Should Obama Apologize To The Court?

(By Andrew MacKie-Mason)

If you hadn't heard, President Obama had some pretty harsh words for the Supreme Court's recent decision (Citizens United v. Federal Election Commission, SCOTUSWiki page here, opinion here) during last night's State of the Union address. (A piece of trivia: this was actually Obama's first State of the Union address. Most recent Presidents, including Obama, have had an address to a joint session of Congress near the beginning of their term. They do not, however, have a formal State of the Union speech until they've been in office for a year.)

During the speech, Obama said:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong.

This comment caused quite the stir among people who watch the Court. It even caused Justice Alito, present at the speech to shake his head and appear to mouth "not true." Justice Alito was not the only one present. In fact, six of the nine justices attended the State of the Union. They, of course, remained seated, "stone-faced" as the rest of the chamber erupted in applause. There are many moments like this in any speech in front of Congress. When the President criticized Republican obstructionism, he met with glares from that side of the room. When he called for the repeal of Don't Ask Don't Tell he got a cold response from the Joint Chiefs of Staff.

Some commentators think that this criticism of the Supreme Court is particularly noteworthy, however. Some even call it offensive. Randy Barnett (a Constitutional law professor at Georgetown) went so far as to use an op-ed in the Wall Street Journal to call for a Presidential apology to the Court. In Barnett's view: "the Supreme Court may be criticized. I do it regularly in class, op-eds, blog posts, and in the pages of law reviews. So too should the president when he thinks the Court is wrong."

However, he thinks there's a time and a place for everything. "In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly." It's undeniable that the President used his bully pulpit to call the Court out. But I take issue with Professor Barnett's apparent belief that it was unusually inappropriate or deserving of an apology. The president called out many people who were present, including the Joint Chiefs of Staff and members of the Congressional opposition.

I think Barnett is also being disingenuous by claiming that President Obama "ambushed six members of the judiciary." It is not news that our President thinks the Supreme Court messed up with Citizens United, and if any of them were surprised that he mentioned it during the speech, I'm not sure they're intelligent enough to serve on our nation's highest tribunal. It's also worth noting that he only really criticized three of the six present: Chief Justice Roberts, Justice Alito and Justice Kennedy. The other two members of the majority (Justices Thomas and Scalia) were absent, and the other three justices in attendance (Justices Ginsburg, Sotomayor and Breyer) actually agree with the President.

Professor Barnett then attacks the substance of Obama's comment:

The president made a nakedly result-oriented criticism: Because interest groups and foreigners (gasp!) will allegedly get to influence our elections, the Supreme Court made a legal mistake.

In fairness, Obama's comment was results oriented, as appropriate. He is a member of the political branch, so his concern is results. However, he didn't actually say that the Court was wrong on the law. He said that there was a danger of bad results, and that made the decision a dangerous one. But he didn't actually say that the decision was incorrect.

I'll close with my own criticism of Obama. Barnett and others have been correct when they pointed out that Obama's comment actually was incorrect on the content of the decision in Citizens United. The majority specifically declined to decide whether foreign-owned corporations have First Amendment rights (Obama said the decision would affect corporations, "including foreign corporations"). He also mischaracterized it by claiming that it allowed corporations to "to spend without limit in our elections." It allows unlimited independent expenditures but corporations still cannot donate much money directly to candidates. (There is a lower court case challenging such limits on direct contributions, though.)

Anyways, I would have expected better from a professor at the University of Chicago and a graduate of Harvard Law. Shame on you, Mr. President.

What Does The MA Election Mean?

(By Andrew MacKie-Mason)

We've been hearing a lot from people who say that Scott Brown's victory was a repudiation of Democratic health reform plans in Congress. This was I suspect motivated, to a certain extent, by the political class's ego. Health insurance reform is what the political commentators are focusing on, so that's obviously what the voters are interested in, right?

However, a new poll (Washington Post-Kaiser-Harvard) casts doubt on that assumption. I'll highlight some interesting information from the poll, but I recommend reading it on your own in its entirety. H/T (that's hat tip) to Think Progress for noting this poll.

Brown voters are significantly more upset with the general direction the country is going than Coakley voters are--unsurprisingly.

36% of Brown voters said that health care was the most important consideration in their votes. Presumably, they were against the Democratic plans. 32% of Coakley voters also said that health care was the most important consideration in their votes. Presumably, they were for the Democratic plans.

The next most prominent issue was the economy and jobs.

When asked why the health reform debate was important to them, more Brown voters said they were unhappy with the political process than said they didn't like the policies. Dissatisfaction with the political process is almost guaranteed whenever an effort on a bill is exposed to as much public scrutiny as the health reform debate has been.

An interesting thing to note is that almost nobody mentioned specific provisions in the bills. No matter how much politicians debate the merits of the bills, the average voter is to uninformed to care. That's why politicians have the incentive to debate with platitudes and sound bites rather than a focus on the issues.

A larger portion of Coakley voters said that they were voting partially based on support for Obama than Brown voters said that they were voting partially based on opposition to Obama.

Only 60% of Brown voters are "enthusiastic/satisfied" with Republican policy in Washington.

70% of voters want Brown to work with Democrats on reform.

43% of voters support Democratic health reform efforts, 48% oppose them.

I'll leave you to read the rest of the poll data on your own. Reach your conclusions how you will, of course. I'm also interested to know what you think: if Democrats continue to push for health insurance reform through one of the methods I blogged about here, will they lose a significant number of elections next fall?

Proposed Anti-Citizens United Amendments

(By Andrew MacKie-Mason)

As I mentioned earlier, SCOTUSBlog has an article about some proposed constitutional amendments to reverse the Supreme Court's recent holding in Citizens United v. Federal Election Commission. I'll report and comment on each of the proposed amendments below. Obviously, a hat-tip to SCOTUSBlog for pointing me towards this, but some are from other sources.

MoveToAmend.org has a collection of all the propositions that I've seen so far:

1. This amendment affirms that constitutional rights extend only to human persons. Corporations, partnerships, and other organizational entities are not human persons and, therefore, are not entitled to constitutional protections.

Unfortunately, I don't think this language would have the desired result. As Ilya Somin at Volokh has pointed out, one can derive the corporate right of speech as a delegated right of the owners of the corporation. "Corporate personhood" is a shorthand, but this amendment wouldn't deal with the underlying problem. If it did, it would go to far by removing First Amendment rights for all organizations. Under this, two people getting together for a protest could arguably forfeit their First Amendment rights.

2. For the purposes of the Constitution, corporations are public, not private. The rights enumerated in the Bill of Rights are the rights of humans beings, not corporations.

This one has some issues, but I'm not sure exactly what the "public, not private" wording means. It's also vague about what exactly it means by corporations. Corporations are a thing defined by statute so this amendment would also hypothetically give Congress the authority to ban all associative speech.

3. SECTION 1. The U.S. Constitution protects only the rights of living human beings.

SECTION 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.

SECTION 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.

SECTION 4. Congress shall have power to implement this article by appropriate legislation.

This has some problems. Firstly, Section 1: We have some important protections for dead human beings too: such as the government being unable to ban religious burial ceremonies or just seize without cause the property of anyone who dies. Section 2: I actually like this, because it deals with the central distinction between corporations and other associations that I identified in my previous post: corporations cannot exist without legal authorization Section 3: For one thing, such prohibitions should not be constitutional prohibitions, they should be authorized by the Constitution. I'm also very skeptical about banning corporations from trying to influence policy. Elections, sure. But they have a right to run policy ads and lobby, I think. (Subject to regulation, of course).

