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Supreme Court

All articles with the "Supreme Court" tag.

Published: Tue, 26 Sep 2017 00:00:00 -0400

Last Build Date: Tue, 26 Sep 2017 17:12:52 -0400


When the Government Declared War on the First Amendment

Tue, 26 Sep 2017 06:00:00 -0400

One hundred years ago, the U.S. government declared war on the First Amendment. It all started with President Woodrow Wilson. On April 2, 1917, Wilson urged the nation into battle against Germany in order to "make the world safe for democracy." But the president also set his sights on certain enemies located much closer to home. "Millions of men and women of German birth and native among us," Wilson observed. "If there should be disloyalty, it will be dealt with with a firm hand of repression." That firm hand came in the form of the Espionage Act, which Congress passed in June 1917 and Wilson eagerly signed into law. Among other things, the act made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of anti-war speech. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and up to 20 years in prison. With that law in place, Wilson's threats of repression soon became reality. In August, the federal government arrested and imprisoned Charles Schenck, the general secretary of the Socialist Party. His crime? Printing and distributing thousands of anti-war leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner against U.S. militarism, but his arguments fell on deaf ears. On March 3, 1919, the U.S. Supreme Court upheld his conviction. "When a nation is at war," declared Justice Oliver Wendell Holmes Jr. in Schenck v. United States, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight." He waved away the First Amendment consideration. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," he wrote. Censors have been quoting that sentence ever since. One week later, Holmes dismissed the First Amendment yet again, this time upholding an Espionage Act conviction of the union leader and perennial Socialist Party presidential candidate Eugene Debs, who had been arrested in 1917 after giving a mildly anti-war speech at an afternoon picnic. "This man is the palpitating pulse of the sedition crusade," federal prosecutor F.B. Kavanaugh had declared during the trial. "One purpose of [Debs'] speech, whether incidental or not does not matter, was to oppose not only war in general but this war," Holmes wrote in Debs v. United States, "and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting." So much for "Congress shall make no law…abridging the freedom of speech." Debs would languish in prison until 1921, when he was finally pardoned by President Warren G. Harding. These old cases have important lessons to teach us today. For starters, they demonstrate why the exercise of fundamental rights should never be subject to majority approval. The Espionage Act was passed by a democratically elected legislature and enforced by a democratically elected president, and it was probably in tune with the will of most Americans at that time. But of course, the whole point of the First Amendment is to place certain rights beyond the reach of the majority. These cases also demonstrate the importance of an independent judiciary that is prepared to check the other branches of government when they go too far. It is no coincidence that Holmes was the justice who led the Court in trashing the First Amendment in Schenck and Debs. Far too often throughout his long career on the bench, he advocated judicial deference to majoritarian government. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominant forces of the community, even if it will take us to hell." That sort of judicial pacifism should have no place on the Supreme Court.[...]

Is Minnesota's Indefinite Detention of Sex Offenders Punitive or Therapeutic?

