Friday, April 4, 2014

Money Talks, But Too Loudly

Wednesday's decision by the Supreme Court in the latest campaign-funding case, McCutcheon v. FEC, has prompted much valuable commentary, but maybe it is worth adding a few words concerning the tacit rejection of Justice Holmes's constitutional views and methods. Justice Breyer in his opinion for the dissenters quotes Holmes's famous dissent in Abrams v. United States (1919). The reason to limit campaign contributions, Breyer says, is that by amplifying the voices of a few wealthy individuals, large expenditures can wreck the "marketplace of ideas" on which our democracy depends. The phrase, for which no attribution was needed or given, of course is Holmes's image for the peaceful discourse on which constitutional government depends.  He was not interpreting the First Amendment, he was expressing a structural principle of the Constitution. Even if the Sedition Act, at issue in the Abrams Case, was consistent with the Constitution, and even if throwing leaflets from a window, urging a general strike, could be understood to pose a "clear and present danger" of harm to the nation's efforts in wartime, the draconian sentences imposed in the case showed that the defendants were being punished, not for what they said or did, but for the beliefs that they held. In order to ensure that republican government functions as intended, the Constitution requires some restraints on speech and on the press: no megaphones in enclosed spaces, please; no false shouts of "fire" in a theater, causing a panic.Chief Justice Roberts expressly rejects this manner of deciding cases that arise under the First Amendment, at least so far as a law is said to be necessary to protect the integrity of the political process:  
[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. 
The rich and the poor alike are free to give money to candidates and parties, no disagreement there.  Money talks. But no right is absolute, and we limit freedom of speech and association in numberless ways, for the good of the community. The difficulty with Justice Roberts' opinion is that it lays out a doctrine, based largely on the language of his own prior opinions, that only a clear and present danger of selling government favors, or the appearance of doing so, can justify limitations on political expression or association. 

Justice Holmes famously said that the clear and present danger of a crime would justify punishment of otherwise protected speech. In Buckley v. Valleo the Court upheld portions of the campaign finance law against its first challenge, saying that the risk of bribery, and the appearance of bribery, was sufficient for the government to impose limits on individual contributions. Rogers' doctrine overrules that precedent and turns Holmes on his head. It makes the equivalent of bribery the only justification for limiting campaign contributions. Justice Breyer energetically points out that this is a new doctrine that is not justified by any precedent, not even by Roberts' own past opinions. It is a legislative pronouncement for future application. One imagines briefs are already being written, arguing that the few remaining limits on contributions are unjustified, since a Congressman is not likely to be bribed solely by a gift of $2600. . . .

Among the many legal questions raised by Roberts' doctrine is the awkward circumstance that in this case it rests upon what he claims to be a factual refutation of the purpose of the law in question. But more about the doctrine and the supposed facts on which it rests, later.

Tuesday, April 1, 2014

"Law in Science and Science in Law"

That was the title of a talk Holmes gave to the New York Bar Association on January 17, 1899. He had already given a copy or the prepared talk to the Harvard Law Review, where it appeared without delay. The burden of the talk was that explanations of law in the modern world--in the dawning twentieth century--explanations should be based on historical facts, rather than the doctrines and systems of the past. Law like any other human institution changes, and to understand its present state we must known its point of origin, and the forces that continued to shape it. ctAlthough less well known than some other of his addresses, this was the founding document of "legal realism," and of Holmes's own Malthusian beliefs. Holmes was wrong about the forces that shaped society and its laws, largely because he believed the supposedly scientific, evolutionist doctrines of his day, which rested upon a fallacy, the asumption that conflict between races and classes was the force shaping society and law. Today, we call this fallacy "social darwinism" although Charles Darwin had nothing to do with it. In Holmes's day it was linked to an array of pseudo-sciences, the "scientific" anthropology that claimed to have identified criminal proclivities in the dimensions of a skull, and the "eugenic" doctrine that character traits could be bred into the people of a nation by limiting the reproduction of disfavored. These were "progressive" doctrines, but had no relation to the progressive politics of today--they were thought to be progressive because they were based on the latest, scientific thought. 
We may doubt the doctrines of social evolution, or even that progress has been made, but it does seem that we have better tools today for determining historic facts, and indeed for determining facts in general. A question does come to mind, whether we might be able to make better use of genuine scientific methods in determining what is fact, historic fact and evidentiary fact, now that DNA analysis and Bayesian probability have overturned so many of the superstitions of the past. We have evidence, if not absolute proof, that Thomas Jefferson did father Sally Hemmings' children, and we have Annette Gordon-Reed's careful and thoughtful studies of evidence and proof concerning such questions. Shouldn't we address law, in theory and practice, with modern tools of explanation and proof?  

