The Volokh Conspiracy

The Conspiracy Goes Even Deeper Than He Thought:

From Rhett R. Smith v. Iowa Republican Party, an unpublished Fifth Circuit opinion from last week:

Smith ... filed an Amended Complaint containing only three paragraphs of allegations. In those paragraphs, he complained that his right to be a candidate was violated by the defendants and that the defendants acted “under color of law.” He asserted vague constitutional rights. Further, he alleged his “First Amendment right to protection from Zionism and/or Christian-Zionists” under the establishment clause of the First Amendment. “Plaintiff further asserts an implied principle of ‘fairness in communication’ in that the Defendants ... have acquiesced to the American Israeli Public Affairs Committee (AIPAC) and have allowed only Zionistic campaigns within the (two major political party) campaign coverage.”

Smith has wholly failed to allege claims stating a case for relief against any party. Despite clear and specific directives from the Magistrate Judge, he has filed a conclusory pleading without any of the information necessary to state a claim. Accordingly, the district court did not err in dismissing the Amended Complaint....

Well, yeah, that would be what they'd say, right?

"The ’60s Begin to Fade as Liberal Professors Retire": On Thursday, the New York Times had this interesting story on generational change within academia. Some of the data didn't quite seem to back up the story, but it was still pretty interesting.

Jesse Helms did not lead "the rise of the modern conservative movement."--

In the obit for former Senator Jesse Helms on NBC Nightly News, they mentioned (or at least hinted at) his racist background, as they should have, but I was stunned by the conclusion.

Martin Savidge reporting (at about 2:58 of the NBC video segment):

But there is one point on which both critics and supporters do agree: Helms led the rise of the modern conservative movement.

This was followed by the disreputable Pat Buchanan saying, “He was the most principled conservative in the United States Senate.”

I don’t see what’s “modern” or “principled” about Jesse Helms, who came to fame in North Carolina through his overt racism.

And – most of all — I don’t see how NBC has the nerve to say that both critics and supporters agree that “Helms led the rise of the modern conservative movement.” Until Martin Savidge said so, I had never heard anyone say anything even remotely like that. I’ve heard many people or groups credited with leading the modern conservative movement: Ronald Reagan, Barry Goldwater, William Buckley, and Rush Limbaugh, and in a more indirect manner, the Weekly Standard, the Olin Foundation, the Federalist Society, and the Heritage Foundation. I have never heard anyone, until I heard Martin Savidge tonight, say anything like this: “Helms led the rise of the modern conservative movement.”

Related Posts (on one page):

More on Reducing the Pain of Taking the Bar Exam:
Reducing the Pain of Taking the Bar Exam:

The VC's First Emmy Nomination:

Colorado Inside Out is weekly public affairs roundtable program, on KBDI channel 12, one of the two PBS stations in Denver. Twice a year, the program tapes a Time Machine episode; our 1927 episode, which was broadcast last December, is one of the three finalists for the "Interview/Discussion Program" category for the National Television Academy's Heartland Chapter (which covers Colorado, Oklahoma, Nebraska, Kansas, and Wyoming).

The half-hour episode is available for Internet viewing here. I play Chumley Drizelwhit, Professor of Ancient Studies at Colorado Women's College, an Al Smith Democrat who celebrates the execution of Sacco and Vanzetti, and bemoans the influence of the KKK. But the Professor does make an error once in a while, as when he describes the film Birth of a Nation as a talking pciture.

Viacom to Get Copy of Every Record of Every Access to Every YouTube Video?: The Electronic Frontier Foundation has a page up here, referring to this district court decision. At first blush, I think that the Video Privacy Protection Act prohibits this; the Google/EFF analysis provided in the link strikes me as correct, and the decision as incorrect.

Interpretation vs. Construction in Heller: Jack Balkin and Larry Solum are having a very important exchange on the originalist methodology employed by Justice Scalia in Heller. (For Jack's post click here for Larry's click here, here, & here) This involves the crucial, and widely unappreciated, distinction between constitutional interpretation and constitutional construction, a distinction first brought to the fore in modern constitutional theory by Princeton professor Keith Whittington. As Larry explains in his third post, constitutional interpretation is the method by which the semantic meaning of words is ascertained; constitutional construction is the method by which the meaning yielded by constitutional interpretation is applied to particular factual situations.

So what is the distinction between "interpretation" and "construction"? Unless, you have a thorough familiarity with the history of the law of contracts, trusts, or will or a deep knowledge of contemporary constitutional theory, you may think that these two terms are simply synonyms. It turns out that the distinction between interpretation of the linguistic meaning of legal texts and the construction of legal rules from that linguistic meaning has a long history in Anglo-American law. Here is a first (rough) cut at definition:
* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.
Those definitions sound pretty technical to me, but I hope you are starting to get the idea. We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978).

In short, where the text is vague, and the factual situation falls outside its core meaning, this typically requires the "construction" of doctrine that is not literally in the text itself.

Although this is all very commonplace in law, sometimes these constitutional doctrines resulting from construction are inaccurately considered to be the meaning of the Constitution itself, which they clearly are not. By the same token, they are also often criticized as being "made up" by the Court and not in the Constitution, which is true, but beside the point.

Once one grasps the distinction between interpretation and construction, many constitutional confusions can be cleared up and constitutional debate can shift to more productive issues. For example, original public meaning originalism is a method of constitutional interpretation; it is not a method of constitutional construction. Once it has done all it can do to ascertain the meaning of the text, and that meaning remains vague when applied to a particular situation, then constitutional construction is required. Although such constructions or doctrines must not contradict or subvert the original meaning of the text, by assumption they are not dictated by that meaning. That is an implication of the meaning of the text being "vague." More than one construction is consistent with its (original) meaning, and therefore no single construction can be logically deduced from it.

How one engages in constitutional construction is a bigger topic than I can even summarize here. In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.

If all this sounds too open-ended or fuzzy for your taste, I sympathize, but don't blame me. Blame the inherent limitations of language. But also blame the need to adopt written constitutions at a level of generality that allows them to be applied to future changing circumstances. For example, the Second Amendment speaks of "arms" not "muskets" allowing it to be applied to modern arms. That's not a bug, it's a feature. Deal with it.

Which returns us to Heller. In my Wall Street Journal piece, I praised Justice Scalia’s opinion as “the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court.” Even with the benefit of a cooling off period, I stand by that assessment and note that Jack Balkin too praises the original public meaning aspect of Justice Scalia’s opinion. (I do have one concern with Justice Scalia's originalist analysis, however, which I identify at the end of this post.)

Where Justice Scalia’s opinion is raising questions (such as this post by Brian Leiter) have to do with his inevitable need to engage in constitutional construction where the original meaning of the text is too vague to be directly applied to a variety of issues. There his method is opaque, in large part (I suspect) because he may not himself clearly see the distinction between interpretation (original public meaning) and construction (the need to apply that meaning to specific regulations). I suspect this because very few constitutional scholars appreciate this difference, and Justice Scalia would be in impressive company if he failed to fully grasp when he has left interpretation behind and entered what Larry Solum calls “the construction zone.”

But does this mean that, when confined to the realm of “interpretation,” originalism is so indeterminate as to be uninteresting? That “all the action” is in the construction zone? If that were true, we would not have spent the past 30 years debating the original meaning of the Second Amendment so ardently. That the Second Amendment protects the rights of individuals to possess and carry weapons for lawful purposes is of enormous significance. It sets what Fred Schauer has called the “frame” within which construction is being done. While there is more than one construction that can put this individual right into effect within the frame, the DC gun ban was outside the frame and properly struck down here.

This is what the debate between Justice Scalia and Justice Breyer was largely about. When Justice Breyer proposed a balancing test, Justice Scalia responded that this was not how express constitutional rights are protected. That the Second Amendment protects a right makes a simple rationality test of the sort favored by Justice Breyer outside the frame. Some meaningful level of scrutiny is required to vindicate and protect a right from governmental abuse. But what the precise level of scrutiny ought to be–and how it applies to particular gun regulations–is a matter of construction. More than one doctrine is within the frame, even if Justice Breyer’s approach is outside because, in effect, it sanctions the violation of an individual right by the government that the Bill of Rights is there to constrain.

There is much more to be said about all this than I have said. I do not claim to have addressed all the fascinating issues raised by Heller, or by the posts by Brian, Jack and Larry. Jack and Larry are engaged in a good faith examination of how an originalist ought to do constitutional construction. If you are sincerely interested in these crucial issues, don’t just dash off a comment responding to these brief remarks. Read Brian Leiter’s challenge. Read Jack Balkin’s take. Read Larry Solum’s excellent posts. (The links are all above.) Then stop for a moment and think about how this distinction might illuminate how you approach these issues. Of course, like any conceptual distinction, the line between interpretation and construction is itself vague. But once one realizes that courts and other interpreters are engaged in two closely related but distinct endeavors, much confusion is avoided. And consensus on a great many issues can be attained, while reserving our debates for those important issues–typically involving matters of constitutional legitimacy and construction--about which we truly disagree.

[My concern with Justice Scalia's analysis of original public meaning is his thesis that:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation.

I do not think that this "particular purpose" is part of the semantic meaning of the right. In my view the right is unqualified by any purpose including that stated in the preface (which is where I disagree with Justice Stevens). It would therefore protect weapons being used for any "lawful" purpose, including the lawful purpose of self defense. I suspect that Justice Scalia makes this move because he does not completely appreciate the distinction between interpretation and construction, so he (like so many others) feels the need to build into the "meaning" of the text limitations on its reach, rather than assessing these limitations as the inevitable need to resolve the vagueness in meaning that gives rise to the need for construction. Of course the original meaning of a particular term or phrase in context could be limited in its scope (as I believe is true about "the rights . . . retained by the people" in the Ninth Amendment) But the paucity of evidence presented by Justice Scalia in behalf of this specific conception of bear arms is an indication that he has strayed here from the realm of constitutional meaning into the construction zone.]

Litigation or Corporate? Advice for Law Students: Jeff Lipshaw has a terrific post for law students considering big firm practice on how to choose between litigation work and transactional work. Via ATL.

How Fast Is Google?: I am posting this at 12:54 am Eastern Time, 11:54pm under the VC clock. I will then check Google to see how long it takes them to record the post and make it available through their search engine. Stay tuned, gropriwn.

UPDATE: It posted at 1:09, for a time of 15 minutes. Interesting. And now back to our regularly scheduled programming.

