[Eugene Volokh, 6:08 PM]
Las Vegas Review-Journal Story on the Nevada Decision: It's here, and quotes this blog, among other sources. I particularly like this comment:

Gary Peck, executive director of the ACLU of Nevada, said members of the organization were troubled by the reasoning the Nevada Supreme Court used to reach its decision, "particularly the dubious distinction it made between substantive and procedural constitutional rights."

"We hope that distinction does not set a precedent that might be used to improperly create a hierarchy of rights inconsistent with core constitutional principles," Peck said.

 
[Eugene Volokh, 2:46 PM]
Know your blogger: When you send an e-mail about a blog post, please make sure that you send it to the right coconspirator. All our e-mail addresses are available just by clicking on the blogger's name on the left-hand side of the screen. (Some of the addresses have the word "at" instead of an @ sign, just to try to foil robots that harvest e-mail addresses for spamming purposes, so if you don't instantly see the address, just look a bit more closely.) Sending the message to the right blogger will save time both for you and for us.

 
[Eugene Volokh, 10:13 AM]
Howard Dean guest-blogging on Larry Lessig's blog: Larry just announced this. Sounds pretty cool, and a sign of how important the Net -- and, in some measure, blogging -- has become. It will be interesting to see whether the posts will have the freshness and personality of a typical blog, or whether they will be (for perfectly understandable reasons) the typical canned campaigner rhetoric. In any case, many thanks to Larry for arranging this (and congratulations to him for having the prominence to be able to arrange it).

 
[Eugene Volokh, 3:52 PM]
Stewart & Alt on cloning: Nathaniel Stewart and Robert Alt respond to my criticisms of their National Review Online piece (see here and below) at the NoLeftTurns site (see here and below). I'm afraid I'm too swamped to respond in turn, but I thought I'd pass along the links.

 
[Eugene Volokh, 3:47 PM]
Nevada case information: Howard Bashman of How Appealing was kind enough to e-mail me the link to a Web page containing most of the documents (briefs and the like) in the Guinn v. Nevada State Legislature case.

 
[Eugene Volokh, 3:17 PM]
"Anti-Left Viewpoint Discrimination": Eric Muller (IsThatLegal?) -- with whom I often agree, though not this time -- mentions the following incident (go to his site to get the links):

The little town of Carrboro, North Carolina, "The Paris of the Piedmont," as we locals like to call it, surely must be North Carolina's most liberal town. One of the first towns to pass a resolution protesting the PATRIOT Act. A town that declared April "French Products Month" to counter the anti-French mood in Washington during the Iraq war. A very popular and openly gay mayor. You get the picture.

Well, Carrboro doesn't get the picture.

The second-highest elected official in Carrboro ordered the removal last week of a controversial piece of artwork from a public display in town hall on the eve of Carrboro's Independence Day celebration? The piece, "Trying To Make Black and White Out of Red, White, and Blue," is an American flag with the stars arranged in the shape of a swastika. The alderman who removed the work was reportedly concerned that older people, including veterans, who would be playing bingo in the boardroom where the work was exhibited might be offended by it.

Sheesh. If you can't show a provocative piece of artwork in a public display in Carrboro, where can you show it?

Well, how about on your own property? Or on the property of someone else who's willing to display it? Or even in a public forum that the city opened for a wide range of private speech, which the city wouldn't be endorsing?

     The newspaper story suggests that the City was putting up an art exhibit, not as part of a broadly available open forum, but just because some city officials chose to showcase this particular artist's employees. Higher c ty officials were perfectly free to decide that, no, they didn't want to give this special benefit to this particular artist.

     Just to give an analogy, imagine that a Carrboro city employee decided that a city building should prominently display a sign saying "Liberals are Traitors to America." The mayor got some complaints, and said "Well, I don't think the City should be promoting this viewpoint." I think the mayor would be quite right to take it down.