4. SECTION 1. The rights, responsibilities, and privileges granted to citizens of the United States as enumerated in this Constitution, its amendments, and extended through case law, are exclusively reserved for human beings.

SECTION 2. All non-living entities in the United States shall be subordinate to any and all laws enacted by the people and their elected governments.

SECTION 3. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This one is also dangerously over broad, I think. Do we strip corporations of protections against search and seizure? Do we protect them against unreasonable eminent domain demands? Perhaps we should consider these questions, but we shouldn't rush into anything.

5. SECTION 1. For the purposes of providing all citizens, regardless of wealth, a more equal opportunity to influence elections, public policy and run for public office; of furthering the principle of “one person, one vote” and preserving a participatory and democratic republic; as well as the purpose of limiting corruption and the appearance of corruption, we the people declare the unlimited use of money to influence elections incompatible with the principle of equal protection established under the Fourteenth Amendment.

SECTION 2. The Congress shall have the power to set limits on contributions and expenditures made to influence the outcome of any federal election.

SECTION 3. Each state shall have the power to set limits on contributions and expenditures made to influence the outcome of elections in that state.

SECTION 4. The power of each state to set limits on contributions and expenditures shall extend to all elections in that state, including initiative and referendum elections, as well as the power to lower any federal limits for the election of members of Congress to represent the people of that state.

SECTION 5. Congress shall have power to implement and enforce this article by appropriate legislation.

I like this one. A lot. It gets to the corruption problem and limits electioneering expenditures without unduly burdening any other categories of speech.

So, at the end of the day, the proposals are there. There are always movements to amend the Constitution, of course. If everyone were always happy with it, it would be a miracle. I think I can comfortably predict that none of these will end up passing, nor will anything at all, probably. If these proposals do somehow become more mainstream, I'm sure more constitutional lawyers will start to work on them and the quality will improve. I hope so, at least.

Briscoe v. Virginia - The Last Time?

(By Andrew MacKie-Mason)

I've written before (first here, then here) about the Supreme Court case Briscoe v. Virginia. The case was essentially a follow up to the earlier Melendez-Diaz v. Massachusetts. The Court in Melendez-Diaz said that forensic analysts are witnesses against defendants, and that defendants have the right to question those analysts. Briscoe asked what seemed to be a settled question under Melendez-Diaz: can the state require the defense to call the analyst of their own accord?

The most obvious prediction in the days between the decision in Melendez-Diaz and the certiorari grant in Briscoe was that the Court would GVR Briscoe. "GVR" stands for "grant, vacate and remand."

Grant means that the court grants the writ of certiorari, or agrees to hear the case.
Vacate means that the court vacates or overturns the decision the court below (usually a federal Circuit Court of Appeals or a State Supreme Court.)
Remand means that the court remands the case, or sends it back to the previous court to consider again.

Usually, a GVR order is accompanied by specific instructions to reconsider a case that the Supreme Court decided after the lower court issued its decision in the GVR'd case. The hope with a GVR order is that the lower court will fix its own mistakes so the Supreme Court doesn't have to deal with it. Cases which the Supreme Court GVRs do not get to actually argue their case before the Court, either in writing or in person.

Obviously, that's not what happened with Briscoe. The Court did the first step (grant) but stopped there. They, apparently, wanted to actually hear arguments. Well, arguments came and went, and now the Supreme Court issued its unanimous opinion. And what did this opinion say?

Essentially, that the Supreme Court was vacating and remanding the case back to the Supreme Court of Virginia to reconsider in light of Melendez-Diaz.

What's the fallout? It seems that the Court (unanimously, mind you) passed up the opportunity to overturn Melendez-Diaz. Perhaps in the wake of Citizens United overturning Austin, they decided they'd violated enough precedents recently. At the end of the day, though, it seems like a victory for the Confrontation Clause and Anglo-Saxon trial procedure. People won't be subject to trial by written document, and the process of direct and cross examination will be preserved.

Professor Friedman, the counsel for Briscoe in this case, has his own explanation of the Court's opinion on his Confrontation Blog. I like the way he puts it: "G....VR".

You can find the Court's opinion here. Don't hold your breath: I'm not even sure it deserves to be on a full sheet of paper.

UPDATE: I forgot to mention this: I must admit that my prediction as to how the opinion would come down was not correct. Oh well: it was more interesting than the actual result! I think I would have been closer if Citizens United hadn't been recently decided, but I guess I should have seen that coming.

UPDATE 2: Mike Sacks at First One @ One First has an interesting post where he argues that the reason for the short opinion in Briscoe was because of the politically charged divide in Citizens United. I agree with him and his analysis is interesting. In general, I would also recommend his blog to people who are interested in the Supreme Court. He writes about it from a spectator's point of view, getting up at ridiculous hours to attend the Court's public sessions. (One First Street is the address of the Supreme Court).

Fixing Citizens United

(By Andrew MacKie-Mason)

As I talked about in my earlier post, the Supreme Court recently issued their decision in Citizens United v. Federal Election Commission. In effect, this decision said that corporations had a First Amendment right to spend money on advertisements for candidates. The obvious concern is that candidates will become even more indebted to corporate interests than they are right now, leading to more de facto corruption in government.

So, how does one solve this, beyond waiting until one of the conservative justices to resign, replace them with a liberal justice, and reverse Citizens United (thereby un-reversing Austin)? Congress has multiple options:

1. Remove corporations' limited liability protections for political speech. This would mean that if a corporation defamed someone in a political advertisement (made knowingly false statements about them to hurt their reputation) all of the shareholders could be held liable in court. Thus, if you owned stock in Coca-Cola (I just really like using Coca-Cola as an example, apparently) and Coca-Cola defamed a candidate for office and was sued, you could hypothetically lose not only your investment into the corporation, but also money from your personal savings. Faced with the threat of joint and several liability for their shareholders, corporations would be much more cautious about engaging in reckless political speech.
2. Force corporations to keep a strict wall between money authorized for political speech and money not authorized for political speech. Shareholders, when they buy their shares, would be able to specify which "account" it would go into. I'm not positive that this would be allowed under Citizens United, but I believe it would be.
3. Require the beneficiaries of independent advertising (that is, governmental officials) to prominently disclose their "sponsors" on all official websites. If you went to Charles Schumer's website, for example, you would see at the top, "click here for sponsors." Clicking through would reveal that Schumer receives the most money of any Congressperson from Wall Street corporate interests. (Some people have even suggested that legislators should have to wear NASCAR-esque suits displaying the logos of their corporate sponsors. I won't go quite that far.)
4. Congress can require corporations to take a vote of their shareholders (either one-person-one-vote or one-share-one-vote) before every decision to sponsor a particular candidate. Congress could even impose a quorum (i.e. unless at least 50% of shareholders vote and unless at least 51% of those who vote approve it, the corporation may not engage in political speech.) I'm sure corporations would fight such rules tooth and nail in the courts, but if the conservative majority has any respect left for the law, they would stand.
5. Lastly, and most unlikely, Congress could pass a constitutional amendment granting it the right to limit expenditures in campaigns across the board. Constitutional amendments are, after all, the real way for the political branches to overturn a decision of the Court. This path is dangerous, of course, and would have to be taken with utmost caution.

Of course, at the end of the day Congress will probably do none of this. Most Congresspeople are probably already eyeballing corporate interests to figure out how they stand to benefit from Citizens United ... and so the control of democracy by wealth continues.