More on the Overlooked Military Law in Kennedy v. Louisiana: My co-blogger Jonathan blogs below about the fact that the briefs and opinions in Kennedy v. Louisiana overlooked the military law permitting capital punishment for child rape in courts martial. It's an interesting situation, and I wanted to blog about it.

  The first question is, who is responsible for overlooking the law? I would think that the first error here (and probably most important) was at the Solicitor General's Office. The SG's Office did not file a brief in Kennedy, and I assume they did not file anything because they didn't realize that there was a federal law to defend. Had they realized there was a federal law to defend, they presumably would have filed a brief pointing it out and defending it. That's their job. [UPDATE: See this article in the Times today for more.]

  With no filing from the SG in the case, it's not very surprising that no one spotted the military law that the SG's Office apparently overlooked. No one — not the parties, not the Justices, not the clerks, not the press, not the blogosphere in the run-up to the decision — looked carefully to see if the SG had overlooked something. So both Justice Kennedy's majority opinion and Justice Alito's dissent are based on the assumption that the six state laws were the only game in town.

  The second question is, how much of a big deal is this? I tend to think it's not such a big deal. The reason is twofold. First, I don't recall military law that applies to court martials by Article I courts being relied upon in past Eighth Amendment cases to determine the scope of evolving standards of decency. My impression is that when the courts look at the law of various jurisdictions to determine "evolving standards of decency," they look to the criminal law that applies in general courts for cases involving civilians, not the Uniform Code of Military Justice that applies in Article I courts involving those in the military. The Eighth Amendment applies in court martial proceedings, to be clear, but it's not clear that the law of courts martial is part of the evolving standards "head count." So while it is technically correct that Congress did authorize the death penalty for child rape, it did not do so in the area that has mattered in past Eighth Amendment cases: criminal law applied in civilian courts.

  Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment." Obviously the latter would not be changed by the knowledge of the military law. Given these two points, I think it is extremely unlikely that the outcome of the case would have been different if the military law had been recognized.

  The final question is, what will happen now? I doubt anything will happen. For the reasons discussed above, I doubt the Justices will see this discovery as such a big deal. It's possible that there could be a slightly amended opinion, but I think it's probably more likely that they'll just let the opinion stay "as is" given that the law was a military law rather than a law that applied to civilians of the sort normally included in the "evolving standards" analysis.

  Anyway, that's my best sense of things. It won't persuade commenter "Dangermouse," who seems to think Justice Kennedy is personally responsible for everything bad in America, but that's my best sense.

Which Has Met More US Congressional Goals: Iraq or the US Congress?--

In the most recent report on political goals for Iraq, it appears that 15 of 18 benchmarks set by the US Congress have been met:

On page 8 of the Washington Post’s news section today, we learn that, according to the U.S. embassy in Baghdad, Iraq has met all but three of the 18 original benchmarks set by Congress. The only three that have not met are (a) enacting and implementing laws governing the oil industry (though it’s not clear why formal laws are necessary), (2) disarmament of militia and insurgent groups, and (3) making the Iraqi police more professional.

The Post hastens to add, however, that other recent assessments find that Iraq has failed to achieve “many of the goals that the Baghdad government and President Bush said would be reached by the end of 2007.”

This would seem to compare with progress on the political goals that the Democratic Congress set for itself in 2006. Remember its “Six for ‘06” proposal made in the summer of 2006:

Six for '06

Congressional Democrats believe America should work for everyone — not just those at the top - by building opportunity and prosperity for all, and guaranteeing real security at home and around the world. We know that Americans can work together to meet the serious challenges facing our country, create a stronger nation, and build a safer world.

With a firm commitment to honest leadership and tough budget discipline to end record deficit spending, we propose a legislative agenda — A New Direction — that unites rather than divides our country. Beginning with our goal of an America that strives for the common good, these are our legislative priorities in the 109th Congress for a New Direction.

1. Real Security at Home and Overseas

Reclaim American leadership with a tough, smart plan to transform failed Bush Administration policies in Iraq, the Middle East and around the world. Require the Iraqis to take responsibility for their country and begin the phased redeployment of US forces from Iraq in 2006. Double the size of Special Forces to destroy Osama Bin Laden and terrorist networks like al Qaeda. Rebuild a state-of-the-art military capable of projecting power wherever necessary. Implement the bipartisan 9/11 Commission proposal to secure America's borders and ports and screen 100% of containers. Fully man, train, and equip our National Guard and our police, firefighters and other first responders. Honor our commitments to our veterans.

2. Better American Jobs — Better Pay

Prohibit the Congressional pay raise until the nation's minimum wage is raised. End tax giveaways that reward companies for moving American jobs overseas.

3. College Access for All

Make college tuition deductible from taxes, permanently. Cut student loan interest rates. Expand Pell Grants.

4. Energy Independence — Lower Gas Prices

Free America from dependence on foreign oil and create a cleaner environment with initiatives for energy-efficient technologies and domestic alternatives such as biofuels. End tax giveaways to Big Oil companies and enact tough laws to stop price gouging.

5. Affordable Health Care — Life-Saving Science . . .

6. Retirement Security and Dignity . . .

THE WRONG DIRECTION

The policies of the Bush Administration and the Congressional majority have taken the country in the wrong direction, making us less secure and putting the privileged few ahead of the common good. . . .

4. Rising Energy Prices

Gas over $3 per gallon; growing dependence on foreign oil; billions in new subsidies for oil and gas companies despite record profits; blocked efforts against price gouging; opposed energy efficient technology and alternative fuels.

Here is the Speaker Pelosi's page that claims success for some of the New Direction proposals promised in "Six for '06":

First minimum wage increase in 10 years

9/11 Commission recommendations to screen all air cargo and overseas port cargo, improving communications between first responders

Tough rules to establish highest ethical standards in Congressional history

Most sweeping lobby and ethics reform in a generation, hailed by reform groups as “landmark reform” and “a sea of change”

Pay-as-you-go budget discipline restored to end six years of deficit spending

Fiscal discipline that produces a balanced budget by 2012

A comprehensive Innovation and Competitiveness agenda to double basic research & development and reinvest in math and science education

Emergency funding to support and equip troops, including tripling Mine-Resistant Ambush Protected (MRAP) vehicles in Iraq

Tighter rules against foreign investment that weaken national security, after the Dubai Ports scandal

Reduction of backlog on passports after 9/11 requirement through hiring boost

Benchmarks and progress report required on Iraq

Emergency assistance to protect children’s health coverage . . .

The reduction in gas prices and increase in energy independence promised by Congress are some of the noteworthy exceptions to its somewhat spotty record of accomplishment.

Althouse on Limbaugh and Writing as a Way of Thinking.--

Ann Althouse has an interesting account of the largely favorable New York Times Magazine story on Rush Limbaugh. I was surprised that Althouse listens regularly to Limbaugh. As far as I know (and I am probably wrong on this), none of my friends watches or listens regularly to Limbaugh, Hannity, or O'Reilly. I haven't watched even 5 minutes of O'Reilly in many years, I see a few minutes of Hannity every month or so when switching channels (about as much as I see of Keith Olbermann), and Limbaugh I hear perhaps twice a year when I'm in a rental car and can't find anything else worth listening to.

What struck me about Ann's post was her discussion of how Limbaugh thinks through his ideas. She first quotes Limbaugh's response to a question about how he was going to handle Barack Obama:

“I haven’t yet figured that out exactly,” he said. “You know, I’ve had a problem with substance abuse. I don’t deal with the future anymore. I take things one day at a time.” . . .

[Ira] Glass compares Limbaugh to another exceptional free-form radio monologist, Howard Stern. “A lot of people dismiss them both as pandering and proselytizing and playing to the lowest common denominator, but I think that misses everything important about their shows,” he says. “They both think through their ideas in real time on the air, they both have a lot more warmth than they’re generally given credit for, they both created an entire radio aesthetic.”

Ann offers these comments:

Glass — who is one of the public figures in America who should be counted on those 2 hands — is absolutely right about Limbaugh and Stern. That explains very well why I listen to all 3 men.

And these:

I think [Limbaugh] knows that doing things day-by-day keeps the show alive and makes it work. It's what works in blogging too. If you have a whole planned agenda and you just crank out the propaganda, people will get sick of you. It's when you are talking/writing to figure out what you think, to find out what you want to say, that you are interesting.

I share Ann's affection for bloggers who are trying to observe and understand what they are writing about, rather than always writing op-eds with a thesis they are trying to prove (which is one reason that I enjoy reading her blog). Unfortunately, I find that many blog readers prefer strongly thesis-driven posts, which they can either echo or attack point by point.

Ninth Circuit Rejects "Heckler's Veto" Justification for Restricting Display of Aborted Fetus Photos Near School:

An interesting and generally quite correct decision from the Ninth Circuit. The facts:

On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical Reform employee, and Thomas Padberg, a Bio-Ethical Reform volunteer, drove to Dodson Middle School in Rancho Palos Verdes, California. Kulas drove a truck that displayed the [large, graphic] photographic images of aborted fetuses and Padberg drove an escort “security vehicle.” The security vehicle was a white Ford Crown Victoria sedan equipped with a security cage, red-and-amber flashing lights, push bars, and antennae mounted on the roof. The two men arrived at the school at about 7:30 a.m. — about thirty minutes before classes began. They then drove on public streets around the perimeter of the school.

Plaintiffs’ graphic display quickly caused concern among school officials. Defendant Art Roberts, an assistant principal at Dodson Middle School, identified traffic as one of his primary concerns. According to him, 85 to 95 percent of Dodson’s 2000 students arrive by bus or car between 7:15 a.m. and 8:00 a.m. The students’ arrival causes “heavy traffic” around the school. This traffic can become a safety hazard when drivers or pedestrians become upset, angry, or distracted. At a preliminary hearing, Roberts testified that during the time he had worked at Dodson Middle School, vehicles on streets around the school had struck five children and killed two.

On the day Plaintiffs were at Dodson Middle School, Assistant Principal Roberts observed some children stopping on the sidewalks and staring at the photographs of aborted fetuses, while others momentarily stood in the middle of the street. Faculty members also reported “abnormal” difficulty getting children onto the campus.

Assistant Principal Roberts identified additional concerns. He saw a number of children express anger over Plaintiffs’ graphic display. He also overheard a group of boys planning to throw rocks at the truck. The group disbanded only after Roberts confronted them. Assistant Principal Roberts observed two or three girls crying. He also said that at least one class spent time discussing the truck’s displayed images of aborted fetuses. Nevertheless, Assistant Principal Roberts said the school had a “fairly normal opening” and that all students he could see were on the campus by the start of classes at 8:01 a.m.

