Parents Vote For Children

(By Andrew MacKie-Mason)

Max Steinbeis has a post at Comparative Constitutions (a blog well worth reading if you're into constitutional theory and international law) where he analyzes a proposed new constitution for Hungary. There's a lot more detail than I can get into here, but I wanted to focus on one specific part of the constitution that he describes.

A peculiarity of the draft is its provision of the possibility of an additional vote for families with children. (This is still controversial even in the ranks of Orbáns coalition and therefore might be dropped before the adoption.) That digression of one man, one vote is very problematic, particularly since it might also serve Orbáns electoral interests. The idea is not to give the parents a vote for each child, though, but to give the mother to a second vote, regardless of the number of children. That probably serves to assuage the resentments of many Hungarians against the Roma minority with their alledgedly large families.

There's little theoretical justification for providing one additional vote to a woman whether she has one child or twenty. However, a similar idea – giving parents/guardians a vote for each of their children in a certain age range – is very interesting. When compared to what countries typically do (pretend that children don't exist during elections), a parents-vote-for-children measure enunciates two distinct views of the role of children in society.

1. The usual system, where children simply have no say in government, can be justified only by supposing that children are not truly citizens, but are instead some class of justly-oppressed subjects of authority.
2. A system where parents vote on behalf of their children, on the other hand, would declare that children are indeed citizens with a right to a say in government, but that they are simply not yet capable of exercising that right for themselves, so it is held in regency by their guardians.

As a matter of theory, I'm inclined towards the second one. However, I would need to be convinced from a practical standpoint that parents are the proper individuals to supervise a child's franchise. What do you think? Should children be viewed as disenfranchised subjects or immature citizens?

Children's Medicare

(By Andrew MacKie-Mason)

I've got a pretty basic question for America: why don't we provide free medical care for minors at taxpayer expense? Really, how have we not even figured out this pretty basic thing yet?

American youth aren't able, and in most cases not allowed, to work and provide for their own health care. They must rely entirely on the largess of parents and family members who may be simply unable to provide for them properly.

Medicare for seniors is great. We, as a society, respect all the work that seniors have done, and we support them in their last years. But can't we acknowledge that defenseless, powerless youth need that support more?

Indeed, funding children's health care and not seniors' would establish some very good incentives: parents would want to raise their children to be successful and form a tight-knit family to take care of them while they're old, and would be better able to do so (and save for retirement) if they didn't have to pay for health care for their children. Meanwhile, the current system encourages families to fall apart and parents to be stingy on medical care for their children.

On the other hand, politicians are a lot more scared of angry seniors than sick and dying children...

TSA in New Hampshire and Texas

(By Andrew MacKie-Mason)

Mark Bennett reports on bills before the legislatures in New Hampshire and Texas that would make it sex crimes for TSA to touch your breasts or genitals (or, in New Hampshire, to view your breasts or genitals through an X-ray backscatter machine.)

While it's doubtful that either of these measures will pass, there's always hope. And even if they don't, hopefully TSA gets the message that opposition to their invasive measures is no longer merely a fringe opinion.

Federalism: Mixed Emotions

(By Andrew MacKie-Mason)

I've never been a big fan of federalism. Last July, I wrote:

Federalism is on the way out, due to the natural evolution of human politics. As we evolve, we form bigger and bigger networks, and states are just too small to be legitimate sovereign entities any more. The myth of the sovereign state (after all, very few of the American states have ever actually been sovereign) is making less and less sense as time goes on. As travel between the states becomes easier, it makes less and less sense to give more representation to those who chose to live in small states. As state boundaries mean less and less, the Senate looks more and more arcane for sticking to them. Federalism is not the way of the future, and repealing the Seventeenth Amendment is a step backwards, not forwards.

I still stand by that, to a certain extent. The growing interconnectivity of American society (and particularly commerce) explains why federal authority has expanded so much under the Commerce Clause since the founding. State citizenship is now almost universally recognized as inferior to federal citizenship (I'm an American first, then an Illinoisian and a Michigander). And I still think it's ridiculous to talk about states as though they're independent sovereigns. That's simply not how America works.

On the other hand, Rick Snyder's (unconstitutional) big state government power grab in Michigan has got me thinking more about the value of local governance. I don't want a state-appointed emergency manager (Democrat or Republican) instituting local ordinances and dissolving county governments. So what gives?

The unifying principle has to be one of competence. We give authority to larger "umbrella" governments when they are competent to solve our problems, and to more local governments when they are better placed. And perhaps not just competence, but proper incentives.

How is the governor going to be incentivized to do what's best for individual towns? Voters in that town will have a minuscule impact on his election, and the rest of the state will (rationally) ignore what an emergency manager does when it doesn't impact them directly. On the other hand, states won't be properly incentivized to regulate health insurance costs because of spill-over competition with other states, and so we need federal regulations.

At the end of the day, it's all about the incentives. Leave what's local up to the cities, what's national to the feds, and everything in between to the states.