     No-one is entitled, either as a legal or as an ethical matter, to have his work be specially displayed in a government building. Government officials can choose what messages they want to send (e.g., anti-drug but not pro-drug, anti-racism but not pro-racism, pro-American but not anti-American), and they can also decide when a display is pro-drug, pro-racism, or anti-American. That's viewpoint discrimination, but it's perfectly permissible viewpoint discrimination. (Incidentally, I think that exclusion of American flag / swastika mixes isn't "anti-Left viewpoint discrimination" any more than exclusion of a poster saying "Liberals are Traitors to America" is anti-Right viewpoint discrimination.) And if one lower-level government official authorizes such a specially privileged display, a higher-level government official may decide otherwise.

     If the government were denying an artist the right to put up this poster on private property, I'd firmly oppose that. Likewise if I saw some indication -- which I don't see -- that the artist was participating in a broadly open public forum, in which your or I could have our work displayed just for the asking. But if the artist is complaining that the government changed its mind about giving her special access to a piece of prominent government property, I'm not terribly impressed.

     Incidentally, I realize that the artist claims her poster isn't anti-American: "In t e statement, Levinsohn explained that she created the art in 1990 as a protest against the flag amendment, which would ban flag burning and, she believed, threaten First Amendment rights to freedom of speech. In an interview Thursday, Levinsohn, who is Jewish, said she had used the swastika because she thought it would make it clear to people that her art is about a type of repression that would threaten the freedoms in this country. The artist said she considers herself patriotic. On Thursday, she wore red, white and blue, down to her shoes." That's fine by me -- but passersby can quite reasonably perceive this as anti-American, and city officials may therefore reasonably conclude that they're helping spread an anti-American message, regardless of the artist's subjective intentions. To return to my hypothetical, imagine that the person who posted "Liberals are Traitors to America" actually intended this to be not an anti-liberal statement, but a parody of anti-liberal statements. Government officials could still conclude that this will be perceived as anti-liberal, and that they therefore don't want to display it on government property (at least unless the property has been opened up as a broadly accessible public forum).

 
[Eugene Volokh, 3:02 PM]
Truman, Prejudice, and Anti-Semitism: David Bernstein has a thoughtful and informative post on this.

 
[Eugene Volokh, 2:35 PM]
Apologies in advance over the brevity of my e-mail responses: I much appreciate getting messages from readers -- among other things, many of our posts have flowed precisely from such messages. Messages about interesting news items, such as the CBS News headline errors, or the Nevada Supreme Court decision, are particularly helpful, but arguments are also sometimes useful, too; you'll note that I sometimes quote them and respond to them.

     I should warn people, though, that I'll often reply simply with a "Sorry, swamped, have to pass" or some such. I'm sorry about that, especially when the message contains a substantive argument criticizing one of my posts; but unfortunately, I just have to sometimes leave my points undefended, rather than respond to what are often dozens of substantive messages per day. There are are only so many hours in a day, and some of them have to be occupied with real work! So, apologies in advance about this, but I'm afraid that there's nothing else I can do.

 
[Eugene Volokh, 1:06 PM]
More about the Nevada situation: Some people have pointed that the Nevada Governor, who filed the lawsuit, should also be faulted. I asked Greg Boderick, from the Pacific Legal Foundation (which I believe was involved in the case), whether the Governor actually asked the Court to reject the Nevada Constitution's 2/3 requirement for tax increases. Here's what he wrote about the Governor's role, and about the background more broadly:

The Governor's petition, written by the Attorney General, was murky at best. I thought it was a tactic to give the Court wiggle room . . . . At any rate, the Governor asked the Court to issue a writ of mandamus that:

1) Finds the Legislature in violation of the Nevada Constitution by failing to approve a balanced budget including K-12 spending; and
2) Directs the Legislature to act by a certain time (unspecified) to authorize and appropriate sufficient funds for the schools (here, $1.65 Billion); and
3) Directs the Legislature to "provide[e] by law for an annual tax" sufficient to meet the overspending (In this case $860 million plus)

Then there was the usual language about amending the writ and "such other relief" and all of that.
So...He didn't specifically ask for suspension of the 2/3 requirement, but he sort of asked the Court to appropriate the money and raise taxes itself. Very odd.

