Browsed by
Category: Supreme Court

If you want to win a Supreme Court case, it helps to play to “progressive” values

If you want to win a Supreme Court case, it helps to play to “progressive” values

This article originally appeared in The Hill.

Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elite’s “progressive” faith.

Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument accords with the social and cultural values favored among the contemporary elite.

At the turn of the last century, when most of America’s opinion makers subscribed to free market economics, you had a reasonable chance of winning a constitutional challenge against a business regulation. During the late 1930s and the 1940s, when fashions favored collectivism, it became almost impossible to do so. In 2015, cultural attitudes induced the Supreme Court to rule—on virtually no evidence other than the Zeitgeist itself—that the Constitution requires states to recognize same-sex civil marriage.

Both Murr v. Wisconsin and Trinity Lutheran Church v. Comer are further illustrations. The Murrs contended that state-authorized zoning regulations had deprived them of property rights without the compensation required by the Fifth Amendment.  Trinity Lutheran Church claimed the state had denied the church access to a grant program in violation of the First Amendment.

If the Supreme Court had applied the Constitution’s original meaning, both the Murrs and Trinity Church would have lost. Contrary to common illusion, the Constitution’s original meaning does not always mandate results conservatives (or liberals) like.

Yet the Court (Justice Thomas excepted) pretty much ignored the original meaning. It ruled for the state in Murr but against the state in Trinity Lutheran.

One reason the Murrs lost is they made a legal blunder by kicking away a “grandfather clause” that would have protected them. One reason Trinity Lutheran Church won was that it was seeking a government grant “for the children”—that is, to provide a softer surface for a playground.

But if you are considering which cases to bring before the Supreme Court and how to argue them, you can’t overlook this: Attorneys for the church played to the legal elite’s “progressive” values—and won. In fact, they won 7-2, carrying with them two of the most liberal justices.  The Murrs, on the other hand, defied those values. They lost, 5-3, with even the three more “conservative” dissenters agreeing with the result.

The Murrs were in a position any “progressive” would find unsympathetic. They were private landowners (bad). Their land was in an area the state and federal governments deemed environmentally sensitive (worse). They had the cheek to challenge an ordinance that allegedly protected the environment (inexcusable). Their goal was to develop or sell for profit. (Enough said.)

Compare the facts and presentation of Trinity Lutheran:

*          Unlike Murr, the case did not involve purely individual freedom. It involved a kind of “freedom” the Left can better understand: freedom to get a government grant.

*          The grant program was limited to non-profit organizations, of which the plaintiff was one. No filthy profits here!

*          The program served an environmental cause—recycling used tires.

*          It was a government program, funded by a mandatory “fee” (in reality, a tax).

*          Grant applicants received extra points if located in a poverty area.

*          Applicants also got extra points for agreeing to “promote recycling”—i.e, propagate environmental ideology.

*          The grant would help the church comply with federal disability regulations.

*          The playground was not merely for children of church congregants (that would be too “private”). Use “would extend . . . to the local community.”

Observe how many of the Left’s ideological buttons the plaintiff’s lawyers pushed: non-profit, recycling, mandatory government fee, poverty, disabilities, environment—and that interminably-overused mantra: community.

The lesson: Whatever your personal beliefs, if you are taking a case to Washington, D.C., it helps to ensure that your case does not flout—and preferably panders to—the ideology prevalent there.

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.

How progressives Promoted the ‘Runaway Convention’ Myth to Protect the Warren Court’s Judicial Activism

How progressives Promoted the ‘Runaway Convention’ Myth to Protect the Warren Court’s Judicial Activism

You may have heard alarms that if we hold a national convention for proposing constitutional amendments the gathering would be an uncontrollable constitutional convention (“con-con”) that could propose anything at all.

The claim is called the “runaway scenario.” It has almost no basis in history or law. But it has long frightened Americans away from using the Constitution’s chief mechanism for bypassing Congress and curing our dysfunctional federal government.

The “runaway” specter has been raised by fringe elements on both the left and the right. It is a ghost that haunts the imagination of groups like the John Birch Society and Common Cause.

Now we have more information about how it was conjured up.

Last year, the Article V Information Center published my paper showing that confusion between an amendments convention and a constitutional convention first arose in the 20th century. The paper further documents how, during the 1960s and 1970s, leading establishment liberals, such as Kennedy speechwriter Theodore Sorensen and Kennedy confidant Arthur Goldberg, capitalized on that confusion by raising the runaway specter.

The paper concluded that their plan was to scare people away from using the Constitution’s convention mechanism. Their goals were twofold. First, they wanted to protect from reversal by constitutional amendment several Supreme Court decisions that had proved highly controversial—among them Roe v. Wade, the case that legalized abortion nationwide. Second, they sought to block growing momentum for amendments imposing term limits and requiring a federal balanced budget.

Now the curator of the Article V Library has produced more evidence confirming these conclusions.

The Article V Library collects every state legislative resolution calling for an amendments convention. It also offers features for screening them by subject and for ascertaining which are still in effect.

Without prior knowledge of my own conclusions, Robert Biggerstaff, the library’s curator, conducted an n-gram search in Google Books to find out when the phrase “runaway convention” arose (now updated to 2008, the last year for which data are available). He discovered that the term was almost unknown until around 1960—when it suddenly became extraordinarily common. Usage rose to counter rising popular demand for constitutional amendments. In the 1990s, as momentum for amendments abated, so also did resort to the runaway scenario. Another n-gram searchshows that the abbreviation “con con,” widely used by convention opponents, also was invented around 1960.

Biggerstaff notes: “In the 1950’s and 60’s progressives actively sought change through courts when it was not possible through legislatures.  This was an express tactical choice to seek through judicial activism what was stymied by legislatures.”

However, their strategy had what he calls an “Achilles’ heel.” Supreme Court decisions can be—and several times have been—overturned by constitutional amendment. After the Supreme Court required states to reapportion their legislatures in the 1960s, for example, 33 of the necessary 34 state legislatures filed applications demanding a convention to propose an amendment reversing the court’s rulings.

“As a result,” Biggerstaff says, “it became important to neuter the Article V Amendment process—particularly to prevent triggering by convention applications—to protect progressive successes achieved in the courts.”

Biggerstaff concludes that this was why the runaway convention fiction suddenly emerged from nowhere during the 1960s. In his view, “generating unwarranted fear of the Article V convention process was a ploy introduced by progressives as a way to prevent states from countering progressives’ use of judicial activism.”

This article originally appeared in The Hill.

All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

All In One Place: The Evidence that an Amendments Convention is a Traditional “Convention of the States”

You may have heard opponents of the Article V convention process claim that the make-up of a convention for proposing amendments is a “mystery”—that we have no idea of how the membership would be selected, how they would vote, etc.

Those active in the Article V movement have known for some time that this is inaccurate. For one thing, scholarly research by myself and other scholars, such as Professor Michael Rappaport at the University of San Diego School of Law, has established that an amendments convention is a convention of the states—something the Supreme Court itself acknowledged in 1831. Conventions of the states (and, before them, conventions of colonies) have a 300 year history and have played a prominent part in American life. Their protocols are well understood.

I thought it would be a good idea to collect in a single article all the major pieces of evidence that an amendments convention is a “convention of the states.” The material includes the Supreme Court opinion, pre-constitutional history, and records from the Founding era: comments by the Founders, formal state papers, and resolutions by state legislatures.

Pending selection of a final publisher, you can obtain a copy of the article here.