UPDATE: Laurence H. Tribe, a Constitutional Law Professor at Harvard Law, has a post on SCOTUSBlog about the Congressional response he wants to see to Citizens United. He advocates two things: first, strengthening the disclosure requirements. Currently, the BCRA requires a four second display of the name of the corporation sponsoring the ad. Professor Tribe thinks this should be expanded into the CEO explaining how the ad is relevant to corporate interests. He also wants to let shareholders sue corporate management if the shareholders think that the management is wasting corporate money on political ads that don't actually help the shareholders. Both are very interesting suggestions and you should read the entire article.

UPDATE 2: I said, in point 5 above, that a Constitutional amendment would be very unlikely. That hasn't stopped some groups from trying. SCOTUSBlog has an article detailing some quick movements organized to petition for an amendment to overturn Citizens United. I'll respond to these proposals at more length in a later post.

Moving Forward on Health Insurance Reform

(By Andrew MacKie-Mason)

Scott Brown's election to the Senate from Massachusetts was sad news for those of us who support reforming the health insurance industry. Not because it demonstrates a lack of enthusiasm among voters for health insurance reform (Brown supported measures in Massachusetts that are similar to the national ones under consideration, and his health care campaign mantra was: "we already have it, why should everyone else") but instead because it means that Republicans now can filibuster whatever they want, and they've shown that they're willing to do just that.

So, procedurally, how do the Democrats move forward and prove they can lead? There are multiple options. The Democrats could:

1. Pass the Senate version of the bill in the House. The Senate has already passed a version of health insurance reform, as has the House. Both chambers need to pass the same version, however, in order for it to be sent to the President. Since the filibuster only exists in the Senate, the House only needs a simple majority (everyone remember when we used to play by "majority rules" as kids?) in order to pass the Senate's bill and send it to President Obama. However, Speaker Pelosi has said that she'll loose enough liberal Democrats by trying to pass the Senate's version that she won't be able to get a majority.
2. Focus first on the most popular aspects of the health insurance bill: bans on denying coverage based on preexisting conditions, the public option, maybe even some tort reform. It would be politically difficult for Republicans to filibuster or otherwise block these efforts without playing into their image as obstructionists.
3. Tack various provisions of the health reform bill onto other important bills. Put the public option into an important defense spending bill. Add the individual mandate to a bill that will expand Medicare coverage in the Deep South. It's a time honored legislative tradition, and it's what makes compromise work: everyone gets what they want, and everyone gets what they don't want.
   
4. Pass as much of the bill through reconciliation as possible. Reconciliation blocks filibusters on bills related to the budget. However, not every provision in the health reform bills would be eligible for the reconciliation process, and reconciliation bills can only have effect for a limited number of years.
5. Pursue the nuclear option, which would destroy the filibuster entirely (for both parties). This move is obviously politically risky, since it would make the Democrats appear to be violating Senate tradition for the sake of their bill.

At the end of the day, I think there will be movement to weaken the filibuster, even if it's not through the nuclear option. ThinkProgress, for one, reports that Democrats are thinking of ways to push back the increased filibuster attempts by the GOP. The most honorable way the Democrats could do so, of course, is by passing a bill killing the filibuster after the next election. This would give the Republicans a chance at controlling the Senate by the time the filibuster would disappear. Even if they don't do that, I foresee serious efforts to at least lower the number of votes required to invoke cloture, or limitations on what kind of bills can be filibustered.

President Obama has also signaled that he might be considering some combination of suggestions 2 and 3 above. Pursuing reform in smaller pieces, rather than all at once, will almost certainly be a good political move for the Democrats.

Finally, many people are talking (and have been for a while) about reconciliation. It's not an ideal option, but it's there.

So, what will the administration do? It's up in the air, and I'm not going to put my chips down on any predictions. Hopefully, Obama will demonstrate that Presidential character that we saw on the campaign trail and work through this as a leader, not a partisan fighter.

Do Corporations Have Free Speech?

(By Andrew MacKie-Mason)

Many of you may have already heard about the Supreme Court's recent, controversial decision in Citizens United v. Federal Election Commission. For those who aren't familiar with the case, here's the background:

Citizens United is a corporation formed for political advocacy. In the lead-up to the 2008 Presidential primaries, they produced a film called "Hillary: The Movie". This movie purported to expose the real Hillary Clinton, and its aim was to ensure that she was not elected to office. When they tried to make the movie available through "On Demand", the Federal Election Commission (FEC) ruled that they could not. The rationale was that corporations are banned from spending money on electioneering within 30 days of primaries by the Bipartisan Campaign Reform Act. Citizens United then sued the FEC.

The procedural history of this case is also interesting. In the lower courts, Citizens United waived the right to challenge the BCRA under the First Amendment's guarantee of free speech. Instead, they claimed that "Hillary: The Movie" should not fall under the BCRA's restrictions for other reasons. The Supreme Court heard arguments on that narrower question back in March 2009. However, instead of issuing a decision, they scheduled a unique rehearing and specifically asked the parties to address the First Amendment question, even though none of the parties had brought it up. This odd request left many people speculating that the Court was considering striking down all limitations on corporate electioneering. In fact, that's what I predicted over at FantasySCOTUS.net.

And, on Thursday, the Court proved us right. Justice Kennedy (the traditional conservative/liberal swing vote) went with the conservatives in a 5-4 decision striking down portions of the BCRA. In effect, under the ruling corporations can spend as much money on political advertising as they want, at any point up to the election. They cannot exceed donation limits to candidates or directly coordinate their efforts with a candidate, but they can promote the election or defeat of a candidate.

For example: say Coca-Cola thinks that Congressman Dingell will support a "sin tax" on soda in order to promote healthy living (as far as I know, he doesn't: this is a hypothetical). They know that RandomGuy is planning to challenge Dingell in the 2010 midterm elections. They cannot give unlimited amounts of money to RandomGuy to fill his campaign coffers. They also cannot call up RandomGuy and ask him how he wants them to spend their money. They can, however, spend their considerable assets on advertising portraying Congressman Dingell as old, out of touch, a danger to the people of Michigan, etc. There can be no limit on this spending under Citizens United.

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Now, for my thoughts on the subject: first of all, I have not read the entire opinion yet. The majority opinion is 57 pages long, the dissent (written by the 89 year old Justice Stevens) is 90 pages long. There are also 3 concurring opinions. The entire thing, including the seven-page summary, comes in over 180 pages. Since I'm not a law professor and reading these things isn't my job, I don't know when I'll have time to read it in depth. I have, though, skimmed the summary and the beginnings of the majority and dissenting opinions to get an idea of the main points.

The majority's reasoning seems to be as follows: corporations have the full rights of any other person under the First Amendment, the government has no compelling interest in limiting the corporation's right to speech, therefore the limitations are unconstitutional.

The dissent seems to call into question whether or not corporations actually have the rights of people, and thinks that the government does indeed have a compelling interest in preventing massive corporate electioneering.

It's the question of corporate "personhood" that I'll focus on today. SCOTUSBlog has a good non-partisan summary of the issue, in their tradition. My analysis, of course, will be more partisan.

So, is a corporation a person? Do they have the right to free speech and free press under the First Amendment? Over at the Volokh Conspiracy, Ilya Somin thinks this is an easy question. According to him, the right to free speech of the corporation is the collective right to free speech of the shareholders. He says that it's a weak argument to claim that the First Amendment does not apply to corporations.

I think it's undeniable to say that people, individually, have the right to free speech and freedom of the press. I think it's also relatively easy to derive the right for people to form groups to speak more efficiently: one can find it in some combination of the freedoms of association, speech, and press. A simplistic analysis might cease here: people can use their associations to speak, and corporations are associations of people, therefore corporations derive a freedom of speech from their shareholders.