You may find all of the documents relating to this suit here: http://www.nvsupremecourt.us/geninfo_gpetition.html

The real problem in this case was how they got this far.

The Legislature passed the budget in parts, leaving education to last.
After passing everything else, they had only $800 million (give or take) left to spend before they exceeded the tax revenue.
The Senate passed the Governor's education bill and $864 million in tax increases (21-0).
The Assembly Bill failed to reach the 2/3 margin by one vote (27-15).
The 72nd Regul r session expired.
The Governor called a special session (Special Session 19), but limited discussion to passing the Ed bill and raising taxes (The Constitution gives him authority to do so).
The Republicans held out and the Session ended with nothing.
The Gov. called Special Session 20, same result.

The Republicans are OK with raising taxes some amount, but they want to cut spending in other Spending Bills that already passed. Spending Bills pass by majority, taxes by 2/3, so they held out on taxes.

That is the simplified background story. . . .

 
[Eugene Volokh, 12:56 PM]
There might or might not be a God but Allah -- of course we would never be so rude as to express a firm opinion on that: The Council on American Islamic Relations posts on its site this excerpt from a Newsday story:

A national Muslim organization demanded an apology Wednesday from a Flushing Buddhist priest who allegedly made disparaging remarks about Islam that were posted on the Internet.

Ghazi Khankan, executive director of the Council on American Islamic Relations-New York, said the Rev. Jisei Nagasaka made disparaging statements, including "Islam is a false religion." His comments came after another Buddhist priest made similar statements, including Allah "is a figment of the imagination."

"I was surprised because I know Buddhists are peaceful people," he said. "Why attack others? It didn't make sense to me."

After a news conference in front of the Buddhist temple - Nichiren Shoshu - on Beech Avenue in Flushing, Khankan and other Muslim leaders delivered a petition containing 388 signatures to a temple official.

The petition called on Nagasaka, the Flushing temple's chief priest, to apologize for his remarks, which were made to an audience and later posted on the temple's Web site, Khankan said.

While the statements in question were promptly removed from the Web site after letters and phone calls from Muslims, the council said Nagasaka's comments can only be rectified with better understanding and an apology...

     Now naturally Muslims won't agree with the Buddhist priest's view that "Islam is a false religion" -- just like the Buddhist doesn't agree with the Muslims' view that Islam is the true religion. And Muslims don't agree that "Allah 'is a figment of the imagination,'" just lik people of other religions (for instance, Hindus) don't agree that "There is no God but Allah."

     But one aspect of religious freedom is the freedom to express that you think other religions are mistaken. What, did Muslims think that Buddhists thought Allah was real, and Islam was a true religion? If the Buddhists did think that, they'd be Muslims, not Buddhists. Of course they think your religion is false -- and they're perfectly entitled to say so.

     Perhaps some especially gentle or subtle folk would avoid such statements, and instead not publicly opine on whether they think Islam is a false religion -- or, for that matter, not publicly opine on whether there is no god but Allah. But people have no ethical obligation to refrain from such statements, which (at least looking at the quotes that CAIR posts on its own Web site) actually seem pretty calm and measured. (All criticisms, political or religious, may be made so harshly that they'd become rude -- but saying that you think other people's viewpoints are false, or that there is no God but your God, is a proper way to express an important point of view.)

     Actually, it seems to me that CAIR's complaint can't really be about the Buddhist speakers' "attack[ing]" anyone, because they didn't attack anyone, or about the speakers being non-"peaceful," since they seemed to be expressing their views quite peacefully. Rather, their complaint appears to be about blasphemy, since that's the only offense that the speakers were committing. In America, though, this sort of blasphemy -- the civil disagreement with the beliefs of another faith -- is a treasured part of our religious freedom, not an offense which demands an apology.

 
[Eugene Volokh, 11:35 AM]
Appealing to the wrong authority: Several people e-mailed me to ask whether the Nevada Supreme Court decision can be appealed to the federal courts, on the grounds that it violates article IV, section 4 of the U.S. Constitution, "The United States shall guarantee to every State in this Union a Republican Form of Government." I think that would be the wrong solution.