Scalia: Stupid To Distinguish Inactivity from Activity

(By Andrew MacKie-Mason)

Orin Kerr of the Volokh Conspiracy posted an interesting excerpt from an opinion by Justice Scalia suggesting that Scalia may be disinclined to recognize the arbitrary distinction between activity and inactivity that opponents of the Patient Protection and Affordable Care Act have latched onto. Read the full post here.

A Contrarian Proposal

(By Andrew MacKie-Mason)

President Obama's use of military resources in Libya without Congressional authorization has rekindled not-so-distant debates about executive authority and the military that were widespread during Bush II's presidency. The arguments basically boil down to a tug-of-war match between two constitutional phrases: the grant to Congress of the power to "declare War" and the delegation to the president of the duties of Commander-in-Chief of the armed forces. Given both these things, can presidents unilaterally engage in military actions? Or is there a point where such actions must be approved by Congress under their war powers?

I'd like to propose a non-standard reading of the Constitution on this issue. It's one that I'm not sure I stand by, but I think it's worth discussing: can we read the Constitution as authorizing the president to take any military action he deems fit, while granting Congress the power to force the president into war against a country?

To properly consider this, we should examine the precise text of our founding document. Article I, Section 8 reads, in part: "The Congress shall have power … To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." Article II, Section 2 reads, in part: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

The most important things to note are that the Constitution places no explicit limit on the president's authority as commander in chief, and does not explicitly require that war be declared before the president can exercise any of his authority as commander in chief. Indeed, there's no mention of war in the presidential powers section, which at least suggests that the president may exercise exactly the same powers over the military in times of formal peace as in times of formal war.

If we accept that reading, though, what becomes of Congress' power to declare war? Obviously, it must mean something - but what? From a straight reading of the text, it seems that the power to declare war gives Congress, in effect, a broad power to compel the president to initiate hostilities against a nation. If, in Congress' judgment, we should be at war with another country, the president must accede to that judgment and conduct that war, or else risk impeachment for abrogating his oath to defend the United States.

Like I said, I'm not sure that I fully buy this argument. It's not a standard reading of the Constitution, for sure. But I'm interested in hearing your thoughts. Does this work? Are there textual arguments that support or undermine it? How does our evolutionary public consensus on the war powers of the president and Congress weigh on the matter? Let me know in the comments.

America the Oligarchy

(By Andrew MacKie-Mason)

America is a democracy. That's what we all learn in civics class. We can also talk about the distinctions between democracies and republics, and argue that America is actually a republic. But is any of that really accurate?

Democracy is rule by the people. Republic is rule by the people's representatives. If we consider Citizens (those who form a part of the Sovereign power) and Subjects (those who are bound by the laws and political authority), both groups are the same in a democracy or republic. However, in America, barely over half of the subjects are actually citizens.

Consider the graph of voter turnout during presidential elections provided at right. The yellow line represents the ratio of voters to voting-age Americans, while the green line represents the ratio of voters to voting-eligible Americans. Both show that very few Americans actually take part in even the most basic aspect of the sovereign power: electing a president.

America is not a democracy or a republic. It is an oligarchy, where only a small portion of the people are actually citizens. (Not to mention, of course, the three large groups of subjects who aren't even eligible to vote: felons, resident aliens, and youth.)

In school, we're taught to suppose that this is a bad thing. How can we increase voter turnout? How can we get more people to the polls? And while access to the polls is an important thing to ensure (especially for the poor who may find it difficult to take time off work), it's far from clear that higher voter turnout is always a good thing.

Take this recent Kaiser poll, in which 48% of voters didn't know that the Patient Protection and Affordable Care Act hadn't been repealed. Do we want those people voting? And it's not just that one instance of widespread ignorance. Political ignorance is a major problem, but at least political ignorance tends to correlate with political apathy. Those who don't know about politics tend not to care enough to vote.

America is an oligarchy. Is this ideal? Maybe not. Maybe we should be doing more to encourage political awareness. But at the very least, let's acknowledge that those who don't regularly vote probably don't deserve to do so, at least not right now.

"Consent No Cure"

(By Andrew MacKie-Mason)

I thought this draft paper "Consent No Cure for Unconstitutional Conditions" by Phillip Hamburger of the Columbia University Law School provided an interesting perspective on the recent discussion here about the draft and the Thirteenth Amendment (the ban on involuntary servitude), and that it deserved a perusal. (For that discussion see here, but primarily here.) Here's the abstract:

Although consent is said to justify unconstitutional conditions, consent is no cure. Of course, within the government’s constitutional authority, consent often is a measure of what the government can do. But outside such authority, it is another matter. Constitutional powers and rights are legal limits imposed by the people. Therefore the consent of mere individuals, states, or private institutions cannot justify the government in going beyond these limits.

One interesting aspect of the paper is Hamburger's assertion that there are two different ways to understand rights. We can talk about the private rights of individuals, such as the right to keep our own money away from other individuals, and we can also talk about rights as limitations on government imposed by the people as a whole, not individuals.

