The Volokh Conspiracy

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.

Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.

But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.

Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)

At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.

And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.

This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.

Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:

As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.

To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.

That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.

Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.

Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….

But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)

But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….

Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.

Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.

As some of our readers know, co-blogger Todd Zywicki and I are co-editors of the Supreme Court Economic Review, a peer-review publication that is one of the country’s top-rated law and economics journals. Our third co-editor is my colleague Josh Wright, who blogs at Truth on the Market.

We are pleased to announce that, thanks to our publisher, the University of Chicago Press, the SCER now has a brand-new 21st century submissions website. We welcome submissions by law and economics scholars, constitutional law scholars, and others writing in the fields of law and economics, constitutional theory, and related areas. You too might be able to publish in the world’s only academic journal edited by two Volokh Conspirators.

The new website has just gone online, so I apologize in advance for any minor glitches you may encounter.

Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.

Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.

The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger with regard to items on the executive calendar (such as nominations) than it is with legislation. One could argue that the Senate’s obligation to “advise and consent” presumes an obligation to act — specifically, an obligation to hold an up-or-down vote — and that the filibuster prevents the Senate from fulfilling this duty. It is much harder to argue that the Senate must hold follow rules that allow for substantive votes on legislation. While it’s likely a challenge to nomination filibusters would also be found non-justiciable, it is more plausible than the claim Common Cause filed.

I’m sympathetic to the view that the filibuster is overused, particularly for nominations, but quite skeptical of any lawsuit claiming the filibuster is unconstitutional.

UPDATE: Common Cause’s Bob Edgar explains the suit here. Ian Millhiser likes the argument but doesn’t think the suit is justiciable. Gergory Koger is more circumspect.

The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.

Yale Law School’s Jonathan Macey places JP Morgan’s $2 billion loss in perspective. His article begins:

Regulators, politicians and news reporters are hysterical at the news of J.P. Morgan’s recent $2 billion trading loss. The Securities and Exchange Commission is investigating to see whether laws were broken.

We appear to be on the verge of making it a crime for a business to lose money. The truth is that nobody should care about J.P. Morgan’s loss—nobody except J.P. Morgan stockholders and a few top executives and traders who will lose their bonuses or their jobs in the wake of this teapot tempest. The three executives with the closest ties to the losses are already out the door.

After the $2 billion in losses, J.P. Morgan still had $127 billion in equity. This means that J.P. Morgan could lose another $100 billion and creditors would still have an equity cushion that could absorb 10 times the losses that the bank suffered on this trade. The trading loss wasn’t close to apocalyptic even for shareholders. J.P. Morgan’s shares dropped 9.28% in the wake of the loss. A shareholder with a $100,000 investment in J.P. Morgan would see the value of his investment reduced to $90,720, hardly a financial Chernobyl.

The $2 billion loss also resulted from trades designed to hedge against the threat of even bigger losses. Macey also explains why JP Morgan’s loss is not a justification for additional government regulation.

The real lesson of what J.P. Morgan CEO Jamie Dimon has called the bank’s “egregious failure” in risk management is that hedging is far more difficult to do in real life than it appears to be in theory—because the real world is a complicated place. The trades that J.P. Morgan made were extremely complex, and it certainly appears that they did not work the way that they were supposed to. But the reason that markets work better than central planning is because market participants learn from experience, and they learn fast and thoroughly because they suffer significant losses when their investments, whether they be hedges or not, turn out badly.

Thus, far from serving as a pretext to justify still more regulation of providers of capital, J.P. Morgan’s losses should be treated as further proof that markets work. J.P. Morgan and its competitors will learn from this experience and do a better job of hedging the next time. They will learn because they have to: In the long run their survival depends on it. And in the short run their jobs and bonuses depend on it.

The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens’ complaint that the Court’s broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin’s own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.

Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government’s fate.

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart’s oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It’s true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute’s language could apply to “full-length books” and that there would, in the government’s view, be no problem with banning corporate-funded pamphlets.

