent would create a “democracy gap” that would be particularly serious here, where the case involves issues of foreign affairs that are appropriately the province of the political branches.
The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.
In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”
Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.
The Supreme Court will hear oral argument in Kiobel v. Royal Dutch Petroleum on February 28.
Thanks to legal associate Anastasia Killian for her help with this blogpost.
New Cato Study: Tough Targets
Today, Cato is releasing a new study, Tough Targets: When Criminals Face Armed Resistance from Citizens, by Clayton Cramer and David Burnett. The paper makes use of a news report-gathering project to explore in more detail how Americans use guns in self-defense.
The paper makes many excellent points, but I’ll mention just three here. First, the average person tends to imagine that these self-defense situations involve criminals getting shot. Such cases do occur, but the overwhelming number of self-defense cases involve situations where the gun is never fired.
The second point relates to the first. The average person usually does not hear about defensive gun cases because news media organizations do not consider the incidents worthy of coverage. If a burglar runs away from a break-in when he discovers that someone is at the home and is armed, it may only garner a terse mention in the paper, if it makes the newspaper at all. With no shot fired, no injuries, and no suspect in custody, newspeople typically decline coverage. The point here is not to criticize the news media’s handling of such incidents–rather it is just to remind readers that we tend to hear about criminals using guns to perpetrate crimes, but we do not hear about many self-defense cases. In this milieu, it is understandable why many people would develop negative opinions about guns.
Third, when a gun owner does shoot a rapist or is able to hold a burglar at gunpoint until the police arrive on the scene, it is very likely that more than one crime has been prevented. That’s because had the culprit not been stopped, he very likely would have targeted other people as well.
Gun control proponents stress the idea of harm reduction. They say the enactment of firearm regulations will reduce accidents and the criminal use of guns. But if policymakers are truly interested in harm reduction, they must consider the number of crimes that are thwarted by gun owners. Each year gun owners prevent a great deal of criminal mayhem–murders, rapes, batteries, and robberies. Tough Targets gathers dozens and dozens of examples of ordinary people using guns to stop criminal attacks. The defensive use of guns happens much more often than most people realize.
In addition to the paper itself, we have a new page on the Cato web site that will track, to the extent we can, defensive gun cases around the country.
For more information, listen to a podcast interview with co-author Clayton Cramer, or see related Cato scholarship.
A Brewing Institutional Crisis in Panama
Panama is in turmoil due to the efforts of President Ricardo Martinelli to resurrect a defunct specialized court within the Supreme Court that would allow him to pack that body and possibly pave the way for his reelection.
First, some context: The nine-Justice Panamanian Supreme Court is divided in four specialized courts dealing with specific areas of the law (civil, criminal, administrative and general government business). The first three specialized courts have 3 justices each, while the fourth one (dealing with general government business) is formed by the presidents of each of the three other specialized courts.
There used to be a Fifth Court dealing with constitutional issues. However, in 1999 Congress passed a law that abolished that body. Now, constitutional cases are dealt by the nine-Justice Supreme Court as a whole.
Last year the Supreme Court, whose chief justice is a close associate of Martinelli, ruled that the law abolishing the Fifth Court was illegal. This created a legal vacuum since nobody knows for sure whether that means that the old Fifth Court should be reinstated or a new one should be created.
Martinelli seized on the controversial ruling by the Supreme Court and introduced a bill in Congress that would create a Fifth Court. If approved, the new court would have three new justices (appointed by Martinelli) and would deal with constitutional issues, one of them being the constitutionality of presidential term limits. The Panamanian Constitution currently bars a sitting president from running for a consecutive term. The president has to step out for two terms before running again for office. Many in Panama fear that Martinelli’s ultimate goal with the Fifth Court is to get rid of term limits.
Let’s not forget that a similar ploy was recently used by Daniel Ortega in Nicaragua to run for reelection despite the Constitution explicitly barring him from doing it. There, a friendly Supreme Court ruled that presidential term limits were unconstitutional and thus enabled Ortega to run again (and win the election).
Despite enjoying a large majority in Congress, where Martinelli has bought off many lawmakers, the opposition was able to filibuster the bill creating the Fifth Court. However, thanks to the nebulous ruling by the Supreme Court last year, Martinelli is now threatening with appointing the 3 new justices even without a law passed by Congress. A constitutional crisis seems inevitable.
A recent poll published by the daily La Prensa showed that 70 percent of Panamanians regarded Martinelli as “authoritarian” and 73 percent were concerned for the future of democracy their country. Amid strong criticism for his autocratic tendencies, for his attacks against freedom of speech, and for using tax audits to persecute his political opponents, the Fifth Court affair certainly shows that Ricardo Martinelli is the most dangerous man for democracy and rule of law in Central America after Nicaragua’s Daniel Ortega.
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