Lieberman's Absurd Miranda Workaround

PHUTATORIUS
Here we go again. Another terror arrest, another round of trumped-up hand-wringing from the right about having to "read rights to terrorists." Once again, it seems this "rights = soft on terror" concern is much more theoretical than practical, because the Times Square Rube Goldberg Smoking Car Bomber is talking.

Never mind all that, says Joe Lieberman: we need to strip homegrown terrorists of their citizenship. If we can do that, then we don't have to worry about all these rights, and we can do anything we want to these jerks:
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“I’m now putting together legislation to amend that to [specify that] any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights,” Lieberman said Tuesday.

This would be a clever answer to the Miranda "problem," if indeed (1) there were a problem, (2) this approach resolved the problem, and (3) it were clever. But Lieberman's whacked-out law doesn't meet any of these three conditions. Here's why:

We don't always know if a person is innocent or guilty.

The rights and protections we extend to criminal suspects and defendants are designed, among other reasons, to ensure that the state doesn't manufacture guilt. Folks in America don't disappear into black holes of detention — without access to attorneys, under conditions that allow law enforcement to extract forced confessions — not because we think criminals deserve kid-glove treatment, but because it would really suck to have that happen to you, if you weren't a criminal.

So let's imagine life in Joe Lieberman's World. You're sitting on a plane, on the tarmac at JFK. You're looking forward to your vacation. Tray tables are up, you've switched off your cell phone, and suddenly federal agents storm into coach and carry you off. They're thinking you tried to blow up a car in Times Square. Well, there's obviously some mistake; a quick call to your attorney will help clear all this up, except someone just declared that you're "involved in a foreign terrorist organization." No lawyer, then. You're back out on the tarmac now, but it's a military transport plane, and you're heading to Bagram, and not Barcelona.

How could this have happened? you ask. Well, it's frighteningly simple. You've been accused of terrorism. Terrorism is an awful, awful crime — so awful, in fact, that just being accused of it is enough to see you stripped you of your citizenship and all the rights that flow from that. Even if the rights bear importantly on the question whether you're a terrorist at all.

Ick. Nice one, Joe.

Of course, that's not the case here at all. Faisal Shahzad has freely confessed his guilt already. We know he tried to kill dozens, if not hundreds of innocent people, over some unspecified grievance that may have something to do with frickin' South Park. So yes, even this purported bleeding-heart liberal correspondent actually would love to see this guy beaten, waterboarded, and humiliated in public (Times Square seems an appropriate forum). And what the heck, when we're done with him, let's strip the guy of his American citizenship. I'm all for that. Screw Faisal Shahzad.

But do we have to strip folks of their citizenship before we know whether they're guilty of terrorism — for the express purpose of facilitating a finding that they're guilty of terrorism? That's the worst kind of legal bootstrapping. It's beneath America. Hell, it's even beneath Glenn Beck. It's just not beneath Senator Lieberman.

Joe, you, too, have the right to remain silent, and we well and truly wish you'd exercise that right a little more often.

California Court Splits the Baby

PHUTATORIUS

No, not an abortion case — post title notwithstanding — but the other issue that brings judge-haters into a froth: same-sex marriage.

Earlier today the California Supreme Court upheld the validity of a constitutional amendment that specifically overruled the Court's earlier decision that the state constitution required the government to allow same-sex marriage. Same-sex couples get civil unions in California, but they can't marry. The amendment, like many lousy ideas in California, made its way into law by ballot initiative. This is significant because same-sex marriage is classically a matter of minority rights. If a majority of people had favored extending the right to marry to same-sex couples, the Court likely (I say likely, because even in California there is representative government, such that not all these matters are resolved by popular plebiscite) would not have had to intervene in the first place. And that's the whole point of having a court decide matters of minority rights.

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Now of course, as I observed in an earlier post, it takes some modest amount of effort to pass a constitution-amending ballot initiative in California. It's not a simple matter of submitting the question to a majority vote: the measure has to pass with a 2/3 majority in both houses of the state legislature.

This additional requirement — and the California Court's endorsement of an admittedly discriminatory (in their own view) provision of law on the ground that the provision's ratification fully complied with it — means that the equal protection constitutionally due to political minorities in California can't be blithely pushed aside by political majorities. Rather, the political majority has to really want to reject and destroy that equal protection. And in that case, so long as the majority crosses its procedural t's, dots its electoral i's, and runs its bigoted television ads in the appropriate media markets, constitutional process can trump substance, and the minority's rights disappear.

But hey: easy come, easy go, right?