     First, the Supreme Court has consistently held that it's not for the federal courts to decide which forms of government are "Republican" and which aren't. Now perhaps that's a mistake -- maybe courts should enforce even such vague provisions, rather than leaving them to Congress and other political actors. But it's the law, and I don't think the Court is likely to reverse it. What's more, while I think the Nevada Supreme Court's decision is outrageous, I'm not sure that it makes Nevada into a "non-Republican Form of Government"; it takes more than just some awful decisions like this to do that, I think. (Incidentally, the Guarantee Clause has in the past been used to challenge voter initiatives, on the grounds that they're not "Republican" enough; I think this argument is unsound, precisely because the system remains Republican even if it has some direct democratic components, and a considerable amount of judicial power.)

     But, second, the trouble here is that the Nevada Justices has rejected the will of the Nevada voters. The solution isn't, I think, to put your trust in other judges. The solution is for the voters -- or their direct representatives in the legislature, or both -- to fight back themselves. Nevada Justices can be recalled by the voters, and they can be removed by the Legislature, even without there having to be grounds for impeachment (see my first post on the subject below). I'm hoping that Nevadans will be incensed enough by the judges' decision to take these necessary steps.

 
[Eugene Volokh, 10:30 AM]
The CBS screenshot I mentioned below: Here's the GIF, and here's the JPG. You can see (if your eyesight is good, sorry for the low aulity) the "Bush Knew Iraq Info Was False" headline, the "Video: Bush's Phony Iraq Claim" item, and the "Poll: U.S. Losing Control in Iraq" headline.

 
[Eugene Volokh, 10:13 AM]
Can anyone answer a MS Word 2002 question for me? Sorry to trouble all of you, but I'd like to post that CBSnews.com screen shot, but I can't seem to extract it from a Word document. I had done a "Print Screen" and then pasted the result into a Word document; now, the picture is right there in the document, but I don't know how to extract it as a .GIF or .JPG or whatever else. When I right-click on the picture, I don't get any "Save As" option. Once I have it as an external file, I'll be able to easily upload it to my site -- but I just don't know quite how to do it. (Even a "File / Save As Web" command, which is supposed to save the whole document as an .HTM file, doesn't seem to yield proper results -- when I look at the resulting page, the pictures don't show up -- but in any event I'd rather just save the pictures as .GIFs or .JPGs.) If anyone can help me with this, please e-mail me at volokh at law.ucla.edu. Thanks!

UPDATE: Due to two typos, the original title of this post referred to "MS Word 1001," which I'm told is a somewhat obsolete version (though it does have a great "illumination" option).

FURTHER UPDATE: Reader Stuart Greene gave me the answer (or at least an answer), which was to copy it to the photo editor. Thanks, and thanks also to Mike Cakora and John Owen for other suggestions.

 
[Eugene Volokh, 8:37 AM]
A perspective from Nevada: Reader Rick Henderson writes:

As you guessed, there's a LOT of politicking going on here, which I hope to write about for Reason or NRO or someplace outside my normal channels. What led to the impasse was a Republican governor who won re-election virtually unopposed and misread that victory as a mandate to give a big gift to the state's public sector while imposing a series of unpopular new taxes. When his plan failed to gain the necessary supermajority support, he forced the Legislature into special session, which accomplished nothing, although from a $5 billion budget, the two sides were less than $60 million apart in their spending demands. (There was also a spirited debate over the composition of the tax increases, with Republicans favoring an expansion of existing taxes, and Democrats backing a new, revenue-based "gross receipts" tax on non-gaming businesses.)

The governor refused to negotiate, setting the stage for the court battle. The outcome was a total shock, and though legislative Democrats are giddy right now, even they may soon rue this decision. I would not be surprised if the chief justice, Nancy Agosti, who's up for re-election next year, is recalled before she's defeated. She may become the Rose Bird of Nevada. (The black helicopter crowd also believes the Supreme Court was literally bought off by the casino industry, which ruthlessly worked over lawmakers who balked at the size of the spending increase and the implementation of the gross receipts tax. I find that hard to believe, but reporters at our paper are tracking down those rumors.)