The First Amendment provides a good example (one I'm stealing from Hamburger) of the latter kind of right: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The "right of free speech" is really a limitation on government, which shall not abridge it, not a possession of each individual.

So, how does the Thirteenth Amendment fit into this framework? Does it create an individual, personal right that can be contracted away, or does it put a limitation on government power?

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

By its text, the amendment is pretty clearly a limitation on government: it prevents the government from instituting systems of slavery or involuntary servitude except as punishment for criminals.

Thus, to the extent that we can distinguish between consent to service and voluntary service, the former is unconstitutional: the government cannot cure its constitutional violation (implementing involuntary servitude) merely by ensuring that everyone consents to that servitude in some sense.

But do those words really mean different things? It is clear that they do, if we take consent in a broad, Hobbesian sense. That is, if we take "consenting" to something to mean "making a choice between two options, one of which includes that thing and one of which does not," then not all actions that are "consented" to are "voluntary" within the meaning of the Thirteenth Amendment.

Consider the specific exception contained in the text of the Amendment: Congress can require involuntary servitude as a punishment for criminals. Why is this explicit exception necessary? Because forcing convicts to perform labor constitutes "involuntary servitude." However, if "voluntary" means nothing other than "consented to," this would not be possible. After all, every crime includes a conscious choice (well, almost every crime; the few exceptions do not break this logic). Thus, as long as the punishment for a crime is clearly defined before it is committed, criminals have "consented" to their punishment. If that is enough to make servitude voluntary, then the exception in the Thirteenth Amendment would be meaningless, so there must be a difference between consenting to something and voluntarily choosing it.

Consider the following two choices:

• (a) commit a crime and be punished by servitude or (b) don't commit a crime and don't have servitude
• (1) perform free labor for the state or (2) don't perform free labor for the state

As discussed above, (a) involves involuntary servitude (although it's permissible according to the exception), while it is clear that (1) does not. What's different? The first choice involves other factors, while the second choice is boiled down to a single choice: service or no service. The "bundling" of choices, then, is what would seem to make those choices "involuntary."

It's worth noting that the first choice does not even involve giving up anything that the individual is entitled to: it merely involves not committing crimes, which the individual cannot do anyways. This suggests that choices which involve giving up a basic right (such as citizenship under the 14th Amendment) are even more involuntary, even if they meet the requirements of "consent".

Of course, we have one problem left: how do we justify paying people to serve in the military and say that it's still a "voluntary" choice to serve? After all, since soldiers get paid the choice is not as simple as the second one above. It actually involves either (*) serving and receiving money, or (**) not serving and not receiving money. Why doesn't this bundling of choices create an involuntary choice? Sure, people aren't entitled to receive money from the government, but they also aren't entitled to commit crimes.

The solution lies in the real meaning of "service." Throughout human history, compensation has been understood as a integral part of voluntary service or employment. This creates an exception to the idea of bundling choices, so far as compensation is concerned, because it really becomes a single choice: compensation is so intrinsic to service that they do not create a troublesome involuntary situation. The criminal who is punished with service does not fit into a framework of compensation (he is not allowed to commit crimes as compensation for his service, he is simply punished with service because he committed a crime), nor does a person who must choose between constitutionally guaranteed citizenship and not serving in the military (they are entitled to that citizenship by right of birth, so it cannot be compensation for service.)

The next post in this series will deal with what is still the most troublesome problem with Thirteenth Amendment-Draft arguments: compulsory jury service.

The Problem With School Vouchers (Part 2)

(By Andrew MacKie-Mason)

A few months ago I wrote "The Problem With School Vouchers (Part 1)" and promised further analysis of the issue from a fiscal perspective. That analysis, unfortunately, never came. Until now! Here's part 2 of my criticism of school vouchers.

As a refresher, in part 1 I rejected the religious freedom argument, pointing out that parents do not have a free exercise right to impose their religion on their children through an educational institution. Free exercise only becomes a factor when the child is picking a school.

I also debunked the myth that private education would have a fixed cost if we switched everyone over to it via vouchers. (That argument was inexplicably brought up again in the comments, without improving it at all.) Basically, public schools play a large role in keeping the cost of private education down, and if we replace public schools with government-funded private schools, the cost of private education will skyrocket.

I will stand by my assumption from the previous post, that if we are to provide school vouchers we must make them universally available and sufficient to send every child to private school, while completely eradicating our public education system.

Moving away from cost-based arguments, we arrive at value. Conservatives often argue that we should switch to a voucher system because private schools offer a better education than public schools do. However, this misses a basic fact of the educational system: the quality of a school is largely based on the quality of the teachers and administrators, and there is a finite pool of potential teachers and administrators in this country. Moreover, there are even fewer good teachers and administrators.

Private schools often provide a higher quality education because they have various ways of encouraging outstanding teachers and administrators to work for them. (Better pay, more job security, a better learning environment, etc.) Private schools can provide these benefits because they charge tuition and limit their admissions.