Mon, 25 Sep 2017 13:45:00 -0400

Since 1994 the Minnesota Sex Offender Program (MSOP) has confined more than 700 people who were deemed too "sexually dangerous" to release after completing their prison sentences. Ostensibly they are no longer inmates but patients, undergoing treatment aimed at reducing their risk of recidivism. Yet in more than two decades, only one of these involuntary "patients" has been declared well enough to be released, and that did not happen until August 2016. Today the U.S. Supreme Court is considering whether to hear a challenge to this system of indefinite preventive detention, which effectively imposes life sentences on people who have already been punished for their crimes. The plaintiffs in the case, Karsjens v. Piper, include MSOP detainees who have completed their treatment yet remain behind bars because the program does not conduct regular assessments to determine whether offenders still meet the criteria for commitment. "In effect, Minnesota's failure to implement adequate periodic reviews establishes a death-in-confinement sentence without any of the safeguards of the criminal legal system," says the petition asking the Supreme Court to hear the case. "Hundreds of civilly committed people in Minnesota have never received a risk assessment, and hundreds more have risk assessments that are outdated and therefore invalid....The MSOP knows, for some of the people in custody, that they in fact satisfy discharge criteria, but the MSOP takes no action to facilitate their discharge." As one of the plaintiffs put it in 2015, "The only way to get out is to die." The Supreme Court has upheld post-prison commitment of sex offenders, accepting the pseudoscientific claim that a propensity to commit a certain type of crime is an illness that mental health professionals can cure (in this case, an illness defined by state legislators rather than psychiatrists). But the Court has warned that imposing punishment in the guise of treatment is a violation of due process. "If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function," Justice Anthony Kennedy wrote for the majority in the 1997 case Kansas v. Hendricks. "[If] civil confinement were to become a mechanism for retribution or general deterrence...our precedents would not suffice to validate it." In a brief supporting the Karsjens plaintiffs, the Cato Insitute and the Reason Foundation (which publishes this website) argue that the MSOP's track record and lack of systematic assessments show it is punitive rather than therapeutic. "The MSOP is a regime of indefinite detention that provides no hope of release," the Cato/Reason brief says. "The most powerful proof that the MSOP's treatment approach is not meaningful is the fact that some individuals who successfully completed treatment never earned release and were never discharged....It is functionally impossible to distinguish between Minnesota's civil commitment for sex offenders and imprisonment....If any SOCC [sex offender civil commitment] scheme is punitive, Minnesota's is." U.S. District Judge Donovan Frank agreed with this critique in 2015, but last year his decision was overturned by the U.S. Court of Appeals for the 8th Circuit. Remarkably, the 8th Circuit declared that Frank had erred in assuming that freedom from confinement qualifies as a fundamental right, saying that is not true for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. In fact, the state admits that at least some of them don't. As the plaintiffs note in their petition, the 8th Circuit conflated two distinct questions: whether the right not to be locked in a cage for the rest of your life counts as a fundamental liberty interest, which no one can reasonably deny, and whether Minnesota is justified in depriving the plaintiffs of that right. That trick was crucial, because it allowed [...]

The Libertarian Lawyer Who Battled Jim Crow

Wed, 20 Sep 2017 12:25:00 -0400

At Marginal Revolution, George Mason University economist Alex Tabarrok offers some interesting thoughts on Richard Rothstein's new book The Color of Law: A Forgotten History of How Our Government Segregated America. "Rothstein is no libertarian," Tabarrok writes, "but to his credit he does acknowledge that one of the few anti-segregation forces in the early twentieth century was the Lochner influenced reasoning of the Supreme Court." Tabarrok refers to the 1917 case of Buchanan v. Warley, in which the Court struck down a Louisville, Kentucky, ordinance that segregated residential housing blocks by race. The Court invalidated that Jim Crow regulation as an unconstitutional violation of property rights and economic liberty under the 14th Amendment. Here is how Rothstein summarizes Buchanan v. Warley in The Color of Law: The Court majority was enamored of the idea that the central purpose of the Fourteenth Amendment was not to protect the rights of freed slaves but a business rule: "freedom of contract." Relying on this interpretation, the Court had struck down minimum wage and workplace safety laws on the grounds that they interfered with the right of workers and business owners to negotiate individual employment conditions without government interference. Similarly, the Court ruled that racial zoning ordinances interfered with the right of a property owner to sell to whomever he pleased. The central holding of Lochner v. New York (1905) was that the 14th Amendment protects a fundamental right to economic liberty, including the right to liberty of contract. It is not an unlimited right; it is subject to reasonable government regulation. But in order for such regulation to pass muster in court, it must serve a legitimate and demonstrable public health or safety purpose. That same reasoning underlines the Court's opinion in Buchanan v. Warley. The libertarian lawyer Moorfield Storey argued and won Buchanan before the Supreme Court. A thoroughgoing individualist, Storey championed laissez-faire economics, denounced militarism, and opposed the rise of the populist Democrat William Jennings Bryan. In addition to serving as the president of the American Bar Association, Storey was a founder and president of the Anti-Imperialist League and was the first president of the NAACP. Storey led the NAACP's fight against the Louisville segregation law. In his brief to the Supreme Court, Storey (with co-lawyer Clayton B. Blakely) argued that the law "destroys, without due process of law, fundamental rights attached by law to ownership of property." The law's purpose was not "to prevent conflict and ill-feeling" between the races, as it claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter." Lochner v. New York was one of the legal authorities cited in support of those arguments. In its brief, the state of Kentucky argued that the federal courts had no business interfering with the power of local majorities to enforce their social and economic preferences via regulation. "Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object," the state maintained, "is a legislative and not a judicial question." The Supreme Court disagreed and nullified the Jim Crow law. It was a far-reaching decision. At that time, other municipalities around the country were considering or even implementing their own residential segregation schemes. Buchanan stopped those schemes once and for all. According to Storey's colleague at the NAACP, W.E.B. DuBois, Buchanan should be credited with "the breaking of the backbone of segregation." That is the landmark case whose reasoning Rothstein slights as a "business rule." It is also worth noting that the same "business rule" that helped protect black Americans from Jim Crow in Kentucky also helped to protect Chinese-Americans[...]