It's also possible that the decision will stand and no one will be called to account for this gross injustice, meaning that Nevada will indeed become, as one Republican lawmaker suggested earlier this year, East California.

 
[Eugene Volokh, 8:11 AM]
ed that Saddam Hussein recently sought significant quantities of uranium from Africa,” Mr. Bush said.

The statement was technically correct, since it accurately reflected the British paper. But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true.

Today at a press conference during the President’s trip to Africa, Secretary of Sta e Colin Powell portrayed it as an honest mistake.

“There was no effort or attempt on the part of the president or anyone else in the administration to mislead or to deceive the American people,” said Powell.

But eight days after the State of the Union, when Powell addressed the U.N., he deliberately left out any reference to Iraqi attempts to buy uranium from Africa.

“I didn’t use the uranium at that point because I didn’t think that was sufficiently strong as evidence to present before the world,” Powell said.

That is exactly what CIA officials told the White House before the State of the Union. The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice.

Secretary Powell said today he read the State of the Union speech before it was delivered and understood it had been seen and cleared by the intelligence community. But intelligence officials say the director of the CIA never saw the final draft.

 
[Eugene Volokh, 12:25 AM]
And another incorrect headline from CBS News: Another CBSNews.com front-page story has the headline "Poll: U.S. Losing Control in Iraq." (I originally noticed the story because it was right up there in the top middle of the page -- again, it's on the screen-shot that I'll put up in the morning -- with a subhead of "Less Than Half of Americans Now Say U.S. is in Control in Iraq"; it now rates just a one-liner with no subhead lower down on the page.)

     Sounds from the headline like a majority of respondents say that the U.S. is losing control in Iraq, no? Ah, but appearances are deceiving, at least on cbsnews.com tonight. The whole story (which has the same "U.S. Losing Control in Iraq" headline that was also given on the front page) reports, in relevant part:

With U.S. troops continuing to take casualties in Iraq, less than half of Americans now believe the U.S. is in control of the situation there -- a dramatic decline from April, when 71 percent thought it was. . . .

Americans’ belief that the U.S. is in control of the situation in Iraq has plummeted to 45 percent, down from 71 percent in late April.

IS THE U.S. IN CONTROL OF THE SITUATION IN IRAQ?

Yes
Now
45%
4/03
71%

No
Now
41%
4/03
20%

. . .

That's right:

1. The "yes" numbers fell from 71% to 45%, which means that (unless some people thought the U.S. wasn't in control in late April but is in control now) a whopping 26% believe the statement in the headline "U.S. Losing Control in Iraq." Or, if you prefer, 26% more people believe that we're losing control than the percentage that believe we're gaining control. (I'm assuming that by "losing control" CBS means "the U.S. had control in late April but doesn't have it now," since that's the definition that its questions reflect. One may also define "losing control" as "the U.S. has less control now than in late April, whether or not it on balance still has control now; but that's clearly not what CBS's questions are trying to gauge.)



2. Even today, 45% of respondents say "yes" and 41% say "no" (a statistical tie), so it's not even accurate to say "Poll: U.S. Not in Control in Iraq."

That's right, the CBS headline said Poll: U.S. Losing Control in Iraq. The actual story is better summarized as Poll: U.S. Evenly Split on Whether We're in Control in Iraq or Poll: A Quarter of Americans Seem to Think We're Losing Control in Iraq. Not a good night for CBS News.

 
[Eugene Volokh, 12:02 AM]
Falsehoods about falsehoods: Reader and UCLA Law School student Shannon Mader points out this striking headline on CBS News:

Bush Knew Iraq Info Was False

(UPDATE: The headline was changed overnight, after I wrote this post and the UPDATE below; but the new headline is still mistaken -- see the post from this morning at 8 am or so, as soon as Blogger gets around to posting it.) Quite an allegation, and one that was the lead story on the cbsnews.com page when I read it, with promise underneath of "Video: Bush's Phony Iraq Claim." (UPDATE: The line has just been changed to say "Video: Bush's Iraq Claim"; the headline has not been changed. I'll try to put up a screen shot of the old page, which I saved, when I get into the office tomorrow morning.)