However, no matter how we fund schools, we will need enough K-12 schools to house all of the school-age children in the country, and we will be working from the same pool of teachers. The same ineffective teachers who worked at public schools will now be employed by low-end private schools, and the quality of those schools will be no better than the public schools they replace.

Further, disparities in school-quality will not disappear. Private-private schools (those that charge tuition significantly above the voucher level) will hire the best teachers and administrators, and have the best facilities, thus (on average) providing a better education. Public-private schools (those that charge tuition at approximately voucher level or below) will have worse teachers and administrators and bad facilities.

A system of vouchers will not end educational inequality by putting everyone in the same schools. Instead, it'll just restructure the way public schools are funded, and everyone will end up right back where they are.

In subsequent posts (which will hopefully follow in less than five months) I'll discuss how school vouchers will lead to re-segregation and a deteriorating quality of education.

If you have comments about issues raised in part 1, please leave them on that post. Any other comments about school vouchers can be left here.

Liberal Bias of Public Education

(By Andrew MacKie-Mason)

A point I often hear (and that was often repeated on Mike Rosen's show today) is that public schools are biased towards or the "property of" the left. Here's a bleg to anyone who holds that view: is there any data, are there any studies, to support it? I've looked, and I can't find any (and if we're going solely from anecdotal experience, I would say that public education has a nationalistic-conservative bias combined with advocacy for intellectualism that can be interpreted as liberal). But if there are any real studies out there, I'd be interested to know about them.

850 KOA on Youth Rights

(By Andrew MacKie-Mason)

The show is here. (Click on "Listen Live".) Call in at (303) 713-8585.

Mike Rosen, a somewhat reasonable conservative talk show host, had Jeffrey Nadel of the National Youth Rights Association on his show to discuss lowering the voting age. I called in afterwards to point out that lots of adults are extremely ignorant about the basic structure of our political system, and he responded by claiming that studies and polls are pointless, and his own personal experience is a better basis for determining voting rights.

He also claimed that his civics education was better than civics education today, and then erroneously said that the founders made the voting age 21. In reality, there was no voting age in the Constitution until the 26th Amendment, which made the voting age 18. Rosen did go on to admit his error after the break.

More on Snyder's Unconstitutional Power Grab

(By Andrew MacKie-Mason)

As a follow up to my argument that the emergency manager bill is unconstitutional based on a simple reading of the Michigan Constitution, I bring you Michigan case law in support of my arguments.

First, we have Lucas v. Wayne County Election Commission et al., 146 Mich.App. 742, 381 N.W.2d 806 (Mich.App., 1985).

This case involved an attempt by Wayne County to have certain officials elected only for two years so as to line their elections up with the election of the chief executive. The court ruled that such an action was unconstitutional, even if approved by the legislature. One very relevant part of the ruling is this:

A review of Const. 1963, art. 7, §§ 10, 12, 14 and 15, reveals that the constitution clearly contemplates that a board of supervisors is necessary in each organized county. Section 10 provides for the removal of a county seat, § 12 provides for bridging or damming of navigable streams, § 14 provides for organization and consolidation of townships, and § 15 provides for county intervention in public utility rate proceedings. However, none of the aforementioned actions is possible without permission or authorization of the county board of supervisors. Thus, under the constitutional scheme, it is clear that the § 7 requirement that a board of supervisors be established is mandatory and is not negated by the § 2 grant of power to the Legislature to permit new forms of organization of county government. In the same manner that § 7 requires the establishment of a board of supervisors, § 4 requires the election of county officers. The similarity between § 4 and § 7 leads us to believe that the § 4 requirement is not negated by the § 2 grant of authority to the Legislature.

It should be clear that under this ruling, the constitution requires that certain officials be elected and have certain powers, and that the legislature cannot abrogate those elections or powers by giving an emergency manager complete control over a county.

The opinion also adds:

We note that while the constitution requires the election of officers with four-year terms, the distribution of power among the county executive, the board of commissioners and the elected officials is a matter within the province of the Legislature. Art. 7, §§ 4 and 8 do not delineate the scope of the powers and duties entrusted to the officers and to the board of commissioners. The scope of those powers and duties is to be determined by legislative enactment. See Oakland County Comm'r, supra, 649, 296 N.W.2d 621.

This may seem to suggest that the emergency manager position is acceptable if the other positions still exist, just without any authority. However, this analysis is mistaken. As the opinion says, there are certain powers which require the assent of the board of supervisors (and which the emergency manager thus cannot take unilaterally, or command the board to approve). Further, the opinion says that the legislature can detail the division of powers between the county executive, the board of commissioners, and the elected officials. It does not give the state legislature the authority to let the governor unilaterally appoint county officials.

The case cited in Lucas supports this reading: County Commissioners of Oakland County v. Oakland County Executive, 98 Mich.App. 639, 296 N.W.2d 621 (Mich.App., 1980).