Will the Supreme Court Stop Politicians from Choosing Their Voters?

Mon, 18 Sep 2017 15:55:00 -0400

The Supreme Court may soon decide whether a state's electoral districts can be so stacked toward one party that they violate the Constitution. The case, Gill v. Whitford, revolves around the district boundaries established by the Wisconsin state legislature after the 2010 census. That map helped Republicans to win 60 of 99 legislative seats, even though Democrats won more votes statewide—1,417,359 to the GOP's 1,249,562. Such partisan redistricting is known as gerrymandering, after Massachusetts Gov. Elbridge Gerry, who in 1812 signed an egregious redistricting bill. (One of the voting districts it created resembled the shape of a salamander—thus, "gerrymander.") A new Harvard study, "Why Competition in the Politics Industry Is Failing America," argues that pervasive gerrymandering is one of the practices that is making our political system so dysfunctional. The authors, Katherine Gehl and Michael Porter, write: The politics industry is different from virtually all other industries in the economy because the participants, themselves, control the rules of competition. There is no truly independent regulation of politics that protects the public interest. Free from regulation and oversight, the duopoly does exactly what one would fear: The rivals distort the rules of competition in their favor. Examples of this includes controlling access to the general election ballot, partisan gerrymandering, and the Hastert Rule, which puts partisan concerns above legislating for the public interest. As Gehl and Porter point out, gerrymandering reduces competition by creating "safe seats" for one party, which reduces the accountability of elected representatives from gerrymandered districts since they answer chiefly to voters in their party primary. When the case comes before it on October 3, the Supreme Court may overcome its past reluctance to intervene in how the coequal legislative branch of government sets its electoral rules. Although the Court may be tempted to rule in favor of institutional changes such as establishing independent electoral commissions to decide district boundaries, recent research finds that such bodies aren't any fairer than state legislatures. Perhaps recent advances in social science can help the court derive a set of objective principles for creating fair voting districts. As I reported earlier, some researchers suggest that the "efficiency gap" be used as metric for determining constitutionally forbidden excessive gerrymandering. The efficiency gap is "the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast." Votes are deemed "wasted" if they are cast for a defeated candidate or cast in excess of those needed to elect a winning candidate; if a party is simultaneously getting an unusually high number of landslide victories and an unusually high number of crushing losses, that would be a sign of gerrymandering. Another set of researchers have devised algorithms that draw voting district boundaries based on contiguity, geographical compactness, and a difference in population of no more than 0.1 percent. When comparing a set of randomly drawn maps using this algorithm to the actual electoral maps adopted by the state legislature, the researchers found in North Carolina that on average, 7.6 of the state's 13 congressional seats would have gone to Democrats, instead of just the four they actually won. If the Supreme Court declines to intervene, plaintiff's lawyer Danielle Lang tells Reuters, "There would be no way for voters to rein in partisan gerrymandering, no way for voters to take back control of their government."[...]