Like many of the decision’s critics, Toobin suggests Citizens United is best seen as the product of the “aggressive conservative judicial activism” of Chief Justice Roberts and the court’s conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.

The most interesting parts of Toobin’s article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin’s skill as a reporter, but I still have some misgivings. We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin’s narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

The Washington Post reports that former Secretary of State Henry Kissinger got a full pat down by the TSA at Laguardia. Maybe one of the TSA agents had been reading Christopher Hitchens.

Check out today’s Hall et ux. v. United States, a bankruptcy law case in which Justice Sotomayor’s majority opinion is joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, and Justice Breyer’s dissent is joined by Justices Kennedy, Ginsburg, and Kagan. This is also a good opportunity to make sure you know what “et ux.” means; the term is no longer used in most citations, I think, but the Supreme Court and some other courts still use it in captions.

The “crossover sensation” line is borrowed from my coblogger John Elwood.

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

Two recent studies find that state licensing regimes for small businesses impose severe burdens on consumers and entrepreneurs alike. The first, by the libertarian Institute for Justice, finds that licensing is ubiquitous for a wide range of professions, and that it often has little or no public interest justification:

License to Work details licensing requirements for 102 low- and moderate-income occupations in all 50 states and D.C. It is the first national study of licensing to focus on lower-income occupations and to measure the burdens licensing imposes on aspiring workers….

All of the 102 occupations studied in License to Work are licensed in at least one state. On average, these government-mandated licenses force aspiring workers to spend nine months in education or training, pass one exam and pay more than $200 in fees. One third of the licenses take more than one year to earn. At least one exam is required for 79 of the occupations….

Noted licensure expert Morris Kleiner found that in the 1950s, only one in 20 U.S. workers needed government permission to pursue their chosen occupation. Today, it is closer to one in three. Yet research to date provides little evidence that licensing protects public health and safety or improves products and services. Instead, it increases consumer costs and reduces opportunities for workers….

the difficulty of entering an occupation often has little to do with the health or safety risk it poses. Of the 102 occupations studied, the most difficult to enter is interior designer, a harmless occupation licensed in only three states and D.C. By contrast, EMTs hold lives in their hands, yet 66 other occupations face greater average licensure burdens, including barbers and cosmetologists, manicurists and a host of contractor designations. States consider an average of 33 days of training and two exams enough preparation for EMTs, but demand 10 times the training—372 days, on average—for cosmetologists. “The data cast serious doubt on the need for such high barriers, or any barriers, to many occupations,” said Lisa Knepper, IJ director of strategic research and report co-author. “Unnecessary and needlessly high licensing hurdles don’t protect public health and safety—they protect those who already have licenses from competition, keeping newcomers out and prices high.”

The second new study – by Thumbtack.com and the Kauffman Foundation reinforces some of IJ’s conclusions. It consists of a nationwide survey of several thousand small business owners, and finds that, in their view, the ease of obtaining a license is the biggest public policy determinant of a state’s level of friendliness to small businesses – far more important even than tax rates:

Although taxes are a dominant topic in many discussions of a location’s attractiveness to business, our analysis indicates that small businesses tend to care more deeply about the friendliness of a region’s licensing regime by a factor of nearly two. Similarly, being subject to special regulatory requirements had a negative effect on overall small business friendliness, and among those small businesses subject to special regulations, the ease of complying with these requirements was by far the most important factor.

These results are not entirely surprising. Licensing regulations are often “captured” by interest groups seeking to keep out their competitors. Most voters are unaware of these laws and often lack the knowledge needed to assess their quality even when they do happen to know about them. As a result, licensing regimes are often heavily influenced by lobbying from politically connected businesses. Both consumers and potential new entrants into the market get the short end of the regulatory stick. It’s yet another example of the harm caused by political ignorance.

CONFLICT OF INTEREST WATCH: I have done pro bono work for the Institute for Justice on unrelated projects.

UPDATE: Economist Tim Taylor has additional commentary here.

