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Constitutional Law
In a Republic, Voters Are Sovereign
As the story goes, when Benjamin Franklin left the Constitutional Convention in 1787, he was approached by a woman who wanted to know what type of government the delegates created. Franklin responded, “A republic, madam, if you can keep it.” Since the Founding, the Supreme Court has never directly defined what this “Republican Form of Government” is that Article IV of the Constitution guarantees to every state in the union — but cases come up every now and then invoking this provision (also known as the Guarantee Clause).
The latest such case comes out of Colorado and involves the ability of voters, protected in nearly every state constitution, to make law through various forms of direct democracy, such as voter initiatives. In 1992, Centennial State voters enacted a Taxpayers Bill of Rights (TABOR) to restrict the legislature’s ability to raise tax rates or increase spending, in a formula tied to the rate of inflation and population growth, unless otherwise approved by voters.
In Kerr v. Hickenlooper, the plaintiffs wish to remove this barrier and provide the Colorado legislature, municipalities, and school boards with full discretionary authority to tax, spend, and borrow, without voter approval. State Senator Andy Kerr and other government officials are seeking to redefine a “republic” as an institution whereby all legislation is solely the duty and privilege of the legislatures, and voter referenda are impermissible. The outcome of this revised interpretation could invalidate centuries of voter decisions at the ballots, abolish future voter input aside from the election of representatives, and give politicians carte blanche to tax, spend, and borrow.
Surprisingly, and despite any showing that voter initiatives are somehow incompatible with “republican government,” the federal district court allowed the lawsuit to proceed. Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Independence Institute on an amicus brief arguing that, absent controlling legal precedent, the phrase “Republican Form of Government” should be defined by the standard sources the Supreme Court uses to decipher constitutional language: Eighteenth century political works, contemporaneous dictionaries, and official records and commentary from the Constitutional Convention, which for our purposes here all define “republic” in a way fully consistent with direct citizen lawmaking.
The most popular example of voter participation at the time of the Founding was through the town meeting, employed to this day throughout much of New England. Moreover, Massachusetts ratified its state constitution of 1780 by referendum, and Rhode Island even used a referendum to ratify the U.S. Constitution itself. Entry of those states into the union entailed recognition that those existing states had a republican form of government.
Based on all available evidence, the Guarantee Clause doesn’t require Colorado to dismantle its TABOR system of checks and balances. We urge the Tenth Circuit to reverse the district court’s denial of Colorado’s motion to dismiss and allow the state to preserve its model of self-governance.
The First Amendment Is a Sweet Emotion
Hawaii, no longer content to trample on the Fourteenth Amendment alone, is about to bid a sorry aloha (farewell) to the First Amendment. In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii’s Senate is poised to pass the “Steven Tyler Act.”
The bill, named after — indeed, written by — the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of an aging rocker, or perhaps the Obama family. Specifically, the bill would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech. As my frequent co-author, law professor Josh Blackman explains, there are several constitutional defects here:
First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.
Second, the proposed statute is purposely vague. It offers no guidance of what “personal or familiar activity” means.
Third, courts would have the authority not only to stop the initial publication of a photograph, but allows for restraining orders for future, subsequent reproductions of the same photograph. This type of authority is called “prior restraint” — highly suspect in First Amendment jurisprudence — with nary a compelling government interest at stake.
Fourth, the penalties are severe, and include compensatory damages, treble punitive damages, and disgorgement of profits. Such penalties on a vague statute would easily chill speech far beyond the worst kind of paparazzi any celebrity can imagine.
Fifth, this standard applies not only to the person who takes the photograph, but potentially to anyone who uses the photographs in any capacity. The only existing publication-related laws even approaching such a strict liability standard involve child pornography. As Josh notes based on one of his law review articles, many of these constitutional defects could be fixed by adding a newsworthiness exception to the law and limiting the scope and nature of damages that can be awarded. These tweaks would bring the law more in line with existing privacy law, while still respecting the Constitution. Protecting privacy in public is a laudable goal that in our constitutional jurisprudence dates back at least to the seminal article “The Right to Privacy” by Samuel Warren and Louis Brandeis. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (viz., Princess Diana). The Steven Tyler Act, however, misses a very important thing — that privacy and the First Amendment can coexist.