The plaintiffs were then barred from the area under a law generally banning people from being on a street or sidewalk near a school "without lawful business" when their "presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school its pupils or school activities."

The court held that, because of First Amendment concerns, the statute should be read to cover only disruption caused by the noncommunicative aspects of the speech (e.g., its loudness). The statute should not be interpreted, the panel concluded, as covering disruption caused by listener hostility to the content of the speech (which is how the disruption was caused here).

The three-judge panel was solidly liberal; the opinion was written by arch-liberal Judge Harry Pregerson.

UPDATE: I initially erred in the description of the procedural posture, characterizing this as overturning the conviction — I've now corrected this to reflect the fact that the plaintiffs were only barred under the government's interpretation of the law from the area, not actually convicted of violating the law. The First Amendment discussion remains correct. My apologies for blogging too hastily and thus incorrectly, and my thanks to commenter Jacob Berlove for the correction.

Judge Spanks Lawyer, Blogging Librarian Wins:

In April, Jonathan Adler blogged briefly about a lawyer's subpoena against blogger Kathleen Seidel. Last week, and two months after the subpoena was quashed, the Magistrate Judge issued an opinion harshly condemning the lawyer:

Clifford Shoemaker, Esq. was counsel to the plaintiff in the underlying case. In the underlying case the claim was that the plaintiff-child developed neuro-developmental disorders from high mercury exposure as a result of exposure to defendant’s medicine in utero. Shoemaker is a 1973 law school graduate who indicates on his website that he has focused his attention on an alleged mercury-created autism epidemic. He claims to have “tried cases in federal district courts all over the country.”

Ms. Seidel was a non-party to the Sykes’ suit. Ms. Seidel maintains a website, www.neurodiversity.com, on which she posts articles she and others have written about the controversy about whether mercury has or has not created an autism epidemic. Shortly after posting an article on several fees Mr. Shoemaker obtained in various Vaccine Injury Compensation Program claims, Shoemaker served Ms. Seidel with the subpoena at issue.

The subpoena, as Ms. Seidel correctly summarizes:

commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” — including but not limited to material mentioning the plaintiffs - and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”

... I quashed the subpoena and ordered Mr. Shoemaker to show cause why he should not be sanctioned under Fed. R. Civ. P. 11....

The subpoena which I have attached to this order is breathtakingly broad. Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating ... these endeavors.” The documentation sought is exhaustive.

Shoemaker seeks to justify the subpoena by allegations that Seidel is not “a mere mother of an autistic child and housewife,” but a co-conspirator under 42 U.S.C. §1985 with her husband or “the defendant (Bayer) or by some organization dedicated to harassing this plaintiff (Ms. Sykes) and her witness ...” Shoemaker’s claim that Ms. Seidel was the “leader of a conspiracy to obstruct justice ...” is unsupported by any facts. It is clear that she has openly and extensively exercised her First Amendment right to speak out on the issue. Shoemaker certainly has the right to disagree with her, but he has no right to misuse the process to abuse her.

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia’s Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker’s conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

The order doesn't explain why no attorney fees were awarded against the sanctioned lawyer; I'm not expert enough on Rule 11 to be sure of the reason, but I take it that this is because Ms. Seidel may have been represented pro bono by Public Citizen Litigation Group in part of the litigation and represent herself in another part.

Just goes to show: Don't mess with librarians.

Are Administrative Patent Judges Unconstitutional? A Possible Dissenting View: My friend and colleague John Duffy has drawn a lot of attention in the blogosphere and in the media for his essay concluding that the way of appointing administrative patent judges is unconstitutional. According to Duffy, the problem is that administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO), whereas under the Appointments Clause they must be appointed by a cabinet officer because they exercise "significant authority pursuant to the laws of the United States . . and must, therefore, be appointed in the manner prescribed by [the Appointments Clause]." Buckley v. Valeo, 424 U.S. 1, 126 (1976). Duffy's argument has drawn a lot of attention, including possible legislative fixes and a pending cert petition.

  But I'm not sure Duffy's view is right, and in this post I want to explain why.

  My source of doubt is that I'm not so sure that BPAI judges exercize "significant authority" for Appointments Clause purposes. I am no expert in the Appointments Clause, but Duffy's article relies heavily on the analogy between BPAI judges and administrative decisionmakers. Because executive branch judges that rule on administrative claims have been ruled to be covered by the Appointments Clause, so should BPAI judges. This assumption seems to rely on a specific notion of how patent law fits into administrative law: Specifically, executive branch adjudications of patent claims are basically like executive branch adjudications of licenses, welfare benefits, and the like.

  But does that analogy hold? I don't think it does. The reason is that patent law takes its operating principles from contract law rather than administrative law. As I argued a few years ago in Rethinking Patent Law in the Administrative State, 42 William & Mary Law Review 127 (2000), which I have just posted to SSRN, modern patent law predates the regulatory state and is based on the model of a unilateral contract offer rather than the exercise of administrative discretion.

  I go into detail on this in the article, but here's the basic idea. The patent laws announce a contract offer: Anyone who can create an invention that satisfies the standards of patentability and agrees to disclose the invention to the public in a patent application becomes entitled to the quid pro quo of the patent grant. The filing of a patent application is an attempt to accept the offer. The government's ruling on the patent application reflects the judgment of the offeror as to whether the offer has in fact been been accepted and a contract exists. If the contract exists, the offeror (that is, the government) then bestows the quid pro quo of the property right of a patent. If the offeror concludes that no acceptance occurred and thus no contract exists, then the offeror will award no quid pro quo and the offeree (the applicant) must go to court to sue the offeror for breach of contract (failure to confer the patent).

  With this understanding, a BPAI judge's job is conceptually very different from the job of other decisionmakers in the administrative state. The BPAI judge is a representative of the offeror, and the job is to determine if the applicant's conduct satisfied the contract. Although the position is a type of judgeship, the ultimate "decision" is essentially that of a contracting party as to whether a contract was accepted.

  This is different from an administrative judge because administrative judges are working within a zone of delegated power. The basic notion of modern administrative law is that executive agencies are given substantive rulemaking power to "do the right thing" within a zone of delegated discretion; the administrative law judge has "significant authority" because he or she exercises that delegated power. But there is no similar delegated power in patent law. The modern patent law system predates the administrative state by several decades, and it is based on a contractual model instead of the later delegated power model. Given that, I'm not entirely sure that BPAI judges exercize "significant authority," and I'm not sure their method of appointment is unconstitutional.

  My case is complicated by the fact that in the last few decades, the ossification of administrative law models of agency action has made it common to conceive of all decisions by agencies as the same. The fact that patent law followed different principles has been clouded. As I explain in detail in my William & Mary article, this has led to decisions both by the Supreme Court and the Federal Circuit that have tended to try to push patent law into more of a traditional administrative law model. Professor Duffy relies on these cases in support of his suggestion that the appointment of BPAI judges is unconstitutional by analogy to administrative judge cases. Given these recent cases, one response would be that whatever historical distinction separated patent law from regulatory executive action, the new cases have narrowed that difference enough that it no longer matters.

  Perhaps that's right. But at the same time, I think that a great deal of the historical distinction remains. It includes the standards of review for legal issues, which require Chevron deference for regulatory decisions but de novo review for constructions of the requirements of patentability. And given the very high stakes involved in this issue, I think a court should at least want to look more closely at this issue before concluding that the BPAI judges are covered by the Appointments Clause.

Don't Believe Everything You Read:

I was just looking over the Heller opinion, and came across the debate between Justices Scalia and Stevens about U.S. v. Cruikshank, 92 U.S. 542 (1876). Here's what Justice Stevens's dissent argues, accurately quoting both Cruikshank and the majority (citations omitted):

In United States v. Cruikshank, the Court sustained a challenge to respondents' convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” The Court wrote, as to counts 2 and 10 of respondents' indictment:

“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”

The majority's assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘“bearing arms for a lawful purpose,”’” is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment's description of the right.

This is mighty odd (as the Heller majority stressed, in note 22). Cruikshank says, "The second amendment declares that it shall not be infringed ... by Congress." What is "it"? The only possible referent is "The right there specified," namely "of 'bearing arms for a lawful purpose.'"

Thus, substituting the referent, we see Cruikshank saying that "The second amendment declares that [the right of bearing arms for a lawful purpose] shall not be infringed ... by Congress." So Cruikshank definitely does describe the right protected by the Second Amendment.

Maybe I'm missing something here, but I don't think I am: It seems to me that the dissent just flatly misread Cruikshank, and in an important way -- and didn't correct this despite Justice Scalia's express and accurate response in footnote 22 of the majority.

So this is one reason I tell my students: Never rely on an intermediate source's characterization (or even quotation) of an original source; always read, quote, and cite the original source. (True, sometimes when the intermediate source is authoritative -- for instance, is a majority opinion -- its mischaracterization of an original source may itself create binding law. But the original source still says what the original source always said.)

Ninth Circuit Overrules Ecology Center:

A unanimous en banc panel of the U.S. Court of Appeals for the Ninth Circuit overturned the Circuit's 2005 ruling in Ecology Center v. Austin today, and appears to have narrowed the court's review of federal agency NEPA compliance. After briefly skimming the court's opinion in Lands Council v. McNair, I think it could be quite significant. In recent years, the Ninth Circuit has been something of an outlier in environmental law, and the most desirable jurisdiction for environmentalist plaintiffs. Insofar as this decision indicates a desire by Ninth Circuit judges to tame the court's environmental jurisprudence, it could be a biggie. I hope to say more, but I'm in an airport on my way to Glasgow for a wedding, so I don't know when I'll get a chance.

Related Posts (on one page):

How Significant Is Lands Council Decision?
Lands Council v. McNair:
Ninth Circuit Overrules Ecology Center:

Related Posts (on one page):

Should the Supreme Court Take Advantage of the Web?
Post Calls for Kennedy Rehearing:
Blogger Finds Factual Error in Kennedy's Kennedy Opinion:

Does Obama understand evil?--

I read Barack Obama’s second autobiography, The Audacity of Hope, in part to try to understand Obama better, but more particularly to see whether he understood evil in the world.

