Browsed by
Category: All Postings

Supreme Court’s ruling against the PC police

Supreme Court’s ruling against the PC police

The Supreme Court’s decision this week in Matal v. Tam sent a clear warning to government officials who seek to curtail speech they deem offensive: We won’t let you do it!

The warning was particularly pointed for the PC Police at state universities who try to close down viewpoints they find “offensive.”

A federal law ordered the Patent and Trademark Office to refuse to register any trademark deemed disparaging of any person or group. In a higher profile case than Matal v. Tam, the trademark office canceled the registration of the Washington Redskins football team because some Indians found the name disparaging. And in Matal v. Tam, the trademark office denied an Asian American rock band’s request to register the name “The Slants.” (The band had assumed the name as a nose thumbing gesture toward the racial slur.)

But in Matal v. Tam, the justices sided unanimously with the band and against the government. They struck down the “no registration” law as a violation of the First Amendment’s free speech guarantee.

The decision is important for several reasons.

First, the government had argued that because it was censuring only “negative” (disparaging) expressions, its conduct was sufficiently evenhanded to evade the First Amendment. But the court pointed out that negative viewpoints are legitimate, too. Criticism deserves as much constitutional protection as praise.

Second, the court rejected firmly a claim a federal judge had accepted in the Redskins case: that government registration converted a trademark from private to government speech. Because government speech is outside First Amendment protection, reclassifying it this way would render the trademark outside First Amendment protection.

The notion that when government protects a private activity the activity becomes that of the government has been promoted by statist legal commentators for many years. The idea is to subject private conduct to more political and judicial control.  By this reasoning, for example, issuance of a copyright would give the government power to censure the material copyrighted.

But in Matal v. Tam, the justices held that trademarks remain private expression even after they are registered.

Third, the case may presage a judicial retreat away from the constitutionally erroneous doctrine whereby the courts give less protection to commercial speech than to political speech. The doctrine is erroneous because Founding Era evidence shows that commercial messages were considered as much “free speech” as political commentary.

In Matal v. Tam, the justices held that the “no disparagement” statute violated even the weaker rules protecting commercial speech. But comments endorsed by all the justices communicate some doubt about whether the commercial/political divide makes sense.  In fact, Justice Clarence Thomas argued for abolishing the divide altogether.

Finally, Justice Anthony Kennedy, in an opinion endorsed by all three of the most liberal justices, sent a clear warning to the PC police:

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive . . . . Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. For reasons like these, the Court’s cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed.

In other words, the fact that some people are offended is no reason to suspend the Constitution.

This article originally appeared in The Hill.

The Define and Punish Clause doesn’t authorize vast federal power either

The Define and Punish Clause doesn’t authorize vast federal power either

Legal commentators have spread a good deal of ink trying to show that the Constitution authorizes the enormous expansion of the federal government since the 1930s.

Leading the way have been some associated—as professors, students, or alumni—with the most privileged educational institutions: Harvard, Yale, Chicago, and so forth. Their publications inflated the Commerce Clause to comprehend almost every activity in modern life. They tore the Necessary and Proper Clause from its intended moorings and re-fit it to carry almost unlimited congressional power. They converted the General Welfare Clause from a restriction on taxation into a permit for unrestricted spending. And they reworked the Property and Enclave Clauses until they supposedly authorized the federal government to own almost 30 percent of the land in the country.

Their arguments have been subtle and ingenious, politically self serving, and occasionally appear dishonest.

Now someone has found a basis for vast federal power in another unsuspected place: the Define and Punish Clause. This is the constitutional provision that allows Congress to “define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations.” Apparently those words have been in the Constitution for over 200 years without anyone realizing that they authorize the federal government to pass all sorts of domestic regulations.

Although the conclusion might be surprising, it is no surprise that this latest effort was published in one of the Harvard journals. The author is a law student rather than a professor, judge, or practicing lawyer, but the editors apparently thought the article was so important and powerful that they gave it the status generally reserved for legal professionals.

Ordinarily, I do not respond to student productions. But, who knows? Maybe this is the next popular justification for the federal monster state: After all, some political activists rely on student writings when it serves their purposes. Promoters of reviving the Equal Rights Amendment cite a student law school project  as their legal authority for ignoring the amendment’s ratification deadline.

Now, the truth is that the Define and Punish Clause does not authorize vast federal power. No one should be misled into thinking it does. So I offer the following by way of correction.

The gist of the author’s argument is that the Define and Punish Clause empowers Congress to create offences far outside the scope of the Founding-Era “law of nations” (i.e., international law). For example, Congress may regulate according to international norms established long after the Constitution was ratified. This conclusion would, of course, give a consortium of foreign governments de facto power to change our constitutional system.

The author goes further: Under the Define and Punish Clause, he claims, Congress also may regulate behavior that does not violate established norms at all, but treads merely on the internationally-related preferences of one or more foreign nations. Indeed, Congress may even regulate behavior that Congress thinks should violate international norms, even if no other country agrees!

Now as a general matter, the “vast federal power” literature suffers from certain common defects:

First: During the debates over the ratification of the Constitution, ratification advocates needed to reassure the public about the limited scope of federal power authorized by the Constitution. They issued long lists of subjects that under the Constitution would remain outside the federal sphere. These included social services, most civil and criminal law, agriculture and other land use, manufacturing, and many others. These representations were central to the ratifying public’s understanding of the Constitution. However, “vast federal power” promoters never address them.