Really though: what gives? Justices who rejected preexisting legal impediments as discriminatory find no constitutional problem when the same oppositional forces organize to raise further impediments. What changed their minds? Were they well and truly convinced that Proposition 8 worked a constitutional amendment, rather than a revision?

I've often said (usually 100 comments deep into some blog post on Volokh.com) that courts have to stay ahead of the people on questions of minority rights, or else they, and the constitutions they vindicate, lose their relevance. On the other hand, they cannot press too far ahead, either, or they trigger a backlash — replete with the usual charges of "activist" judging and of "making law" — that threatens their legitimacy. Courts do not, after all, wear the pants in the government family. Their funding is at the mercy of the other branches, one of which employs the Fellows with the Guns. They rely on affable compliance from the agencies charged with enforcing their interpretations of law. In this respect our separation of powers, among other constitutional values, is a castle built on air. Judges know that if they push too hard, if could provoke defiance from the executive branches. The whole edifice collapses, and we're suddenly living in Zimbabwe.

(We all must rely, too, on the good sportsmanship of the Fellows with the Guns. This, to me, is why, whatever you think of George W. Bush, it was Brother Jeb in Florida who mounted more of a threat to our constitutional system. President Bush swallowed the constitutional medicine given him by Supreme Court justices who rejected certain of his anti-terror policies. Governor Bush sent troopers to stop the court-ordered removal of Terri Schiavo's feeding tube.)

This is one of those cases where the Court, having taken one giant step forward for Constitutional Relevance, takes a step backward to defend the Constitutional Castle. The Massachusetts Supreme Judicial Court beat a similar defensive retreat when, after ruling in favor of same-sex marriage and then emphatically rejecting the legislature's compromise proposal of civil unions, it rejected the bids of nonresident couples to solemnize their unions within the Commonwealth. Both rulings were, at their core, tactical decisions, made without regard to consistency or correctness. It simply defies logic to suggest that a constitution should protect a minority against the political whim of a legislature or plebiscite, but the same oppressive law is tolerable if the popular will is so concerted against that minority that both the legislature and the people, by popular vote, approve it.

But hey, a Court has to cover its ass, too.

In short, this is just the sort of decision that prudent jurists (and you don't get within sniffing distance of any high court bench unless you carry prudence in spades) will make to disperse the horde of right-wing psychopaths gathering outside the courthouse with their torches and pitchforks. Forty years ago, this Court might have held differently, but by now the political culture is so up in arms over "judicial activism" that judges see a real threat to their legitimacy in doing what's right. At worst, then, this decision attests to the power of judge-hating mobs to cow judges into voting their way. At best, the decision reflects a determination to protect the long-term legitimacy of the judiciary, even if common sense, basic principles of constitutional law, and the rights of thousands of loving couples are sacrificed.

In the end, I guess I'm writing to explain what the California Court did today, even though I can't excuse it. The Court split the baby — each side gets a decision in its favor — and the result was that a newborn right to marry died at its hand.

A Further Thought on "America's Spiritual Heritage Week"

PHUTATORIUS
This business still sticks in my craw. Part of it, of course, is that it's a further manifestation of the religious right's pathological obsession with declaring America to be a "Christian nation" — which to me is objectionable not just because it's so clearly wrong, but also because I see so little to be gained from such a pronouncement. Will a proclamation about America's religious identity save the banking system, create jobs, or lift Midwestern cities out of ruin? No, it won't. It's nothing more than a symbolic gesture — which might be harmless enough, if the gesture were noncontroversial and generally appealing (like, say, a Congressional resolution honoring an Olympic gold medalist). In that case, it would surely and simply be a waste of time and government resources, but at least not divisive and obnoxious and therefore counterproductive to the national interest.
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But Congressman Forbes et al. have "divisive and obnoxious" squarely in their crosshairs with America's Spiritual Heritage Week. That's the whole point of the exercise, after all: the resolution's proponents mean to score points with a particular constituency. In short, they're playing religious politics. And that brings me (belatedly) to the first new and interesting (I hope) comment in this post: does or should the Constitution allow Congressmen to fritter away taxpayer-funded resources proposing blatantly unconstitutional actions for the very purpose of promoting a religious point of view in the political arena?

Of course the resolution itself — if it ever passes — is unconstitutional. (And yes, I've taken into account that Christmas is a "national holiday" observed by federal employers. But allowing postal workers a day off on December 25 is rather a far cry from the "entanglement" with religion that would follow from Congress setting aside a week each year for the specific purpose of acknowledging and promoting the role of religion in American culture and public life.) So those of us who take Thomas Jefferson's side in this matter can at least count on the fact that this proposed Congressional kick in the teeth to nonbelievers would not stand for much more than forty-five minutes.