I found myself highly impressed with Obama’s fluency and open-mindedness. Some Republicans seem to be trying to depict Obama as some sort of angry, America-hating, hard left-wing ideologue. My sense is that Obama is both quite progressive/left wing (at least for a popular politician) and also very open-mined and non-doctrinaire. Indeed, in his second book I found him highly understanding of those who disagreed with him, especially those in the general public. His only sharp comments were reserved for a few Republican officials (eg, Bush) and media types (eg, Rush Limbaugh). In my opinion, Obama sees himself as highly moral, always pushing for the best progressive reforms, but understanding that others may not be as enlightened as he is.

Yet I got no sense from Obama’s Audacity of Hope (covering the post-2001 period) that Obama has any real understanding of the evil we face in the world. I did get a sense that he was somewhat above the fray – something that comes through in some of the flaps arising during his campaign. Much as his “bittergate” comments suggested, he is quick to try to understand – and slow to blame – those with whom he disagrees.

I almost get the feeling that Obama would be comfortable as an honest broker in a dispute between the government of Iran and the government of the United States (with, of course, a natural bias for the position of the United States, the country that he loves above all others).

Accordingly, I found this discussion by Uncle Jimbo at Blackfive (tip to Instapundit) half wrong:

None who have served, well none with more than 4 months in the motor pool, wonder what John McCain proved to us. We know that a man who would refuse to be released ahead of others and allow the enemy a propaganda victory definitely understands and stays true to those three pillars [Duty, Honor, and Country]. The clowns on the left toss out the straw man that he learned nothing about foreign policy there. Well I disagree, he learned at least one thing. Our enemies are evil, ruthless bastards and they do not play by the same rules. Barack Obama believes America is evil and ruthless and needs the cleansing only he can lightwork.

Let's compare the two:

John McCain was so loyal to the men he was imprisoned with he endured torture on their behalf.

Barack Obama associates with those who can help his career, and throws them right under the bus when they become inconvenient to his aspirations.

That single issue of character matters more than all the others combined. You can trust John McCain. You can trust Barack Obama to use you as a stepping stone. . . .

Obama is a feather blowing in the political breeze. McCain is a rock.

I think it’s fair to say that John McCain understands evil in a way that Barack Obama has not yet shown that he does.

But I think it a grave error to say that Obama “believes America is evil and ruthless and needs the cleansing only he can lightwork.” I think that Barack Obama believes that, on balance, the United States is the best country in the world. (It is interesting, nonetheless, how often over the years his expressions of pride in America have been tied to personal gratitude for the country that allowed his career to blossom.) I think that Obama sees “America’s cup” as two-thirds full, but wants to focus on its being one-third empty – as I would expect any critic to do.

UPDATE (11pm ET): In the over 160 comments so far, people have rightly debated whether we need a president who understands evil. It would seem that there would be situations where having such an understanding would be a help and others where it would be a hindrance. I remember when president Reagan called the Soviet Union "the evil empire." It struck me as somewhat unsophisticated at the time, but Reagan was right. And dissidents behind the iron curtain later credited such statements from Reagan with shoring up their resolve to fight that empire.

If George W. Bush had not understood evil, would he have had the resolve to institute the surge in Iraq? Perhaps, perhaps not.

I see in the comments one or two readers who also read The Audacity of Hope and see, as I do, Obama's real affection for this country (contrary to Uncle Jimbo's claim quoted above). One thing I haven't seen in the comments so far is anyone who read The Audacity of Hope and points me to passages in that book that contradict my claim that I don't see any evidence there that Obama has a deep understanding of evil.

World's Happiest Countries

This interesting list ranks the world's happiest countries. Number 1? Denmark. Last? Zimbabwe. The U.S.? 16th overall.

For me the biggest surprise was the clustering of many former Soviet republics at the bottom of the list. For example, Ukraine (5th from the bottom) is apparently far less happy than many other less wealthy countries such as Columbia (3rd from the top) and El Salvador (11th from the top).

Breakaway Episcopal Churches Win:

Via Mirror of Justice I learn that the breakaway Episcopal churches in Virginia have won in the trial court. Summary here and here and here.

There are some obvious implications of the judge's ruling for many mainline Protestant churches. I've followed the case in passing simply because I reside in Falls Church, Virginia, which is named after the Falls Church that is one of the lead breakaway churches so it has been a major local issue for some time. (In light of the contentiousness of the issues that underlie the division in the case, let's please keep comments civil and focused on the legal merits and ramifications of the ruling and not get into the social issues that underlie it.)

Puzzling Obama on SSM:

Today we learned that Barack Obama opposes the proposed amendment to the California constitution defining marriage as the union of a man and a woman. In a letter to a gay civil rights group in San Francisco, Obama said he rejects "the divisive and discriminatory efforts to amend the California Constitution" and similar efforts in other states.

At the same time, Obama has repeatedly said that while he supports civil unions for gay couples he believes marriage is between a man and a woman. At a Democratic debate last August sponsored by the gay-themed cable station LOGO, he had this exchange with Human Rights Campaign Executive Director Joe Solmonese:

MR. SOLMONESE: So to follow up on your point about the state issue, if you were back in the Illinois legislature where you served and the issue of civil marriage came before you, how would you have voted on that?

SEN. OBAMA: Well, I — you know, my view is that we should try to disentangle what has historically been the issue of the word "marriage," which has religious connotations to some people, from the civil rights that are given to couples, in terms of hospital visitation, in terms of whether or not they can transfer property or any of the other — Social Security benefits and so forth. So it depends on how the bill would've come up.

I would've supported and would continue to support a civil union that provides all the benefits that are available for a legally sanctioned marriage.

Though the answer was a bit muddled, and seems calculated to ease the blow of his opposition to gay marriage in front of a gay audience, I read this to mean that Obama would oppose a bill in a state legislature to permit same-sex couples to marry but would support a bill to let these same couples enter civil unions giving them equivalent rights under state and federal law. This has become the dominant view of the Democratic Party. (If in fact he personally opposes gay marriage but supports it as a matter of public policy, his campaign hasn't said so.)

Assuming that Obama's opposition to gay marriage is not simply "personal," but is also a matter of public policy, I find Obama's current position perplexing. He opposes a referendum that would simply enshrine his purported public-policy view that marriage is between a man and a woman because, he says, it is "discriminatory."

But how is the proposed amendment any more "discriminatory" than his own position? His position is that marriage is between a man and woman; the proposed amendment says that marriage is "between a man and a woman." (Full text: "Only marriage between a man and a woman is valid or recognized in California.”) The proposed California amendment is narrower than the other proposed state constitutional amendments, many of which have explicitly bitten off much more than gay marriage.

Is there any way to reconcile opposition to gay marriage with opposition to the California amendment? I can think of three ways to reconcile these views, none of which is cited by the Obama campaign.

First, I suppose one could oppose writing the definition into the state constitution as opposed to state statutes. This would leave the state legislature and governor with the flexibility and the power to make the call at a later time. But the problem with that is that the state supreme court effectively wrote the new definition into the state constitution, removing this very power from the state legislature and the governor. If you oppose gay marriage on policy grounds, there is now no way to implement your view except to constitutionalize it by amendment. The state supreme court has left you no choice. And in California, because it's so easy to amend the state constitution, you're free to vote for a repeal at a later date if you change your mind on this issue. And you don't have to worry in 2008 that you are helping to set up a supermajority barrier to the possibility that you will change your position in the future.

Second, since gay marriages are a fait accompli for the next few months, even if you oppose them you might not want to reverse the interim marriages (which is a possible effect of passing the amendment) or, more abstractly, "take away rights." These would be incredibly generous reasons for a real opponent of gay marriage to oppose the California amendment since the number of interim marriages will be small in absolute terms, the marriages exist only by mandate of four judges, they are entered with full knowledge and notice that they may be nullified in a short time, and the cost of losing the referendum will be many more such marriages into the indefinite future. But if Obama is such an anti-SSM altruist, he does not give this as a reason for opposing the amendment.

Third, a gay-marriage opponent who supports civil unions (like Obama) could vote against the California amendment on the ground that it might also be interpreted to eliminate the state's domestic partnership system. This might be an unacceptably high cost if you oppose gay marriage, but don't oppose it very strongly, and think the costs of ending the domestic partnership system would be high. I think it unlikely the amendment will be interpreted so broadly by the California courts if it passes, but the risk is above zero. However, once again, Obama does not offer this as a reason to oppose the amendment.

So what's really going on? I think there are two things happening. First, I don't think Obama really opposes gay marriage deep down and I suspect he does see the exclusion of gay couples as a kind of discrimination. He has never been able to explain his reasons for opposing gay marriage — which is very revealing for a man who's otherwise unusually thoughtful. He just says, basically, I oppose gay marriage "because I say so." So calling the amendment discriminatory and divisive may be candor squeaking through. Second, and probably more importantly, this is an instance where politics necessitates cognitive dissonance. Gays and those who support gay equality are a critical constituency in the Democratic Party. Obama can't keep the gay-friendly base happy and support the amendment, which is rightly seen by them as involving huge stakes for the gay-marriage movement. But at the same time he has calculated that he can't come out for gay marriage as a matter of public policy because that might mean losing the election.

Don't get me wrong, I strongly oppose the California amendment and intend to contribute to its defeat. And on one level, I am very gratified by Obama's opposition. It might actually help sway some of his socially conservative black and Latino supporters, who will vote in large numbers in California in November. But then, I support gay marriage. If I opposed it, I'd probably be either mystified or angered.

Obama's explanation for why he opposes gay marriage and opposes the proposed California amendment banning it can't be squared as a matter of logic. It's a matter of politics, which says something about how much things have changed in a short time. We've gone from the Democratic presidential nominee in 2004 opposing gay marriage and supporting state constitutional amendments to ban it (as Kerry did, even where gay marriage existed, in Massachusetts); to a Democratic nominee who says he opposes gay marriage, but who's uncharacteristically at a loss to explain himself, and who opposes the only way to prevent it from becoming a reality in a state with 40 million people; to, I predict, a nominee in 2012 or 2016 who will say he or she personally favors gay marriage but says the president has no role in the decision because this is an issue that should be left to the states.

"Guns in the Home and Risk of a Violent Death in the Home":

Yet another study — which I learned about because it was cited to me by a fellow academic — that shows a correlation between home gun ownership and homicide and suicide risk to occupants without controlling for some obvious confounding factors.

Consider, for instance, criminal record (both its presence and its magnitude). Criminality is highly associated with extra risk of being killed (your business associates and rivals are criminals, too) and extra risk of suicide. At least for certain types of criminality, it's also likely to be associated with an extra likelihood of gun ownership, for instance because the gun is a crime tool or because the criminal needs the gun to defend himself against his criminal associates and rivals. Does the study control for this? Nope.