Examining the above constitutional provisions with these objects in mind, as well as employing the convention comments quoted hereinbefore to aid our construction of the cited sections, we are led to the unavoidable conclusion that art. 7, ss 2, 7, and 8 indeed provide for the specific unchartered form of county government envisaged by 1973 PA 139. Art. 7, s 2, allows for the establishment of county government in forms other than chartered, while art. 7, s 7, compels the formation of a board of commissioners in all organized counties without regard to the form of that organization. Art. 7, s 8, generally circumscribes the powers and duties of such boards, again without regard to the form of county government under which such boards operate.

Reading these provisions together, while being mindful of the convention comments to art. 7, s 2, we find no proviso in the Constitution which would either proscribe the establishment of an unchartered form of county government or preclude the Legislature from creating a number of sub-categories within the unchartered form. Article 7, s 34 supports the proposition that counties were to be given great latitude with respect to the form of government they utilize, which in turn cuts in favor of allowing the Legislature to place maximal options at the counties' disposal. Finally, art. 7, s 1 gives to the Legislature sweeping authority to determine the powers of counties. We therefore conclude that the optional unified form of county government is clearly authorized by the Constitution of 1963; specifically, art. 7, ss 2, 7, and 8.

In other words, the legislature may provide for various forms of governance for counties, but those forms of governance must be approved by the people of the county. Despotic government by the governor's office cannot be implemented by the state legislature.

Moving away from counties, the Constitutional Convention's comment to Article 7, Section 22 (speaking to villages and cities) speaks clearly against this attempted power grab by Lansing:

This is a revision of Sec. 21, Article VIII, of the present [1908] constitution and reflects Michigan's successful experience with home rule. The new language is a more positive statement of municipal powers, giving home rule cities and villages full power over their own property and government, subject to this constitution and law.

"Subject to law" means that cities and villages must act in accordance with general laws, not that the legislature can allow the governor to take over cities just because he deems them to be in financial trouble.

This interpretation is supported by Utica State Savings Bank et al. v. Village of Oak Park, 279 Mich. 568, 273 N.W. 271 (Mich. 1937). (This case was decided under the Michigan Constitution of 1908, which was effect until 1964. However, the relevant constitutional provision appears in the current constitution [Art. 8 Sec. 21 1908 = Art. 7 Sec. 22 1963]).

From the foregoing it appears that, by constitutional provision, as well as by statutory and charter provisions, the power and authority to amend its charter is vested in the village electors. In view of the power vested in the electors by the Constitution, it must follow that, as to provisions pertaining purely to local matters, the Legislature does not have the power to alter or amend a village charter without the approval of the village electors.

A detailed analysis of the emergency management bill is required to determine its constitutionality. It could be that portions or sections of it would survive a home-rule challenge. However, it is clear that the entire institution of emergency manager is unconstitutional, or at least an emergency manager who did not exceed constitutional bounds would have little power and pose a minimal threat to local governance.

It's extremely disappointing that Michigan's Republican administration is attempting to push through this unconstitutional power grab. This is the worst kind of big-government conservatism, and ought to be opposed.

UPDATE: I should note that Public Act 72 of 1990 created a similar scheme for emergency financial managers in Michigan. I haven't done a detailed analysis of what this new law would change (for some reason, the Republicans chose to write the new law as that rather than as amendments to the old one, even though much has stayed the same). However, I have done a quick search on judicial decisions addressing that old law, and I have found nothing to contradict any of my arguments above. If you're aware of any Michigan court decisions that have legitimized these unconstitutional powers for emergency financial managers, please let me know.

Snyder Pushes Unconstitutional Control of Local Governments

(By Andrew MacKie-Mason)

As promised, here is my analysis of Michigan HB 4214 as it passed the Michigan House of Representatives under the Michigan Constitution. As indicated in the title, I conclude that the bill is an unconstitutional intrusion into the self-governance of local units of government.

A few preliminary matters:

• HB 4214 allows control of "local governments," which it defines to mean cities, villages, townships, charter townships, counties, "authorities established by law," or public utilities owned by any of the above, or school districts. (3-4) (I will cite HB 4214 by page number in the linked version, since its section numbering is done in an incredibly poor fashion).
• Counties, townships, villages, cities, and public utilities are controlled by Article VII of the Michigan Constitution. School districts are controlled by Article VIII.

Now, on to the good stuff. The worst parts of HB 4214 allow the governor to declare a unit of local government to be in a state of financial emergency and appoint an emergency manager with broad powers to control that local government. I've cited a lot of examples, and if you don't want to read them all, feel free to skim a few and then skip to the end of the list. They all fit in the same general framework.