Ted Cruz, Sex Toys, and the Constitution

Thu, 14 Sep 2017 11:00:00 -0400

In 2007 Texas Solicitor General Ted Cruz urged the U.S. Court of Appeals for the 5th Circuit to reject a constitutional challenge to the state's ban on the sale of sex toys. "There is no substantive-due-process right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship," Cruz and his office argued. The 5th Circuit disagreed and struck down the sex toy ban. Yesterday on CNN, Cruz was asked about that case. "I spent five and a half years as the solicitor general in Texas. I worked for the attorney general. The attorney general's job is to defend the laws passed by the Texas legislature," he told host Dana Bash. "One of those laws was a law restricting the sale of sex toys. A stupid law. Listen, I am one of the most libertarian members of the Senate. I think it is idiotic....I am saying that consenting adults should be able to do whatever they want in their bedrooms." Do those comments mean that Cruz now thinks that Texas took the wrong legal position in the case? Does he think that the 5th Circuit got it right when it struck down the sex toy ban? Not necessarily. The underlying question in the case was whether federal courts can use the Due Process Clause of the 14th Amendment—which says that states may not deprive any person of life, liberty, or property without due process of law—to invalidate a duly enacted state regulation. That underlying question has been the driving force behind some of the biggest cases in American constitutional law. In 1905, for example, the Supreme Court was asked whether a New York law forbidding bakery employees from working more than 10 hours a day or 60 hours a week violated the Due Process Clause. The Court ruled that it did and struck down the offending provision in Lochner v. New York. Likewise, in 1965 the Supreme Court was asked whether a Connecticut law that forbid the distribution of birth control devices to married couples violated the Due Process Clause of the 14th Amendment. The Court ruled that it did and struck down the offending provision in Griswold v. Connecticut. Which brings us back to Ted Cruz. Two years ago—long after he stopped being professionally obliged to defend the laws of Texas—Cruz derided both Lochner and Griswold as "judicial activism," saying they demonstrated the Supreme Court's "long descent into lawlessness" and its "imperial" misuse of the 14th Amendment. So if Cruz believes that the states have the lawful power to forbid bakery employees from working long hours, and if he believes that the states have the lawful power to prohibit the distribution of birth control devices to married couples, why wouldn't he also believe that the states have the lawful power to outlaw the sale of sex toys? It's nice to learn that Cruz personally believes that "consenting adults should be able to do whatever they want in their bedrooms." But Cruz also seems to think that state and local governments have broad powers to prevent consenting adults from buying sex toys for their personal use in the privacy of those bedrooms. One last point: When a lawyer or a judge calls a law "stupid," don't assume that person means that the law is unconstitutional and should be invalidated by the courts. During Elena Kagan's 2010 Senate confirmation hearings, for example, Sen. Tom Coburn (R-Okla.) asked the Supreme Court nominee whether she thought Congress possessed the constitutional power to force every American to "eat three vegetables and three fruits every day." "Sounds like a dumb law," Kagan replied. She then explained why that did not make it an unconstitutional law. Ted Cruz appears to be using the same rhetorical approach when it comes to his position on sex toys. Related: Why Lochner isn't a dirty word.[...]

'I'm Appalled,' Says Source of Phony Number Used to Justify Harsh Sex Offender Laws

Thu, 14 Sep 2017 09:15:00 -0400

A New York Times "op-doc" posted this week zeroes in on a persistent myth that has helped inspire and sustain harsh policies aimed at sex offenders: the idea that their recidivism rate is "frightening and high," as Supreme Court Justice Anthony Kennedy put it in a pair of cases decided a decade and a half ago. David Feige, a former public defender who directed Untouchable, a 2016 documentary about sex offenders, shows how an uncorroborated assertion in a 1986 Psychology Today article continues to influence the politicians who pass laws and the judges who uphold them. In McKune v. Lile, a 2002 decision that upheld a mandatory prison therapy program for sex offenders, Kennedy said "the rate of recidivism of untreated offenders has been estimated to be as high as 80%," a number he called "frightening and high." He repeated that claim the following year in Smith v. Doe, which upheld retroactive application of Alaska's registration requirements for sex offenders. As of 2015, according to a review published in Constitutional Commentary, Kennedy's phrase had been echoed in 91 judicial opinions and the briefs filed in 101 cases. Yet there was never any evidence to support Kennedy's assertion, and research conducted during the same period when it was proliferating indicates that it is not even remotely true. As Feige notes in a commentary that accompanies his video, "Nearly every study—including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years—has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent." Studies covering longer periods find higher recidivism rates, but still nothing like 80 percent, even for high-risk offenders. The authors of the Constitutional Commentary article, Ira Ellman and Tara Ellman, found that the original source of the 80-percent figure—which Kennedy apparently got from Solicitor General Ted Olson, who cited a 1988 Justice Department handbook—was a 1986 Psychology Today article by Robert Longo, a counselor who ran a treatment program at an Oregon prison, and Ronald Wall, a therapist who worked for him. "Most untreated sex offenders released from prison go on to commit more offenses," they wrote, explaining the value of the work from which they earned their livelihoods. "Indeed, as many as 80% do." As Ellman and Ellman pointed out, it was "a bare assertion" with "no supporting reference." Longo himself repudiated the estimate in a March 2016 interview with Joshua Vaughn, a reporter at the Carlisle, Pennsylvania, Sentinel, saying it does not accurately reflect recent research and should not be used as a basis for public policy. In Feige's video, Longo says it is "absolutely incorrect" to suggest that anything like 80 percent of sex offenders commit new crimes after serving their sentences. That number, he says, was the high end of the range indicated by research at the time, although he once again fails to cite any actual studies. "You don't cite popular psychology magazines" as a basis for upholding laws, Longo says. "It's not a scientific journal. I'm appalled that this could happen. This is not my intent." Feige also tracked down Barbara Schwartz, the psychologist who wrote the 1988 DOJ manual that cited Longo's article and was in turn cited by Olson. "I couldn't find any" information on sex offenders' recidivism rates, Schwartz says, "so basically I just made up a model." She had a grand total of six references, including a dictionary and "the paper that Rob Longo did for Psychology Today." Schwartz adds that "the best we were doing was making a bunch of guesses." Relying on such speculation makes no sense, she says, now that there is "hard-core, scientifically based research." She says ignoring the work t[...]

