Wednesday, October 30, 2013

Money Is Not Speech

Hannah Finnie at PoliMic indirectly makes a point that we have been suggesting, that when it comes to freedom of expression, Holmes is the anti-Scalia. Holmes said in his famous Abrams dissent that expressions of ideas are given near absolute protection, because we want our politics and government to be founded on truth, and the best test of truth is the ability of an idea to get itself accepted in the marketplace. In the McCutcheon case currently before the court, wealthy donors are seeking the ability to give unlimited amounts in federal elections. If granted that right, they would be able to wreck at least one marketplace:
Solicitor General Verrilli, who is representing the government, said as much in his oral argument. "Less than 500 people can fund the whole shooting match," he said, and if the aggregate limits are removed, there is a very real risk that "The government will be run of, by, and for those 500 people and that the public will perceive that the government is being run of, by, and for those 500 people."
Justice Antonin Scalia is a fierce advocate of freedom of expression, but he doesn't much value precedents or arguments from principle. He is a textualist, and the First Amendment says that "Congress shall make no law. . ." The Court decided years ago that money is speech, and -- well, that's the end of the discussion. As Finnie notes, Scalia is likely to agree with Mr. McCutcheon and his co-plaintiff the Republican National Committee. Maybe money sometimes is equivalent to speech, but we don't allow megaphones to drown out the other debaters. . . .

Halloween Masks Are OK

Who knew? Several states have "Anti-Klan" laws that bar wearing masks in public. Thank you to Ruthann RobinsonConstitutional Law Prof Blog for letting us know that the Georgia Supreme Court upheld one such law. The court unfortunately concluded, however, that wearing a Klan costume in a protest could be prosecuted because the defendant should have known it would cause a disturbance. In concurring and dissenting opinions, two of the justices argued that prosecution should be permitted only when the defendant had the specific intent to cause violence, and violence was imminent. Those opinions nicely reproduced the disagreement in Abrams v. United States (1919) over the meaning of Holmes's "clear-and-present-danger" standard. Many such anti-Klan statutes remain on the books, forbidding the wearing of masks in public, but the minority justices in the Georgia case were right, prosecutions under such laws are forbidden when they would infringe First Amendment rights, as measured by Holmes's dissent in Abrams, and adopted by the Supreme Court in later cases:
The Klan's white robes, hats, and masks may all express the idea of a threat, but ideas are protected. Only an overt act accompanied by a specific intent violates the criminal law.

Tuesday, October 29, 2013

The Fuss Over Federal Spending

One is tempted simply to repeat, over and over, "taxes are what we pay for a civilized society". My favorite stand-in for Holmes in today's world is Judge Richard Posner, who has blogged a useful reminder of Holmes's aphorism:
Is it realistic to think federal spending could be cut substantially. . . ? The answer, I think, is no, provided the focus is limited to the short run—the next few years. . . . Of course there is a large federal deficit, but it is quite manageable with modest increases in income tax rates coupled with broader coverage obtained by reining in some deductions and exclusions. The experience of the George W. Bush Presidency is that reducing federal income tax rates from the level that prevailed in the 1990s does not promote economic growth, though it does increase economic inequality. . . . Regarding any increase in taxation as anathema, conservatives want to shrink the federal government by drastically reducing federal spending, even if that means underfunding research, national defense, the air-control system, flood control, law enforcement, and other normal government expenditures. That is not a promising approach.

Thursday, October 17, 2013

P.S.: Tea Party Confirms It Will Shut Down Immigration Reform

Roger Algase on the Immigration Daily confirms that the right wing nationalists in the House will take their revenge by blocking any consideration of immigration reform, except presumably for expanded deportations that are proposed in seperate bills. No chance for a path to citizenship. Algase quotes Rep. Raul Labrador (R-ID), key member of House Judiciary Committee and former advocate of reform (via Politico):
I think that what [President Barack Obama] has done over the past two and half weeks, he's trying to destroy the Republican Party and I think anything we negotiate right now with the president on immigration will be with that same goal in mind, which is to destroy the Republican Party and not to get good policies.