Thursday, March 27, 2014

Facts in the Case

Hon. Bernard A. Friedman, a federal district court judge in Detroit, has just decided that Michigan's ban on same-sex marriages violates the Constitution of the United States. What would Holmes say?

He could not have imagined the circumstances under which such a question came before a federal court, and Judge Friedman's reasoning would have been wholly unfamiliar to him; yet Holmes would have something to tell us about the case. Holmes thought the law of the future would be based on scientific understanding. Judge Friedman is one of many district court judges who are taking a hard look at the factual basis of statutes. He held that Michigan's same-sex marriage ban was not "rationally related to any conceivable legitimate governmental purpose." That sounds harsh and extreme, but it is lawyer's language. In ordinary speech, one would say that the state's witnesses failed to provide sufficient evidence that there was a factual basis for the claimed purpose of the state's marriage ban.

A state government may not restrain a person's liberty without some acceptable purpose. In this case, the State of Michigan forbade two women from jointly adopting their three children, solely because the women were not and could not be married to each other. Judge asked the State of Michigan to justify its refusal to accept a marriage between the women, and the state's witnesses were unable to express any acceptable reason for discriminating against the couple, solely because of their sex. 
The sponsors of marriage bans in state after state claim that same-sex marriages are bad for children. This has been an effective advertising strategy in support of popular initiatives. The first important defeat for that strategy was suffered in California, in the Proposition 8 case, just under four years ago, when the factual basis of this claim was challenged. In that case, Judge Vaughan Walker held a trial, to determine whether there was a factual basis for any of the claims made in support of California's marriage ban. After making careful findings of fact, he concluded that history and social science supported the conclusion that children raised by same-sex couples were no different from those raised in heterosexual marriages, and there was some evidence that recognizing the marriages of same-sex partners would be beneficial to the children that they raised. Moral or religious objections to homosexuality were not acceptable reasons for legal discrimination against same-sex couples. Only some material purpose could justify infringing constitutional rights: the state needs a reason before it can discriminate. The California marriage ban accordingly was held to lack a rational basis, and was invalidated. (Appeals were eventually dismissed by the Supreme Court on procedural grounds,and Judge Walker's opinion is no frequently cited.)

In Detroit, Judge Friedman followed Judge Walker's lead, and ordered a trial to determine whether the State of Michigan had a factual basis for the claims it made in support of its ban on same-sex marriage. Forced to present evidence, the State of Michigan offered only familiar, shopworn arguments: marriages between homosexual parents somehow would be bad for children. In the usual manner of a judge weighing evidence, Judge Friedman found the state's evidence wholly without credibility. 

What would Holmes say? Legislation, he thought, should be based on reasonable judgments about the evil to be corrected and the results to be achieved. In talks given in the 1890s he expressed the hope that the social sciences would guide lawmakers in their work. Unfortuantely, the judges of his day were offered the pseudo-science of "eugenics." The social sciences have begun to earn that title, however, and district court judges of today, whose job it is to identify facts and draw conclusions from them, are better educated in such matters and will follow Judge Walker's lead and cast a critical eye, informed by a better understanding of what counts as fact, on the claims made on behalf of invidious discrimination.

Wednesday, March 26, 2014

Corporate Consciences?

What would Holmes say about yesterday's dispiriting oral arguments in Hobby Lobby and associated cases? The justices seem to be inclined to accept the argument that a federal statute, the Religious Freedom and Restoration Act, can be interpreted to extend  religious freedom to business corporations, allowing their to refuse to pay for health insurance for their employees. The statute applies to "persons," and it seems that the Court now understands that word to mean, in every context, an entity that for most purposes (except for voting or holding office) has the rights of a human being. Sigh. This all begins with the Fifth and Fourteenth Amendments, which say that no "person" may be deprived of property without due process of law. This has always been understood to protect the property of business corporations from arbitrary confiscation, corporations having been considered by the English common law to be artificial "persons." The Supreme Court in recent years, partly to remedy its failure to give substance to the constitutional "privileges and immunities" of citizens of the United States, has imported fundamental rights enumerated in the first eight amendments into the realm protected by the "due process of law" clauses of the Fifth and Fourteenth Amendments. Consequently, human rights, and not only property rights, are protected and may not be enfringed without due process of law. It makes no sense, however, to read this modern exercise in interpretation into the old common-law concept of a property-owning corporation. Neither the Congress that approved the amendments, nor the Congress that wrote RFRA, could have meant to extend human rights to business corporations simply by using the word "persons."