However, saying that people have the right to form associations for purposes of speech is not the same thing as saying that all human associations have the right of free speech. Corporations are not merely associations of people. They are entities created and sustained by the law. Governments have decided to bestow certain benefits on the corporate form that are not required merely by a people's right to associate. The one that first comes to mind is limited liability. Limited liability is a protection for shareholders. Essentially, by buying stock in a company you risk only that money, not the rest of your savings. In a natural association that performed the work of a corporation, however, each participant wound be fully liable for the association's debts.

Since corporations are created by government and law, not merely by the free association of people, I see no reason why the government cannot dictate the terms of its creation. For instance, no one would claim that the President cannot censor the official publications of an executive department, because that department is a governmental creation. Just because each employee of the Department of Justice has the right to free speech does not mean that the Department of Justice itself has free speech.

Our society gives benefits (limited liability) for giving up rights (free speech) all of the time. For instance, a criminal defendant often gets a lighter sentence by giving up their right to a trial in a plea bargain. There, as in the corporate setting, the government is providing an incentive to give up rights, but the ultimate choice lies with the people making the deal. An association could operate as a corporation without gaining official status, and thereby maintain is associational right to freedom of speech. But I see no reason why the government, in creating a corporation, cannot limit what that corporation can do.

I will put forward one possible scenario in which the government could not require giving up the right to free speech in forming a corporation. If the government has created legislation and regulation such that the only possible (or feasible) way to form a large association of people is through the corporate form, then the government must allow corporations to maintain all the rights of their members. And, in fact, this argument can be used to answer Ilya Somin's criticisms of my above line of reasoning. Ilya thinks that the lack of "state-created entity" status of corporations is a poor excuse for limiting their constitutional rights, and he makes a pretty convincing case. I won't go into a full rebuttal here (I may later), but many of the examples he put forward are times where becoming a "state-created entity" is the only feasible way to operate. In that case, the government cannot restrict the corporate rights of the shareholders. But if people can associate in other ways that preserve their freedom of speech, the government should be able to dictate terms to associations to which it grants special privileges.

(UPDATE: I responded to Professor Somin and expanded more on this theory of when the government can and cannot limit associational speech here.)

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As a side note, some people at Volokh point out (here and here) that the arguments for denying free speech to corporations could apply equally well to media groups organized as corporations. I agree, and see no problem with that, until it is demonstrated that the government has made corporations the only feasibly efficient way to organize (or the only feasible way to organize for large-scale media projects).

Harry Reid's Unfortunate Statement: A Liberal Perspective

(By Andrew MacKie-Mason)

Everyone else has already weighed in on this, so I might as well do so too. The new book about the 2008 Presidential Campaign, Game Change, caused a stir when it reported a statement made by Harry Reid.

First, a little context. Harry Reid, Senate Majority Leader, was trying to convince then-Senator Barack Obama to run for President. Obama, understandably, was worried that he would never be able to face up to the Clinton machine. Reid was convinced that he, Obama, could win the Democratic nomination, in part because he would be attractive to white voters. He was, after all, a "light-skinned" African-American, and he possessed the ability to speak without a "Negro dialect" whenever he wanted to.

The Right was quick to jump on this as "proof" of Harry Reid's innate racism, and the chairman of the Republican part, Michael Steele, called for Harry Reid to resign his position as Senate Majority Leader. Some on the right went so far as to compare Reid's statement to one made by Trent Lott, a former Republican Senate Majority Leader. Trent Lott was driven out of his position by his own party after he said that the country would be better off if we had elected segregationist Strom Thurmond as president (point of interest: Thurmond died about six months after Lott's statement, which was made at Thurmond's 100th birthday celebration.)

So how is a statement saying that a light-skinned black man who speaks in a more traditional way different from a statement supporting a man who ran on the following platform?

We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one's associates; to accept private employment without governmental interference, and to learn one's living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

Well, Thurmond's platform actively promoted racist views. Thurmond ran on the idea of keeping blacks separate from whites, not allowing them in white facilities or schools, and not allowing them to marry whites. Reid, on the other hand, stated a belief that America is still plagued by racism. Reid did not say that he thought dark-skinned blacks with a Negro accent shouldn't run for office. He said that they wouldn't win. He was speaking about his impressions of the opinions of Americans, not about his own beliefs.

So, was Reid being racist? No. He was accusing Americans of still being racist and putting a lot of stock in appearances. Can we really blame him for that? In an age where black politicians are still the target of white-supremacist assasination plots, can we really deny that racism plays a part in politics?

(Caveat: Strom Thurmond later renounced his segregationist views and went on to serve in the United States Senate for a very long time. However, Trent Lott's statement made specific reference to Thurmond's presidential campaign, when he was very much a segregationist.

Note: I usually try to let people know when I criticize them, like the RedState.com article I linked to above. However, my experience with RedState has been that I am banned and my comments deleted for disagreeing, even politely, so I won't make the attempt this time. Perhaps someone will see this post and let them know.)

P.S. Congratulations to Ilya Somin, a conservative from the Volokh Conspiracy for pointing out that Harry Reid isn't a racist, even if he did take the opportunity to attack liberals while he was at it.

In Response: Political Islam

(By Andrew MacKie-Mason)

I was directed by a commenter to look at www.politicalislam.com. Supposedly, it would open my eyes to a world of Muslim terrorism and explain the threat to me. I haven't examined all of the information on the site yet (it's a big place) but I was struck by this first article, entitled "Is a Nice Muslim a Good Muslim?"

It seems to be a theological treatise on Islam, by someone whose facts about Islam come mostly from FOXNews. The gist of it is that parts of Islam advocate forcible conversion and a double standard when dealing with "kafir." Thus, according to the author, anyone practicing Islam will take evil actions against kafir.

The flaw is that the author thinks he can tell Muslims what their religion is. Apparently, to Bill Warner, someone who says they are a Muslim is not really a Muslim. To be a Muslim, they must act within what he decides are normal Muslim bounds. Since his idea of what Islam commands include depraved acts, by definition Muslims then are immoral.

His circular reasoning is not only arrogant (in that he tells people what they believe), it is useless. He bases his understanding of a people off of his assumptions about them and their holy text, which accomplishes nothing towards actually making bonds with people of other religions.

I suppose Bill Warner would tell welcoming Christians that they are not actually Christians, because the Bible says "Thou shalt not lie with mankind, as with womankind: it is abomination" (Leviticus 18:22). I suppose he would tell a Christian who advocates peace that they are not actually a Christian, because Jesus said: "Do not suppose that I have come to bring peace to the earth. I did not come to bring peace, but a sword" (Matthew 10:34).

The idea of telling people what they believe is ludicrous. A religion is what its followers believe, just like a language is what its speakers say. Words which have come into use recently are still valid parts of English, just like doctrines which have entered Christianity or Islam recently are still part of their respective religions. Any denunciation of Islam based upon the detractor's interpretation of the religion is facially invalid.

"Islamic" Terrorism?

(By Andrew MacKie-Mason)

References to "Islamic" terrorism have become ubiquitous in American politics. Most people people seem to take it for granted that Islam is the root of organizations such as Al-Qeada. At some level, this is understandable. Arab extremists often claim to be working in the name of Allah, and the phrase "Allahu Akbar" has become (unfortunately) linked to terrorist attacks. Indeed, the alleged utterance of this phrase was enough to convince many people over at FOXNews that the shooter at Fort Hood was indeed a terrorist.