Justice Department Takes Baker's Side in Gay Wedding Cake Case Before Supreme Court

Thu, 07 Sep 2017 18:45:00 -0400

The Department of Justice under President Donald Trump is taking the side of a Colorado baker who declined to make a cake for a gay couple. The baker, Jack Phillips of Masterpiece Bakeshop in Lakewood, Colorado, is the plaintiff in a case scheduled to be heard by the Supreme Court this fall. The state's civil rights commission ruled that Phillips violated Colorado's public accommodations law and engaged in discrimination for refusing to bake a wedding cake for a same-sex couple. Phillips has argued that his religious beliefs oppose same-sex marriage recognition. Forcing him to make a wedding cake for a gay couple was compelling him to participate in the couple's wedding and that the act of crafting a wedding cake—not merely just selling one—is expressive activity protected by the First Amendment. Trump's Justice Department agrees. In a filing with the Supreme Court today, the Justice Department argues that traditionally public accommodation laws had not in the past run afoul of the First Amendment because they were neutral to content and focused on conduct. A gas station couldn't refuse to sell fuel to a person because he or she is black, for example. But there's no message in the process of selling gas, so there's no compelled speech. Here, the Justice Department argues, the making of a wedding cake is an expressive activity, and the court needs to engage in heightened scrutiny of the First Amendment issues: A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion. Read the brief here. The Justice Department's argument is very narrow. It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business. The filing is very specific that in this case and in similar cases involving expressive activity (photography, floral arrangements), the First Amendment of the business owners are violated if they're compelled by the law to participate by producing goods or offering their services. And that's really what the Supreme Court will be considering in this case. Is the act of baking a cake a form of expressive activity and therefore protected by the First Amendment? We'll get a sense of what the justices think when they hear the case later this year. The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They've submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding. Read about that case here. Read the new, additional brief asking the Court to find in the bakery's favor here.[...]

In Warrantless Cellphone Search Case, It's the Trump Administration vs. the 4th Amendment

Fri, 01 Sep 2017 15:12:00 -0400

The U.S. Supreme Court will hear oral arguments sometime in its coming term in one of the most significant Fourth Amendment cases in years. At issue in Carpenter v. United States is the question of whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, federal officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was later used against Carpenter in court. The Trump administration strongly urged the Supreme Court not to hear this case. Why? Because "a person has no Fourth Amendment interest in records created by a communications-service provider in the ordinary course of business that pertain to the individual's transactions with the service provider," the administration told the Court in its brief in opposition to the petition for certiorari. What is more, the administration argued, "the acquisition of a business's records does not constitute a Fourth Amendment 'search' of an individual customer even when the records reflect information pertaining to that customer." This cramped view of the Fourth Amendment is extremely dangerous to the privacy rights of all Americans in the age of the smart phone. As the Supreme Court recognized in the 2014 case of Riley v. California, in which the Court unanimously told the police to "get a warrant" before searching cellphones incident to arrest, "modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought." Consider the sort of information a typical cellphone user shares with a cellphone company. It is much more than just numbers dialed or texted; it includes email addresses of correspondents, the URLs of websites visited, and, of course, the physical locations from which the device itself was accessed. Shouldn't the Fourth Amendment offer some genuine protection for such highly personal private information? As a back-up argument, the Trump administration claims that even if the Fourth Amendment is held to apply to the cell-site information at issue in this case, the government's actions against Carpenter should still be ruled constitutional on the grounds that they are a "reasonable" exception to the normal requirements of the Fourth Amendment. "Society has a strong interest in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an investigation," the Trump administration argued. According to the government, in other words, it takes too long and causes too much hassle for law enforcement officials to bother getting a search warrant in cases like this. But that view turns the Fourth Amendment on its head. One of the main purposes of the Fourth Amendment—as well as other guarantees in the Bill of Rights—is to restrain overzealous government agents before they run roughshod over the rights of individuals. The Trump administration, by contrast, wants to loosen such constitutional restrictions on the cops. It is a heartening sign that the Supreme Court agreed to hear this important case over the objections of the Trump administration. Hopefully the Court will ultimately reject the administration's disfiguring interpretations and issue a decision that gives the Fourth Amendment its due. Related: Use a Cellphone, Void the Fourth Amendment?[...]