1. "The governing body and the chief administrative officer of the local government may not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager and are subject to any conditions required by the emergency manager" (21).
2. "The emergency manager's compensation and reimbursement for actual and necessary expenses shall be paid by the local government and shall be set forth in a contract approved by the state treasurer" (22).
3. "The emergency manager shall issue to the appropriate officials or employees of the local government the orders the manager considers necessary to accomplish the purposes of this act, including, but not limited to, orders for the timely and satisfactory implementation of a financial and operating plan developed pursuant to section 18, including an academic plan for a school district, or to take actions, or refrain from taking actions, to enable the orderly accomplishment of the financial and operating plan. An order issued under this section is binding on the local officials or employees to whom it is issued" (23).
4. The emergency manager may ban disobeying officials from government buildings (24).
5. The emergency manager can institute a plan including: "The modification, rejection, termination, and renegotiation of contracts pursuant to section 19" (24).
6. "An emergency manager may take 1 or more of the following additional actions with respect to a local government which is in receivership, notwithstanding any provisions of law or charter to the contrary...Analyze factors and circumstances contributing to the financial emergency of the local government and initiate steps to correct the condition." (26). [In effect, this provision says that the emergency manager can do anything he wishes, no matter how many local laws he is violating.]
7. "Apply for a loan from the state on behalf of the local government, subject to the conditions of the emergency municipal loan act, 1980 PA 243, MCL 141.931 to 141.942, in a sufficient amount to pay the expenses of the emergency manager and for other lawful purposes" (30).
8. "Enter into agreements with other local governments, or with private entities to the extent provided by law, for the provision of services" (31).
9. "For municipal governments, disincorporate or dissolve the municipal government and assign its assets, debts, and liabilities as provided by law" (32).
10. "Exercise solely, for and on behalf of the local government, all other authority and responsibilities of the chief administrative officer and governing body concerning the adoption, amendment, and enforcement of ordinances or resolutions of the local government as provided in the following acts" (32).
11. "Take any other action or exercise any power or authority of any officer, employee, department, board, commission, or other similar entity of the local government, whether elected or appointed, relating to the operation of the local government. The power of the emergency manager shall be superior to and supersede the power of any of the foregoing entities" (33).
12. "Remove, replace, appoint, or confirm the appointments to any board, commission, authority, or other entity which is a component unit of the local government" (33).

In what ways does this law violate the Michigan Constitution? Many, but here are a few examples:

Provisions giving the emergency manager control over local government officials:

These provisions violate sections of the Michigan Constitution allowing the people within local jurisdictions to elect officials to fill these roles. In Article VII, see sections 4, 7, 8, 15 (counties), 18 (townships)

Provisions allowing the emergency manager to dissolve units of local government:

The Michigan Constitution guarantees the people of each county and its subunits the right to an elected government. In addition to the provisions regarding elected officials above, see Article VII, sections 1, 2 (counties), 17 (townships), 22 (cities and villages)

In particular, Article VII, Section 2 (partial): "No county charter shall be adopted, amended or repealed until approved by a majority of lectors voting on the question."

Dissolution of local governments also violates Article VII, Section 33, which says that removal of elected officials must be for cause.

Provision allowing the emergency manager to borrow money on behalf of the local government to pay his own salary:

This violates Article VII, Section 26 (partial): "Except as otherwise provided in this constitution, no city or village shall have the power to loan its credit for any private purpose."

Provision allowing the emergency manager to control agreements with other units of government:

This violates Article VII, Section 28, which allows the legislature to approve or disapprove of such agreements, but not to mandate them.

School Districts

While the constitutional provisions when it comes to school districts are much less substantial, the law still seems to run afoul of Article VIII in general, which provides for local school districts and "Leadership and general supervision over all public education" by a state board of education. If you read the Article, it clearly contemplates control of education by local school districts, not by the legislature.

Rule of Construction for Local Governments

Article VII, Section 34 is also important to keep in mind when evaluating Snyder's bill:

The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.

It's rare to see a bill that violates the state constitution in so many ways, but it shouldn't be surprising: Snyder is, after all, trying to completely change the way the state of Michigan is governed by giving the governor's office the right to sell counties away to corporations.

Stand up against this unconstitutional bill, and in a few years vote every legislator who supports, it, and the governor who signs it, out of office.

UPDATE: See some case law analysis of these issues here.

FL Sen. Norman Wants To Criminalize Parties At Farms

(By Andrew MacKie-Mason)

Florida SB 1246, introduced by Senator Jim Norman in the Florida Senate, would make it a first degree felony (punishable by 30 years in prison and a $10,000 fine) to either:

1. Set foot on a farm without express written permission; or
2. Photograph, record, or even paint an image of a farm without express written permission.

As Eugene Volokh points out, that would criminalize:

• Taking a photo of your neighbor's backyard, if your neighbor is a farmer;
• Taking a photo of a farm from a public road;
• Attending a party at a farm if you do not receive a written invitation; and
• Stopping at a farm to sell Girl Scout cookies or ask directions.

A few more examples:

• Taking a picture of your friend while there's a farm in the background;
• Going up to a farmhouse to ask the farmer for permission to take photos of his farm; and
• Accidentally entering a farm from land you were lawfully on, even when the property line is not marked.