Hawaii shouldn’t walk this way, instead promoting the right of privacy that our society should strive for while ensuring the freedom of speech. Let’s not be jaded by the costs of freedom. Anything else is just crazy.
Obamacare’s Shell Games Collectivize Our Consciences
Facing increasing losses in federal courts over Obamacare’s contraceptive mandate, the Department of Health & Human Services last week promulgated a rule to expand exemptions for religious nonprofits. That sounds good, but what the government is actually doing is a sort of accounting shell game: employers will no longer have to pay for the products/services to which they objects, but the government requires them to contract with an insurance company that the government then requires to provide these products/services to employees who want them “for free.”
As Yuval Levin put it, “If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t.” Matt Bowman, an attorney litigating some of these cases, makes some amusing analogies to illustrate the point:
Suppose the government decides that college students need access to pornography for their sexual health. It forces all colleges to give their students a free subscription to the Playboy Channel. Christian colleges object. So the government says it will merely force those colleges to give their students a subscription to cable television, and then it will force that cable company to give those students a free subscription to the Playboy Channel. Why would the Christian colleges be content with this arrangement?
Imagine that the government wishes to empower Second Amendment rights. It pairs employers with local families struggling with mental illness and requires the employers to provide the families with free handguns. Religious groups object. So the government forces the religious groups to give people with mental illness a membership at a shooting range, and then forces the shooting ranges to provide those people with free handguns as a benefit of membership.
Perhaps the government decides that Americans need to just calm down, especially religious fanatics. It forces employers to supplement the water supply in their buildings with sedatives. Religious groups object. So the government forces the religious groups to maintain an account with the water company, and then forces the water company to put sedatives in the religious groups’ water supply.
The new accounting gimmick contraceptive-mandate exemption simply betrays contempt for anyone, religious or otherwise, who doesn’t want to pay for birth control pills. (I should note that I have no moral objection to contraceptives or the other pills at issue in this mandate; it’s the mandate itself that’s a problem.) And remember that there’s no question that proposed exemption doesn’t help objecting for-profit businesses, such as Hobby Lobby, one wit. And that’s a shame.
D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws
Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case. “Prosecution would not promote public safety in the District of Columbia, nor serve the best interests of the people,” Nathan wrote.
In the Washington Post story about this episode, I was quoted as calling Nathan’s decision “a wise use of prosecutorial discretion” but that the episode “illustrates the absurdity of some of these gun laws.” My position apparently paralleled that of the NRA—even though Gregory had waved the illegal magazine in front of the group’s executive VP, Wayne LaPierre—but “thousands of gun advocates” signed a White House petition calling for Gregory’s arrest because he ought to be treated the same as anyone else.
Indeed, a friend soon pointed out to me that D.C. authorities were not treating people equally: Last summer, Army Specialist Adam Meckler, a veteran of the Afghanistan and Iraq wars, was arrested and jailed for having a few long-forgotten rounds of ordinary ammunition—but no gun—in his backpack in Washington. Meckler violated the same section of D.C. law as Gregory did, and both offenses carry the same maximum penalty of a $1,000 fine and a year in jail. [H/t: Jason Epstein]
Well, that’s disgusting, and D.C. authorities ought to be ashamed of themselves. But the correct response isn’t to waste taxpayer dollars on prosecuting David Gregory, but rather to not prosecute the Adam Mecklers of the world.
Now, I’ve never been a prosecutor or even practiced criminal law, so it could well be that it’s outside the ethical bounds of discretion not to charge someone who so brazenly flaunts the law as Gregory and the NBC producers did. But if incidents like these doesn’t make people realize that it’s lunacy to criminalize, as a strict liability offense, no less (meaning that your knowledge or mental state is irrelevant), the mere possession of magazines, bullets, and other gun-related accoutrements (without even getting to an “assault weapon” ban, etc.), then nothing will. A magazine is a metal box with springs, of which there are hundreds of millions in the country. A bullet is a piece of metal that, in the absence of a gun, is less deadly than a rubber band. It’s people who insist on demonizing such objects that lend creedence to those on the other side who believe that any gun regulation is a step toward confiscation and tyranny.