There are other problems with the study as well; Gary Kleck, for instance, has pointed to evidence that in many studies, quite a few respondents (perhaps 5-10% or more) conceal their gun ownership if they can. That's especially likely to happen when there hasn't been a gun death in the house, so that concealing the gun ownership is easy; so as a result, the gun ownership among the control group (where there has been no gun death) is underestimated, and the correlation between gun ownership and gun death is overestimated.

But the failure to control for the obvious criminal history variable strikes me as especially glaring. And yet such studies are read, reported on, and believed.

Congratulations to my former student Jonathan Bond, George Washington University Law School Class of 2008, who recently accepted a clerkship with Justice Scalia for the October Term 2009. Pardon my kvelling, but Jonathan will be the fifth George Washington University Law School graduate to clerk for the Supreme Court in the last six years. (The current Acting Solicitor General, Greg Garre, is also a GW Law graduate and a former Supreme Court clerk.) Finally, if Wikipedia is correct, Jonathan will be joined in the Scalia chambers by another former student of mine, Daniel Sullivan, who I taught when I was visiting at Chicago. Congrats to both of them!

Supreme Court Review Panels: C-SPAN has posted the video of the Federalist Society's panel this afternoon on the recently ended Supreme Court Term here. It also posted the video of this morning's American Constitution Society panel this morning on the same subject here.

I would have a reader poll on which panel was better -- Fed Soc or ACS -- but I figure about 3 people will make it all the way through the almost 4 hours of discussion. Each panel included a Conspirator, too: I participated in the Fed Soc's panel, and Randy Barnett participated in the ACS panel.

"Our Supreme Court [Is] in Alliance With the [Murderers]":

"It’s just completely befuddling that our Supreme Court would be in alliance with the [criminals]," a government official said about the Court's Confrontation Clause case, in which the Justices held that the Confrontation Clause required the reversal of a murder conviction.

A pretty poor argument, it seems to me: The point of the Confrontation Clause is to protect everyone, and while it unfortunately sometimes (in fact, disproportionately) protects criminals and even murderers, it hardly means that the Court is in "alliance" with the murderers. Even if you agree with the minority and think the majority got it wrong, that just means the majority Justices are unnecessarily doing something that will unfortunately help some criminals; it hardly makes them the criminals' "alli[es]." Many politicians and others (mostly conservatives as to the criminal procedure amendments, I should note) make this mistake. But it's still a serious mistake.

But whoops, actually that isn't exactly what the government official -- Oak Park, Illinois Village Manager Tom Barwin -- said. Rather, he said (in a National Public Radio interview Sunday), "It’s just completely befuddling that our Supreme Court would be in alliance with the gangbangers," and of course he was talking about the Court's Second Amendment.

If anything, that's an even weaker argument: Gangbangers are even less the beneficiaries of the Court's Second Amendment decision than criminals are of the Court's Confrontation Clause case. While the Confrontation Clause protects the innocent as well as the guilty, realistically the majority of the people who'd be prosecuted even without it would likely be guilty. (That's not a reason to reject it, of course.) But the overwhelming majority of all handgun owners are law-abiding citizens, not gangbangers; and because gangbangers are willing to violate all sorts of criminal laws, it's not even the case that a handgun ban affects them much.

Still, that seems to be the mayor's view: Enforce what you see (quite plausibly) as an expressly secured constitutional right -- a right that millions of law-abiding citizens take advantage of -- and you're "in alliance with the gangbangers." Not just someone who mistakenly does something that will help criminals (a plausible criticism, though one I disagree with), but the gangbangers' ally. A pretty poor argument, it seems to me.

Good Civil War history book?

Does anyone have recommendations for a good book to read about the Civil War? Here are my criteria:

It should be written by a serious historian. (But it doesn't have to be academic -- if you think The Civil War for Dummies or The Complete Idiot's Guide to the Civil War are good, feel free to recommend them.)
It should be short, say under 500 pages. (This rules out, say, Shelby Foote's three-volume work or McPherson's 950-page Battle Cry of Freedom, no matter how good they are.)
It should be a general history, not focused on one particular issue like Goodwin's Team of Rivals, a naval history, a photographic history, a history of the Civil War as it relates to Texas, etc.
It should tell a historical narrative, as opposed to, say, a reference guide, 101 trivia facts about the Civil War, or the like.
It should be about the U.S. Civil War!
It should cover both the political and military history of the Civil War.
It should have good coverage of the runup to the Civil War, and preferably should also have good coverage of Reconstruction.
It should be non-fiction, not a novel or alternative ("what-if") history.

Well, I think that covers it. If you recommend a book, please note whether you think it has a slant of some sort (e.g., pro-Southern, pro-Lincoln, whatever). (Bias is no problem, and I don't even mean the word in a negative sense, but it's good to know!) If there's something good that doesn't fit all the categories (e.g., "great book but no coverage of Reconstruction," or "the best book hands down but unfortunately 600 pages long," or "actually about the Spanish Civil War"), feel free to note that too. Thanks!

Exorcism and the Law:

There was a fascinating 6-3 decision on the subject late last week from the Texas Supreme Court, in Pleasant Glade Assembly of God v. Schubert. (Here's the lead dissent, another dissent, and one more.) Unfortunately, to do it justice, I have to quote it at some length, but I hope you bear with me:

On Friday evening, before her parents left town, Laura [Schubert, a 17-year-old congregant,] attended a youth group activity at Pleasant Glade in preparation for a garage sale the next day. The atmosphere during this event became spiritually charged after one of the youth announced he had seen a demon near the sanctuary. The youth minister, Rod Linzay, thereupon called the group together to hear the story, and after hearing it, agreed that demons were indeed present. Linzay instructed the youth to anoint everything in the church with holy oil and led a spirited effort throughout the night to cast out the demons. Finally, on Saturday morning at about 4:30 a.m., Linzay gathered the exhausted youth together to announce that he had seen a cloud of the presence of God fill the church and that God had revealed a vision to him. Although exhausted, the young people assisted with the garage sale later that morning.

At the Sunday morning worship service the next day, several young people gave testimonials about the spiritual events of the preceding day. At the conclusion of the service, the youth, including Laura and her brother, prayed at the altar. During these prayers, Laura’s brother became “slain in the spirit,” collapsing to the floor where church members continued to pray into the early afternoon.

Later that afternoon, Laura returned to church for another youth activity and the Sunday evening worship service. During the evening service, Laura collapsed. After her collapse, several church members took Laura to a classroom where they “laid hands” on her and prayed. According to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, Laura clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply dispute whether these actions were the cause or the result of her physical restraint.

Church members, moreover, disagreed about whether Laura’s actions were a ploy for attention or the result of spiritual activity. Laura stated during the episode that Satan or demons were trying to get her. After the episode, Laura also allegedly began telling other church members about a “vision.” Yet, her collapse and subsequent reaction to being restrained may also have been the result of fatigue and hypoglycemia. Laura had not eaten anything substantive that day and had missed sleep because of the spiritual activities that weekend. Whatever the cause, Laura was eventually released after she calmed down and complied with requests to say the name “Jesus.”

On Monday and Tuesday, Laura continued to participate in church-related activities without any problems, raising money for Vacation Bible School and preparing for youth drama productions. Her parents returned from their trip on Tuesday afternoon.

On Wednesday evening, Laura attended the weekly youth service presided by Rod Linzay. According to Linzay, Laura began to act in a manner similar to the Sunday evening episode. Laura testified that she curled up into a fetal position because she wanted to be left alone. Church members, however, took her unusual posture as a sign of distress. At some point, Laura collapsed and writhed on the floor. Again, there is conflicting evidence about whether Laura’s actions were the cause or result of being physically restrained by church members and about the duration and force of the restraint. According to Laura, the youth, under the direction of Linzay and his wife, Holly, held her down. Laura testified, moreover, that she was held in a “spread eagle” position with several youth members holding down her arms and legs. The church’s senior pastor, Lloyd McCutchen, was summoned to the youth hall where he played a tape of pacifying music, placed his hand on Laura’s forehead, and prayed. During the incident, Laura suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders. Laura’s parents were subsequently called to the church. After collecting their daughter, the Schuberts took her out for a meal and then home. Laura did not mention her scrapes and bruises to her parents that night.

Eventually, Schubert sued for (among other things) false imprisonment and assault, claiming that she was involuntarily restrained, and that this caused a wide range of emotional distress damages: "angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. Despite the psychiatric counseling, Laura became increasingly depressed and suicidal, eventually dropping out of her senior year of high school and abandoning her former plan to attend Bible College and pursue missionary work. Finally, in November 1996, Laura was diagnosed as suffering from post-traumatic stress disorder, which the doctors associated with her physical restraint at the church in June 1996. One of the expert witnesses at trial testified that Laura would 'require extensive time to recover trust in authorities, spiritual leaders, and her life-long religious faith.' Ultimately, Laura was classified as disabled by the Social Security Administration and began drawing a monthly disability check."

The jury found that Schubert was indeed falsely imprisoned and assaulted -- i.e., that she didn't consent to the exorcism -- and awarded Schubert $300,000. But now the Texas Supreme Court has reversed, on the grounds that emotional distress liability (as opposed to liability for physical injuries as such, which were apparently very slight, and for which Schubert apparently didn't claim any damages) was constitutionally impermissible in this particular case:

[Schubert's] case at trial was not significantly different from what she would have presented under her claim of intentional infliction of emotional distress, a claim the court of appeals agreed should be dismissed. We have previously said that adjudication of this type of claim “would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution.” This type of intangible, psychological injury, without more, cannot ordinarily serve as a basis for a tort claim against a church or its members for its religious practices.

[The lead] dissent asserts, however, that a court should use an instruction to separate the “damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting.” However, even Laura’s psychological expert, Dr. Arthur Swen Helge, admitted that he could not separate the damages resulting from Laura’s physical restraint and the psychological trauma resulting from the discussion of demons at the church.... Even if a jury could parse the emotional damages attributable solely to secular activity, which is doubtful, ... we [have] emphasized that even though the elements of a common law tort may be defined by secular principles without regard to religion, it does not necessarily follow that application of those principles to impose civil tort liability would not run afoul of protections the constitution affords to a church’s right to construe and administer church doctrine. In this case, although Laura’s secular injury claims might theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional “chilling effect” by compelling the church to abandon core principles of its religious beliefs. According to Pentecostal religious doctrine, whenever a person is believed to be under “spiritual influence,” the church “lays hands” on the person and anoints oil to combat “evil forces.” ...