James Madison Would Love Sanctuary Cities

Mon, 28 Aug 2017 14:40:00 -0400

(image) The powers delegated to the federal government under the U.S. Constitution, James Madison wrote in Federalist 45, are "few and defined." But what happens when the federal government goes beyond those limited and enumerated powers? According to Madison, that's when the constitutional system of checks and balances kicks in.

One powerful check is provided by the judiciary, which Madison described to Congress in 1789 as "an impenetrable bulwark against every assumption of power in the legislative or executive." If only his description of the courts held true in more cases.

Another key check is provided by the states. "Should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case," Madison wrote in Federalist 46, "the means of opposition to it are powerful and at hand." For one thing, the federal government would be forced to contend with "the disquietude" and "perhaps refusal" of the people of those particular states "to co-operate with the officers of the union." There would also be "the frowns of the executive magistracy of the state" and the "embarrassments created by [state] legislative devices" for the feds to tangle with. In short, federalism is supposed to help slam the brakes on an out-of-control federal government.

Which brings us to the Trump administration's unconstitutional attack on sanctuary cities, which are those jurisdictions that either decline to help the federal government round up and deport undocumented immigrants or otherwise refrain from enforcing federal immigration statutes.

The case for sanctuary cities is pure Madison. Because the federal government has no delegated power to commandeer state officials and force them to carry out federal schemes, state and local officials in sanctuary jurisdictions are simply reaffirming their basic 10th Amendment right to refuse to do Washington's bidding.

The federal courts clearly support the states in this fight. As the late Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

As for the Trump administration's various threats to withhold, terminate, or "claw-back" federal funding for sanctuary cities, those threats would also violate the Constitution if the federal government carried them out. As the Supreme Court ruled in 2012 when it voided the Obamacare Medicaid expansion, which would have cut off all Medicaid funding for any state that refused to expand the program in accordance with the federal edict, federal "economic dragooning" of the states is unconstitutional because it "leaves the States with no real option but to acquiesce."

Here's a good rule of thumb: If you find yourself picking between the constitutional views of James Madison and Donald Trump, always let Madison be your guide.

In Major Federalism Case at SCOTUS, New Jersey Fights to Legalize Sports Gambling

Thu, 24 Aug 2017 09:20:00 -0400

The state of New Jersey is on a constitutional collision course with both the federal government and several of the biggest names in professional and collegiate sports. At issue is whether Congress violates the 10th Amendment when it forbids the Garden State from partially repealing its own statewide ban on sports betting. The case is Christie v. National Collegiate Athletic Association, and it has the makings to be one of the biggest federalism cases in years. The U.S. Supreme Court will hear arguments in it later this fall. On one side stands the state of New Jersey, whose voters amended the state constitution in 2012 in order to legalize sports gambling at racetracks and casinos statewide. Lawmakers then partially lifted the existing state ban on the practice. On the other side of the case stands the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball, all of which went to court hoping to thwart the legalization effort. They argue that the state has contravened the Professional and Amateur Sports Protection Act of 1992 (PASPA), which made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. That federal law did contain certain exemptions for states like Nevada, where sports gambling was already legal. (It also contained an exemption for Atlantic City, New Jersey.) But the law's overall purpose was to prevent states from legalizing sports betting. New Jersey is now fighting to get the feds off its back. "Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal." The sports leagues insist that the federal government has every right to control the states in this manner. PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the leagues claim in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview." The Trump administration takes an equally broad view of federal power. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federal law," the administration told the Court in an amicus brief. "Instead, [PASPA] prohibits States from operating sports-gambling schemes themselves or affirmatively licensing or authorizing private parties to do so. Those prohibitions are a permissible exercise of Congress's authority to regulate state activities and to preempt state laws that conflict with federal policy in an area within Congress's enumerated powers." A nationwide ban on sports betting would probably be upheld by the Supreme Court under existing precedent, which favors a very broad view of Congress' power to regulate economic activity. But that is not the sort of federal regulation at issue here. In this case, Congress has effectively dictated the terms of a state law in order to further its own regulatory goals. And that, the Supreme Court has repeatedly said, does offend federalism principles and does infringe on the 10th Amendment. In the 1992 case of New York v. United States, for example, the Court observed: "while Congress has substantial powers to govern the Nation directly, including in areas of int[...]