Let me be even clearer: Criminalizing the possession of a magazine or bullet is as extreme as legalizing the private ownership of nuclear missiles. The idea that celebrities should be treated no differently than anyone else is an important one to draw from the David Gregory incident. But it’s even more important, at least in the context of our ongoing discussion over gun policy, to understand that putting stupid laws on the books doesn’t make us any safer and indeed draws resources away from actions (like investigating, prosecuting, and preventing violent crime) that do.
Bike Advocates Oppose Mandatory Helmet Laws
This morning’s Washington Post reports that organized bicycling enthusiasts in Maryland, though a very safety-oriented bunch, are mostly not supporting a bill in the state House of Delegates filed by Del. Maggie McIntosh (D‑Baltimore) that would make helmet use mandatory for riders:
“We feel that everyone should wear a helmet,” said Carol Silldorff, executive director of the nonprofit group Bike Maryland. “We don’t feel that it should be necessarily the law that you have to wear a helmet.”
Shane Farthing, executive director of the Washington Area Bicyclist Association, is quoted similarly: “we are fully supportive of the use of helmets and encourage everyone who rides a bike to use one,” he said. “We’re just not convinced that a mandatory helmet law is going to improve safety.”
For bike advocates, the main problem seems to be that fear of being ticketed under a mandatory law is likely to discourage casual short-hop users from participating in the sort of Bikeshare program that has become popular in Washington, D.C. and is expected to spread soon into the Maryland suburbs. Bike advocates cite a “safety in numbers” theory: once the novices and impulse users drop out for fear of being hassled by police for their lack of head protection, the only urban bicyclists will be the dedicated types who carry a helmet around with them just in case, and motorists (the theory goes) are more likely to ignore bicyclists’ safety needs when they don’t see them around much. Farthing, of WABA, is also concerned that once helmet use is legally obligatory, officials may be unwilling to open Bikeshare docking stations “for fear that they would be legally liable” after an accident for facilitating unhelmeted use.
In other words, you can care about safety, but not want it enforced by government decree. Kind of a revolutionary idea — especially in today’s Washington, D.C.
Will Debate Constitutionality of the Voting Rights Act — Anytime, Anywhere
Three years ago, some law professors were having a hard timing finding someone to debate the constitutionality of Obamacare’s individual mandate. I naively stepped up to the plate, which resulted in over 100 debates, speeches, panels, and public events (and, as we know, an invalidation of the mandate but salvage of the relevant provision in the form of a tax).
Now we see a similar predicament with respect to Section 5 of the Voting Right Act, the provision that effectively makes the federal government a proconsul with respect to election administration in a seemingly random assortment of states, counties, and towns around the country. As I’ve blogged and written in a Supreme Court brief, Section 5’s extraordinary powers were justified only under Jim Crow’s exceptional conditions; the Voting Rights Act’s success in eradicating those conditions has happily obviated Section 5’s constitutional legitimacy. (As I noted more recently, and wrote in another brief, Section 2 has its problems as well.)
Yet my view isn’t shared in legal academia — surprise, surprise — and a leading election law scholar posits that “the case for Section 5’s constitutionality is so clear that the liberal election law professors simply have the better of the argument!” Three weeks before the Supreme Court hears argument in the pivotal case of Shelby County v. Holder, there is apparently a dearth of scholars willing to speak out against this egregious violation of federalism and equal protection.
Well, in the words of How I Met Your Mother’s Barney Stinson, challenge accepted!
I may not be full-time faculty anywhere — is that a negative? — but I hereby announce that I will travel anywhere at anytime to debate the constitutionality of Section 5 of the Voting Rights Act. Whoever sets up the debate has to pay my travel expenses and take me out to a nice dinner, but that’s it. Any takers?