Corporations today are creatures of state law, chartered for specific purposes and authorized to carry out only the purposes for which they are created. Metaphysical notions embedded in the common law of fifteenth century England should be forgotten. The common law, Holmes long ago reminded us, is not a "brooding omnipresence in the sky," it was a set of ideas derived from the decisions of English judges. The Queen of England is a corporation sole, under the English common law, so that the existence of the monarch as the embodiment of the nation is not interrupted by her death. But the corporation sole, the metaphysical extension of a human being, does not exist in American law, and certainly does not exist in state corporate licensing laws. 

Business corporations have the right under state law to own property, the Fourteenth Amendment protects that right, and Congress may enforce the amendment through appropriate legislation. But a business corporation does not have human rights, and it is absurd to think that Congress meant to confer religious freedom on a mechanism devised for the conduct of business. A corporation does not have a conscience, and does not have a right to practice a religion unless that is a purpose for which it is chartered. Religious organizations are exempt from Obamacare requirements that conflict with their purposes. The owner of a business has no claim to impose his own beliefs on those subject to the authority of his business corporation, a convenience he may use to limit his liability and to aggregate capital, but which he may not use to practice his religion, or impose it on the corporations employees.

Friday, December 20, 2013

Holmes and the New Originalists

Justice Holmes is at leisure during the holiday recess, but I am moved to protest mildly at the manner in which he is described by a leading proponent of the New Originalism, the set of doctrines whose premise is that the text of the Constitution, as understood when it was adopted, should be applied to resolve modern disputes. Lawrence B. Solum is a prominent and articulate leader of this school of thought, and is particularly distinguished by his efforts to clarify its theoretical basis. In a recent post on his Legal Lexicon blog, Professor Solum lays out the new theory as a subset of what he calls "Formalism," a hard-minded approach to law. As applied to the Constitution, it calls for application of the rules found in that text without much regard to judges' views of the purpose or wisdom of clearly stated law. He contrasts this with "Instrumentalism," which he says is the doctrine many law professors teach, and which allows a judge to interpret laws according to their presumed purpose and likely result, rather than according to the meaning of their text.  I don't want to discuss this characterization of two dominant schools of thought, but Solum appoints Justice Oliver Wendell Holmes the father of Instrumentalism, and I do object to that. 

The late Judge Robert Bork, and Justice Antonin Scalia, both contrasted their versions of originalism with the dominant jurisprudence of their day, which considered the Supreme Court a common-law court, and analyzed the manner in which constitutional rules emerged from particular decisions. Holmes is often associated with this view, which is indeed the antithesis of the New Originalism. He is one of the founders of an historical, empirical approach to determining how rules evolve from judges' decisions in particular cases. Holmes observed that the decision comes first, and justifications afterward. Judges in his view often decided on the basis of an "inarticulate premise" not clearly stated in their opinions. Later investigations of the way in which judges in practice decide cases are lumped together under the rubric "legal realism," which soon departed from Holmes's views, but that is another story. 

Holmes's jurisprudence was indeed founded on a theory, one he claimed to have derived from empirical investigation, that the only law which can be said to be enforced or enforceable is the decision of a court which authorizes the government to bring its powers to bear on particular persons. Rules to govern such decisions are derived from study of previous decisions in similar circumstances, rather than directly from the text of statutes or constitutions. Holmes did not think the opinions written by judges were good sources to look at when searching for applicable rules, it was their decisions in particular circumstances which mattered, and gave meaning to rules. Neither Holmes's historical studies nor his search among established precedents produced a theory of textual interpretation like the one Solum refers to as "Instrumentalism." Quite the contrary, the common-law tradition with which Holmes is properly identified searches for enforceable, constitutional rules in another place entirely, in the "body of precedents by which we are bound. . . ." Olmstead v. United States (1928) (Holmes, J., dissenting). 

Friday, December 13, 2013

Did Holmes Change His Mind?