[A dissent maintains] that we “can and should decide cases like this according to neutral principles of tort law ... [i]f a plaintiff’s case can be made without relying on religious doctrine.” But ... Laura’s claims also involve church beliefs on demonic possession and how discussions about demons at the church affected Laura emotionally and psychologically.... The Schuberts alleged that [the physical] restraint caused Laura’s emotional injuries. However, because the religious practice of “laying hands” and church beliefs about demons are so closely intertwined with Laura’s tort claim, assessing emotional damages against Pleasant Glade for engaging in these religious practices would unconstitutionally burden the church’s right to free exercise and embroil this Court in an assessment of the propriety of those religious beliefs....

We do not mean to imply that “under the cloak of religion, persons may, with impunity,” commit intentional torts upon their religious adherents.... But religious practices that might offend the rights or sensibilities of a non-believer outside the church are entitled to greater latitude when applied to an adherent within the church. Particularly, when the adherent’s claim, as here, involves only intangible, emotional damages allegedly caused by a sincerely held religious belief, courts must carefully scrutinize the circumstances so as not to become entangled in a religious dispute. And while we can imagine circumstances under which an adherent might have a claim for compensable emotional damages as a consequence of religiously motivated conduct, this is not such a case.

The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter. “Courts are not arbiters of religious interpretation,” and the First Amendment does not cease to apply when parishioners disagree over church doctrine or practices because “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.” Because determining the circumstances of Laura’s emotional injuries would, by its very nature, draw the Court into forbidden religious terrain, we conclude that Laura has failed to state a cognizable, secular claim in this case.

Here's my thinking on the matter: Though I appreciate the majority's concerns in this case, the primary dissent seems to have the better view.

The plaintiff alleges -- and the jury apparently believed her -- that she was held down against her will. That's false imprisonment and assault. She also alleges that this physical restraint led to emotional distress damages. This is not a case such as many of the ones the majority cites, in which the emotional distress stemmed from religious speech, or shunning by the community, or other such conduct that is and should be substantively constitutionally protected. Rather, the case involves nonconsensual (or so the jury found) physical touching, conduct that no constitutional guarantee protects.

This leaves, of course, the question of what damages should be allowed. The primary dissent acknowledges that a plaintiff shouldn't be able to recover from damages that stem from the religious character of the experience. That's right, I think -- for instance, her fear of demons or disenchantment with the church or religion generally can't form the basis of liability without having the jury decide quintessentially theological questions.

But the dissent reasonably argues, I think, that the solution is to "extract[] the religious from the secular," not just dismiss the claim outright; and it argues that such extraction was possible in this case:

[W]hile the Court points to Dr. Helge’s testimony as proof that Schubert’s religious and secular damages are inextricably intertwined, another expert, Dr. Millie Astin, specifically stated that she could separate the two. And Schubert testified that while she was being restrained she was afraid she "was being injured" and that she "might die" -- trauma clearly associated with the act of restraint itself. Although segregating the religious from the secular may sometimes be difficult, it can and should be done.

The dissent's suggestion that "A jury could ... be instructed to award damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting" strikes me as not exactly right, for some of the reasons mentioned in this post. But instructing a jury that it could award damages only for the mental anguish that stemmed from the restraint as such, as opposed to the religious character of the restraint, sounds like it would work fairly well (recognizing that damages calculations are never an exact science). The church could then stress that the secular actors here were the plaintiff's friends, who the plaintiff must have realized were trying to help her (even if misguidedly). The plaintiff could stress that despite this there was a good deal of pain, that the plaintiff feared that her leg was breaking, and that in any event unwanted restraint -- even by friends -- is a frightening experience that can cause long-term psychological problems. And a jury could, I think, focus on that and set aside other aspects of the damages, such as plaintiff's needing "extensive time to recover trust in ... spiritual leaders, and her life-long religious faith."

Of course, there would be the risk of jury error, and of jurors' awarding damages based on supposed spiritual harms. But there is such risk in any situations involving religious institutions or religious leaders as defendants, for instance simple sexual abuse cases or fraud cases. It seems to me that the risk of such error shouldn't justify denying normally available secular psychological distress damages to someone who was harmed by nonconsensual false imprisonment and battery.

What's Dionne Been Drinking?

Judging from this morning's essay, "The Court vs. Voters," WaPo columnist has drunk deep from the "Constitution in Exile" Kool-Aid. The column is so hysterical it almost defies response, but I'll make a few quick points.

Dionne warns we could be on the verge of a conservative assault on popular progressive legislation. A President Obama, Dionne warns, could face judicial opposition to his policy agenda, much as did FDR.

A new generation of conservatives wants to bring the old order back under the auspices of what's called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the "real" Constitution.

Please. There is only one Justice on the Court (Thomas) who has exhibited any willingness to consider overturning New Deal-style policies. The threat posed by the so-called "Constitution in Exile" movement is a myth.

Dionne cites "the spate of 5 to 4 conservative decisions during the Supreme Court term just ended" as a signal that the conservative justices, when joined by Justice Kennedy, are willing "to overturn the will of Congress and local legislatures when doing so fits their political philosophy." Yes, Kennedy and the conservatives overturned D.C.'s handgun ban and a small portion of the McCain-Feingold law, but also among the end-of-term 5-4 decisions that overturned "the will of Congress and local legislatures" were the Court's decisions in Boumediene and Kennedy, which struck down Congressional policy on Gitmo detainees and state laws allowing capital punishment for child rape. Dionne also fails to mention the Roberts Court's demonstrated tendency to reject facial challenges to various legislative policies, ranging from voter ID and lethal injection to limits on soliciting child porn and the partial-birth abortion ban. While pretending to care about voter preferences, it appears Dionne is only concerned about judicial invalidation of legislative policies he favors. He's hardly alone in this, to be sure, but it belies his reputation as a thoughtful and insightful columnist.

The whole point of a written Constitution is to place limits on the ability of popular majorities to enact their will. The issue is not whether the Supreme Court invalidates popular policies but when the Court does so. Unless Dionne is a new apostle of judicial passivism, and unbridled majoritarianism (perhaps like that embraced by Robert Bork), the argument in today's column is either disingenuous or profoundly uninformed.

EPA v. DoD, Part Deux:

Five Democratic Senators sent Defense Secretary Robert Gates a letter complaining about the Pentagon's refusal to clean up contaminated military bases. Although federal law provides that the EPA has the final say if there is an interagency dispute over cleanup obligations, the Defense Department is refusing to comply, leaving these Senators upset. A Senate hearing and GAO investigation are also now in the works. More in the Washington Post here.

Fake Fed Stages Drug Raids:

A man claiming to be "Sergeant Bill" of the FBI staged a series of drug raids in Gerald, Missouri, "a Meth capital of the United States."

Sergeant Bill, it turned out, was no federal agent, but Bill A. Jakob, an unemployed former trucking company owner, a former security guard, a former wedding minister and a former small-town cop from 23 miles down the road.

Mr. Jakob, 36, is now the subject of a criminal investigation by federal authorities, and he is likely to face charges related to impersonating a law enforcement officer, his lawyer said.

The strange adventures of Sergeant Bill have led to the firing of three of the town’s five police officers, left the outcome of a string of drug arrests in doubt, prompted multimillion-dollar federal civil rights lawsuits by at least 17 plaintiffs and stirred up a political battle, including a petition seeking the impeachment of [Mayor Otis] Schulte, over who is to blame for the mess.

It's quite an interesting story.

Clearing the Checkerboard:

The Nature Conservancy and the Trust for Public Land are orchestrating a $510 million deal to acquire approximately 500 square miles now owned by Plum Creek Timber. The land will then be conveyed to the U.S. Forest Service, erasing the area's "checkerboard" pattern of public and private ownership that is leftover from Western expansion. As the NYT explains:

The lands in this case were considered especially valuable, and vulnerable to the effects of development, because most were in fragments — 640-acre squares interspersed in a checkerboard with public lands mostly owned by the Forest Service. Checkerboard ownership is a legacy of the railroad-building of the late 1800s and early 1900s, when the government offered millions of acres of the West as an incentive to companies laying track through Montana and other Rocky Mountain states.

The purchases, which are to be completed in phases over the next two years, with most of the land then conveyed to the Forest Service or other government agencies over the next decade, will essentially fill in the checkerboard, [the Nature Conservancy's William] Ginn said. . . .

Creating a more continuous fabric of lands in public ownership also helps the Forest Service in its firefighting duties, since a filled-in checkerboard reduces access issues in reaching interior areas of the forest.

Mr. Ginn said that while long-term protection is the goal, the deal also includes provisions for some continued timber cutting on the lands, with logs sold at market rates to Plum Creek lumber mills in Montana over the next 15 years. He said that third-party-certified sustainable forestry standards would be used in choosing how much to cut and where, and that overall timber cutting would decline.

The deal will be financed by a combination of private donations and a "tax-credit bond mechanism" created by the Farm bill.

There are definite ecological and forest management benefits to clearing the checkerboard-pattern of ownership on western lands, but I am skeptical turning the lands in question over to the federal government is the best way to preserve them. Federal lands are often atrociously managed -- particularly in comparison to their state or non-governmental counterparts. Among other things, the federal government has a tendency to devote disproportionate funds to land acquisition at the expense of land management. The silver-linings in this deal are that a single, contiguous owner is better than the status quo, and much of the acquisition is to be financed privately.

Rick Pildes on The Danger of Incumbent-Protecting Campaign Finance Laws:

Over at Balkinization, leading election law scholar Rick Pildes has posted a response to my argument that campaign finance laws are likely to be incumbent-protection laws. I agree with most of his analysis, much of which is extremely insightful. But it seems to me that it doesn't really rebut my original point.

To briefly recap, I argued that campaign finance laws are likely to protect incumbents against challengers because they must get the support of incumbent politicians to be enacted. And incumbents are highly likely to enact reforms that strengthen them relative to challengers, while rejecting any proposals that might have the opposite effect. I further argued that widespread voter ignorance exacerbates the problem by making it difficult or impossible for voters to tell the difference between a "good" reform law and an incumbent-protection scheme.