Shutting Down Immigration Reform

The President and the Senate have among themselves negotiated a bill that promises "comprehensive immigration reform" -- "CIR" is the buzzword and the President announced today that getting a bill through the House would be a top priority now that the government shutdown has ended. But there is not much sign that is likely to happen--John Boehner has been echoing the Rightwing Nationalist cry that there must be no path to citizenship for undocumented immigrants. The House instead has taken up several bills that will exacerbate the human rights crisis created by an out-of-control deportation program. Even the Senate bill calls for increased "internal enforcement"-- Newspeak for the program of deporting hundreds of thousands of persons already settled in the United States -- by broadening the categories of Green Card holders and naturalized citizens who can be stripped of their rights and summarily deported, and authorizing the outrageous and punitive state laws that were struck down by the Supreme Court a little while ago in Arizona v. United States. The Democracts are again negotiating with themselves, giving up federal immigration policy to the governor of Arizona, in exchange for an empty promise of a "path to citizenship" which has already been rejected by House Republicans. The next shutdown will be a shutdown of immigration reform.

Is Scalia Stout-Hearted?

There has been much discussion of Justice Scalia's interview, mentioned here a few days ago, in which among other things he backed away from an old remark, in which he said that he was a "faint-hearted" originalist; he now says he tries to be "stout-hearted." If a state wants to impose flogging as a punishment, the Constitution as it was understood in 1791 would allow that, Scalia now says. The trouble with this position, as Linda Greenhouse notes in a charming OpEd , it is not possible to be a consistent originalist, in Scalia's sense, and he doesn't reallly try to be. My own view is that Scalia's faithfulness to the original understandings of the founders would require him to discard an enormous mass of precedent on which the Court relies, and must rely. Holmes was right, faithfulness to precedent is a necessity, as well as a duty.

Wednesday, October 16, 2013

Holmes and Interstate Air Pollution

Often neglected these days are Justice Holmes's opinions protecting the environment. The Supreme Court has decided to hear several challenges to EPA air pollution regulations, including a rule limiting the pollution a state can dump into anothers' air. The Environmental Defense today reminds us that Holmes affressed this problem in 1907:
“[i]t is a fair and reasonable demand on the part of a sovereign” in our federal system “that the air over its territory should not be polluted on a great scale … by the act of persons beyond its control.”

Tuesday, October 15, 2013

Frauds in the Marketplace of Ideas?

Harvard Historian Niall Ferguson reminds us of a famous quote from Holmes's still more famous dissent in the 1919 Abrams Case:
the best test of truth is the power of the thought to get itself accepted in the competition of the market
Ferguson brings this up now because the marketplace has to be conducted in civilized fashion, if it is to function. Government can't provide the needed regulation:
Like any market, however, the marketplace of ideas needs regulation: in particular, its participants should be bound by norms of honesty, humility, and civility. Moreover, every idea-trader should adhere to these principles....

Sunday, October 13, 2013

A Page of History for Michigan's Voters

An interesting symposium hosted by SCOTUSblog helps us to see the tangle of doctrines presented for the Supreme Court's attention in the Michigan Affirmative Action Case to be argued tomorrow (Tuesday) afternoon. Hidden in the weeds, but uncovered nicely by Girardeau Spann's and Richard A. Epstein's contributions, is the conflict of doctrine with reality. Spann correctly points out that the provision of the Michigan constitution in question is artfully worded,but plainly was designed to reverse a Supreme Court decision upholding a race-conscious admissions policy at the state's prestigious law school. This seemingly neutral provision, the lower courts ruled, burdened racial minorities seeking relief from the burden of discrimination. Epstein replies with a doctrine:
I do not think that we have reached the point where colorblind legislation should be regarded as unconstitutional because of its supposed effect on the political process.
This is where we need Holmes's lesson on the importance of history. "The life of the law has bot been logic, it has been history." This sentence is in the opening passage of his monumental The Common Law,published when he was forty. When he was ninety, he returned to this core principle of his jurisprudence, a respect for historical fact: "A page of history is worth a volume of logic." We all know that the Fourteenth Amendment was adopted precisely to allow what we now call affirmative action on behalf of people of "color," the polite phrase for African-Americans and their descendants, to restore to everyone burdened with this label the rights of "white" citizens. In the infamous case of Plessy v. Fergusson, attorneys for Homer Plessy argued in very modern terms that the polarity of white and colored was created by bigotry and enforced by state law; the Fourteenth Amendment charged federal courts with the burden seeing to the undoing of that polarity which had allowed the arbitrary construction of a subordinated caste. Ignoring the plain facts of the case, the Court ignored (indeed hardly seemed to understand) Plessy's argument, and announced instead the doctrine of "separate but equal," founded on the disingenuous notion that supposedly equal treatment of the supposed races provided them equal protection of the laws. The Court has never managed to extricate itself from this pernicious doctrine, which is now put forth with unconscious irony as the doctrine of a "colorblind" constitution. Perhaps they will go behind these misleading slogans now at last. Justice Kennedy, are you listening?

