Playing Chicken Again
As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.
This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that — it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.
The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.
The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard — commissions for Muslims in America, civilian trials for everyone else — is counterproductive when it comes to defeating terrorist recruiting.
I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Gun Rights Secure, Liberty Less So
This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments. Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).
From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.
This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.
In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution. It is an even greater shame that it is wasting this chance to use guns to protect liberty.
Filed under: Government and Politics; Law and Civil Liberties
Monday Links
- Countdown: A quick rundown of some of the best (and worst) ideas for health care reform.
- The case for high-deductible health insurance: “Of every dollar spent on health care in this country, just 13 cents is paid for by the person actually consuming the goods or services….As long as someone else is paying, consumers have every reason to consume as much health care as is available….This all but guarantees that health care costs and spending will continue their unsustainable path. And that is a path leading to more debt, higher taxes, fewer jobs and a reduced standard of living for all Americans.”
- McDonald v. Chicago: A new Supreme Court battle over the right to bear arms.
- Reality: The real housing crisis was the bubble, not the bust. “Washington must stop and re-learn basic economics. First, when you’re in a hole, stop digging. In the case of housing, as a country, we built too much. The cure is to build less.”
- Podcast: “Charge Back, Forward on Financial Regulations” featuring Mark A. Calabria.
Monday Links
- Progressives are outraged that the Supreme Court overturned limits on corporate political advertising last month. Here’s why they should be rejoicing.
- Policy forum today at Cato: “Will the Senate Health Care Bill Keep the Poor Poor?” Click here to watch live from 12:00-1:30 PM EST.
- Idea of the day: Cut the Commerce Department to boost real business.
- Harvard economist Jeffrey Miron: “Economists find weak or contradictory evidence that higher government spending spurs the economy. Substantial research, however, does find that tax cuts stimulate the economy and that fiscal adjustments—attempts to reduce deficits by raising taxes or lowering expenditure—work better when they focus on tax cuts.”
- Cato’s Ilya Shapiro wrapping up daily dispatches from the Winter Olympics in Vancouver. More here.
- Podcast: “How Many Libertarians?” featuring David Boaz.
Filed under: Cato Publications; General; Government and Politics; Health, Welfare & Entitlements
Democracy against Free Speech?
A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.
Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.
I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).
The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.
Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:
- Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
- 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
- 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
- 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
- majorities thought “the government should be allowed to require television and radio broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
- That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.
In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.
These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.
The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.
Filed under: Government and Politics; Law and Civil Liberties
Congress Goes After Citizens United
Snowstorm notwithstanding, Sen. Charles Schumer and Rep. Chris Van Hollen introduced legislation in response to the Citizens United decision. A summary of their effort can be found here.
Some parts of the proposal are simply pandering to anti-foreign bias (corporations with shareholding by foreigners are prohibited from funding speech) and anger about bailouts (firms receiving TARP money are banned from funding speech). Government contractors are also prohibited from independent spending to support speech. We shall see whether these prohibitions hold up in court. The censorship of government contractors and TARP recipients will likely prove to be an unconstitutional condition upon receiving government benefits.
Despite Citizens United, Congress will try to suppress speech by other organizations. Schumer-Van Hollen relies on aggressive disclosure requirements to deter speech they do not like. CEOs of corporations who fund ads will be required to say they “approve of the message” on camera at the end of the ad.
Citizens United upheld disclosure requirements, but it also vindicated freedom of speech. The two commitments may prove incompatible if Schumer-Van Hollen is enacted. This law uses aggressive mandated disclosure to discourage speech. We know that members of Congress believe this tactic could work. Sen. John McCain said during the debate over McCain-Feingold that forcing disclosure of who funded an ad will mean fewer such ads will appear. In other words: more disclosure, less speech. Just after Citizens United, law professor Laurence Tribe called for mandating aggressive disclosure requirements in order to “cut down to size” the impact of disfavored speech.
During the next few months the critics of Citizens United may well show beyond all doubt that the purpose of its disclosure requirements are to silence political speech. In evaluating the constitutionality of Shumer-Van Hollen, the Court could hardly overlook such professions of the purpose behind its disclosure requirements.
One other part of Schumer-Van Hollen is probably unconstitutional. They would require any broadcaster that runs ads funded by corporations to sell cheap airtime to candidates and parties. Several similar attempts to equalize speech through subsidies have recently been struck down by the Court. This effort would share a similar fate.
All in all, Schumer-Van Hollen is a predictable effort to deter speech by disfavored groups. Congress is reduced to attacking foreigners and bailout recipients while hoping that mandated disclosure will discourage speech. The proposal law suggests a comforting conclusion. For most Americans, Citizens United deprived Congress of its broadest and most effective tools of censoring political speech.