UPDATE #2: I have revised this post slightly to eliminate some minor stylistic flaws.

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

The Wisconsin State Journal reports:

A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old.

Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church’s literal interpretation of the Bible.

The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom.

Circuit Judge Maryann Sumi found that Caminiti had “a sincerely held religious belief” as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state’s child abuse statute “places a burden on his sincerely held religious belief.”

“Scripture doesn’t specify how and when the rod should be used,” Sumi said, adding that Caminiti also was willing to modify the church’s practices to comply with the law….

If Caminiti had simply preached the propriety of such behavior in the abstract, I think such a conviction would likely be unconstitutional under the Free Speech Clause without regard to any special religious freedom claim, given Brandenburg v. Ohio (1969), even if the hitting of the children would indeed be a crime. (It probably would be; note that, according to the sheriff’s department, “the dowels were described as being 12-18 inches long with a diameter about the size of a quarter.”)

Teaching that it’s proper or even obligatory to commit a crime is generally constitutionally protected unless it’s intended to and likely to yield imminent crime, which is to say crime some time in the immediate future, likely within a few hours or at most days, and not “at some indefinite future time.” That’s why it’s not a crime to teach that it’s proper or even religiously obligatory to use marijuana, or to refuse to register for the draft, or to engage in jihad. And it sounds from news accounts that the minister’s teachings were not intended to yield such imminent conduct, but instead were meant as guidance for “some indefinite future time.”

But if Caminiti had specifically counseled particular parents about what to do with their particular children in particular contexts — “minister, my child did this-as-such; should I beat him tonight for it?” — this might qualify as either incitement of imminent criminal conduct, or as constitutionally unprotected solicitation of crime (see United States v. Williams (2008)). The line between solicitation, which is unprotected even when it calls for action in the indefinite future (e.g., “please send me some child pornography, whenever you happen to have some”) and incitement, which is protected unless it calls for imminent action, is unclear. Urging people that some general course of action is morally obligatory, without reference to a particular proposed action dealing with a particular person or a particular item, would be a classic example of material covered under Brandenburg (general advocacy) rather than Williams (solicitation). But the more specific the advocacy, the more likely it is to be seen as unprotected solicitation (or as unprotected incitement, if it’s advocacy of what the parent is to do right away).

Note that Wisconsin courts have interpreted the Wisconsin Constitution to require, in some situations, religious exemptions from generally applicable laws, under the Sherbert/Yoder regime. But it’s not clear to me that, even so, the best argument for the minister is a religious freedom argument. The protection offered by free speech law in such cases should, I think, be rather greater than the protect offered by religious exemptions law. And if the pastor’s speech is unprotected by the Free Speech Clause, I doubt that courts would find it protected even under the state constitution’s religious freedom guarantee, even using the Sherbert/Yoder test.

If anyone can point me to any reasoned opinions on the judge’s part in this case — or to more facts on the subject — I’d love to see them. All I could find myself online is the docket sheet, which doesn’t have the documents. Note that “Caminiti was not charged with having committed any abuse himself.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Today the U.S. Court of Appeals for the D.C. Circuit decided Electronic Information Privacy Center v. National Security Agency. Here’s the summary from the beginning of Judge Brown’s opinion for the court.

Plaintiff-appellant Electronic Privacy Information Center (“EPIC”) filed a Freedom of
Information Act (“FOIA”) request with the National Security Agency (“NSA”) seeking disclosure of any communications between NSA and Google, Inc regarding encryption and cyber security. NSA issued a Glomar response pursuant to FOIA Exemption 3, indicating that it could neither confirm nor deny the existence of any responsive records. EPIC challenged NSA’s Glomar response in the district court, and the parties cross-moved for summary judgment. The district court entered judgment for NSA, and EPIC appealed. We affirm.

UPDATE: BLT reports on the case here.