Friday, October 11, 2013

Preparing for Originalism

Monday is Columbus Day, mourned in some quarters and often largely ignored, but still a national holiday, the premise for a four-day weekend. But in Washington, teams of lawyers will spend the weekend preparing for their oral argument in the Supreme Court Tuesday, in Schuette v. Michigan Coalition to Defend Affirmative Action. The question in that case is whether a state constitutional provision, adopted by the voters of the state in a referendum, violates the Equal Protection Clause of the Fourteenth Amendment. The new provision forbids invidious discrimination by race, and in the same breath forbids affirmative action. Oral arguments are a pointless but necessary ritual. The justices rarely allow the lawyers to say much,and in effect conduct their own deliberations. On Tuesday, we all will be watching what the justices say. The case is likely to draw discussion of fundamental questions. Members of the Court who style themselves "originalists," when addressing the Fourteenth Amendment often rely on precedents that long ago departed from the text of the Constitution. Holmes, the great defender of the rule of precedent, likely would be with them. On the other side in such cases, Justice Ruth Bader Ginsburg is likely once again to speak and eventually to write on behalf of Fourteenth Amendment originalists, who recognize along with nearly all historians and scholars that the principal aim of the Amendment was to give all persons born or naturalized in the United States, regardless of their race, the same rights that white citizens had held under state laws. Most of the laws adopted to enforce that Amendment were affirmative action measures, to undo the disabilities of color, imposed by whites. The Michigan referendum was a vote by the white majority, for a constitution barring minorities from seeking any legislation that would recognize or seek to remedy the disabilities imposed by race and gender. It would seem patently unconstitutional, but some of the justices may still be moved by the rhetoric of a "color blind" Constitution, as the Republican Party of Michigan,a friend of the Court, urges them to do. Denial of reality is a political program these days. Let's hope it doesn't become law.

Thursday, October 10, 2013

Worse and Worse

The collapse of government in Washington goes well beyond the shutdown of executive agencies. The collapse is so widespread that it is hard to keep up, but immigrants once again are among the victims of the nationalist movement that seems to be calling the shots. Republican leaders of the House have said repeatedly that they will not bring up any bill that provides a path to citizenship for the undocumented (because citizens vote). The dehumanization and removal of hundreds of thousands of Americans without papers will continue. Eight members of the House are reduced to joining in a protest and allowing themselves to be arrested as Huff Post tells us:
Activists and pro-reform members of Congress said the rally and civil disobedience were meant to show House Republicans that the pressure for an immigration bill will not cease. Gutierrez told advocates at the rally of thousands on the National Mall that they must "turn up the volume even more." "Since the election last November, the United States has deported another 400,000 people," he said. "We know the enormous toll it takes on our families, our neighborhoods and our peace of mind. Our communities and our families do not have the luxury to rest or relax. One thousand, one hundred people will be deported today; 1,100 people will be deported tomorrow, and the next day."
No response from the Republican leadership has been reported. and none is expected. They are practicing their own form of civil disobedience.

Wednesday, October 9, 2013

Danger, Clear and Present

Let's see: a few hundred very wealthy men and women, through a network of PACs and so-called "social welfare" corporations have been able to take control of the United States Congress and to shutdown the United Ststes government, by swamping Republican primaries with expensive media campaigns. At least four justices of the Supreme Court nevertheless seemed puzzled by the question put to them yesterday, whether there should be any limit at all on aggregate donations by a single individual during a federal election cycle. The billionaires, you see, have a First Amendment right to free speech.

The admirable Scotus Blog has an excellent summary of yesterday's oral arguments in McCutcheon v. FEC, the Republican challenge to limits on total campaign spending by individuals.
When the argument ended, there was no clear sign of consensus on the Court: although it seems likely that at least five of the nine Justices will strike down one of the aggregate limits, there was a chance that another would survive.
Some of the justices, sitting in the midst of the chaos that has descended on Washington, nevertheless seem not to see that unlimited spending by billionaires might pose a clear and present danger, one that resembles falsely shouting fire in a theater, and causing a panic. . . .