     In this busy time of year, Holmes is paying less attention to our affairs, and won't have much to say for  a while. While he is otherwise occupied, I thought it might be a good moment to talk about the question raised in a fine new book by Thomas Healy, The Great Dissent, which presents us with an old conundrum: Why is Holmes given credit for founding the modern constitutional doctrine of near-absolute protection for the right to speak freely about public affairs, when he was profoundly hostile to talk of rights in general, and wrote several opinions in which he upheld criminal convictions contrary to our modern understanding of the First Amendment? 

One suggestion is that there were two incompatible strands to Holmes' thought. The first is "deference to the legislature," a disposition to allow majority votes to prevail on all questions, including those respecting rights of minorities. The second strand is a tolerance of diversity, and a conviction expressed late in his career, that free debate is essential in a democratic society. 
In the years after World War II, after Holmes had passed from the scene, his disdain for talk of natural rights, and his appalling support for the pseudo-science of eugenics, began to seem darker and more ominous than they had during his lifetime, when they were commonplaces of Progressive politics. He fell even farther out of favor in the 1950s, when his rubric, "clear and present danger," became a favorite of prosecutors in the McCarthy era. I believe it was the scholar Gerald Gunther who first suggested that Holmes had simply changed his mind. Gunther speculated that this had happened in the summer of 1919. Before that summer, Holmes had written three opinions for a unanimous Supreme Court, upholding criminal convictions of persons who opposed the war effort and the draft, while after that summer, he wrote a powerful dissent (Healy's "great dissent") in support of defendants who had been convicted of criminally seditious speech, because they had called for a general strike of workers during the war.

Various causes for this change of mind  have been suggested.  Gunther proposed the hypothesis that a young judge, Learned Hand, had persuaded Holmes to change his mind. Others have suggested Holmes' friend and colleague Louis D, Brandeis as the cause, still others have pointed to the influence of a young law professor, Zechariah Chafee, for whose work Holmes expressed admiration and pleasure. Still others have pointed to the influence of a circle of young men--Felix Frankfurter, Harold Laski, and others, whose praise meant a lot to Holmes.

Healy has collected all these suggestions into one, and propounds a hypothesis that these different influences converged in what amounted to a campaign, over the summer of 1919, to get Holmes to change his mind. The suggestion is put forward well and persuasively, with a great many citations to original documents of the time. In response to counter-arguments, Healy says that Holmes was moved to change his mind by a deep emotional need for the praise that the (comparatively) young men around him offered, that he feared would be withheld if he continued to uphold convictions for political dissent.

OK, this is turning out to be a very long post, but Healey neglects to mention any evidence or arguments to the contrary, and although he mentions my biography of  Holmes he fails to mention our disagreement. Why should this matter? Maybe it doesn't, but the First Amendment doctrines at issue are important and regularly being revisited, and it would be encouraging to know that their history is better understood,

I would like here to try to put the question objectively, to avoid the tribal arguments that so sometimes characterize discussions of questions that are politically charged, of which I too have been guilty. The folks over at the Yale Cognition Blog tell us that once a question becomes the subject of political controversy, arguments become polarized, and factual information is just slotted into the old arguments. The question of Holmes' views on the First Amendment has certainly become polarized in this way, at least among those of us who write about it, and I would like here to try to stick more closely to historic fact and legitimate inference, and avoid assembling an argument to support a predetermined position.

So, let's take a page from the Nate Silvers of the world, and perform a thought experiment. Take Holmes in the spring of 1919, as well as we can describe him in objective terms. What is the likelihood that the influences Healy describes would cause him to change his mind on the important question of constitutional protection for political speech? (You will see, I hope, that I am putting this as a question of probability, in Bayesian terms, as I somewhat dimly understand them).

To summarize briefly what I think is not in dispute: in the spring of 1919 when the Supreme Court adjourned its term, Holmes was 78 years old, a veteran of almost 55 years of law study, practice and service as a judge. Despite his age he appeared to be at the height of his intellectual powers. For the previous twelve years he had been a justice of the United States Supreme Court, but was not yet well known to the public. He was ambitious and somewhat arrogant, and very grateful for the praise of his young followers in the law. His career had been devoted to the study and practice of the English and American common law, and he had not often addressed questions arising under the federal constitution. When he did address the federal Constitution he tended to assimilate it to the common law, saying that the terms of the Constitution expressed principles derived from English common law "transplanted to American soil," and confessed ignorance of the early development of First Amendment doctrine. He usually avoided talk of "rights," which he thought were claims of transcendent principle, and preferred to speak instead about the "privileges" afforded to speech and the press in the common law. He said the phrase "clear and present danger" had emerged from his long study of the common law. Holmes supported US intervention in the First World War, and derided those who opposed both the war and the draft. At the moment in question he had just written three opinions for a unanimous Court, expressing in summary form his belief that constitutional freedom of expression was a privilege which could be defeated by a showing that it posed a "clear and present danger" of causing some harm that Congress had the power to forbid. 