But are the men we all think of as terrorists, the planners and executors of 9/11 for instance, driven primarily by their religion? I'll admit up front that I'm no expert on the motivations and causes of terrorism. Even if I was, each terrorist has their own motivations to a certain extent, so broad statements will be very difficult to support. However, many of the other people who speak out about this are not experts either, so I'll add my lay voice in response to theirs. If anyone who reads this has some professional insight into these questions I would be thrilled to hear about it in the comments.

Let me first look at this video (which I've talked about before) of an interview of former Democratic Congressman and Mayor Ed Koch on FOXNews. During the interview, Mr. Koch says:

They want to kill every Christian, every Hindu, every Jew who won't convert.

This seems to be a central misconception among many Americans, liberals and conservatives alike. They think that terrorists exist because they hate western culture, want to eliminate non-Muslims, and dream of a global Islamic state. My own educated guess is that this is very far from the truth. If the primary motivation of Arab terrorists is to eliminate non-Muslims, why have their efforts been concentrated so primarily against the United States, Israel, and to a lesser extent Europe? Are we truly so myopic a culture that we think there are Muslims...and there is America? If every non-Muslim killed counts the same for a terrorist, why do they go after the most powerful countries most capable of revenge rather than easier targets?

Perhaps Bin Laden acts out of some combination of insanity and religious devotion, but there are very few people crazy enough to give up their lives purely for religion. This has been true throughout history. Take, for example, the Crusades. Pope Urban may very well have believed he was acting in the name of God (though he probably had other motivations as well.) But a knight from England would not give up their family and livelihood to go across the world and risk death solely in the name of Christ. They went for money, for glory, for other reasons. Religion alone is just not a strong enough motivator to raise large armies.

It seems to follow that there must be something about America and our allies that particularly annoy terrorists and allow men like Bin Laden to rally them to the cause. So, what is it? What makes America so attractive a target for Arab hatred? Probably years of western meddling in the area. The CIA was involved in stirring up hostilities in Afghanistan during the Soviet era. The United States under Reagan and Bush senior helped Iraq fight off the invasion of Iran. Earlier, in 1953, the CIA perpetrated a coup against the legitimate, democratically elected regime in Iran in favor of a more pro-Western dictatorship. And, of course, more recent American excursions into the region have produced events like the abuse at Abu Ghraib.

So, after all this, is it surprising that there is a deep-seated cultural distrust of America? With all of this history, is it fair to say that terrorists are motivated primarily by Islam? My non-expert opinion is no. They may justify their actions through religion. They probably find solace in the words of Islam. But I doubt that a lack of religious faith would deter most of the terrorists.

"Hudreds of Millions" of Muslim Terrorists?

(By Andrew MacKie-Mason)

There's a culture of fear in America which likes to pretend that terrorism is a larger problem then it actually is. I've addressed this before, but I'm drawn to it again by this video of former Democratic Congressman and Mayor, Ed Koch. In it, Koch laments what he sees as the Obama administration's "police action" treatment of the terrorism problem. After all, Koch says, there are "hundreds of millions" of Muslim terrorists.

Really, Mr. Koch? I'll freely admit that I don't have the exact numbers on how many members Al Qaeda has, or other supporting groups. But is "hundreds of millions" even possible?

For comparison:

The United States has a total population of 304,059,724. (That's about three hundred million.)
Iraq has a total population of 23,900,720.
Iran has a total population of 71,956,322.

In other words, it would take more than the population of Iran and Iraq combined to even get one hundred million people, let alone "hundreds of millions." And that's every man, woman and child, not just those capable or likely to be terrorists.

So please, Mr. Koch, let's keep ourselves to mere hyperbole and not crazy-talk, shall we?

(Note: Ed Koch is a Democrat, and has endorsed Democrats such as Elliot Spitzer and Barack Obama. He has also, however, supported people like Rudy "9/11" Giuliani and George W. Bush. He supports the wars in Iraq and Afghanistan and is a contributor to the conservative magazine Newsmax.)

Targeted Killing and Preemptive Self-Defense

(By Andrew MacKie-Mason)

In the American struggle against terrorism, three main methods of defense have been called into legal and moral question: indefinite detention, torture, and targeted killing. Since the current administration has disavowed torture, more attention has turned to issues of detention and targeted killing. It's been argued that the current legal uncertainties behind the authority of the government to detain individuals have created an incentive for an increase in targeted assassinations.

But where does the (legal) authority for these targeted killings come from? Kenneth Anderson from Volokh argues that the legal authority is properly derived from the law of self-defense. We, as a country, have the right to use deadly force to defend ourselves against attack. Anderson presents self-defense as the holy grail of legal arguments: in his view, it provides us with all of the tools we need to combat global terrorism. But there are significant limits on the authority we get from a self-defense justification, and we should keep those limitations in mind.

Firstly, let's look at self-defense at it applies to individuals, as the governmental right of self-defense is an extrapolation of the personal right. Self-defense law, in general, requires that the use of deadly force be proportionate to the risk of harm (you cannot shoot someone to prevent them from slapping you) and that it be directly related to an imminent threat of harm. Thus, an abused woman may not just kill her husband out of the blue and claim self-defense (though she may claim battered woman syndrome.) She can, however, shoot him when he comes after her with the kitchen knife. Likewise, a person threatened with death by a gang cannot just kill any member of that gang he comes across. He may only kill those members of the gang he knows are plotting to kill him and are in imminent danger of doing so unless he acts.

This gang example is perhaps the easiest segue to the law of international self-defense. A state may engage in the use of deadly force where it is proportionate to the threat of imminent attack. Taking a terrorist organization as the gang from our previous example, the known danger of attack by the organization does not justify the use of deadly force against every member of that organization. We cannot kill the Al-Qaeda member who cooks Bin Laden's means, just like we cannot kill the mother who feeds the gang member we fear will kill us. We can only kill those who we have reasonable cause to believe will imminently play a direct role in an attack against us.

Because of the nature of international terrorism, we must make some allowances for differences between individual and national self-defense. As a nation, for instance, we can attack those who plan the attacks, since that is the only reasonable way to prevent them. We can use means which cause collateral damage, but only where necessary. If the collateral damage is the only way to protect ourselves, and so long as it is not disproportionate to the threat, it is allowed.

However, the limits of the self-defense justification need to be understood. We cannot use targeted strikes against terrorist training camps under the doctrine of self-defense because there is no imminent threat. (Unless, of course, we have evidence that there is such an imminent threat arising out of that specific camp. A general training camp, however, would not be attackable.) We cannot use self-defense to justify a strike against support groups for terrorist organizations. We cannot even use it to justify strikes against "high-level" terrorists who are not directly involved in planning or executing attacks--Al-Qaeda "media officers" come to mind. No matter how many tapes they make ranting and threatening America, they are not engaged in planning or executing an imminent threat to the safety of the country.

Self-defense cannot be used preemptively, as Mary O'Connell lays out in this paper for the American Society of International Law's Task Force on Terrorism. Self-defense only applies to cases of imminent danger to American lives.

Argument Analysis, Part II

(By Andrew MacKie-Mason)

This is part II of my analysis of oral arguments at the Supreme Court this morning. Part I can be found here.

Now we come to Briscoe et al. v. Virginia, the case I am more interested in and more knowledgeable about. My preview of the issues of the case can be found here, so I'll only repeat the most important points.

As it developed at oral argument, the case seems to revolve around two main questions:

1. Does a system of "trial by affidavit" violate the Confrontation Clause? (Trial by affidavit is when the prosecution enters all of its witness via sworn statements and leaves it up to the defense to call and question those witnesses it chooses to. Some countries, such as France, rely heavily on trial by affidavit.)
2. Did the defendants (petitioners) in this case waive their Confrontation rights by not subpoenaing the analyst, even if they believed that such a subpoena would require them to call the analyst as part of their own case?