Second: These writers usually rely on developments well after the Founding at the expense of material arising before or during the Founding.

Third: They very often present historical and legal sources as meaning something other than what they actually mean. Sometimes they simply misunderstand 18th century language. Sometimes they read a passage out of context or edit it deceptively.

Fourth: It is odd, but true, that in writing about a legal document drafted and promoted mostly by lawyers (i.e., the Constitution), these authors usually under-research Founding Era law.

All four of these defects mar the Define and Punish article.

First: The author does not mention the assurances made by the Constitution’s advocates as to the limited scope of federal power. He certainly does not explain how his expansive view of the Define and Punish Clause could be consistent them.

Second: The author dwells on developments, including court decisions, arising long after the Constitution was ratified. A court decision in 1820 or 1887 may be interesting, but it could not have affected how Americans understood the Constitution in the ratification era (1787-90). (Admittedly, this article does not claim to be purely originalist.)

Third: The author relies on at least one passage deceptively lifted from context. The passage is from Blackstone’s Commentaries. The author reports Blackstone as saying that the “principal offenses” against the law of nations were violations of safe-conducts, infringement of the rights of ambassadors, and piracy. The author then suggests that these were the only existing offenses against the law of nations. So he says Clause must give Congress power over offenses beyond those—because if the framers had wished to limit Congress’s power to them, the framers could have just listed those three areas. Also, the Continental Congress had defined offenses other than those three.

The trouble is that Blackstone never said the three listed offenses were the only offenses against the law of nations. Rather, he stated that they were the only offenses for which Parliament had thus far passed clarifying legislation (“animadverted on as such by the municipal laws of England”). Moreover, even though Blackstone’s treatise was not principally about international law, he identified several other offenses against the law of nations: committing acts of hostility against one’s country in league with a foreign king, making war without a formal declaration, violation of the law merchant (international mercantile law), and violation of immigration law.

Fourth: Although the author (mis)quotes Blackstone, he gives almost no attention to works the Founders relied on that were treatises on the law of nations. The most influential were those written by Hugo Grotius, Samuel Pufendorf, and Emer de Vattel. These scholars spent hundreds of pages outlining the scope of the law of nations, and offenses against that law, as then established.

In several provisions, the Constitution refers to specific bodies of jurisprudence. It does so, for example, in phrases such “on the subject of Bankruptcies,” “regulat[ing] Commerce,” and the “Privilege of the Writ of Habeas Corpus.” The Define and Punish Clause is another illustration of this practice: “Offences against the Law of Nations” denotes violations of established international law, as explicated by writers such as Grotius, Pufendorf, and Vattel. No more.

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Although there were scattered antecedents, “runaway convention” claims and certain associated myths were first distributed widely during the 1960s and 1970s. In a previous Article V Information Center study, I documented how those stories were publicized by leading opinion-molders in national liberal establishment. Their goal was to disable the Article V convention process to prevent proposal of constitutional amendments to restrain the federal government.

Now a new Article V Information Center study shows how the two leading newspapers of the same liberal establishment worked with those opinion-molders. During the 1960s and 1970s, the New York Times and the Washington Post not only opposed a convention editorially, but their skewed their news stories to promote fake news “runaway” claims.

You can find the new study here.

The Convention of States in American History

The Convention of States in American History

In this short essay, constitutional historian Rob Natelson thumbnails the three-centuries long history of “conventions of the states.”

When delegations from the states assemble in Phoenix, Arizona later this year, they will be basking in a long and rich American tradition.

As far back as 1677, British colonies in North America sent “commissioners” (delegates) to meet with each other to discuss common issues. These gatherings were essentially problem-solving task forces. That is, they were temporary assemblies charged with proposing solutions to prescribed problems.

During the colonial era, most conventions met in New York City, Boston, or Albany, New York: Albany was popular because it was close to the homes of the Iroquois tribes, who frequently participated. However, one of the most notable conventions occurred in Lancaster, Pennsylvania (1744).

The convention agenda was always set in advance. It sometimes involved common defense against hostile Indians or against French Canada. Often, the colonies convened to hammer out treaties with Indian tribes.

“Convention” was not the only name for these conclaves. Occasionally, they were called councils; more often congresses. (In the international practice of the time a “congress” was a diplomatic meeting of governments on equal terms.) . . . . .

For the entire history click here.

Convention Rules for a Convention of the States

Convention Rules for a Convention of the States

The convention of the states meeting in Phoenix, Arizona in September will need a set of rules. Moreover, that convention will be engaged in further rule-writing because the Arizona Legislature called it partly to suggest rules for a prospective Article V Convention for Proposing Amendments.

I suggest the planners start with the Model Rules provided here. It is an update of rules prepared by a drafting team I headed in 2015 and 2016. It offers advantages no other proposed rules have:

  • There was an extended deliberation period—about a year and a half.
  • The drafting team included two experienced constitutional lawyers and four seasoned state legislators, one of whom had served in legislative leadership in two different states.
  • The Model Rules were not the product of theory or speculation. Although updated for modern conditions, they derive directly from prior convention and legislative experience. Earlier versions worked in Philadelphia in 1787 and, under extremely difficult circumstances, at the Washington Convention of 1861.
  • These Model Rules are relatively simple.
  • We know they actually work: They were tested at a two-day simulated convention in Williamsburg, VA in 2016, where they operated almost flawlessly. Based on that experience, we had to make only very minor amendments.

Obviously, no set of rules can be taken unchanged. But I recommend these for a place to start.