Filed under: Government and Politics; Law and Civil Liberties
Socialists Shouldn’t Have to Admit Libertarians Into Their Club
Hastings College of the Law, a public law school in California, has a policy prohibiting discrimination on the basis of “race, color, religion, national origin, ancestry, disabilities, age, sex or sexual orientation.” In 2004, the Christian Legal Society, a religious student organization at the school, applied to become a “recognized student organization” — a designation that would have allowed CLS to receive a variety of benefits afforded to about 60 other Hastings groups. While all are welcome to attend CLS meetings, CLS’s charter requires that its officers and voting members abide by key tenets of the Christian faith and comport themselves in ways consistent with its fundamental mission, which includes a prohibition on “unrepentant” sexual conduct outside of marriage between one man and one woman.
Hastings denied CLS registration on the asserted ground that this charter conflicts with the school’s nondiscrimination policy. CLS sued Hastings, asking for no different treatment than is given to any registered student group. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hastings’s refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment.
Yesterday Cato filed an amicus brief supporting CLS — authored by preeminent legal scholar Richard Epstein – in which we argue that CLS’s right to intimate and expressive association trump any purported state interest in enforcing a school nondiscrimination policy. While Hastings may impose reasonable restrictions on access to limited public forums, it should not be allowed to admit speakers with one point of view while excluding speakers who hold different views. Our brief also discredits Hastings’s assertion that its ability to exclude the public at large from school premises renders their content-based speech restrictions constitutional.
We urge the Court to safeguard public university students’ right to form groups – which by definition exclude people – free from government interference or censorship. (Of course, our first choice would be for the government to get out of the university business and our second choice would be to stop forcing taxpayers to pay for student clubs, but given those two realities — as in the case at hand – freedom of association is the way to go.)
Filed under: Government and Politics; Law and Civil Liberties; Political Philosophy
When Individuals Form Corporations, They Don’t Lose Their Rights
The blogosphere has been abuzz on the heels of the Supreme Court’s landmark Citizens United opinion. Hysteric criticisms of the speculative changes to our political landscape aside — including the President’s misstatements in the State of the Union — one of the most common and oft-repeated criticisms is that the Constitution does not protect corporations. Several “reform” groups have even drafted and circulated constitutional amendments to address this concern.
This line of attack demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”
Well of course they aren’t — but that’s constitutionally irrelevant: Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights. Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.
Or how about Fifth Amendment rights? Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?
So corporations have to have some constitutional rights or nobody would form them in the first place. The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.
That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.
In any event, as Chief Justice Roberts said in his Citizens United concurrence: “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” Justice Scalia makes the same point, explaining that the text of the Constitution “makes no distinction between types of speakers.” The New York Times isn’t “an individual American” but its speech is still protected under the First Amendment (regardless of any exemption for “media corporations” — whatever those are in a world where conglomerates own interests not limited to media, not to mention the advent of blogs and other “new” media).
A related line of attack is that individuals acting through corporations should be denied their freedom of speech because corporations are “state-created entities.” The theory goes that if a state has the power to create corporations, then it has the power to define those entities’ rights. Somin rebuts the weakness of this argument here, correctly pointing out that nearly every newspaper and political journal in the country is a corporation.
In short, the contention that the First Amendment does not protect corporations ignores the fact that there is no constitutional difference between individuals and groups of individuals, however organized. Still, I give credit to the groups who are proposing constitutional amendments that would limit corporate rights: at least they recognize that, after Citizens United, there is no basis upon which to argue that the First Amendment does not protect corporate political speech. The Free Speech Clause, after all, is blind as to the nature of the speaker.
For further concise refutations of the basic arguments against Citizens United, see here (points 3-6 address issues relating to corporations and their rights).
Filed under: Government and Politics; Law and Civil Liberties
The Unrelenting Battle over Campaign Finance
Following on the heels of November’s gubernatorial elections in Virginia and New Jersey, the loss of Ted Kennedy’s Senate seat in Massachusetts two weeks ago was a devastating blow to Democratic Party hopes. But it must have been especially devastating to President Obama, who promised an adoring University of Missouri crowd, just before he was elected, that “We are five days away from fundamentally transforming the United States of America.” Yet it would appear, judging from the unrelenting commentary and from the president’s own behavior last week, that those losses pale in comparison to the government’s loss before the Supreme Court two days after the polls closed in Massachusetts. For 11 days now the wailing over the Court’s Citizens United decision has not ceased. Indeed, campaign finance regulation, intimately connected to incumbency protection, is a bedrock principle of modern liberalism.