The hypothesis is that criticism he heard of these views during the summer of 1919 caused him to change his mind. What are the chances that criticism from friends would cause him to change his mind over the course of the summer?

If the hypothesis is put this way, it has always seemed to me that the chances that Holmes would change his mind are close to zero. So I would bet on the null hypothesis, that there was no change. The change in language that appeared in his dissent the following fall therefore must be attributed to differences in the cases, and to the greater freedom had when speaking in dissent. That is just a bet, of course, but all  we have are probabilities.

Thursday, December 5, 2013

The New Trail of Tears

Almost a century ago, the United States government forcibly deported Native Americans from the Old Southwest, between the Alleghenies and the Mississippi. "Indian Removal" was authorized by federal statutes, and under that fig-leaf of legitimacy the Jackson and Van Buren administrations removed Indians from their homes to detention facilities, and deported them. In the last stages of this effort, the Cherokee were obliged to make their way on foot from Georgia to Oklahoma territory, a voyage that thousands did not survive.

We are in the midst of a similar deportation program in the new Southwest, from Georgia to Arizona. Two million residents of the United States, the majority of whom are Hispanic and roughly half of whom entered the United States as children, or as adults with permission, have been deported since the program was authorized in 1996. Hundreds of thousands of long-term residents, hard working, tax-paying Americans have been "removed" (that term of art has been revived). Hispanic Removal has very little to do with control of the nation's borders or immigration enforcement, but is targeted at millions of immigrants who have settled here, including those whose status as permanent residents and naturalized citizens is being revoked for minor offenses.

Three quarters of the total, 1.5 million, have been deported by the Obama Administration. Although the president has staunchly championed reform of the immigration laws, he has accepted a deeply flawed bargain with Republicans who have insisted on ever more aggressive "enforcement" of the deportation program. Secretary Janet Napolitano constructed a program in which "criminal aliens" were supposed to be deported, but Congressional Republicans demanded that 34,000 detention "beds" be filled at all times, and 400,000 immigrants deported each year. These quotas are buried in appropriations bills, and so have largely escaped notice. The quotas cannot be achieved without deeply violating the norms of due process of law, and 400,000 immigrants guilty of major crimes cannot be found each year. An out-of-control program of mass deportations has resulted, and has created a human rights crisis.

The Hispanic Removal program depends largely on state and local police, who can be deputized to carry out federal law. Few jurisdictions have been willing to turn over their law enforcement resources to the federal government, however, and the Bush Administration created through executive orders something called "Secure Communities," in which local police are required to inform federal officials of the identity of all those they detain who are suspected of lacking proper immigration or citizenship papers. Many states objected to this removal program, but the Obama Administration has made it mandatory, as the quotas for detention and deportation cannot otherwise be met.

Secure Communities, like the detention camps of Indian Removal, a program of doubtful constitutionality, is essential to Hispanic Removal. Congressional Republicans have reneged on whatever bargain Democrats thought they had made, and insist that any reforms in immigration law depend on increased and ever more cruel efforts to deport millions of immigrants; even the comprehensive reform bill passed by the Senate, S 744, in exchange for a grudging path to citizenship for some number of undocumented immigrants, would greatly expand the population subject to summary "removal" and would redouble the graft-laden system of profitable detention centers.

The removal of Hispanics is made possible by the Secure Communities program, which is a creature of Executive Orders and which the President could abolish with a stroke of a pen. There is no longer any excuse for maintaining it. Agamemnon sacrificed his daughter to secure fair winds for his attack on Troy; as Roger Algase at ImmigrationLawBlogs points out,
Has not President Barack Obama sacrificed the lives, hopes, dreams and family connections, if not the physical bodies, of well over a million people during the past five years on the altar of deportation in order to appease the god of "enforcing the law" and to try to gain fair winds for comprehensive immigration reform?
And is Obama not continuing to sacrifice over 1,000 immigrants each day on this deportation altar?