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constitutional law

“‘People’s Rights Amendment’ Would Knock Out People’s Rights”

by Walter Olson on May 17, 2012

George Will gets to the essence of this grotesque assault on civil liberties, fed by demagoguery over the Supreme Court’s Citizens United decision:

McGovern [Rep. Jim McGovern, D-Mass.] stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights.

Incredibly, versions of this radical rights-stripping measure has been endorsed through resolutions by the state legislatures of Vermont, Hawaii, and New Mexico, with backing from groups like Public Citizen. [Ilya Shapiro and Kathleen Hunker, Cato; Hans Bader, CEI; earlier] More: Professor Bainbridge (“utterly moronic”)] Among sponsors of this extraordinary measure: Reps. Earl Blumenauer (Ore.), David Cicilline (R.I.), Steve Cohen (Tenn.), John Conyers, Jr. (Mich.), Jim Cooper (Tenn.), Peter DeFazio (Ore.), Eliot Engel (N.Y.), Sam Farr (Calif.), Bob Filner (Calif.), Gene Green (Tex.), Raul Grijalva (Ariz.), Janice Hahn (Calif.), Martin Heinrich (N.M.), Maurice Hinchey (N.Y.), Jesse Jackson, Jr. (Ill.), Walter B. Jones, Jr. (N.C.), Barbara Lee (Calif.), Jim McDermott (Wash.), Christopher Murphy (Ct.), Richard Neal (Mass.), Eleanor Holmes Norton (D.C.), John Olver (Mass.), Chellie Pingree (Maine), Louise McIntosh Slaughter (N.Y.), Adam Smith (Wash.), John Tierney (Mass.), and Peter Welch (Vt.). Murphy is running for an open U.S. Senate seat in Connecticut.

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“Usually, to avoid detection…”

by Walter Olson on May 13, 2012

“…we [Judge Janice Rogers Brown and I] dress as Lillian Hellman and Yosemite Sam respectively.” — Michael Greve on his participation in the presumed conspiracy to restore the dreaded “Constitution in Exile” of pre-New Deal days. [Liberty and Law]

Soon-to-be Prof. Greve (he will be joining the George Mason law faculty after many years at AEI) was at Cato this week to discuss his remarkable new book, The Upside-Down Constitution. At the risk of damning with faint praise, I will say that his book is the most stimulating work I know of on the subject of federalism to have been published in my lifetime. If I could sum up his thesis, it would be that one of the past century’s gravest constitutional malfunctions has been that the states (not a misprint, he means the 50 states) have overrun their proper role in the constitutional scheme. More on his thesis here, here, and, on “Madison’s nightmare,” here. In all seriousness, I recommend The Upside-Down Constitution highly; although it’s demandingly complex in places, I can’t imagine reading it without one’s understanding of the constitution, and federalism in particular, being permanently changed.

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April 30 roundup

by Walter Olson on April 30, 2012

  • Because Washington knows best: “U.S. ban sought on cell phone use while driving” [Reuters, earlier here, here, here, etc.] More here; and LaHood spokesman says Reuters overstated his boss’s position.
  • Janice Brown’s Hettinga opinion: Lithwick can’t abide “starkly ideological” judging of this sort, except of course when she favors it [Root, earlier] At Yale law conclave, legal establishment works itself into hysterical froth over individual mandate case [Michael Greve] And David Bernstein again corrects some Left commentators regarding the standing of child labor under the pre-New Deal Constitution;
  • Latest antiquities battle: Feds, Sotheby’s fight over 1,000-year-old Khmer statue probably removed from Cambodia circa 1960s [VOA, Kent Davis]
  • Sebelius surprised by firestorm over religious (non-) exemption, hadn’t sought written opinions as to whether it was constitutional [Becket, Maguire] Obamanauts misread the views of many Catholics on health care mandate [Potemra, NRO]
  • “20 Years for Standing Her Ground Against a Violent Husband” [Jacob Sullum] How Trayvon Martin story moved through the press [Poynter] And Reuters’ profile of George Zimmerman is full of details one wishes reporters had brought out weeks ago;
  • Coaching accident fraud is bad enough, making off with client funds lends that extra squalid touch [NYLJ]
  • Kip Viscusi, “Does Product Liability Make Us Safer?” [Cato's Regulation magazine, PDF]

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Labor and employment law roundup

by Walter Olson on April 17, 2012

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April 11 roundup

by Walter Olson on April 11, 2012

  • “Public pool owners struggle to meet chair-lift deadline” [Springfield, Ill. Journal-Register, earlier]
  • Punitive damages aren’t vested entitlement/property, so why the surprise they’d be cut off in an administered Chrysler bankruptcy? [Adler]
  • More on how Violence Against Women Act (VAWA) reauthorization would chip away rights of accused [Bader, Heritage, earlier]
  • Defending sale of raw milk on libertarian principle shouldn’t mean overlooking its real risks [Greg Conko/CEI; Mark Perry on one of many heavy-handed enforcement actions against milk vendors]
  • More tributes to longtime Cato Institute chairman Bill Niskanen [Regulation magazine (PDF), earlier]
  • Asbestos lawyers wrangle about alleged swiping of client files [Above the Law]
  • “Nathan Chapman & Michael McConnell: Due Process as Separation of Powers” [SSRN via Rappaport, Liberty & Law]

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Judicial activism for me, but not for thee

by Walter Olson on April 4, 2012

From Glenn Reynolds’s readers:

“Rather hilariously, David Dow, the author of the Newsweek piece calling for the impeachment of the Supreme Court if they overturn the health care law, is the author of America’s Prophets: How Judicial Activism Makes America Great.” Only the right sort of judicial activism. Impeach the rest!

