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constitutional law

At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.

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Free speech roundup

by Walter Olson on July 2, 2013

  • Paleo-diet blogger wins a round in battle with North Carolina occupational licensing [IJ via Alkon, earlier here, here, etc.]
  • If you live in Connecticut or Montana, you have a U.S. Senator who’d go this far to trample rights [Volokh on Tester-Murphy constitutional amendment, earlier] Related: “In Attack On Commercial Speech, Law Professor Sadly Supports Selective Rights” [Richard Samp, WLF, on Columbia's Tim Wu]
  • Lawyers sue publishers of medical literature for failing to warn about drug side effects [ABA Journal, Drug and Device Law]
  • “Anti-Bullying Bill Could Jail People Who Criticize Politicians” [Ted Balaker, Reason]
  • Regarding the L.A. Times: “So people are really suggesting a city council interfere to make sure a newspaper’s owners have the proper political views. Flabbergasting.” [@radleybalko]
  • “Judge: Rocker must pay Herald $132G in court costs for dismissed defamation suit” [Boston Herald] Second Circuit recognizes scientific-discussion defense to defamation claims [Science World Report]
  • “Does Freedom of Speech Conflict with Freedom of Religion?” [Jacob Mchangama video] “Turkish Blogger Sentenced to 13 Months in Prison for Criticizing Mohammed” [Volokh] So much repression: State Dept. International Religious Freedom Report for 2012 [executive summary]

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“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]

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A new project from the Federalist Society.

Max Kennerly outlines the implications for civil lawsuits when someone involved chooses to invoke 5th Amendment rights against self-incrimination.

  • The 173rd, maybe? “This is not the first time [Linda] Greenhouse has misrepresented the views of her opponents” [Ilya Somin; more from ABA Journal on federalism argument against DOMA as supposed anti-federal-power "Trojan horse"] Was it improper for trial judge Vaughn Walker and appeals judge Stephen Reinhardt not to have recused themselves from Prop 8 case? Legal Ethics Forum bloggers weigh in [John Steele, Richard Painter, etc.] Funny graphic by Cato social media team about Cato’s “odd couple” joint brief with Constitutional Accountability Center [CAC] “Right and Left Continue to Change Where they Stand on Standing” [Ilya Somin] And if you’re going to be on Capitol Hill this Friday and are interested in the DOMA and Prop 8 cases, be sure to attend the panel discussion at which I’ll be joined by Ilya Shapiro and Mary Bonauto;
  • On courts’ role in advancing liberty [Roger Pilon exchange with Ramesh Ponnuru] Incidentally, Cato’s “Mr. U.S. Constitution” is now on Twitter at @Roger_Pilon; and he discusses Cato’s high-profile SCOTUS amicus program [here]
  • Cook County official has creative theories about federal supremacy [Illinois Watchdog]
  • Amicus brief: Congress can’t assert perpetual jurisdiction over anyone and everyone, and that goes for ex-sex offenders too [Trevor Burrus]
  • “What are the Weirdest Constitutional Arguments Ever Asserted in Court?” [Orin Kerr and Volokh readers]
  • As Court considers voting act in Shelby County case, Chief Justice Roberts sees problem with pretending it’s still 1965 [Ilya Shapiro; more on VRA, 2010 Abigail Thernstrom backgrounder, National Affairs]

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  • If you didn’t see my Saturday post previewing the DOMA and Prop 8 cases that reach the Supreme Court this week, I’ve now got a virtually identical version up at the Cato blog.
  • On Wednesday, immediately after the Court’s oral argument in Windsor, I’ll be moderating a panel at Cato with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). Details and RSVP here. If you’re in DC, don’t miss it! If not, watch live online at www.cato.org/live and comment via #CatoEvents.
  • A collection of links on the cases is currently headlining the Cato website.
  • I’ll be speaking Wednesday evening about the cases before the Washington, D.C. chapter of Log Cabin Republicans. I also expect to be doing some national broadcast commentary — details to follow.
  • Last week I spoke at a panel in Cato’s social media series with Jimmy LaSalvia (GOProud) and Trevor Burrus (Cato) on conservatives and same-sex marriage, on topics that included the changing poll numbers and demographics. Aside from going through my analysis of November’s election results, I commented on various aspects of the debate such as the difference between civil and religious marriage (“the same as that between a birth certificate and a christening,” I like to say), the non-connectedness of the gay marriage and abortion issues (on which many others seem to agree with me), and the issue of religious exemptions (“As libertarians, we’re ahead of the curve in considering how anti-discrimination law can trample freedom of conscience.”) No video at the moment.
  • By coincidence, that panel happened to be scheduled against a crosstown event making the opposite case at the Heritage Foundation, which suffice it to say is at a very different place from Cato on this topic. On the question of using 11-year-olds to try to tear down other people’s families, by the way, Rob Tisinai at Box Turtle Bulletin has a nice pre-rejoinder to Heritage: “But Gracie, no one is trying to take one of *your* parents away.”
  • I couldn’t help noticing the following from a March 22 Clarus survey of U.S. voters:

    “Do you think each individual state should be allowed to decide whether same-sex couples can legally marry, or not?”