The first question seems to be covered by Melendez-Diaz (if you don't remember Melendez-Diaz, refresh on the Wikipedia article--it's necessary to understand the rest of this post), but that did not stop the Solicitor General of Virginia or the Solicitor General's Office of the United States from arguing that the Confrontation Clause did not preclude trial by affidavit. If a trial by affidavit is prohibited at all, they contended, it would be by the Due Process guarantee of a fair trial.

The petitioners, on the other hand, argued that this was already settled by Melendez-Diaz, a cause that Justice Scalia joined in quite happily. (Justice Scalia gave the Assistant to the Solicitor General of the United States such a hard time over this issue that it was quite amazing how well she handled it. Scalia wrote the opinion in Melendez-Diaz, which might be why it was a bad idea to argue with him about what it meant.) The petitioners also found support from the bench in arguing that it's better to support rights through explicit phrases like the Confrontation Clause rather than vague provisions like the Due Process Clause.

The second question did not get as much airtime during the argument, but it was hinted at multiple times. From the respondents' point of view, the petitioners did not do everything they could to protect their confrontation rights since they did not subpoena the analyst. There seemed to be some support from the bench for this proposition, even though under the statute the defendant would have had to not only subpoena the analyst, but also put them on the stand.

Petitioners, on the other hand, argue that since the statute as written is unconstitutional, the defense cannot be expected to implement it in order to defend their confrontation rights.

---

Some observations from the argument:

Justice Scalia: As I already mentioned, Justice Scalia wrote the opinion in Melendez-Diaz, and is one of the most ardent defenders of the Confrontation Clause. He went after the lawyers arguing on behalf of the United States, mocked the four of his colleagues who granted certiorari in the case, and seemed quite worried about the possibility of trial by affidavit.

Justice Ginsburg: Ginsburg definitely didn't vote to grant certiorari in the case, and seemed to think the Court should have just GVR'd. This strongly suggests that Ginsburg will vote for the petitioners.

Justice Breyer: Justice Breyer is apparently a lover of history. He spent a lot of time going back to the traditional roots of the Confrontation Clause: the infamous Raleigh treason trials in England. The impact of this isn't quite clear, but it will probably help the petitioners. The other important thing about Justice Breyer during argument was a few cryptic comments he made about Melendez-Diaz. Justice Breyer was one of the four dissenters in that case, but his comments today made it sound like he would take stare decisis seriously and be very cautious about overruling or limiting such a recent decision.

Justice Alito: Throughout, Alito was very hard on petitioners' counsel, but it's to have been expected. Alito just does not vote for defendants. The arguments by the state that he seemed most convinced by were the possible cost of making all analysts come to court to testify, and he seemed to accept at face value the amici briefs by 26 states on this matter.

Justice Sotomayor: The newest Justice (who, many have predicted, will be the important vote on this case because she is the new member of the Court since Melendez-Diaz) is an ex-prosecutor. People thought that might make her more sympathetic to the Commonwealth of Virginia than her colleagues, but that seems to have only been partially substantiated during argument. Justice Sotomayor seemed to fear the prospect of trial by affidavit almost as much as Justice Scalia. However, she also seemed relatively convinced by Virginia's waiver arguments.

---

Prediction

I've got a pretty complicated prediction for this one, but let's give it a shot.

Justices Robert, Alito, Kennedy: These Justices dissented in Melendez-Diaz, and I think all indicators point to them trying to reverse or at least limit Melendez-Diaz through Briscoe. They will hold that the Confrontation Clause does not ban trial by affidavit and that the petitioners waived their confrontation rights by not subpoenaing the analyst at trial.

Justices Ginsburg, Stevens, Scalia, Thomas: These are the remaining majority Justices in Melendez-Diaz, and I think they'll uphold it as best they can through this case. They'll rule that the Confrontation Clause does indeed ban trial by affidavit and that the defendants did not waive their rights to make such a claim.

Justices Breyer, Sotomayor: These two are where the case seems to hang. Breyer dissented in Melendez-Diaz and Sotomayor has a natural tendency to go with the prosecution on this one. However, Breyer seems deferential to precedent and Sotomayor, in her ex-trial judge hat, fears trial by affidavit. My guess is that they'll handle these mixed feelings by saying that the Confrontation Clause does indeed ban trial by affidavit (as Melendez-Diaz says)...but that in this case, the defendants waived their confrontation rights by failing to take all reasonable steps to protect them.

So, either Breyer or Sotomayor (probably Breyer) will write an opinion for the Court. It will have two parts. Part 1: The Confrontation Clause bans trial by affidavit. Part 2: The defendants waived their confrontation rights. Judgment: convictions and opinion below are upheld.

At least one of Roberts, Alito, and Kennedy will write an opinion dissenting in Part 1, concurring in Part 2, and concurring in the judgment.

At least Scalia (and perhaps another of Ginsburg, Stevens, and Thomas) will write an opinion concurring in Part 1, dissenting in Part 2, and dissenting in the judgment.

That will make Part 1 6-3 and Part 2 and the judgment 5-4.

(I'll hedge my bets, though, by saying it's possible that Breyer and Sotomayor will cave on waiver and sign on entirely with Ginsburg, Scalia, Stevens, and Thomas making the entire judgment 6-3 in favor of the petitioner. For the record, though, I'll only claim I'm right if my first prediction turns out to be right.)

(UPDATE: I probably should have mentioned, in terms of disclosure, that I was employed as a research assistant for a few months for the petitioners in this case, so take my views with a grain of salt. However, my opinions are, of course, entirely my own and do not reflect the opinions of the petitioners or petitioners' counsel.)

Argument Analysis, Part I

(By Andrew MacKie-Mason)

This morning I got to attend the public session of the Supreme Court. After some motions for admission to the bar, the court held two oral arguments. First was an extended (an hour and a half rather than an hour) argument in Alabama et al. v. North Carolina (Orig. 132). Following that was oral argument in Briscoe et al. v. Virginia (07-11191). As I've mentioned before, I was there to see Briscoe, but both cases were interesting.

In this post, I'll deal with Alabama. Briscoe analysis will be forthcoming. Alabama: The case is an original action since it involves four states suing another state. That means that the case begins and ends in the Supreme Court: there are no appeals. The record (evidence, testimony, etc.) is developed during proceedings in front of a special master, and then the Supreme Court reviews the record and issues a decision. This specific case involved the Southeast Compact, a collaboration by multiple states to deal with low-level nuclear waste. Under the terms of the agreement, the Compact's Commission would select a state to build a disposal facility, which would then be open only to members of the Compact.

To simplify a complicated case, essentially the contract between the states allowed any of them to withdraw from the agreement at any time. North Carolina had been selected to build a facility, and the other states (through the Commission) had provided North Carolina with about $80 million. In 1995 North Carolina halted the process because they believed it was no longer feasible, and in 1997 they formally withdrew from the compact. The case centers on whether North Carolina violated the terms or spirit of the contract by withdrawing after accepting so much money.

I noted a few reactions from the justices. Others, like Alito and Thomas, said nothing, so it's hard to predict their feelings.

Justice Scalia: Scalia has an interesting view on contract law. He apparently sees contracts largely through the lens of implementation. That means that, whatever the written terms of a contract are, it is partially defined by how the parties act under it. In this case, since North Carolina was receiving money from the other states and then ceased to receive that money, Scalia might consider that a good reason for them to back out. Even though the written contract did not require the other states to give money, the fact that they did so might add an implicit term to the contract.