     Here, however, is the whole story (I rarely reproduce entire stories, but because I think it's necessary to properly comment on it, I believe such a reproduction is a fair use in this situation):

(CBS) Senior administration officials tell CBS News the President’s mistaken claim that Iraq tried to buy uranium from Africa was included in his State of the Union address -- despite objections from the CIA.

Before the speech was delivered, the portions dealing with Iraq’s weapons of mass destruction were checked with the CIA for accuracy, reports CBS News National Security Correspondent David Martin.

CIA officials warned members of the President’s National Security Council staff the intelligence was not good enough to make the flat statement Iraq tried to buy uranium from Africa.

The White House officials responded that a paper issued by the British government contained the unequivocal assertion: “Iraq has ... sought significant quantities of uranium from Africa.” As long as the statement wa attributed to British Intelligence, the White House officials argued, it would be factually accurate. The CIA officials dropped their objections and that’s how it was delivered.

“The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa,” Mr. Bush said.

The statement was technically correct, since it accurately reflected the British paper. But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true.

Today at a press conference during the President’s trip to Africa, Secretary of State Colin Powell portrayed it as an honest mistake.

“There was no effort or attempt on the part of the president or anyone else in the administration to mislead or to deceive the American people,” said Powell.

But eight days after the State of the Union, when Powell addressed the U.N., he deliberately left out any reference to Iraqi attempts to buy uranium from Africa.

“I didn’t use the uranium at that point because I didn’t think that was sufficiently strong as evidence to present before the world,” Powell said.

That is exactly what CIA officials told the White House before the State of the Union. The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice.

Secretary Powell said today he read the State of the Union speech before it was delivered and understood it had been seen and cleared by the intelligence community. But intelligence officials say the director of the CIA never saw the final draft.

     That's right: "The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice," which seems to suggest the opposite of what the headline says. But more importantly, not a single sentence in the story supports the serious charge in the headline. The closest I could see was "But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true" -- but even there (1) the allegation is about "the White House," not "Bush," and (2) the allegation is that the White House knew that the information "might not be true," not that it was "false."

     I haven't been following the uranium/Niger/Iraq/State-of-the-Union story closely, but I'm perfectly prepared to believe that there were serious intelligence screw-ups, stretches by government officials, or even intentional attempts to mislead people on some people's part. Among other things, I'm perfectly prepared to believe that because that's the way governments (or, for that matter, human beings) often operate. If this happened, then it's bad, and it's right that people should try to get to the bottom of things.

     But as we follow the story, it's worth remembering that falsehoods can come from lots of sources, and in particular both from the Administration and its critics. Here, in particular, we have (1) the headline on a lead story at a major news source that (2) accuses the President of lying, but (3) appears to entirely misrepresent the actual content of the story. Seems like there are potential credibility gaps all around here.

 
[Eugene Volokh, 6:41 PM]
Nevada Supreme Court orders violation of Nevada Constitution: I just read one of the most appalling judicial decisions I've ever seen. It was just handed down today, and it's available here (Guinn v. Legislature).

     Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)

     The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:

2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.

3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election.

But the Nevada Supreme Court has held that the Legislature must ignore this requirement.

     The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional.

     The Court recognizes this, and provides the following reasoning:

When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield. Here, the application of the general procedural requirement for a two-thirds majority has prevented the Legislature as a body from performing its obligation to give life to the specific substantive educational rights enunciated in our Constitution.

     But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions -- majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on -- are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the pr cedural rules.

     Second, the two-thirds majority itself protects a substantive right -- the right to keep your property. That's why supermajority requirements for taxation are required: People believe that they have fundamental substantive property rights, and while they realize that sometimes they must yield their property for the state to provide various services, they want to make sure that these substantive rights aren't taken away unless there's very broad support.

