Congratulations to Orin on having an article of his, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), be cited once by the majority and twice by the four-Justice concurrence in the judgment in today’s United States v. Jones Supreme Court decision.
Author Archive
The most recent batch of attacks began Friday, but continued today.
The radical Islamist terror group Boko Haram, believed to have carried out over 500 terror attacks last year, has already claimed responsibility for the violence in Kano. The group, whose name can be translated as “Western education is a sin,” said that the onslaught was a protest against the government’s refusal to release its members from prison.
The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:
[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.
[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.
[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”
[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.
I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.
A North Carolina statute, § 163-274(a)(6), makes it a misdemeanor “to discharge or threaten to discharge from employment … any legally qualified voter on account of any vote such voter may cast or consider or intend to cast.” North Carolina employment law also generally makes it civilly actionable to fire an employee “in contravention of express policy declarations contained in the North Carolina General Statutes,” which I suspect means that actions that violate this criminal statute would probably also be tortious.
Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says “Newt Gingrich is the best presidential candidate out there,” though without an express statement that “I’m going to vote for him,” or “I’m glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot.” And say that the employer then fires the employee based on that statement.
Should that be viewed as discharging the employee “on account of any vote such voter may … consider or intend to cast,” and therefore actionable? Or would it likely be viewed as discharge based on the employee’s pro-candidate speech rather than the employee’s perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee’s speech or partisan political activity.) I ask this because I’m finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I’m trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.
The Telegraph (UK) reports:
An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.
The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.
The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: “God does not exist[.]” Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.
Thanks to Opher Banarie for the pointer.
Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney’s Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but “still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?”
The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7-2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. “Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause,” unless (for instance) “the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and … the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries” (in which case “that prosecution was not fairly characterized as distinctly ‘foreign’”).
The New York Daily News reports:
A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.
The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class….
The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.
It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.
UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.
Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.
I’m pleased to report that my colleagues in the Mayer Brown LLP Supreme Court and Appellate Practice Group — with which I’m a part-part-part-part-time Academic Affiliate — were named one of the Appellate Groups of the Year by Law360.com. It’s a very well-deserved and hard-earned honor. [UPDATE: I'm afraid I originally erred by saying we were named the one such group -- a Mayer colleague just noted to me that we shared the honor (which is indeed titled "Appellate Group of the Year") with Jones Day, O'Melveny, Greenberg Traurig, Gibson Dunn, and Proskauer Rose. My apologies for the mistake.]
The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”
Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.
But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”
I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.
Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:
Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.
(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.
(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.
(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.
(4) Unconstitutional, for some other reason.
Today’s U.S. Google query page has the name blacked out, and a line under the search bar that says, “Tell Congress: Please don’t censor the web!.” I suspect that it makes this among the most widely seen political ads/editorials/statements in American history, at least setting aside statements carried in standard mainstream media programming on historic occasions. Does anyone have a good sense of the number of Americans who use Google on an average day?
From TheNews.pl:
A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.
Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was “hard to believe in something written by someone who was hammered on wine and who’d been smoking herbs.”
The Warsaw Business Journal adds:
[T]he judge in the case, Agnieszka Jarosz, ruled that the artist’s statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right “to assess [the content of the Bible] in the context of scientific discovery but had no right to insult” the religious text.
For more on this case, see this post from when the case was filed.
I just learned this word a few days ago, so I thought I’d pass it along. What does it mean?
The TSA cupcake incident reminded me of this mysterious item I spotted at my local Whole Foods several years ago:
Some tentative thoughts from the Advancing a Free Society blog:
[T]he Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter. First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions — not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.
More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.
Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place — wholly apart from the pro forma issue — consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.
In today’s United States v. Rehlander (1st Cir. Jan. 13, 2012), the First Circuit revisited and narrowed its precedents related to 18 U.S.C. § 922(g)(4) — the statute that bars gun possession by people who had at some point been “committed to a mental institution” — in light of the Second Amendment:
Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine’s “emergency procedure,” Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been “committed to a mental institution.” 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a “commitment” under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation….
Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.
For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a “commitment,” not “emergency hospitalization,” and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms….
[Appellants claim] that, given Heller‘s pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.
We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a “commitment” for federal purposes….
Minn. Stat. Ann. § 211B.07 makes it a gross misdemeanor — I think unconstitutionally, at least as to the “spiritual injury” element — to
directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.
Daughters in Western cultures usually take their father’s names. (In Russia, they even take the names twice, by using the father’s first name as the basis for a patronymic and using the father’s last name as their own last name, so that the daughter of Ivan Petrov named Maria would be called Maria Ivanovna Petrova.) But I know of at least one noteworthy father who took his daughter’s name as part of his own last name. Who did this, and why?
We’re having continuing problems with delays in posting of comments; we will probably be solving it soon by shifting to a different comment hosting system (or so I hope). Sorry in the meantime for the glitches ….