Tuesday, October 8, 2013

Scalia and Holmes

The helpful Constitutional Law Prof provides a link to Justice Scalia's long interview in this week's New York Magazine. Scalia, a likeable man, spoke freely about his beliefs and his determination to remain on the Court. He is evidently a man of doctrine--speaking of his solitary dissents, he does not say he disagrees with the other justices, he says only that they are wrong. The doctrine he most struggles against seems to be a straw man, however. Asked how he arrived at his originalist philosophy, he says:
Words [in the Constitution] have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
But it was Justice Holmes, answering the Scalia of his day, who said that a word in the Constitution "is not a crystal, transparent and unchanged, but the skin of a living thought." Holmes may have had a better grasp of the Founder's understanding. The written yext doesn't change, but the way in which its broad maxims apply to the modern world must be different than their eighteenth century application.

In Justice Scalia's earlier writings, he is more clear about the conflict of doctrines. What he opposes is the idea that the Supreme Court is a common-law court, bound by its own precedents, a doctrine that is now identified with Holmes. Scalia wants to use the text of the Constitution, as he believes the Founders understood it, to overrule those wrong decisions of the justices. He mentions Holmes in passing, but does not make quite clear that he disagrees on this fundamental question with arguably the greatest of American justices. In a touching conclusion,however, Scalia concedes that it will be Holmes's doctrine that in the long run governs.
If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

Monday, October 7, 2013

Train Wreck, Of a Sort

The federal government is shut down, and the Supreme Court opens a new term today, its docket heavy with radical claims. The shutdown and the Court's radical docket are linked, and together amount to a grave constitutional crisis. A link between the two is provided by Edwin Meese, who according to the The New York Times yesterday played a key role in planning for the shutdown. Meese you may recall was Ronald Reagan's Attorney General, who launched a movement that has succeeded to a surprising degree. With funds from a few hundred wealthy backers, this movement has advanced a theory which seeks to limit the Constitution to what its words meant to a few men in the eighteenth century, largely ignoring changes made after the Civil War, and precedents established by the Supreme Court in more recent decades. The avowed purpose, as expressed by Meese, was to roll back hated decisions of the Court in the Civil Rights era. Together with the billionaire Koch brothers, and a loose coalition of radical groups, the Times reports, Meese has also led planning for the present shutdown and threats of default. What we may be witnessing is a Constitutional moment of a kind historians describe, a moment when the constitutional framework shifts--as it did after the Civil War. If the Meese strategy works, the legislative power will be dominated even farther than it is now, not by Congress with its checks and balances, as the Constitutional provides, but by national political parties who rely in turn on wealthy donors and business corporations to finance their campaigns. Half shrouded by a political slogans and outrageous demands, the confrontation of the Tea Party Caucus with the President is the chosen ground for an attempt to alter the constitutional system. Justice Holmes, the great champion of duty and precedent is among the targets of Meese's campaign; perhaps if Holmes were here he would remind the Tea Party caucus of their oaths, and of their duty to accept what they cannot amend by lawful procedure. Perhaps he would remind the Justices as well that the Court has always considered itself bound by its own precedents, and that too is part of the constitutional system and the rule of law.

Sunday, October 6, 2013

Congress Has Duties As Well As Power

We have had occasion before to observe, as Justice Holmes liked to remind his colleagues, officials of the federal government have duties. Amid all the blather of pundits about "polarization" and "partisanship," those constitutional duties of our government lie forgotten. The Constitution gives to Congress the legislative "powers" of the national government, but it also requires members of that body to be "citizens;" which is to say, men and women who have a sense of their duty to govern in the public interest. There are no checks and balances that can enforce this fundamental duty. We must rely on the Representatives' and Senators' sense of their duty as citizens. Yet a giddy bunch of Republicans, a minority within a minority, have engineered a shutdown of the federal government, simply as a piece of political theater,a performance for the cameras to express their power, and their hatred of the president. No one pretends this will have any positive result. An even more grave breach of duty looms, with the threat of a default on government debt. The Constitution is quite explicit about the duty of Congress in this regard. The Fourteenth Amendment says
The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions . . . shall not be questioned.
The default which some Republicans threaten would be unconstitutional, and many have urged the President to continue paying our debts. But he can't and won't; this is above all Congress' duty, to pay the debts that they themselves have incurred. That duty is stated in the Constitution because it is a constitutive principle of our nation: the existence of the United States has more than once depended upon the willingness of our friends to lend money, to enable the government to defend itself against British aggression and Southern rebellion. Those members of Congress who most loudly claim their fidelity to the Constitution have abandoned their duty to pay our debts, and ought to be ashamed of themselves.