There's absolutely no reason for this bill. None at all. Trespassing on a farm is already a crime in Florida (a first degree misdemeanor, like all simple trespass, punishable by no more than a year imprisonment and a maximum fine of not more than $1,000) and the worst kinds of trespass (trespass while wielding a weapon, trespass at a domestic violence center, and shooting a dangerous projective over someone else's land) are all only third degree felonies (punishable by a maximum of five years imprisonment and a fine of $5,000).

I've contacted Senator Norman for a response, but unless he explains why taking a picture of a farm justifies 30 years in prison and is six times as bad as trespassing at a domestic violence center, I humbly suggest that he's gone round the bend, and it's time for the voters to offer him retirement.

Rick Snyder Betrays Local Government

(By Andrew MacKie-Mason)

UPDATE: Subsequent posts include "Snyder Pushes Unconstitutional Control of Local Government" and "More on Snyder's Unconstitutional Power Grab".

Before I get started, let me be clear: I write this as a liberal who generally supported Rick Snyder's campaign for governor last year and would have voted for him but for his troubling position on equality. I truly thought he would have a good impact on the state in many ways, but apparently, I was wrong.

Rick Snyder and his cronies in the legislature have demonstrated the problem with electing businessmen to public office: they'll try to give away the store to businesses.

The House and Senate have passed similar versions of a bill (and Rick Snyder has said he'll sign it) that would allow the state government to declare local governments and boards of education in a state of financial emergency. As a general concept, it's not stupid: sometimes, local governments need oversight from the state to control their finances. However, there should be strict limits on the authority of emergency managers: they should be able to reject budgets and send local governments back to the drawing board, but they shouldn't be able to unilaterally run the city.

Snyder's bill would allow an emergency manager, which can be a corporation, to dismiss local governments and completely take over. The emergency manager would even be paid by the local government, with a salary determined by the state. (Because, you know, the way to restore financial solvency is to force the city to hire an expensive and possibly ineffective firm to control them.) Basically, the bill would allow the governor to sell off cities to corporate buddies, and have the cities themselves pay for it.

Snyder's bill goes way too far in overthrowing local government and selling it off to corporate managers. It's not about financial solvency, it's about control. There's also a substantial chance that the bill is unconstitutional under Article VII of the Michigan Constitution: expect more analysis of that in the coming days.

Until then, I leave you with Rachel Maddow on Rick Snyder.

Dueling Westboro

(By Andrew MacKie-Mason)

On First Things, David Bentley Hart takes issue with the Supreme Court's recent decision in Synder v. Phelps, where they ruled that the Westboro Baptist Church had the right to protest near a funeral. Hart labels this ruling the product of a barbarous culture, and suggests that it is justified only by a country that no longer takes any sort of morality seriously. He closes (in the tradition of his article's namesake) by proposing that we resolve the problem by allowing private dueling to squash actions like Westboro's.

I imagine that if some champion of one of the families molested by that pestilent rabble—let’s imagine him as a Special Forces officer famed for his uncanny marksmanship—were allowed to challenge the Rev. Fred Phelps to acquit himself manfully on the field of honor, and allowed to issue the challenge with the full indulgence of the courts and the weight of social judgment on his side, the good reverend and his parishioners would in all likelihood quietly ooze back into the sewer from which they originally pullulated.

He admits that he's fantasizing, but closes with:

I find the fantasy mildly enchanting, of course, but only as a kind of daydream. Even so, however—and this is the only point I really mean to make—is there anything about my proposal that is conspicuously any more absurd than the decision just handed down by eight of the justices of the Supreme Court?

To the extent that Hart seriously thinks that a rational society cannot attack the institution of dueling with principles consistent with Snyder v. Phelps, he appears to have not seriously considered the society he is criticizing.

Snyder, far from being evidence of a society that has abandoned morality, is the product of a society that values the right to speak one's mind, free of compulsion from the more powerful. How, after all, can we condemn Phelps without taking into account our majoritarian repulsion to his message? What, in the legitimate eyes of the law, makes Phelps different from rape victims who harass the families of their rapists at those rapists funerals? As a society, we abhor the idea that violence and compulsion can suppress speech, because such suppression inevitably leads to a suppression of all dissent, which ends in tyranny.

It's clear that Hart's mock-proposal is in direct conflict with those exact moral principles. It would allow physical violence to squash speech; it would protect the strong rather than the weak; it would feed a society where violence, rather than discussion, is used to resolve disputes. Really, suggesting that an approval of Snyder means abandoning any objection to institutionalized dueling makes absolutely no sense. Dueling is just one more aspect of the "you can only say what we want to hear" philosophy that is directly at odds with the principles vindicated in Snyder.

Facebook Stupidity

(By Andrew MacKie-Mason)

Update: If anyone featured on this list wants their name removed, please email me with your request and an explanation, and I'll consider it.

Your collection of the wonderful sayings of our generation.

Mike Davis Do yall think those slant eyes were praying for the hundreds of people they were killing when they were bomming the hell out of pearl harbor-------Don't think so.... Guess i watch to much history channel.