In his response, Pildes doesn't directly dispute these points, but makes three potentially relevant claims:

First, it is indeed true that as long as sitting legislators have the power to shape the groundrules of democratic elections, there is always the risk that they will do so for self-interested reasons. This is a serious problem, not to be underestimated.... Second, this risk is just as true from legislative inaction as action. Thus, it is much too simple to proclaim that, if a legislature enacted any particular law – such as a campaign-finance law – it must be the case that the law is incumbent protecting. Third, despite the risks, we are inevitably going to have to have election laws: elections are structured processes. That is why the title of this post is intentionally provocative. Finally, all this means that to decide which election laws are incumbent protecting and which are, instead, appropriate, we inevitably need substantive analysis that distinguishes one law from another.

Obviously, I agree with Pildes' first point, which is similar to the one I made myself. His second point is also valid; legislators might choose not to enact a campaign finance proposal if passing it would help challengers. Indeed, that is what I would expect them to do. It is unlikely that legislators who want to hold on to their seats would knowingly enact any reforms that would undermine that objective. Both of these points merely strengthen my claim that any campaign finance laws that do pass the legislature are likely to be incumbent-protecting. At the very least, they are highly unlikely to make things any easier for challengers. Note that this holds true even though, as Pildes notes, "there’s no reason to assume that the baseline before any recent piece of legislation provided an optimal state of a competitive electoral structure." Even if the preexisting baseline was suboptimal, the only new campaign finance regulations likely to actually pass are ones that reduce competitiveness below the baseline level rather than increase it.

Pildes' third point - that "we are inevitably going to have to have election laws" -is the only problematic one. It may be true in the case of electoral districting laws, laws regulating ballot access, and other laws regulating election procedures (many of which Pildes mentions in his post). But it is not inevitable that we have to have campaign finance laws. Indeed, we didn't have any federal laws regulating private campaign spending for the first century or more of American history, and very few until the 1970s. Unlike in the case of districting and voting procedures, we could potentially leave campaign finance entirely to the private sector - as we for the most part did during much of American history.

I don't claim that private sector campaign finance is anywhere close to optimal. Nor do I conclude that concerns about incumbent protection are by themselves sufficient to justify a complete ban on government regulation of campaign finance. I do, however, suggest that the likelihood that any campaign finance laws that actually pass the legislature will be incumbent-protection schemes justifies a strong presumption against them. In other areas of election law, we may have to live with a system that puts the wolves in charge of regulating access to the chicken coop because some form of government involvement can't be avoided. With campaign finance, we don't. In this area, we should put the wolves on a very short leash, possibly even keep them away from the chickens completely.

Related Posts (on one page):

Rick Pildes on The Danger of Incumbent-Protecting Campaign Finance Laws:
Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:

This is Bad: If you're a registered sex offender, failing twice to properly register your home address is really dumb. But if you're a state legislator, punishing that with a mandatory life sentence -- as Georgia has done -- is even dumber. The Atlanta Journal Constitution has the remarkable story, via SL&P.

Ouch: In the fascinating and important new terrorism case from the Second Circuit in Arar v. Ashcroft, Judge Cabranes has unusually harsh words for Judge Sack, who dissented. The Arar case considers whether there is a Bivens remedy for claims involving the removal of an alien from the United States. Arar was suspected of being a member of Al Qaeda, and the U.S. deported him to Syria, and he was allegedly tortured by Syran officials. The majority of the Second Circuit held that the Bivens doctrine (allowing a civil suit in federal court for a violation of a constitutional right) did not allow a Bivens remedy for such conduct. Judge Sack dissented, arguing that the courts could craft such a remedy.

In his majority opinion, joined by Judge McLaughlin, Judge Cabranes had the following response to Judge Sack:

Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however. Our task is to deliver a reasoned opinion that conforms to the precedents of the Supreme Court and our Court; we have done so here. We agree, of course, with Judge Sack’s view that threats to the nation’s security do not allow us to jettison principles of “simple justice and fair dealing.” Id. at [55] But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals. The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and conduct of foreign affairs are primarily executive. Whatever the emotive force of the dissent’s characterization of the complaint, we cannot disfigure the judicial function to satisfy personal indignation.

The majority and dissent disagreed so much they even used different fonts.

Lots of Great Stuff over at SCOTUSBlog today. Just go there and keep scrolling.

Supreme Court Review Panel on C-SPAN: Tomorrow I'm going to be participating in a panel discussion of the recently-ended Supreme Court Term over at the National Press Club. The event is hosted by the Federalist Society, and my understanding is that it will be broadcast live on C-SPAN. It will also be webcast live from here. The event will be moderated by Jan Crawford Greenburg, and the other panelists are Rachel Brand, Ted Cruz, Nelson Lund, Tom Goldstein, and Charles Rothfeld. It should be a terrific event.

Mark Tushnet on "Judicial Activism":

In the Federalist Society online debate over the recently completed Supreme Court term, Harvard lawprof Mark Tushnet makes an important point about accusations of "judicial activism":

Those who follow the Supreme Court's work closely know that it is entirely unhelpful to talk about an "activist" Court or one that is "judicially restrained." Those terms are almost entirely parasitic on one's views about what the Constitution properly interpreted really means: The Court should be activist in striking down statutes that violate the Constitution properly understood, and restrained — actually, completely quiescent — otherwise. All the interesting work is done by your account of what the Constitution means.

For me, the interesting questions are about the persistence of a rhetoric of activism and restraint in political discussions of the Supreme Court. It's clear that politicians find that rhetoric more helpful to them than a rhetoric focusing on the Constitution's actual meaning. But why? Maybe it's that talking about what the Constitution means requires a politician to take a position — which, these days, politicians don't like, because taking a position means alienating someone who might otherwise vote for you.....

But there's one qualification. I meant it when I wrote "almost" entirely parasitic. There are a few people — me among them — who think that judicial activism is in itself a bad thing — that is, that courts shouldn't be the primary, or even an important, locus for constitutional interpretation. Of course that position is quite unrealistic in today's conditions. No one is going to strike the Grand Bargain in which conservatives and liberals would agree not to strike down laws they don't like ("laws that violate the Constitution properly interpreted," if you like).

I made a similar point in this post last year. Unless -like Tushnet on the left, or Lino Graglia on the right - you want to do away with judicial review generally or severely restrict it, it makes little sense to criticize decisions as "activist" rather than "wrong." As between supporters of strong judicial review, the real debate is indeed over competing "views about what the Constitution properly interpreted really means."

In the Federalist Society debate, Ed Whelan takes issue with Tushnet's argument and suggests that "judicial activism" can still be a useful term that "identifies one category of judicial error in interpreting the Constitution: the wrongful overriding of democratic enactments . . . That category of judicial error is distinct from a second category, which I call 'judicial passivism' — the wrongful failure to enforce constitutional rights." However, even in this modified usage, the real intellectual work is being done by whatever theory tells us which invalidations of legislation are "wrongful." Whelan agrees with Tushnet that "the term 'judicial activism' is unhelpful if it is used merely to signal one’s disagreement with a ruling or if it is neutered to refer to every exercise of judicial review (whether right or wrong) that results in the invalidation of a statute or regulation."

UPDATE: Whelan has posted a further clarification of his position, emphasizing that he does "not dispute Mark's point, in his initial post, that the term 'judicial activism' does not perform analytical work in determining whether a decision is wrong. On the contrary, I explicitly agreed with it."

Alcohol, Tobacco and Firearms party:

On Saturday, the Independence Institute held its 6th annual Alcohol, Tobacco and Firearms party. We shot sporting clays in the morning, and then ate, smoked, and drank in the afternoon. Fred Barnes (of the Weekly Standard) and Jonathan Hoenig (financial journalist for Fox News, the Wall Street Journal, and others) were the guest speakers. If you missed the event, you can view pictures at the Independence Institute website, coverage (with a slideshow) at Face the State (a right-wing Colorado news website), coverage with a slideshow and a soundtrack at the Colorado Independent (a left-wing Colorado news website), and in Westword (the Denver metro area's weekly alternative and entertainment newspaper).

If you would be interested in listening to radio replays or other audio podcasts of my analysis of Heller, there are plethora of links on my home page.

The David Addington Charm Offensive: I didn't get a chance to mention David Addington's appearance last week (together with John Yoo) before a subcommittee of the House Judiciary Committee, but you can find the video here. Dana Milbank's color commentary in Friday's Washington Post is here.

My article on Federalism and Danforth v. Minnesota:

My Northwestern University Law Review Colloquy article on Danforth v. Minnesota is now available on SSRN. While this case hasn't gotten as much attention as Heller and Boumediene, it does raise very important issues about federalism and remedies for violations of constitutional rights. Judicial protection of rights is of little help without remedies for their violation. Here's an excerpt from the abstract:

Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court's interpretation of the federal Constitution. More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights. Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the federal Supreme Court? That is the issue raised by the Court's recent decision in Danforth v. Minnesota. By a 7-2 vote, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions. I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court's interpretation of the federal Constitution. The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Although I wrote the article before Heller was issued, the two cases are potentially linked. Assuming that the Supreme Court eventually rules that the Second Amendment right to bear arms applies against state governments, federal courts will have to develop a jurisprudence on remedies for state violations of that right. Under Danforth, state courts will - at least in some instances - be able to impose stronger remedies than those required by the federal courts.

Supreme Court Cites Lysander Spooner!: In editing Heller for the supplement to my new casebook, Constitutional Law: Cases in Context (Aspen 2008), I noticed a reference to the great Lysander Spooner in Justice Scalia's opinion that I had previously overlooked. The following passage is worth reading in its entirety due to its relevance to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment:

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:

“The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–607 (2006).

Perhaps some commentator can do a Westlaw or Lexis search to confirm that this is the first time Spooner has been cited by the Supreme Court.

While I am on the subject of the Fourteenth Amendment—the next likely judicial battleground over the right to arms—here is Justice Scalia's discussion of Post-Civil War Legislation (which Dale excerpted on Friday):

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (1998); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” A joint congressional Report decried:
“in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).
The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19.

Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated:
“[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . ” 14 Stat. 176–177.
The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment . For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

Related Posts (on one page):

Supreme Court Cites Lysander Spooner!:
Heller and incorporation of the Second Amendment:

EPA v. DoD:

Today's Washington Post has an interesting (and somewhat infuriating) story about a brewing conflict between the Environmental Protection Agency and the Defense Department over the cleanup of various military sites. The federal government is the nation's largest polluter, and the Defense Department is responsible for more than its share of federal contamination. In theory, the Defense Department is required to comply with EPA directives, but under the Bush Administration, the Pentagon is refusing to play by the rules. It is quite disturbing that the federal government will not comply with the same environmental standards that it imposes on everyone else.