    Should 53%
    Should not 45%

    “Do you think same-sex couples have a constitutional right to marry, or not?”

    Do 53%
    Do not 43%

    If these figures are to be credited, at least 6% of the voting public (and possibly much more) overlappingly believes both that same-sex couples have a constitutional right to marry, and that “each individual state should be allowed to decide” on that same question. I think it may be time for a refresher course in constitutional law.

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On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.

The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
[click to continue…]

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I respond at Cato to a remarkably lame piece by Slate’s Emily Bazelon. Earlier on the case here and here.

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[cross-posted from Cato at Liberty]

I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation-of-powers angle, and at the way Judge Milton Tingling, Jr.’s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny-state regulations in the future should it see fit, I argue,

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health….

Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here (& Alex Adrianson, Heritage).

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“Liability insurance” may be a misnomer, since some of the proposals would require the purchase of bonds against both intentional acts commonly excluded from ordinary liability coverage, and also misadventures for which owners would not presently be held legally responsible (such as third party criminal use of a gun following a theft not occasioned by owner negligence.) [Reuters, Nelson Lund/GMU, Jessica Chasmar/Washington Times, New York Times via Fed Soc, Taranto/WSJ, Josh Blackman]

Would a mandatory insurance scheme survive judicial scrutiny if it were motivated by a desire to burden the exercise of a constitutional right? David Rifkin and Andrew Grossman, WSJ:

Several states… are considering gun-insurance mandates modeled after those for automobile insurance. There is no conceivable public-safety benefit: Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates.

The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?

(& slightly expanded/adapted version at Cato; The Hill “Blog Briefing Room”)

P.S. The American Insurance Association is opposed to the more ambitious versions of the idea, at least: “Property and casualty insurance does not and cannot cover gun crimes.”

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Constitutional law roundup

by Walter Olson on February 21, 2013

  • Colorado solon’s lawsuit claims direct voter initiatives are unconstitutional. Nice try but no go [Ilya Shapiro]
  • Gail Heriot and Alison Somin on creative interpretations of the Thirteenth Amendment [Fed Soc]
  • Ted Olson’s work on punitive damages provides clue to his approach on originalism [Mike Rappaport]
  • Yes, Prof. Seidman, there is an Origination Clause [Shapiro, my related take]
  • Justice Roberts and legislative deference [PoL]
  • Easterbrook, Barnett and others: video of panel on federalism and federal power [Fed Soc] Constitutional law treatise available free online through Library of Congress [Volokh] New Podcast: Who violates the constitution–statutes or individuals? [Nick Rosenkranz, PoL]
  • National Endowment for the Arts uses creative misreading to conjure up a constitutional charter for its existence [Roger Pilon/Cato]

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From Cato Institute chairman Robert Levy, who was co-counsel in the landmark D.C. v. Heller case. [National Law Journal] More: Trevor Burrus, The Blaze. And the New York Times takes up the topic of guns and suicide, but with some pretty big omissions [Tom Maguire, Ira Stoll/SmarterTimes]

Further: “Senate Judiciary Committee Hears from Cato on Gun Policy” [Ilya Shapiro, citing contributions by David Kopel, Randy Barnett, etc.] And while Bing’s real-time reaction tracker isn’t a scientific voter survey (though the sample size is large, and there’s a partisan breakdown) it seems I was not alone in being put off by President Obama’s demagogic “they deserve a vote” State of the Union wind-up on gun control. [Mediaite]

What Paul Krugman likes about the unprecedented structure of the Consumer Finance Protection Bureau is what fans of constitutional government should dislike about it, writes Ira Stoll [SmarterTimes].

…has male-only draft registration become unconstitutional? Gerard Magliocca and commenters discuss.

More: from Ilya Somin (best answer is less conscription, not more); “David Hume” at Secular Right.

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Profs. Rick Pildes and Nicholas Rosenkranz have been debating the topic at Volokh Conspiracy [Pildes first, second; Rosenkranz first, second; more] The pending case of Bond v. U.S. will give the U.S. Supreme Court the chance to revisit Missouri v. Holland, the main precedent on the point [Julian Ku, Ilya Somin, Gerard Magliocca/Concur Op, Michael Greve, earlier here and here] More: Curtis Bradley, Lawfare.

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