     Third, if there is a square conflict between two provisions, the general rules are that (a) the specific prevail over the general -- and despite the court's pejorative characterization of the 2/3 tax provision as "general," it's really no more or less general than the broadly worded education provisions -- and (b) the newer prevails over the older. In 1996, the voters enacted the constraint on the state's power to tax. Of course such a constraint may make it harder for the state to fund services; the whole point was to make it harder for the state to fund services through the taking of private property. This new constraint prevails over any contradictory commands based on older provisions.

     Fourth, it's not at all clear that there's really a conflict between the provisions. As I mentioned, the education funding requirements in article 11 of the Nevada Constitution don't explicitly require a specific amount of funding. The Legislature could cut the funding for education, or for other services. It may be damaging to the state's educational system, but it is doable. And while the result might be lousy policy -- perhaps so lousy that the Legislature will muster the 2/3 majority needed for a tax increase, or find better places to cut, so that education would end up being better funded -- it would avoid what the court has done: A flat judicial nullification of an entirely explicit command of the Nevada peo le.

     Finally, if the court is willing to nullify "general procedural rules" so that it can order the legislature to fund education, why stop at the 2/3 supermajority? What if it turns out that the Legislature can't even get a simple majority for a tax increase? Under the court's reasoning, it should nullify the 50%+1 requirement, too -- after all, the simple majority requirement is also a mere "procedural requirement that is general in nature." Or, better yet, why not order the governor impose the taxes himself? The requirement that taxes be imposed by elected legislators is also just a "procedural requirement that is general in nature." But wait -- that would be inefficient. Why doesn't the court just impose the taxes itself, and order government officials to just seize the property from Nevadans' bank accounts? The only thing that stops it is also a "procedural requirement that is general in nature," and apparently those aren't really binding any more.

     This really is shameful, and I do not use the term lightly. Yes, I know that there are lots of claims of judicial overreaching -- but there are at least various defenses based on tradition, precedent, ambiguous constitutional text, or whatever else. Here, I see no such defense: Just the court's willingness to completely ignore the very constitution that gives it power.

     I hope that Nevada legislators and Nevada voters will not stand for this. Obviously, they can amend the Constitution with a "We Really Mean It Clause," though I don't know whether they can do it in time. I should mention that, under art. VII, sec. 3, "For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected o each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense . . . ." No high crimes and misdemeanors or breaches of "good behavior" are required -- just "any reasonable cause," and I think that this flagrant violation of the Nevada Constitution's protection of basic property rights qualifies. Also, art. II, sec. 9 seems to provide for popular recall of judges as well as other officials:

Every public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality which he represents. For this purpose, not less than twenty-five per cent (25%) of the number who actually voted in the state or in the county, district, or municipality which he represents, at the election in which he was elected, shall file their petition, in the manner herein provided, demanding his recall by the people. They shall set forth in said petition, in not exceeding two hundred (200) words, the reasons why said recall is demanded. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy thereby caused shall be filled in the manner provided by law. If he shall not resign within five (5) days after the petition is filed, a special election shall be ordered to be held within thirty (30) days after the issuance of the call therefor, in the state, or county, district, or municipality electing said officer, to determine whether the people will recall said officer. On the ballot at said election shall be printed verbatim as set forth in the recall petition, the reasons for demanding the recall of said officer, and in not more than two hundred (200) words, the officer’s justification of his course in office. . . .

This requires a large number of signatures, but provides for a prompt election if the signatures are athered.

     I'm not up on Nevada politics, and for all I know this might be one of those weird political kabuki dances where everyone, including the voters, might actually like the result. That doesn't keep the result from being outrageous, but it might mean that it won't generate much outrage. I do, though, hope that Nevadans won't stand for this judicial nullification of the people's will, and that they will promptly make clear that it is they who get to add or delete portions of the Nevada Constitution.

     (Thanks to Rick Henderson for the pointer to the decision.)

 
[Eugene Volokh, 5:50 PM]
More on the Federal Marriage Amendment: Ramesh Ponnuru at The Corner disagrees with Andrew Sullivan on the Federal Marriage Amendment.