Justice Sotomayor: The newest justice seemed largely concerned with the cost of the facility. She spent a few minutes of the argument trying to ascertain from the attorney for Alabama how much costs for the facility were over the initial estimates, with the implicit argument being that the raised costs justified North Carolina backing out of the deal.

Justice Roberts: The Chief, like Justice Sotomayor, seemed concerned with the issue of cost. For him, though, it was a response to Alabama's argument that the investment of $80 million obligated North Carolina to finish the deal. He pointed out that even if that money created some obligation, a lesser amount (the Chief chose $1 million) might not create such an obligation. He was concerned with where to draw the line.

Prediction

I haven't analyzed the breakdown yet, and I'm not sure I will. This case defies some of the more common ways of breaking down the Court (liberal/conservative, prosecution/defense). However, I'll give a hesitant prediction of a victory for North Carolina. I think they're right on the law, and that's got to count for something, right? I'll even go so far as to predict that Scalia and Sotomayor will be in the majority on a decision in favor of North Carolina.

Just for the fun of it, I'll toss in an additional prediction: Justice Sotomayor will write an opinion for this case, whether it's the Court's, a concurrence or a dissent. She is the only current justice with experience as an actual trial judge which makes her uniquely suited to deal with this case, and so I believe she'll want to make her voice heard.

America and the Right to Property

(By Andrew MacKie-Mason)

In my previous post, I talked about Congressman Ron Paul's conception of the moral right to property. Here I won't reply directly to him, but rather in general to people who claim that America was founded upon the unlimited right to property. We hear it all the time (or at least, I do.) "America was founded on free property! My property belongs to me, not to the government!"

Is this really what our Founding Fathers believed in when they wrote the Constitution? (For the record, I do not believe the Founding Fathers' views are proof of anything, except the principles that America was founded on, and the principles American was founded on are not necessarily the principles we should continue with today.)

Clearly, our Founding Fathers had a much different view of the relationship between government, individuals, and property than many who now invoke their legacy. For instance, consider the not very famous line in the Fifth Amendment:

nor shall private property be taken for public use, without just compensation.

At first glance, this may appear to be an affirmation of the right to property: the government, after all, is not allowed to take away your things without paying you for it. But look at the grant of power hidden among the limitation. This says that the government can indeed take your property, under certain conditions.

This betrays an entirely different view of the ownership structure of land than that which many people today would have you believe that the Founding Fathers held. A land where the government can take private property for public use is one where ultimate ownership of all things is recognized to fall collectively in society. Sure, you must be reimbursed so that society cannot punitively take away your possessions. However, society can reshuffle them as it wishes. The individual, under the system envisioned by our founders, lacks the final say over his property. It may be land assigned to the ownership of a certain individual, but it is still land that is part of one of the United States of America.

Just something to mull over.

In Response: Ron Paul's Manifesto

(By Andrew MacKie-Mason)

As I mentioned in an earlier post, I got The Revolution: A Manifesto by Congressman Ron Paul (R-TX) for Christmas this year. It had been sitting on my Amazon wish list because I had heard a lot about this radical Texas politician from a libertarian friend of mine, and I had was interested to see how he ticked.

I'm still reading the book (I'm in the middle of chapter 4 right now, out of 8 total) but I'd like to take the opportunity to make the first of what I hope will be multiple posts in response to this interesting political treatise.

The aspect of Paul that I'll be responding to today is drawn mostly from the beginning of Chapter 4, entitled "Economic Freedom." This is the section that truly makes Paul a libertarian, in my mind. He aims to "prove," it seems, that any government revenue or expenditures he dislikes are not only unwise, but also immoral. He starts off the chapter, however, with a very dangerous assumption:

Economic freedom is based on a simple moral rule: everyone has a right to his or her life and property, and no one has the right to deprive anyone of these things.

To some extent, everyone accepts this principle. (emphasis added)

In the first two sentences of this chapter, Paul attempts to slip his biggest assumption into the reader's mind. After this, everything else he writes regarding economic freedom is trivial. Child's play. If you fall for his claim of an absolute and uninfringable right to property, you cannot object to anything he writes after.

He even tries to back up this huge claim with an example that is somewhat convincing, at least at first glance, as though acknowledging that not "everyone accepts this principle." He points out that we all agree that an armed burglar is immoral. Of course, even this is not necessarily true. Would we all agree that it's immoral for a poor man to steal a loaf of bread from a rich neighbor to feed his starving child? I'm not sure there's as much agreement on that point as Dr. Paul would like to think. But even so, it's a long jump from denouncing burglary to accepting unequivocally a complete and inalienable right to property.

What does a "right" even mean? Is it some sort of moral code, derived from God? Of course, Paul is a very religious Christian, so he might assume that a Christian ethical system ("thou shalt not steal") is always correct. But I doubt that all religions or cultures would agree with him on that, as he claims.

Ancient Spartan children, for instance, were taught by Lycurgus to steal: it was supposed to hone their abilities. They were punished if caught: but not for stealing, rather for being incompetent. Other cultures have disagreed with this "right to property" in other ways. If we look back far enough, it did not even exist. Most early civilizations (American Indians come to mind) lived in a system of communal property. The land, food, everything belonged to the tribal community or to no one at all. If anything was considered private it was things which only worked for one or two people, such as a teepee. If the tribe lived in communal dwellings, as most sedentary American Indians did, those dwellings would also be communal property. This aversion among early peoples to the concept of private property is part of what made it so easy for white men to take advantage of them. Contracts, sales, etc. were all strange and unknown concepts, because these civilizations knew nothing of "property" in the modern sense.

If it is anything, the right to property is an artificial construct of wealthy societies. It is meaningless and harmful in times when a people are leading a subsistence lifestyle. When banding together for survival, private property is frivolous. But when a community starts to become wealthy, there become more conflicts over who deserves what share of the communal goods. The concept of property then develops. Not as a matter of natural right (wouldn't it always exist, if that were the case?) but instead as a matter of expediency. The "right to property" is a societal construct, designed for the well being of a society but completely subject to that society. Outside of a society, the "right to property" means absolutely nothing. You can keep what you can control, but leave your stash of pretty stones in your cave unattended and beware: there is no moral concept which will keep your fellow caveman from liking and taking those stones.

The other problem with Paul's construction, "everyone has a right to his or her life and property," is that it creates two rights without explaining the relationship between them. For instance, let us consider self-defense. I do not think I will fall into Paul's trap by claiming that most every society has accepted some theory of self-defense, though of course with varying degrees of equality and justice (I think, of course, of situations like the post-Civil War South, where self-defense was truly no defense at all for a black against a white.) So, let's look at two scenarios:

1. A man is blocking the doorway out of your burning home, trapping you inside to die.
2. A man is hoarding all of the food in town, leaving you to starve to death.

I believe most of us would agree that in the first case, you have the right to use all necessary force to remove the man as an obstacle, including killing him (i.e., violating his right to life.) Please, comment and let me know if I am wrong.

In the second case, though, do we have the right to steal the food from the man? Assume he has lawfully (whatever that means in this circumstance) bought up all of the food. He is merely exercising his right to property, is he not? Do you have the right to violate his right to property in order to protect your own right to life? I suspect that Dr. Paul would say that you do not.

We have the right to kill to protect our life, perhaps even to steal to protect our life. Do we have the right to steal to protect our property? In self-defense, you have the right to kill when it is necessary to do so in order to live (i.e. that is your only choice, or your only reasonable choice.) So, if it is necessary that we steal in order to get out of poverty, do we have that right? Let's not consider whether that's ever a real situation and just look at it as a hypothetical, if you will. If we have the right to kill when necessary to protect life, do we have the right to steal when necessary to protect property?