Why SCOTUS Should Tell the Government to 'Get a Warrant' in Cellphone Location Data Case

Wed, 16 Aug 2017 14:35:00 -0400

The Fourth Amendment to the U.S. Constitution famously guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet in 1979 the U.S. Supreme Court held that law enforcement officials do not need a search warrant to get a suspect's telephone call records from a phone company. "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," the Court ruled in Smith v. Maryland.

Otherwise known as the "third-party doctrine," this legal rule raises profound and troubling questions in the age of the smartphone. Nowadays we share all sorts of personal information with third parties, such as the numbers we dial and text, the URLs we visit, the email addresses we correspond with—even the physical locations from which we access our devices. Does it make any sense to exclude so much meaningful and highly sensitive private information from the "papers" and "effects" entitled to Fourth Amendment protections?

This fall the U.S. Supreme Court will have the opportunity to give the third-party doctrine a second look when it hears oral arguments in the case of Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the historical cellphone call and location records of several suspected armed robbers. Federal agents used those records to identify the cell towers that handled the suspects calls during the time periods in which the robberies occurred. The government then traced back the suspects' movements and linked their whereabouts to their alleged crimes.

How should the Court approach this case? In an amicus brief filed last week, the Cato Institute, the Competitive Enterprise Institute, the Committee for Justice, and the Reason Foundation (the nonprofit that publishes this website) offer a piece of eminently sound constitutional advice: "This Court should apply the terms of the Fourth Amendment in all Fourth Amendment cases."

What that means in practice, the brief explains, is that "the government's compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search....Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have got one."

"Get a warrant" is the perfect message for the Supreme Court to tell the government in this case.

Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

Wed, 16 Aug 2017 11:45:00 -0400

Consumer goods like custom floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections. That's the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation. The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state's public accommodation laws that prohibit discrimination on the basis of sexual orientation. Meanwhile, Baronnelle Stutzman, owner of Arlene's Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court. The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would "provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision's holding," the brief says. Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes. The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included: Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll's Jabberwocky poem are "unquestionably shielded" by the First Amendment. Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not "endorse" same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn't force citizens to display the state's motto on their license plate if they objected to the statement "Live Free or Die": Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver's own words or sentiments. … Yet the Court nonetheless held for the Maynards. [...]

Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?

Mon, 14 Aug 2017 17:25:00 -0400

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun. Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files. The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export. The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions. Most specifically in this cert petition they have asked the Supreme Court to answer these questions: 1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech. The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it. It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources. Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have: simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without saying—and so it must now be said—that federal courts cannot dismiss the Constitution's primacy in our legal system... The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance. Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes. The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information. The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so: Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, howe[...]

Violent Charlottesville Protester Claims 'Free Speech Does Not Protect Hate Speech'