Andrew Sullivan reprints the text of the proposed Federal Marriage Amendment: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." He then says, "Note how the states are effectively barred from providing anything that resembles marriage or any of the 'legal incidents thereof.' It's an attempt not only to reverse any state that wants to have same-sex marriage but to invalidate all domestic partnership laws, any state-provided benefits, or any support for same-sex couples anywhere anyhow. It's a massive power-grab from the states, in an area where states have always had constitutional authority."

There may be sound arguments against the FMA. But Sullivan's claim is ridiculous. What does he suppose the words "be construed to require" are doing in the amendment? The amendment is aimed to prevent a judge (or executive-branch official) from inferring same-sex marriage or same-sex marriage-lite from a state or federal law. It precludes a state's adoption of gay marriage (that's the first sentence). It precludes a judge's imposition of civil unions (that's part of the second sentence). It does not preclude a state legislature or popular referendum from creating civil unions or whatnot. . . .

     I think Ramesh may be mistaken here. First, let me highlight one thing that he does mention (though I unaccountably failed to grasp the full import of his mentioning it when I first posted on this). Consider this scenario: The New York legislature - or the voters of California -- say "We enact that gays shall be allowed to marry." Under the FMA, I think that would be unconstitutional, because it violates the first sentence, which says "Marriage in the United States shall consist only of the union of a man and a woman." After all, New York is in the United States; marriages in New York may not include gay marriages, regardless of what New Yorkers prefer. The amendment thus constrains more than just judges or executive branch officials. It constrains legislators or voters, too.

     This is reinforced by the "construed to require" sentence. Say that two gay men go to the courthouse to register their marriage. The county clerk says "Nope, I don't register gay marriages." The men say, "But the statute requires you, as the government employee in charge of marriages, to register gay marriages." "Not so," replies the clerk. "Under the Federal Marriage Amendment, no 'state . . . law . . . shall be construed to require that marital status . . . be conferred upon unmarried couples or groups.' Therefore, even though the legislature has just enacted a state law saying that gays can marry, you're still unmarried (under the FMA's first sentence) and this state law can't be construed to require me to confer marital status on you (under the FMA's second sentence)." Both the first and the second sentence of the FMA would thus bar gay marriages, no matter what the state legislators or voters say. That alone, I think, is enough to justify disagreeing with FMA: Why should we keep the voters or legislators of another state from implementing the marriage regime that they think is right for them, especially if the Defense of Marriage Act (and other doctrines) prevents that regime from being foisted on other states?

     Now consider another scenario, where my disagreement with Ramesh lies: The New York legislature or the California voters decide to create a "civil union" statute, under whic ks for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married personcouple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

     Again, then, the FMA would block not just gay marriages or civil unions imposed by judges or executive branch officials, but also normal state laws adopted by legislators and voters. Contrary to Ramesh's reading, it would "preclude a state legislature or popular referendum from creating civil unions or whatnot."

     Now I realize that courts could interpret the FMA differently; courts have certainly interpreted lots of constitutional provisions in ways that don't track their literal text. But it seems to me that the reading I outline is at least plausible -- and I think it's actually the most plausible:

1. The first sentence mandates an unchangeable definition of marriage ("Marriage in the United States shall consist only of the union o a man and a woman"), thus prohibiting state legislators and voters from allowing gay marriages.



2. The second sentence bars state laws that require local and state government officials to recognize civil unions, domestic partnerships, and other attempts to track the incidents of marriage -- "[no] . . . state . . . law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups" -- thus prohibiting state legislators and voters from setting up such civil union schemes.

The FMA would thus substantially reduce the autonomy of each state, and the authority of its legislators and voters.

UPDATE: I'm sorry to say that I originally misread part of Ramesh's post -- I failed to really grasp the sentence where he acknowledges that the Amendment would entirely ban states, include state legislators and state voters, from allowing gay marriage. (I focused too much on where he talks about the Amendment just disabling judges, and leaving legislators and voters relatively free, and I glossed over his acknowledgment that this isn't so as to gay marriage itself.) This means that in the first scenario, I actually agree with his prediction of what the Amendment would do, though I think that it would be bad for the Amendment to do that. In the second scenario, we do disagree. I've revised the post to incorporate this correction, but I wanted to leave this update and my apology here in any event.