Getting past all the politics and rhetoric, Chief Justice Roberts zeroed in on the heart of the case when he noted that the state with the worst ratio of black-to-white turnout and registration is Massachusetts and the best is Mississippi (third-best in registration). This case is not about whether racial discrimination still exists in America or even whether it is disproportionately found in the South (which it isn’t). It simply asks whether the “exceptional conditions” that the Supreme Court found to justify the “extraordinary remedy” of federal intrusion on state election administration in 1965 still exist today. By any measure, they do not — and if they did, Congress didn’t do its homework in 2006 to tailor the application of Section 5’s burdensome requirements to jurisdictions that allegedly engage in this systemic discrimination that is somehow Jim Crow’s equivalent. The justices were starkly divided today, but this case should be much easier than that.
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Constitutional Law
Secret Spying and the Supreme Court’s Constitutional Catch-22
The memory of the abuses perpetrated by colonial officials wielding “general warrants” inspired the framers of our Constitution’s Fourth Amendment to constrain the government’s power to invade citizens’ privacy. With today’s 5–4 ruling in Clapper v. Amnesty International, the Supreme Court has announced that the modern equivalent of those general warrants—dragnet surveillance “authorizations” under the FISA Amendments Act—will be effectively immune from Fourth Amendment challenge.
The FAA permits the government to secretly vacuum up Americans’ international communications on a massive scale, without any individualized suspicion—and at least some of that surveillance has already been determined to have violated the constitution by a secret intelligence court. Yet today’s majority has all but guaranteed no court will be able to review the constitutionality of the law as a whole by imposing a perverse Catch-22: Even citizens at the highest risk of being wiretapped may not bring a challenge without proof they’re in the government’s vast database. The only problem is the government is never required to reveal who has been spied on.
In essence, the Court has said that even if the law is unconstitutional, even if it has violated the Fourth Amendment rights of thousands of Americans, there’s no realistic way to get a court to say so.
Precisely when secrecy shields the government from public political accountability, the Clapper ruling announces, the Constitution is powerless to protect us as well.
I’ll have a more detailed analysis of the ruling (and dissent) tomorrow.
An Unconstitutional Tax Bill in Virginia?
My long-ago colleague Norman Leahy, once a young research assistant at the Cato Institute, has an op-ed in the Washington Post today. I wonder where he got the idea that an act of the legislature is invalid just because it violates the state constitution.
Those praising the Virginia General Assembly’s transportation compromise may not realize that the bill runs afoul of the plain language in the state’s constitution.
Virginia’s constitution is clear that the General Assembly can impose only uniform taxes across the state for similar activities. But the bill that emerged from the House-Senate conference committee last weekend upsets the historic balance between localities and state government; it contains new provisions about taxation, some of which would effectively set up a two-tier system for residents in certain parts of the state. It’s difficult to see how some of these provisions could survive legal challenge.…
As a constitutional matter, these local tax provisions could probably be struck down without affecting the rest of the legislation.
But few should know better than Gov. Bob McDonnell (R) that state legislators don’t have the power to impose a discriminatory local tax. He was the state’s attorney general when his office defended before the state Supreme Court the General Assembly’s previous attempt at a transportation tax package. The court rejected the argument.
Proposals To Make Gun Owners Carry Liability Insurance
As the New York Times reports:
Lawmakers in at least half a dozen states, including California, Connecticut, Maryland, Massachusetts, New York and Pennsylvania, have proposed legislation this year that would require gun owners to buy liability insurance — much as car owners are required to buy auto insurance. Doing so would give a financial incentive for safe behavior, they hope, as people with less dangerous weapons or safety locks could qualify for lower rates.
“Liability insurance” may be a misnomer in this discussion, however, since some of the proposals would require the purchase of bonds against intentional acts (which are commonly excluded from conventional liability coverage), and also against misadventures for which gun owners would not at present be held legally responsible (such as third party criminal use of a gun following a theft not occasioned by owner negligence.) More: Reuters, Nelson Lund/GMU, Jessica Chasmar/Washington Times, Taranto/WSJ, Josh Blackman.
Would a mandatory bonding or insurance scheme survive judicial scrutiny if it were motivated by a desire to burden the exercise of a constitutional right? David Rifkin and Andrew Grossman, writing in the WSJ, suspect not:
Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates.
The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?
[cross-posted and slightly adapted from Overlawyered]
New Constitutional Amendment Would Abolish Obamacare’s “Mandate Tax”
I’ve been known to say that Chief Justice Roberts’s transmogrification of Obamacare’s individual mandate created a “unicorn tax” — a creature of no known constitutional provenance that’ll never be seen again. Well, here to ensure that more than congressional discretion prevents any future tax on non-purchases is a constitutional amendment that was recently floated by Congressman Steven Palazzo (R‑MS).