The Guardian (UK) reports (see also MSNBC Cartoon Blog and other sources):

Mahmoud Shokraye was put on trial after an Iranian MP, Ahmad Lotfi Ashtiani, took offence to a cartoon he drew of the parliamentarian in Nameye Amir, a city newspaper in Arak, the capital of Iran’s central province of Markazi….

In the cartoon, Ashtiani is depicted in a football stadium, dressed as a footballer, with a congratulatory letter in one hand and his foot resting on the ball. The MP’s forehead has a dark mark, said to be the sign of a pious Shia Muslim, caused (supposedly) by frequent prostration during prayer. The cartoon contains little exaggeration and Ashtiani’s forehead has a prayer mark in reality.

Shokraye drew Ashtiani following widespread criticism in Iranian society towards a number of politicians who have been accused of interfering in the country’s sports….

Speaking to an Iranian journalist, Esmail Kowsari, a member of the parliamentary committee on national security, defended the sentence: “[A cartoonist] should be persecuted if the cartoon is not ordinary and ridicules someone … Any crime has its own punishment, including lashing, imprisonment or being fined.”

Note that “persecuted” might (or might not) be a mistranslation. Thanks to Opher Banarie for the pointer.

The Chronicle of Higher Education has an interesting article on responses to a forthcoming book I recently blogged about, Brian Tamanaha’s Failing Law Schools. The Chronicle article is behind a paywall, so to read it you need to click here and then click on the link.

The article includes this defense of the status quo from law prof Michael Olivas:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

If so, what is wrong with that? Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

Thanks to Brian Leiter for the link; Brian has his own thoughts here.

A pleasant story of the law being fixed as a result of public criticism — much of it online — just as in Arizona last month:

Last year, the Tennessee Legislature enacted a statute that essentially banned the online posting of images that cause “emotional distress” “without legitimate purpose.” As I blogged on June 6, the law made it a crime to

(4) Communicate[] with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

The law therefore applied not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they were acting “without legitimate purpose,” (2) they caused emotional distress, and (3) they intended to cause emotional distress or knew or reasonably should have known that their action would cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you had posted a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’d likely have been a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you had posted an image intended to distress some religious, political, ethnic, racial, etc. group, you too could have been sent to jail if a government decisionmaker thought thinks your purpose wasn’t “legitimate.” Nothing in the law required that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same would have been true even if you hadn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would have “cause[d] emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would have applied if a newspaper or TV station had posted embarrassing pictures or blasphemous images on its site.

After — I can’t say whether because of — the June 6 post, there was a good deal of criticism of the new law, and it looks like the Tennessee Legislature listened. Last week, it passed (unanimously in the Senate, 76-14 in the House) and sent to the Governor a bill that basically limited the statute to threats; if the Governor signs the bill, then the law would be limited to making it a crime to

(4) Communicate[] with another person or transmits or displays an image without legitimate purpose with the intent that that the image is viewed by the victim … [when the communicator]:

(A) Maliciously intends the communication to be a threat of harm to the victim; and

(B) A reasonable person would perceive the communication to be a threat of harm.

This seems to be limited to speech that fits within the “true threats” exception to First Amendment protection (at least if “harm” is reasonably interpreted as a threat of illegal physical harm or vandalism, rather than a threat of, say, boycott or social ostracism, which are generally constitutionally protected).

So it looks like public criticism of speech restrictions, even ones that seem to target supposed “bullying” or “harassment,” has worked in this instance; I’m very glad to see that. For more on the change in the law, see this TN Report article posted yesterday.

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

NASA’s James Hansen can be a bit unhinged when he talks about climate change. Although one of the world’s more prominent climate scientists, he has a penchant for selectively presenting only the most apocalyptic global warming scenarios and adopting unduly inflammatory rhetoric, as when he compared coal-laden trains, aka “death trains,” to the railcars carrying Jews to Nazi concentration camps or suggested that energy company CEOs are guilty of “crimes against humanity.”

Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

For those who lack the interest or patience to read my forthcoming full-blown law review article in the Washington & Lee law review, I have a shorter adapted version in latest issue of the Federalist Society’s journal Engage on the economics and regulation of bank overdraft protection.  Thanks to Nick Tuszynski of the Mercatus Center for his help with this.

President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.

Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.

UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes on to speculate that Obama’s statement might influence the Justices should the Prop 8 case or DOMA litigation reach them.  That’s possible, but I’m dubious. This Supreme Court has not been shy about disagreeing with the Executive Branch.  For goodness’ sake, Justice Alito delivered a visual advisory opinion to him during the State of the Union speech days after the Citizens United decision. I think they’ll decide the issue independently of what President Obama, or President Romney, personally thinks about it. The bigger constitutional landmark was the Obama Justice Department’s conclusion that DOMA is unconstitutional because it cannot meet the heightened scrutiny that the DOJ argued is applicable to discrimination based on sexual orientation.

The rest of what Rauch says, however, seems spot on to me.  It’s easy to be cynical about everything politicians do, and I yield to few people in my skepticism of officeholders.  I spoke to many Minnesota lawmakers last year who voted to place an anti-gay marriage limitation on the ballot, yet privately expressed their misgivings about it. President Obama himself has a tortured public history on the issue, moving from support when he ran for state office in 1996, to opposition when he ran for U.S. Senate in 2004 and president in 2008, to support now.  It’s obvious that he privately supported gay marriage for years, so his evolution was for public consumption.

Nevertheless, watching him closely on TV, I had a hard time mustering cynicism about the president’s words.  He must know his public support is not obviously a net political plus for him in November.  And his description today of his discussions with his family, his experience of talking to young adults (including young Republicans) for whom opposition to gay marriage is baffling, and his understanding of the hardships faced by gay families, including those headed by openly gay servicemembers, seemed genuine.  His words echoed the conclusions now reached by about half of the American people.  On this issue, as on others, the president may be leading from behind.  But it matters when presidents lead, as when Lyndon Johnson declared civil rights a “moral issue” and announced on national television, “We shall overcome.”  The president’s endorsement won’t matter to people who’ve made up their minds to oppose marriage for gay couples, but many others are listening.

An article by Will Tuell (who apparently is or was a local town selectman) in the Downeast Coastal Press reports that State Senator Cynthia Dill — seemingly the leader in the Democratic primary, though not necessarily a strong competitor to Independent candidate and former Governor Angus King — endorses Court-packing:

On the issue of whether the Supreme Court needs to be reformed, Dill, a civil rights lawyer with experience in the federal court system, called for major changes reminiscent of those sought by President Franklin Delano Roosevelt. …

Dill said she approves of President Obama’s picks and would consider expanding the number of justices on the Court if decisions she sees as unfavorable continue to be passed down. “I think there’s promise, but if we continue to get these poor decisions, I’m not opposed to adding justices. The Constitution doesn’t say we have to have nine justices, and if these nine can’t figure it out and keep producing 5-4 decisions that are crippling our country, let’s throw a few more good justices on the Court and straighten things out.”

I should note that I see nothing inherently wrong in the political branches pushing back against the Court, whether through ordinary nominations, through constitutional amendments, or possibly even through proposals to limit the Court’s jurisdiction (though I’m skeptical about the latter). But Court-packing strikes me as a pretty poor idea: It’s nearly certain to lead to partisan tit-for-tat should this be done by one party, and the consequences of such tit-for-tat are likely to hurt the judicial system with little compensating benefit, either for Democrats or Republicans. In any case, I thought I wanted to note that such a proposal was being discussed, though of course I realize that it’s politically very unlikely to succeed.

The full article, reprinted with the editor’s permission, is below:

Continue reading ‘Leading Democratic Primary Candidate for Senator from Maine Calls for Court-Packing’ »

That is, with respect to his support for same-sex marriage, telling ABC’s Robin Roberts:

Over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Having recently married — albeit in the legally boring kind of wedding that raises no constitutional issues — I suspect that Obama sees this as an excellent way to jumpstart the economy.