Or, does the right to property only refer to property which we already have. That's reasonable enough (we already have our life, after all.) So can we steal to prevent our business from going bankrupt and protect the property we currently own?

This is the problem with establishing absolute moral systems of "rights." The term is both ubiquitous and extremely vague. This makes it an attractive rhetorical tool (it is easy to assert rights and easy to use them to prove desired outcomes), but it is not a very convincing one, at least to the alert reader.

I'll close by recommending that Dr. Paul (and everyone looking to learn about rhetoric) take a look at Jonathan Edwards' sermon: Sinners in the Hands of an Angry God for a look at how a master rhetorician convinces an audience of moral truths.

Standards for Attorneys and the Poor

(By Andrew MacKie-Mason)

I was reading Volokh this morning and I ran across this article by Ilya Somin. It's a response to a LA Times op-ed by Mark Greenbaum which argues that there are too many law schools with too many graduates and not enough jobs for all of these potential lawyers. He argues that the American Bar Association (ABA, which is in charge of accrediting law schools) should tighten the standards for law schools in order to limit the total number of lawyers so that more of them can get jobs.

Back over at Volokh, Ilya has a very different position. He says that the ABA standards are already too strict and are artificially restricting the number of lawyers in order to drive up wages. The result of this, he claims, is detrimental to the poor since they cannot afford the exorbitant prices charged by lawyers, even poor ones.

Far from accrediting too many law schools, the ABA and state bar associations are running a cartel system that has the effect of driving up the cost of legal services. The poor especially often find it difficult to pay for basic legal services.

Now, I am not an expect on ABA standards for accrediting law schools. Odds are, there are some ridiculous standards, and it's possible that the ABA is even trying to limit the total number of lawyers. But the underlying claim that he seems to be making, that lowering standards for legal certification would help the poor, is severely flawed.

At first glance, the economics seem relatively convincing: accredit more law schools, have more lawyers, charge less money: voila! Legal services are affordable to more people. But what do we really mean by "legal services?" Do we mean, "advice from a person who passed the bar exam after having graduated from an accredited law school?" Or do we mean, "advice from a person who knows the law and is able to help their client with legal issues?" By lowering the standards for law school accreditation (and making the bar exams easier, for that matter) we can make the first type of legal service available to more people. But doing so will only make the second kind of legal service less prevalent.

The old adage, "you get what you pay for," seems appropriate here. If there are more lawyers and lower salaries, there will be worse legal advice (at least for the poor.) And if the advice is going to be bad, why do we need to give someone a bar card before they can give it? Why not rely on family, friends, and re-runs of Law & Order to give the poor their legal advice?

The only real way to increase availability of (quality) legal services to the poor is to keep the standards for the profession high and provide more public funds to assist the poor in paying legal bills. I know this type of "socialism" will scare Ilya and his libertarian colleagues, but it's the only way that the impact of wealth on justice can be limited. The market, intrinsically based on money itself, cannot take money out of the law.

Briscoe v. Virginia

(By Andrew MacKie-Mason)

Last summer, I interned at the University of Michigan's Law School. While there, most of my work was on Professor Richard Friedman's preparation for a Supreme Court case up for oral argument next week: Briscoe et al. v. Virginia (07-11191). I'll be visiting D.C. to watch the argument on Monday.

The case arises out of Virginia's forensic science procedures. Under the law at the time Briscoe (and co-petitioner Cypress) were convicted, prosecutors could introduce "Certificates of Analysis" at trial without the presence of the forensic analyst who prepared them. These certificates stated that some substance (usually drugs) and been tested and gave the results. The Virginia law also provided that if the defendant wished to, he or she could subpoena the analyst in question to testify.

Professor Friedman's contention is that Virginia's statute violated the Confrontation Clause of the Sixth Amendment, since it makes the defendant responsible for calling in adverse witnesses rather than making that the responsibility of the state. Virginia, on the other hand, contends that Briscoe is misinterpreting the statute and that if he had subpoenaed the analyst, the analyst would have been called during the prosecution's case. In other words, they are saying that there is something Briscoe could have done that might have protected his constitutional rights, and that by not taking that action he waived any claim he had to protection under the Confrontation Clause.

The issue of how to interpret the statute may well turn out to be the deciding issue in this case. If the Court decides that the statute means the analyst would have had to testify during as the defendant's witness, the case is pretty clearly controlled by a passage from the recent decision in Melendez-Diaz v. Massachusetts (07-591, 2009):

Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power—whether pursuant to state law or the Compulsory Process Clause—is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U. S., at 820 (“[The witness] was subpoenaed, but she did not appear at . . . trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

If, however, the Court decides that Virginia is correct, and that a subpoena by Briscoe would indeed have forced the prosecutors to present the analyst as part of their own case, the Court may very well decide that Briscoe waived his Constitutional rights and uphold his conviction. That's more of an open question, however.

An interesting part of the calculus is that the controversial decision in Melendez-Diaz is not yet a year old, and it was decided by a slim 5-4 majority. One of the five (David Souter) has since retired. Justice Sotomayor, as a former prosecutor, might well be sympathetic to overturning or at least severely limiting the scope of Melendez-Diaz by way of Briscoe.

For further reading, Professor Friedman's Confrontation Blog is a good source of thoughts on the subject of the Confrontation Clause. The SCOTUSWiki page on Briscoe contains links to the briefs in the case as well as commentary by SCOTUSBlog contributors.

Review: Indefensible

(By Andrew MacKie-Mason)

I got a great book for Christmas that I just finished, and I wanted to take the time here to write a review. It's called Indefensible: One Lawyer's Journey Into The Inferno of American Justice. Written by David Feige, a former public defender, the book tells the story of America's "justice" system in a big city.

Mr. Feige was the trial chief for the Bronx Defenders, a public defense firm in New York City. Since then, he also co-created and produced one of my favorite shows of all time, Raising the Bar (which, tragically, was recently canceled.)

Indefensible is (ostensibly) the story of one day in the life of a public defender in the Bronx. (Reader beware: Mr. Feige takes some liberty with the concept of "one day," though it would be hard to imagine a full length book without his flashbacks, and he ties them into main story relatively seamlessly.) Feige takes the reader through investigations, meetings with clients, conversations with colleagues, and court appearances to give a full sense of what it's truly like to be a public defender in America.

I read this book after I fell in love with Raising the Bar, but they both seem to have the same theme: being a criminal lawyer is not glamorous. Criminal law is not the world of limos and fancy suits. It's not even the world of Law & Order. What it is, though, is a world that has a profound impact of thousands of lives every day. What Feige shows, both through the book and the show, is that every person, no matter what bad acts they may have performed, is at their core a human being. Every single defendant is first and foremost a person, with their own life and their own story.

What's compelling about Feige's story is not law. It's not even his refreshing contempt for the capricious judges we all pretend not to know about. It's his humanism, his respect for each and every client's story.

I guarantee that once you read Indefensible you won't feel the same way about the American criminal justice system. And because of my time interning at a public defender's office, I can attest to what Feige writes. Granted, I worked in a much smaller town than New York City, and the worst aspects weren't prevalent. But the nature of the system, the way it makes people act, and the utter power and capriciousness of some powerful actors in the system is all true.

So, with that said, I would strongly recommend that you go buy the book from Amazon, visit Feige's website and blog, and hope TNT puts full Raising the Bar episodes on Hulu soon.