Is This Still a "Conservative Court"?

Last year, we were told the Supreme Court had become the "Court that conservatives had long yearned for and that liberals feared." With the addition of Chief Justice Roberts and Justice Alito, there was now a more reliable five justice conservative majority — a "phalanx" in Ronald Dworkin's words — that would push the law in a rightward direction.

After one more Supreme Court term, it's clear that many spoke too soon. Sure, conservatives are cheering the Heller decision, but how "conservative" is a Court that invalidates the death penalty for child rape and declares that non-citizen detainees held outside U.S. sovereign territory by the military have a constitutional right to bring habeas actions in federal court, despite federal legislation to the contrary?

Viewed as a whole, this term saw a Court that often defied easy ideological characterization. There were relatively few 5-4 splits, particularly compared to OT2006, and many 5-4 divisions along untraditional lines. Overall, it was a Court term that defied the "conservative ascendancy" narrative.

I have more on OT2007 in this column on NRO.

UPDATE: I am also part of an online "debate" about this past term sponsored by the Federalist Society. Other participants include Mark Tushnet, Rick Pildes, Allyson Ho, Jack Beerman, Erik Jaffe, Jeff Rosen, Ed Whelan, Steven Calabresi, Marty Lederman, and Chuck Cooper. Thus far, it is more like a roundtable discussion than a "debate," but it may become more contentious as we focus in on the specifics of individual cases.

Hands Off Energy Markets:

Sebastian Mallaby explains that politicians -- including our major presidential candidates -- need to (re)learn the lessons of the 1970s.

Richard Nixon's early-1970s price controls were a disaster. Administering the controls on energy alone took an estimated 5 million man-hours per year and punished motorists with gas lines. Repeating this experiment by clamping down on oil trading is like burning your hand on a gas stove and then sitting on a barbecue.

Reducing the Pain of Taking the Bar Exam:

Thanks to Amber Taylor, I learn that Eric Chaikin has made a documentary about taking the California Bar Exam. Despite the extremely unpromising subject matter, Amber's description makes it sound potentially interesting. I yield to no one in my distaste for bar exams, which in my view function mainly as cartels that restrict entry into the legal profession in order to protect current lawyers from potential competitors. That is particularly true in states like California and New York, which have created unusually difficult bar exams in order to reduce the number of lawyers entering their particularly large and lucrative markets.

That said, I think many law school graduates get overly stressed out and obsessed about taking the bar, and spend too much time studying. Most bar exams are primarily just tests of memorization. They're not much of an intellectual challenge, and require far less thinking than most law school exams.

Most important, all you have to do is pass. Unlike on the SAT or the LSAT, there is no need to maximize your score. As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

Related Posts (on one page):

More on Reducing the Pain of Taking the Bar Exam:
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How will Heller affect New York City?

In a New York Sun op-ed titled "Heller's Kitchen," I examine the potential effect of Heller on New York City gun laws. I hope that a re-invigorated Second Amendment will have much broader effects than the ones I wrote about, but I think that the items I wrote about (air gun ban, part of the magazine ban, carry licensing) are the New York City laws which are almost certainly indefensible if New York City is legally required to comply with the right to keep and bear arms.

The First Dominos Fall: Morton Grove and Wilmette Handgun Bans

After the D.C. city council banned handguns in 1976, and the voters of Massachusetts overwhelmingly rejected a handgun ban initiative that same year, the next U.S. jurisdiction to enact a handgun ban was the Chicago suburb of Morton Grove, in 1981. Chicago did the same in 1982, and four other Chicago suburbs, including Wilmette, later followed suit.

The Mayor of Morton Grove has announced that he will propose repeal of the handgun ban. [Note that the linked NPR story misspells the name of Second Amendment attorney Stephen Halbrook.] Wilmette, meanwhile, has suspended enforcement of its handgun ban. [HT Snowflakes in Hell.]

Both Morton Grove and Wilmette were among the cities sued on Friday by the NRA. Their decisions are sensible. While the issue of Second Amendment incorporation is still unresolved, Richard Daley's government in Chicago can spend its own funds to fight the issue all the way to the Supreme Court. If Daley wins, the suburbs can re-institute their bans. If Daley loses (an outcome that seems more likely than not if the Supreme Court takes the case), then Wilmette and Morton Grove have saved themselves hundreds of thousands of dollars of attorneys fees, since they would have to pay their own lawyers, and have to pay the plaintiffs' lawyers for bringing a successful civil rights claim.

Morton Grove was the site of perhaps the worst legal defeat for the Second Amendment in American history. The lawsuit against the ban lost 2-1 in the Seventh Circuit, and then 4-3 in the Illinois Supreme Court (notwithstanding specific legislative history from the 1966 Illinois constitutional convention that the right to arms provision would prevent handgun bans). The U.S. Supreme Court denied certiorari in the federal case. Attorneys Stephen Halbrook and Don Kates were closely involved in the Morton Grove litigation.

In Heller, the Morton Grove cases were the strongest precedents which plainly supported the constitutionality of a complete handgun ban, even under an individual right to arms.

Ironically, Morton Grove proved very helpful to pro-Second Amendment forces in other states. The case received much national attention, and Morton Grove's ban was the key example used by NRA lobbyists to promote state preemption laws all over the country in the 1980s. These state laws eliminated or restricted many local gun controls, and always outlawed local handgun bans. The preemption laws were important in stopping the spread of local handgun prohibition. As a result, when the time came for the U.S. Supreme Court to hear Heller, handgun bans remained freakish exceptions to the national norm.

It is very pleasing to see constitutional rights being re-established in the site of one of their most notorious defeats.

Sunday Song Lyric:

What's the top "law" song? According to ATL, it's "I Fought the Law" as performed by The Clash. The song was originally recorded by Sonny Curtis and the Crickets, but was popularized by Bobby Fuller before being immortalized by The Clash. The lyrics are incredibly simple — the title is repeated again and again — but the song is still quite catchy. Here's a taste:

Breakin' rocks in the hot sun
I fought the law and the law won
I fought the law and the law won
I needed money 'cause I had none
I fought the law and the law won
I fought the law and the law won

I left my baby and it feels so bad
Guess my race is run
She's the best girl that I ever had
I fought the law and the law won

Kurt Lash Replies to My Post on the Ninth Amendment: Kurt Lash has composed the following reply to my post on Justice Scalia's brief reference to the Ninth Amendment in Heller, which I post here with pleasure:

I want to thank Randy Barnett and the folks at The Volokh Conspiracy for allowing me to respond to Professor Barnett’s post on Heller and Justice Scalia’s reference to the Ninth Amendment. I also want to congratulate him for having his Second Amendment work cited, and his individual rights approach embraced, by the Heller majority.

In building the case for his individual rights reading of “the people” in the Second Amendment, Justice Scalia points to other provisions in the bill of rights which refer to the people, such as those in the First, Fourth, and Ninth Amendments. According to Scalia, “All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.” Randy reads this passage as the Court’s official rejection of the “collective rights” reading of the Ninth Amendment—a position which he ascribes to both my work and that of Yale Professor Akhil Amar. While I agree that Justice Scalia rejected a “collective rights only” reading of the Ninth Amendment, this is not my position on the Ninth, nor do I believe this sentence necessarily suggests that Scalia has embraced Prof. Barnett’s view of the Ninth.

There are three common positions one can take on the retained rights of the Ninth Amendment, two that are exclusive, and one that is inclusive. The first exclusive position sees the Ninth as referring only to collective rights—those rights which can only be exercised by the people in some collective capacity, such as in a militia or as a group during a revolution. This view, which arguably reflects Professor Amar’s reading of the Ninth, is clearly rejected by Justice Scalia. A second exclusive position is that the Ninth Amendment refers only to individual rights. This is Professor Barnett’s reading of the Ninth Amendment and the position he believes Justice Scalia has embraced. But note what Justice Scalia actually said—he characterizes the “collective rights” reading as allowing for “only” collective rights (and no others), and declares that this exclusivist reading of the Ninth must be wrong because the Ninth refers unambiguously to individual rights. Now this may be an exclusive reading of the Ninth as only protecting individual rights, but this is not necessarily the case. It could be that Justice Scalia follows—or at least is open to—an inclusive reading of the Ninth Amendment which protects all retained rights, whether individual or collective (or any other kind of right).

The inclusive reading of the Ninth, which I have recently presented in the Stanford Law Review (here), reads the text at full value: all rights not delegated into the hands of the federal government are retained by the people. This includes everything from the individual right to sleep on the left side of the bed, to the collective popular sovereignty right to reform the people’s government, to the majoritarian right of local majorities to regulate local commerce and agriculture. This inclusive approach rejects any view of the Ninth that limits the retained rights of the people to only one particular category (whether individual or collective). Notice, in this regard, Scalia rejects the collective rights position because it “only” protects collective rights, whereas he believes it clearly protects individual rights. This view is perfectly consistent with both Barnett’s exclusive reading of the Ninth and my inclusive view of the Ninth. Scalia goes on to cite other provisions which seem to involve purely collective rights (such as the tenth), but, once again, nothing about this exclusive reading of the Tenth conflicts with the inclusive reading of the Ninth.

For Prof. Barnett, the possibility that the Ninth Amendment includes collective and majoritarian retained rights as well as individual rights has real bite. It contradicts his view that the Ninth and Fourteenth Amendments are mirror images of one another, both protecting (only) individual rights, one against the federal, the other against the states. It also seriously conflicts with his general rejection of the so-called police powers of the states.

It is an open question whether Justice Scalia meant to reject the inclusive view of the Ninth Amendment. It is unlikely he did, for even if the Second Amendment contains an individual rights component, it is implausible to believe that it did not also contain a states’ rights aspect protective of state regulated militias. This was precisely Justice Joseph Story’s view of the Ninth Amendment and state militia power in Houston v. Moore. Most of all, regardless of Justice Scalia’s complete theory of the Ninth Amendment, his single sentence on the Ninth in Heller did not include a “single word” of historical analysis—the very omission Scalia criticizes in regard to earlier unsupported assertions the Supreme Court made about the Second Amendment. We are left then not with a sentence that settles the matter, but one which invites further study—and a future case. It is my hope that when a proper Ninth Amendment case comes before the Court, Justice Scalia and the majority will show as great an interest in the history of that Clause as they did for the Second Amendment in Heller.

Saturday, July 5, 2008

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Monday, June 30, 2008

Sunday, June 29, 2008