Veronica White If you wanna feel better about this earthquake in japan googlepearl harbor death toll.

Allen Plummer Remember PEARL HARBOR

Brooke Hailey Dawn Well japan... Karma is a bitch... Hah remember pearlharbor?? Yea...

Scrotie McBoogerballs Hey Japan, that tsunami was for my great grandfather and all of those who perished on December 7, 1942! Pearl Harbor just came back to bite you in the ass! Karma really is a bitch, isnt it?

Melissa Flores Bieber POOR JAPENSES PEOPLE :( but im not trying to be mean but they deserved it like cmon they attacked pearl harbor and tricked the americans many people died they sended nuclear bombs to us! but i want to let the flame burn we shouldhelp like if u think we should start a orginzation to help them we helped haiti we can help japan! [This is my favorite. Once you get past the horrible grammar and spelling, you realize that she thinks that Japan nuked America... -AMM]

Jeremy Martinez Enough about the japs who gives a shit they bombed pearlharbor let them all die they would be happy if that happened to us!

Michael Arruda REMEMBER PEARL HARBOR

Nick Calabrese If they didn't bomb pearl harbor this wouldn't have happened. Gods way of tell japanese people there gay [I'm honestly not sure whether this one is sarcasm. I hope so. I really do. -AMM]

Jesus Gutierrez If the good USA is hurting so bad, is the government pukes going to send help to the JAPS. We don't forget Pearl Harbor.

Mike Glossip NO U.S. HELP TO JAPAN,THEY HAVE ENOUGH OF OUR MONEY ALREADY.REMEMBER PEARL HARBOR.

George Ha Zack Wagner Why does every one feel bad for Japan? Doesn't pearlharbor sing a bell?

Anthony Wehage I just want to say...Fuck Japan. Anybody remember PearlHarbor? WWII atrocities that they never have apoligized for. U.S. economy damn near ruined in the 70's and 80's with their crappy disposable cars, and cheap electronics. They're stupid fads, like japanimation, karaoke, the fact that all their pop stars look like children, drifting, ninjas, sushi. Yea, fuck 'em. They are NOT nice people.

Steven Stoker Do I feel bad for japan? Two words....pearl harbor

Charles Goldzweig And ill just throw it out there to get some response, did you forget what happen at pearl harbor? Once again my prayers to all in japan I really do care but just saying...

Ramon Garcia Waitin to c how many millions da brotha is gng to add to our national deficit. To help the guys that bombed pearl harbor.

Stephen Beumel Sr Poor Jap's with the wrath of God bearing down on them. Now would be a good time to Nuke'em again! Remember Pearl Harbor!By God!

Eric Carl Wendt Payback for Pearl Harbor.

Shane Douglas MacGregor Even though those japs bombed our pearl harbor, we should still pray for them.

David Flores Thinking of getting dressed before i shower for work, that way when i show up soaked, ill just say i had Japanese food for dinner... too soon? I dont care, I just watched Pearl Harbor this afternoon.

Jimmy Kernahan Dont support japan.... Remember Pearl Harbor

Keith Walther Still feel bad for Japan? www.youtube.com http://www.PearlHarborDay.org Taken from a documentary about WWII, this is a short section about the attack on Pearl Harbor on December 7th, 1941. [Reader's Digest Classic Collection-World War II Combat Chronicles ©MMIV Questar Inc.] Please keep comments clean, any profanity will be deleted and Pearl Harbor Day Attack

Wilbern Hollowell This is bad what happened in japan today. you that can remember dec 7 1941 I had a uncle that was there, i was small but i remember what happened pearl harbor. the pictures today in japan looks a lot like the ones in 1941, on your computer type in pearl harbor look at the pictures and compare.

Bryan Lowery I'm with Josh why are we helping japan after there sneak attack onpearl harbor

Matthew Miller Fuck you Japan I'm glad you got hit with an earthquake. That's what you get for bombing pearl harbor.

Kortney Spurgeon Not saying i dont feel kinda bad for the people in japan but..every time you start feeling bad for them google 'Pearl Harbor death Tolls'...

Miguel A. Muñoz So all of a sudden everyone seems to be praying for Japan...that's good and all, but let's not forget who bombed Pearl Harbor. No crime goes unpunished. Freedom of Speech fellas.

Debby Benegar May be offensive but today I heard that this is what happens when you Bomb Pearl Harbor

Max Monaghan Who bombed Pearl harbor? Karmas a bitch.

Chris LeClair Maybe the Japanese earthquake affected the Badgers offense! The Badgers looked a little shakin' up if you know what I mean! BTW Japan, Pearl Harboris chuckling right now!

Gabe Mojarro do u guys not remember pearl harbor ??? karma bit japan in the ass !!! haha jk they saw the wave and godzilla was coming !!

Dillon Eason Japan bombed pearl harbor, and god gave them a tsunami lol

Zack Smith That's for Pearl Harbor.