Exhibit A is E.J. Dionne’s column today in the Washington Post — his second in a week on the subject. Last week, railing against the “reckless decision by Chief Justice John Roberts’s Supreme Court and the greed of the nation’s financial barons,” he charged the Court with “an astonishing display of judicial arrogance, overreach and unjustified activism” and urged “a new populist-progressive alliance” to demand “legislation to turn back the Supreme Court’s effort to undermine American democracy” — including a bill prohibiting political spending by corporations who hire lobbyists, no less.
Today, however, Dionne has last Wednesday’s unseemly episode of Obama rebuking a silent Supreme Court to work with. And, like the immortal Daniel Schorr on yesterday’s NPR Sunday Morning, he puts all the blame on Justice Samuel Alito for seeming to mouth, silently, “Not true” when Obama, before all assembled and a watching nation, tendentiously misstated the holding in Citizens United. But Dionne doesn’t stop there, of course. No, he thanks Alito. You see, “Alito’s inability to restrain himself” brought a long-ignored truth to the nation: “The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.” Likening Obama’s behavior to President Reagan’s writing a 1983 article criticizing Roe v. Wade — I didn’t make that up – Dionne chastises conservatives for their double standard: “Reagan had every right to say what he did. But why do conservatives deny the same right to Obama?” Where does one begin?
Turning finally to “the specifics of Obama’s indictment,” Dionne tries to defend the president’s misstatements, but unfortunately the precision ordinarily expected of such a wordsmith seems to have deserted him. Citing Obama’s claim that the Court had reversed “a century of law” and also opened “the floodgates for special interests — including foreign corporations,” Dionne writes that ”Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns.” That’s not what the Tillman Act did: It banned direct corporate contributions to campaigns. Only in 1947 were independent campaign expenditures by corporations (and unions) banned — and more clearly so only in 1990, which is the ban the Court overturned. Moreover, pace Obama, foreign corporations are still specifically banned from contributing anything of value “in connection with a Federal, State or local election.” Thus, in claiming, without more, ”that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures,” Dionne seems simply to be passing along what he’s read or heard from others. Nothing in the Court’s opinion warrants that conclusion.
But it’s Dionne’s larger claim that most demands an answer — that an “activist” Roberts Court, exercising “raw judicial power,” is ”ignoring precedents and the wishes of the elected branches of government.” That’s hardly the definition of “activism.” That’s what the Court should be doing, where it’s warranted by the Constitution, whether the Court is defending the rights of blacks to attend unsegregated schools or of gays to sexual freedom or of corporate owners, the shareholders, to engage in political speech through their corporation consistent with their articles of incorporation and by-laws. The claim that corporations aren’t people is a red herring. Corporate owners are people, and their right to speak can take many forms. Fortunately, we have a First Amendment, which protects not only corporate owners but E.J. himself from all but the error of his ways.
[Cross-posted at Politico Arena]
Filed under: Government and Politics; Law and Civil Liberties
Post-State of the Union Links
- Cato experts give Obama’s State of the Union a video fisking.
- Are we watching the History Channel or something? Because this new president sure does sound a lot like the old one.
- Time for the SOTU fact check: Cato experts put some of President Obama’s core State of the Union claims to the test. Here’s what they found.
- Flashback to February 2009: Gene Healy on how “the president talks too much.“
- During this year’s SOTU, President Obama criticized the Supreme Court decision in the Citizens United case. Today’s podcast examines the Court’s ruling.
An Appalling Breach of Decorum
This morning, Politico Arena invites comments on Obama’s SOTU attack on the Supreme Court.
My response:
I join my Arena colleagues, Professors Bradley Smith and Randy Barnett, in condemning the president’s remarks last night singling out the Supreme Court for its Citizens United decision last week, which overturned law that the government itself admitted would even have banned books. Not only was Obama’s behavior an appalling breach of decorum, but he didn’t even get his facts right. As Brad, former FCC chairman, noted in his Arena post last night, and a bit more fully here, the decision did nothing to upset law that prohibits foreigners, including foreign corporations, from contributing anything of value to an American election. Obama, the sometime constitutional law professor, should have known that. At the least, his aides had plenty of time to research the question before he spoke. This is just one more example of the gross incompetence or, worse, the indifference to plain fact that we’ve seen in this administration.
But it’s the breach of decorum that most appalls. By constitutional design, the Supreme Court is the non-political branch of government. Like members of the military, Supreme Court justices are invited to the State of the Union event, but they do not stand and applaud when the president makes political points that bring others to their feet. For the president to have singled the justices out for criticism, while others around them stood and applauded as they sat there still, is simply demagoguery at its worst. I would not be surprised if the justices declined next year’s invitation. And Obama wanted to change the tone in Washington? He sure has.
NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy
Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)
The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.
Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).
I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.
Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.
If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.
Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.
Don’t Fear the Foreigner
You might have heard that the Citizens United decision will allow foreign corporations to become involved in American campaigns. You might have heard that from the President, in fact, whose speech decrying the decision said foreign corporations “may now get into the act” of pursuing their “special interests” in American politics.
Not true. Justice Kennedy explicitly says the Court did not decide whether Congress has the power to prevent “foreign individuals or associations from influencing our Nation’s political process.” Nothing in Citizens United prevents Congress from prohibiting such political spending by foreign corporations. The Supreme Court might uphold such a law or it might strike it down. The upholding or the striking down of such a law was left for another day. (Other parts of existing laws would also probably preclude foreign nationals or corporations from getting involved in American elections, as Brad Smith argues).
I don’t think I like the new populist Obama as much as I did the old rationalist Obama. The old Obama would have read a Supreme Court opinion before talking publicly about it.
Thursday Links
- The back story behind the Citizens United free speech case. (Or if you don’t have time to read about it, this short video clip explains it all.)
- RomneyCare: Obama’s OTHER Massachusetts problem.
- Tim Geithner’s lifelong love of bailouts.
- How substantial and meaningful change can be brought to Haiti.
- Podcast: “Supreme Court Affirms First Amendment” featuring John Samples.
Democracy Will Survive Citizens United
At Politico Arena, today’s focus is on the Court and campaign finance.
My comment:
Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us
Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.
As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”
While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.
After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.
No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? — be they one person, two people, or a large group?
Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates — so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.
In short, the Citizens United decision has strengthened both the First Amendment and American democracy.
For more background on the case, here’s a primer:
Is Justice Kennedy Libertarian?
Early last year, Cato hosted a book forum for Helen Knowles’s The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. This really is a remarkable book, with an ambitious goal: trying to make coherent sense of the oft-frustrating “swing justice.” And now I have a lengthy review of it that just came out in the latest issue of the Harvard Journal of Law & Public Politics (where Bob Levy also has an essay, on the aftermath of District of Columbia v. Heller).
Knowles makes the provocative argument that Justice Kennedy’s jurisprudence is “modestly libertarian.” I think that this argument, in the limited ways Knowles makes it — with respect to free speech, equal protection, and individual dignity — is probably sound. Still, that deduction is a small discovery considering the broad swath of Supreme Court jurisprudence. Moreover, it says little about whether Kennedy is faithful to the Constitution, which is a stronger measure of libertarianism (as Randy Barnett described at Cato’s 2008 Constitution Day Conference in his B. Kenneth Simon Lecture in Constitutional Thought, reprinted in the latest Cato Supreme Court Review).
Here’s how I conclude:
Good on speech and race, bad on government power, and ugly on abortion and the death penalty, Justice Kennedy is a sui generis enigma at the heart of the modern Supreme Court. However new Justice Sonia Sotomayor affects the Court’s dynamics, it is unlikely that Justice Kennedy will shift from his role as the deciding vote in most controversial cases. Helen Knowles has thus done us a great service in deconstructing Justice Kennedy’s faint-hearted libertarianism and helping us better understand the “sweet mystery” of his jurisprudence.
For details on how I reached this conclusion, read the full review (which you can also download from SSRN). I should add that Knowles’s book is more useful to us Court-watchers than Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty — whose shortcomings I won’t detail but instead refer you to Eric Posner’s thoughtful critique.
Filed under: Law and Civil Liberties; Political Philosophy
Keeping Pandora’s Box Sealed
In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?”
If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“ As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”
Going beyond the title, there are several errors in the piece, which I will briefly recap:
First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal — and thereby a reinvigoration of Privileges or Immunities — would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.
Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.
To set the record straight, Josh and I are working on an op-ed — not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.
Are You a Criminal? Maybe You Are and Don’t Know It
Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court. When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,
[T]here are 150 million workers in the United States. I think possibly 140 [million] of them flunk your test.
There it is. Some of us have been trying to draw more attention to the dangerous trend of overcriminalization. Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.” And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors). Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers. Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.
For more on this subject, go here, here, and here.
Tuesday Links
- Patrick Michaels on Copenhagen: “Expect a lot of heat, not much light, and a punt right into our next election.”
- Why the Supreme Court should strike down the Public Company Accounting Oversight Board: “Imagine a government agency with the authority to create and enforce laws, prosecute and adjudicate violations, and impose criminal penalties. Then throw in the power to levy taxes to pay for all the above. And for good measure, make the agency independent of political oversight.”
- Discussing Hayek over at Cato Unbound: Four problems with spontaneous order.
- Podcast: “Obama’s Patriot Act Duplicity.”
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