If you’re generally libertarian, conservative, or centrist in your legal outlook, and are interested in going on the law teaching market, I highly recommend this program, which offers a stipend of $50,000 plus benefits, as well as office space at a law school. The application is due March 15, 2012.
I’m pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief [UPDATE: link fixed] in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here.
Minn. Stats. Ann. § 10A.36 makes it a gross misdemeanor for “[a]n individual or association” to “engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity.” There is an exception for “compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.”
As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his “political activity.” Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person’s political activities?
Should the answer be different when we’re talking about reprisals by customers, vendors, contractors, landlords, or employers? Many states impose such restrictions on employers’ firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their tenants for political activity, but the Minnesota statute is the only I could find that bans “economic reprisals” more broadly. (I set aside the ban on threats of physical coercion, which I think are rightly prohibited.)
I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.
I share David Kopel’s disapproval of Mercedes-Benz’s use of Che Guevara in its promotional activities. But while I would fault Mercedes for that, I wouldn’t fault it for the corporation’s activities in World War II.
As I’ve mentioned before with regard to corporations and speech, we have to recognize that corporate action and corporate responsibility is something of a metaphor. Corporations don’t misbehave, speak, think, and so on. People acting on behalf of corporations do. I support applying the First Amendment to the “speech of corporations” because I think the restrictions on such speech end up interfering with the rights of people, both as listeners and as people who associate in order to create an enterprise in which some of the employees speak on the enterprise’s behalf. “Corporations have First Amendment rights” is useful shorthand for conveying that, but we have to recognize that it’s just shorthand.
And because this is just shorthand, I find it hard to fault the Mercedes-Benz of today for the actions of the Mercedes-Benz of the Nazi era. Whatever Mercedes-Benz officers and employees did then is their responsibility — not the responsibility of the very different people who run the company today. And that action during the Nazi era strikes me as not really relevant to Mercedes-Benz’s current actions, or to what should be our attitudes with regard to the company and its products today.
The Pacific Legal Foundation, a major conservative/libertarian public interest law firm in California, has some openings for summer clerks. Here’s Tim Sandefur’s post on the subject:
If you’re a law student who’s looking to spend the summer advancing freedom, please consider a clerkship at the Pacific Legal Foundation. PLF’s law clerks help us with research, drafting pleadings, making presentations to the public, and all sorts of tasks that are critical to our mission of rescuing liberty. And many of our clerks have gone on to important careers in public interest law, either here or in many of our allied organizations. Clerkship positions are unpaid positions — but Pacific Legal Foundation’s law clerks don’t sit in a back room redacting discovery documents for three months — they make a real difference in real people’s lives, defending private property rights, economic freedom, racial equality, sensible environmental policies, and learning more about the constitutional and philosophical framework of freedom.
Applications are due March 1. Applicants must submit a cover letter, resume, writing sample, and references to Tawnda Elling, Hiring Committee Coordinator, by email (attyjobs@pacificlegal.org), fax (916) 419-7747, or mail 930 G Street, Sacramento, CA 95814.
Applicants are also urged to check out the IHS Koch Summer Fellows program, which can help cover living costs for the summer, and the IJ Law Student Conference, a fantastic weekend crash course on the basics of public interest law.
Yesterday, the Supreme Court summarily affirmed Bluman v. FEC (D.D.C. Aug. 8, 2011), an opinion by a three-judge District Court that upheld the ban on non-permanent-resident foreign citizens’ candidate campaign contributions and independent expenditures supporting or opposing candidates.
This sets a precedent that the statute is constitutional, since the Supreme Court actually affirmed the case rather than just denying certiorari. (Under the statutory scheme involved in this case, the lower court decision was rendered by a three-judge trial court, rather than the usual one-judge trial court or three-judge appellate panel, and was appealable to the Court rather than being subject to the Court’s discretionary certiorari decisionmaking.) But it doesn’t endorse the reasoning of the court below, nor set forth any specific reasoning that would have precedential value. Rather, in the Court’s words in an earlier case,
[T]he precedential effect of a summary affirmance extends no further than “the precise issues presented and necessarily decided by those actions.” A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.
So we don’t know exactly what reasoning the Supreme Court used, but we do have the reasoning of the three-judge District Court (which may well have some persuasive precedential effect on other courts deciding on other restrictions on non-citizens’ speech and other activity, even though it has no binding precedential value). Here is what strikes me as the key part of the analysis:
We know from more than a century of Supreme Court case law that foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do. For example, aliens are generally entitled to the same rights as U.S. citizens in the criminal process, among several other areas.
But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. The Court has further indicated that aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591–92 (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices.
In those many decisions, the Supreme Court has drawn a fairly clear line: The government may exclude foreign citizens from activities “intimately related to the process of democratic self-government.” …