More on the “MarburyGate” presidential gaffe from Thom Lambert and David Bernstein.

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April 4 roundup

by Walter Olson on April 4, 2012

  • N.Y. Times editorial flays Stand Your Ground, but dodges its (non)-application to Martin/Zimmerman case; Washington Post blasts same law, doesn’t seem to realize Florida homicide rate has gone down not up; chronology as of Sunday’s evidence [Frances Robles, Miami Herald] On the disputed facts of the case, it would be nice if NYT corrected its misreporting [Tom Maguire, more, yet more]
  • Lawprof Michael Dorf vs. Jeffrey Toobin on president’s power not to enforce a statute [New Yorker letter]
  • Israeli law bans underweight models [AP/Houston Chronicle]
  • Is price-fixing OK? Depends on whether the government is helping arrange it [Mark Perry]
  • Minnesota man arrested, jailed for neglecting to put siding on his house [KSTP via Alkon]
  • Once lionized in press, former Ohio AG Dann now fights suspension of law license [Sue Reisinger, Corp Counsel, earlier]
  • How California is that? “Killer got $30,000 in unemployment while in jail, officials say” [LAT]

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February 22 roundup

by Walter Olson on February 22, 2012

  • Florida courts allow probe of finances of MDs who treat many injury plaintiffs [Dolman Law Group; Crable v. State Farm]
  • Booster clubs: “Does Title IX Reach Voluntary Donations?” [Joshua Thompson, PLF, earlier here, here]
  • Freedom to Discriminate in Choice of Roommates: 9th Circuit case of Fair Housing Council v. Roommate.com [Eugene Volokh; related from David Bernstein h/t commenter wfjag]
  • PI firm employee “disliked sending clients to [chiropractors] because insurers were more reluctant to settle those claims” [ABA Journal]
  • “Bill introduced to de-criminalize the Lacey Act” [Paul Enzinna, PoL; earlier on Gibson Guitar and wood imports here, here] More: Reason.tv on the raids [Balko]
  • “Australia: A Cautionary Tale of Litigation Financing?” [WSJ Law Blog]
  • Constitutional law book review: Jay Wexler, “The Odd Clauses” [Greenfield, Lowering the Bar]

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“Our Constitution Is Out of Step with the Rest of the World”

by Walter Olson on February 8, 2012

And thank goodness for that, observes my Cato colleague Roger Pilon. Promising more while in practice delivering less, other countries’ constitutions tend to be less careful in enumerating and limiting government powers, even as they promise all manner of (often unsustainable) entitlements. More: Mike Rappaport and relatedly, on the academic left, Mark Tushnet (among his colleagues “debate has ended over whether constitutions should include …rights” of the social/economic sort that depart from U.S. constitutional practice).

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“Never let law profs near the Oval Office”

by Walter Olson on February 7, 2012

My Cato colleague Gene Healy points out that President Obama is the fourth chief executive who also taught constitutional law, joining William Howard Taft, Woodrow Wilson and Bill Clinton. “Taft did comparatively little damage, but the rest hardly inspire confidence that familiarity with constitutional scholarship encourages fidelity to the national charter.” [Washington Examiner] He lets me have a parting shot:

My Cato Institute colleague Walter Olson, author of “Schools for Misrule: Legal Academia and an Overlawyered America”, explains that “legal academia rewards cleverness in coming up with strained arguments for ideologically favored (or just expedient) positions; marginalizes as eccentric thinkers who favor original understanding as a guide” to the Constitution and often reduces law to “politics by other means.”

Unfortunately, that training has served Obama well.

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Citizens United, two years out

by Walter Olson on January 23, 2012

In the Washington Post, Boston College lawprof Kent Greenfield clears up some misconceptions:

Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations. … Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

The actual Citizens United case, as distinct from the later caricature, was over whether the government had a constitutional right to punish private actors for distributing a video critical of a prominent politician (Hillary Clinton) before an election, which helps explain why the ACLU and many other civil libertarians took the pro-free-speech side. More: Caleb Brown at Cato.

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Constitutionality of class actions

by Walter Olson on January 13, 2012

Northwestern U. lawprof Martin Redish, a well respected academic, has marshaled a careful argument that important elements of the modern American class action lawsuit are unconstitutional. So why, Mark Herrmann wants to know, have defense lawyers not yet taken the opportunity to bring Redish’s theories to judges’ attention in an actual case?