Mon, 14 Aug 2017 13:50:00 -0400

Yesterday Jason Kessler, who organized the white supremacist rally in Charlottesville, Virginia, that ended in deadly violence on Saturday, tried to hold a press conference at City Hall. As Ron Bailey reported here, the event was shut down by "an angry crowd" that "surged in and grabbed" Kessler. Here is how Jeff Winder, a protester who punched Kessler, justified his violence in an interview with The New York Times: Jason Kessler has been bringing hate to our town for months and has been endangering the lives of people of color and endangering other lives in my community. Free speech does not protect hate speech. Thus we see the logical consequences of the idea that Howard Dean, former chairman of the Democratic National Committee, endorsed last spring by way of explaining why a public university's decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues. If, as Dean claimed, "hate speech is not protected by the First Amendment," anyone who is deemed to be engaging in it can be censored by the government or even forcibly silenced by concerned citizens. If Kessler has no right to say what he wants to say and his message endangers people's lives, he can hardly expect the police to protect him when someone like Winder takes direct action to neutralize the threat. It cannot be said too often that Winder, like Dean, is simply wrong as a matter of law. In the United States, "hate speech" is not a legally defined or constitutionally relevant category. Time and again, the U.S. Supreme Court has made it clear that even the most repugnant bigotry is protected by the First Amendment. The idea that "the Government has an interest in preventing speech expressing ideas that offend...strikes at the heart of the First Amendment," Justice Samuel Alito noted last January in Matal v. Tam, which overturned the federal ban on registration of disparaging trademarks. "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" What about the argument, made explicitly by Dean and implicitly by Winder, that hate speech is not protected because it incites violence? The Court has addressed that issue as well. In the 1969 case Brandenburg v. Ohio, the Court rejected criminal charges against a Ku Klux Klan leader, Clarence Brandenburg, who was accused of advocating violence in the service of a political cause and participating in a gathering aimed at promoting "the doctrines of criminal syndicalism." The charges stemmed from a KKK rally that featured weapons, hoods and robes, a cross burning, and racist and anti-Semitic rhetoric. "Personally," Brandenburg said, "I believe the nigger should be returned to Africa, the Jew returned to Israel." He also alluded vaguely to the possibility of violent resistance. "We're not a revengent organization," he said, "but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The Court ruled that such speech is protected by the First Amendment unless it is aimed at inciting "imminent lawless action" and is likely to have that effect. When people like Dean and Winder say that hate speech isn't legally protected, perhaps what they mean is that hate speech shouldn't be legally protected. If so, they should explain how that would work in practice: How would hate speech be defined, and who would define it? As Katherine Mangu-Ward observed this morning, these are not details that can be safely worked out later once we a[...]

From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Fri, 04 Aug 2017 11:35:00 -0400

When President Ronald Reagan nominated Robert Bork to the U.S. Supreme Court in 1987, he praised his nominee for being "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint." It was no exaggeration. During his decades-long career as a law professor, federal judge, and legal commentator, Bork routinely preached the virtues of a deferential judiciary, arguing that in the vast majority of cases "the only course for a principled Court is to let the majority have its way." Where Bork led, most legal conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right. Borkean deference still holds sway today in many quarters. But it is also increasingly under fire from libertarian-minded legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities. Case in point: The new issue of Governing magazine profiles Don Willett, the Texas Supreme Court justice who recently appeared on Donald Trump's shortlist of potential U.S. Supreme Court candidates. Willett "is witty and approachable, and he's huge on Twitter," writes journalist Alan Greenblatt. "He's also one of the most influential jurists in the country right now." Willett's rising influence signals Bork's declining favor. It shows that libertarian legal ideas are gaining ground. To be sure, Bork and Willett are both "conservative" and both have ties to the Republican Party. But they differ in important ways. Bork wanted judicial minimalism; Willett wants judicial engagement. "The State would have us wield a rubber stamp rather than a gavel," Willett complained in the 2015 case of Patel v. Texas Department of Licensing and Regulation, "but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism." As Greenblatt notes in his profile, "Willett is pretty blunt about his overall intent. He's a champion of individual rights, claiming a central role for the judiciary in protecting those rights against state encroachment." Bork, by contrast, was obsessed with limiting the judiciary's role. If Bork's great enemy was judicial activism, Willett's great enemy is judicial pacifism. The differences don't stop there. According to Bork's interpretation, the 14th Amendment offers zero constitutional protection for economic liberty, which means that the courts have no business striking down government regulations on 14th Amendment grounds. Since the amendment does not explicitly refer to economic liberty, Bork reasoned, it does not protect it. When "the Constitution does not speak," he insisted, we are "all at the mercy of legislative majorities." Willett takes a different view. "The Fourteenth Amendment's legislative record," he has pointed out, "is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion." Willett has even thrown shade in Bork's direction: "A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism." Willett clearly ranks individual liberty first. Thirty years ago, when Borkian judicial deference was in its heyday, the conservative legal mainstream was largely hostile to libertarian legal ideas. That Don Willett is now championing those same ideas and is at the same time under possible consideration for a Supreme Court seat demonstrates just how far the dial has moved in a libertarian direction.[...]