Friday, October 4, 2013

New eBook Edition of Honorable Justice

Nicely coinciding with the opening of the October 2014 term of the Supreme Court Plunkett Lake Press has announced publication of a new eBook edition of my book Honorable Justice: The Life of Oliver Wendell Holmes. This is the fourth edition of the book, which was first published in hardcover by Little, Brown and Company. The book has received several awards, and reviews of the print edition were gratifyingly positive. The New York Times Sunday Book Review, for instance, in a full-page notice said
One opens his book with high hopes, and as chapter follows masterly chapter the hopes mature into admiration of author and awe of subject.
Judge Richard Posner praised it in the Wall Street Journal, and The New Yorker called it "an ideal biography for the intelligent general reader."

I have added a new preface for this edition, addressing among other things the importance of Holmes's opinions as a counterweight to the radical new readings of the Constitution that a shifting majority of the Supreme Court threaten us with in the term just beginning.

Thursday, October 3, 2013

Holmes on Brevity

Lawyers (and judges) have only just given up their yellow "legal" size pads of paper; no wonder we still write badly. Here is what Holmes said, courtesy of Dan Ernst on the Legal History Blog:
In the summer of 1980 Erwin Griswold remembered calling upon Justice Oliver Wendell Holmes some fifty years earlier. “As we went into his room he took a great big thick brief and threw it in the wastebasket,” Griswold recalled. Holmes said, “‘147 pages long, I don’t read ‘em when they’re that long and I don’t care who knows it either.' And then he said, ‘I don’t see why lawyers do the things they do. First they make the point and then they put it in black letters and then they repeat it and then they put it in italics and then they say it again and then they put it all capital letters.’ He said, ‘I don’t see why they write it the way the Germans do, with emphasis and reiteration. I don’t see why they don’t . . . suggest something and leave it to our imagination, like a questionable French novel.’”

Wednesday, October 2, 2013

Political Theater v. Political Speech

A minor irony of the government shutdown is that it may deprive or at least delay the Republican National Committee getting their chance to argue that remaining limits on political contributions should be lifted. The Supreme Court is--was--scheduled to hear arguments in McCutcheon v. Federal Election Commission in which Mr. McCutcheon, supported by RNC, claims that he wants to contribute $1776 to a long list of Republican candidates, but is unable to do so because of federal law limiting the aggregate contributions made by one person to a candidate or a party in a federal election. The RNC and Mr. McCutcheon argue that money is speech, or the ability to speak, and Mr. McCutcheon's quaint message in the form of dollars is arguably protected by the First Amendment. The federal government does have the power and the obligation to regulate elections to see that democracy is not subverted, so there are two constitutional principles in conflict, and the Court will be obliged to choose between them. That is what Holmes, the patriarch of First Amendment jurisprudence, said was their duty in such cases: to choose.

On Monday, however, the Office of Management and Budget sent a memo to all federal agencies saying that Congress had failed to make appropriations for the new fiscal year, all government agencies accordingly should implement their plans for orderly shutdown. The Supreme Court then issued a memorandum of its own.
In the event of a lapse of appropriations, the Court will continue to conduct its normal operations through October 4. The Court building will be open to the public during its usual hours. Further notice will be provided in the event a lapse of appropriations continues beyond October 4.
The implication is that the Court may not be able to hear argument in the McCutcheon case on Tuesday, Oct. 11 as scheduled, if the government shutdown continues. We suspect the McCutcheon case was brought on behalf of the same contributors to Republican primary campaigns who have urged the shutdown. Perhaps the irony will not be lost on the Justices of the Supreme Court, who may find their ability to hear McCutcheon's claim is drowned out by his own undue influence on the political process.