Rep. Palazzo has introduced H.J. Res. 28, which would overturn last summer’s Supreme Court decision that, for the first time ever, under certain limited conditions, granted Congress the power to tax inaction. The amendment reads, in its entirety, as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”
Short and sweet and, with the mandate-tax set to take effect this next January, now is the time to act to prevent about 11 million mostly middle-class Americans from getting hit. Indeed, the CBO estimates that 70 percent of those currently without insurance and earning less than $94,000 a year will get slapped with the mandate-tax that goes into effect in 2014. That doesn’t sound like a good, let alone fair, way of either “protecting patients” or ensuring “affordable care,” but hey, I’m just a constitutional lawyer.
Oh, and of course this amendment would prevent all other possible mandate-taxes as well, not just in the field of health care.
It’s sad that we’ve come to this — the Constitution already prohibits taxes on inactivity — but of course there are many things that the government does (and which courts have allowed it to do) that are plainly unconstitutional. H.J. Res. 28 is an excellent start.
For examples of more great ideas on how to rein in our out-of-control government, see Randy Barnett’s “Bill of Federalism” and the Compact for America.
Laws of Creation: Property Rights in the World of Ideas
“What can be said about copyright that doesn’t anger somebody somewhere?”
“Not very much,” I said in answer to my own rhetorical question at the beginning of a December book forum on Copyright Unbalanced: From Incentive to Excess (Mercatus Center, 2012).
Copyright and other intellectual property laws are controversial: Some libertarians regard inventions of the mind as the rightful property of their creators. The Framers, they point out, empowered Congress to secure these rights to authors and inventors. Others lament these laws as information regulations that conflict with natural rights.
The latest turn in the copyright controversy is the Librarian of Congress’s decision no longer to exempt the unlocking of (newly purchased) mobile phones from the proscriptions of the Digital Millennium Copyright Act. In other words, consumers can no longer use their phones on a different network without the original carrier’s permission, even after their contracts have expired.
Derek Khanna, the former Republican Study Committee staffer fired after penning a memorandum strongly critical of current copyright law, called it in The Atlantic the “Most Ridiculous Law of 2013 (So Far),” and a petition asking the president to reverse the Librarian’s ruling has more than 87,000 of the 100,000 it requires to get the White House’s response.
We won’t necessarily get into that particular issue on March 20th when we hear from Ronald Cass and Keith N. Hylton, authors of the book Laws of Creation: Property Rights in the World of Ideas. But Cass and Hilton argue against the notion that changing technology undermines the case for intellectual property rights. Indeed, they argue that technological advances only strengthen the case for intellectual property rights.
In the view of Cass and Hylton, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, the greater the disincentive to invest time and money in inventions and creative works. Intellectual property laws are needed as much as ever.
Register now for this March 20 noon-time event. It’s the latest in a long series of Cato events examining copyright and intellectual property, subjects on which libertarians often find themselves divided.
Quebec Is NOT for Lovers… of Freedom
![Media Name: pasta_olf.jpg](/sites/cato.org/files/styles/pubs_2x/public/wp-content/uploads/pasta_olf.jpg?itok=r7oR7g-L)
I was born and raised in Québec, love the city of Montréal, and remain fond of the French language, but I found it much easier to leave the province half-a-lifetime ago because of things just like this:
One of Montreal’s hip restaurants on St. Laurent Boulevard has caught the eye of the language police.
Buonanotte was paid a visit recently by the people at the Office Quebecois de la langue francaise. They followed up with a written complaint about a couple of words on the Italian restaurant’s menu. One being “pasta”, the other “bottiglia” to indicate its wine selection by the bottle.
It seems these words are violations to Bill 101 because there are no French words describing what they mean.
Yes, there are better ways of discouraging the tourism of freedom-loving Canadians and Americans, but this will do quite well.
Almost as offensive as the trampling of free speech is the insulting assumption that Montrealers who patronize “hip” Italian restaurants are unfamiliar with the word “pasta” and cannot deduce the meaning of “bottiglia”… when it appears at the head of a wine list.
That such petty villany against liberty can be perpetrated in Canada is due to the “notwithstanding clause” of its Charter of Rights and Freedoms—Canada’s equivalent to the U.S. Bill of Rights. In essence, it allows provincial governments to abrogate “fundamental” rights “guaranteed” by the Charter (and to quote Pricess Bride, I don’t think they know what those words mean).
It’s hard enough defending individual liberty in a nation whose most basic laws expressly protect it. How much more difficult it must be in a nation where they don’t.…