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New Liberty Fund law site — and an interview

by Walter Olson on January 12, 2012

The great people at Liberty Fund have just launched a new website called Library of Law and Liberty that promises to be of much interest. Among its debut features: a substantial audio interview in which Richard Reinsch, editor of the site, asks me about my book Schools for Misrule and law schools’ role in reform movements since the Progressive Era. Outstanding legal scholars Michael Greve (AEI) and Mike Rappoport (University of San Diego) will be blogging for the site. Other front-page attractions include Michael Greve discussing his new book The Upside Down Constitution, my Cato colleague John Samples reviewing Eric Posner and Adrian Vermeule’s new book on executive power, Ilya Somin on federalism and individual freedom, and Philip Hamburger and commenters on judicial review.

You can listen to my audio interview on Schools for Misrule at this link.

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Religious liberty wins 9-0 at SCOTUS in “ministerial exception” case

by Walter Olson on January 11, 2012

And I do a little happy dance at Cato at Liberty (earlier)(& Damon Root/Reason, Allahpundit; my background piece in October).

More: Hans Bader points out, regarding the Obama DoJ’s “let them rely on free association” argument, that “free-association defenses, unlike religious-freedom defenses, are generally losers, as the Supreme Court’s Hishon, Jaycees, and New York State Club Association decisions illustrate.” And: “The extreme position taken by the Obama Justice Department in the Hosanna-Tabor case is a reflection of ideologically-based hiring.”

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“If Senator Santorum is a ‘strong supporter of the 10th amendment’…”

by Walter Olson on January 6, 2012

“… he might want to read it.” [Jonathan Adler, Volokh Conspiracy]

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Newt’s “two out of three” notion

by Walter Olson on December 31, 2011

Some of Newt Gingrich’s curious ideas about the role of the judiciary are nowhere to be found in the constitution, observes my Cato colleague Roger Pilon [Philadelphia Inquirer] Related, Damon Root: “The Left-Wing Origins of Newt Gingrich’s Attack on the Courts” [Reason]

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“So what if corporations aren’t people?”

by Walter Olson on December 29, 2011

“Rights-bearing individuals do not forfeit those rights when they associate in groups” argue my Cato colleagues Ilya Shapiro and Caitlyn McCarthy in the John Marshall Law Review [SSRN via Cato at Liberty]:

Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. … This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Meanwhile, Virginia blogger/attorney Doug Mataconis [via the much missed Larry Ribstein] analyzes a constitutional amendment advanced by a number of Democratic representatives and Sen. Bernie Sanders (I-Vt.) which would, among other provisions, propose to abolish the constitutional rights of incorporated businesses, with the possible exception of rights held by “the press.” The measure would also impose a constitutional prohibition on (not just authorize official regulation of) such businesses’ engagement in “expenditures,” such as buying newspaper ads expressing their views, during initiative and referendum campaigns as well as elections for office.

Along with abolishing incorporated businesses’ rights, the Sanders proposal contains a further provision of high importance (flagged by Eugene Volokh) that would abolish the constitutional rights of any and all non-profits and similar private entities that are “established … to promote business interests,” and would impose on them the same constitutionally mandated silence during initiatives, referenda and the like. Note the results of this language, which we must presume are intentional: in, say, a fight over a ballot measure that would increase some business tax, the citizens’ committee organized to agitate against the tax would be forbidden to expend money upon a determination that it had been “established … to promote business interests.” Such a private group would also be deemed to have no constitutional rights of any other sort — rights against, say, having its meetings stormed and broken up by police. Meanwhile, the citizens’ committee organized to agitate for the tax would retain not only its rights to speak and to spend money on behalf of its views but also all its other constitutional rights. Rarely do politicians, in this country at least, make it so clear in advance that their intent is to silence their opponents.

Who are the lawmakers who would propose such a measure? The House version was introduced by Rep. Theodore Deutch [FL] and its co-sponsors are Reps. Steve Cohen [TN], John Conyers, Jr. [MI], Peter DeFazio [OR], Keith Ellison [MN], Sam Farr [CA], Barney Frank [MA], Marcia Fudge [OH], Raul Grijalva [AZ], Alcee Hastings [FL], Sheila Jackson Lee [TX], “Hank” Johnson, Jr. [GA], Rick Larsen [WA], John Larson [CT], Barbara Lee [CA], Carolyn Maloney [NY], Jim McDermott [WA], Frank Pallone, Jr. [NJ], Chellie Pingree [ME], Charles Rangel [NY], Betty Sutton [OH], Chris Van Hollen [MD], and Peter Welch [VT].

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“Gingrich, the anti-conservative”

by Walter Olson on December 22, 2011

George Will blasts candidate Newt Gingrich’s fevered plans for a constitutional showdown between legislature and judiciary [WaPo]. Roger Pilon has more at Cato here and here. Andrew McCarthy and Ted Frank urge us to consider that Gingrich’s overall challenge to judicial activism may, like the curate’s egg, be good in parts.

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