But if the use of public funds for the promotion of religion really does, as Supreme Court jurisprudence routinely holds, run counter to the command of the First Amendment's Establishment Clause — then why don't those of us whose tax dollars power the legislative sausage grinder in DC have a legit constitutional beef when Congressmen spend those dollars and turn that grinder's gears (successfully or not) in self-conscious efforts to promote religion? We shouldn't have to wait for this resolution to pass into law before finding an Establishment Clause violation, when the first federal penny spent on this nonsense breaches the wall between church and state.

To be sure, our cowed Supreme Court justices, wary of any further charges of judicial activism and already chastened for (gasp!) driving mandatory prayer out of the public schools, would never presume to intrude upon the legislative process while the wheels are still turning. And despite the tone I took in that last sentence, I'm not entirely sure I could blame them for refusing. That said, if we accept that all branches of government have a responsibility to interpret the Constitution and act lawfully (even if the courts have the final say on these matters), someone in the House of Representatives might consider making the following principle clear to the several self-important sectarians in its midst:

The House should not and will not expend any federal resources advancing any member of Congress's effort to promote religion through his public office. Amen.

America's Spiritual Heritage Week

PHUTATORIUS
WHEREAS, notwithstanding any of the foregoing, the First Amendment to the United States Constitution strictly provides: "Congress shall make no law respecting an establishment of religion,"

let's not have a Congressional resolution announcing a yearly "America's Spiritual Heritage Week."

Dear Lawn-Dart Manufacturer . . .

PHUTATORIUS
Dear Lawn-Dart Manufacturer:

I fondly remember your product from my childhood, and I was aggrieved to read recently that the federal Consumer Products Safety Commission has banned the manufacture and sale of lawn darts within the United States. I understand that the CPSC's prohibition on your livelihood has been in place for over 20 years, but it occurs to me presently that there may be a workaround — a loophole — that you haven't considered.
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As I understand the regulation, the Commission decided to proceed with the lawn-dart ban (notwithstanding the considerable sporting enthusiasm for your product) after finding that irresponsible lawn-dart use had resulted in a number of accidental injuries and deaths. The CPSC lays out a pretty compelling case, after all: 670 ER visits? Three children killed between 1970 and 1988? Your goose sounds pretty cooked, Mr. Lawn-Dart Manufacturer.

But what if I told you it wasn't? What if I told you there's a product out there that, according to the Centers for Disease Control, caused 30,694 deaths in 2004 alone — and it's still on the market?

Your problem, LDM, isn't the inherently dangerous nature of your product. It's your marketing. You've promoted lawn darts as a toy — a game for suburbanites to play at summer barbecues. It seems like fun, but it ends in blood and disaster: enter the killjoys at CPSC. But what if you — and this might sound crazy, Lawn-Dart Manufacturer, but bear with me — what if you marketed lawn darts as instruments designed for the express purpose of causing grievous bodily harm to other people? In short, what if you marketed them as "arms?"

Bingo. There's your magic word. I should clarify: the magic word isn't bingo (although magicians are known to use it), but arms. Arms — that is, products that don't just accidentally injure and kill people, but are actually designed, marketed, and sold for the very purpose of injuring and killing people — are protected by a constitutional amendment. You can impose modest conditions and requirements on the sales of arms, but just you try to ban their manufacture and sale in these free United States.

Brilliant, right? Now what I've done is, I've taken the liberty of drawing up some promotional brochures — storyboards of an old woman drawing her concealed lawn-dart, whirling it expertly through the air and piercing the spleen of a masked assailant in a city street. I've got another one where gangs are lined up in a back alley, hurling lawn-darts at each other in a pitched battle to claim a city block of turf. And see this one here? This is a photo of lawn-dart enthusiasts who formed a militia in Michigan. They meet on Saturdays and talk about overthrowing the government. Send these alongside a strongly-worded cover letter to the Consumer Product Safety Commission, and we'll have your darts back on sale in Army-Navy stores in a week. (Of course, we'll have to keep them locked in display cases with the numchuks and Rambo knives, but that just adds mystique, doesn't it?)

Before signing off, I want to say that I offer this advice not expecting any remuneration or royalty payments. Might be nice if you made a modest donation to the Feigned Outrage Web Development Fund, but it's not necessary. It's enough to know that I made a difference.

Sincerely,

[PHUTATORIUS]

enclosures

Varnum Decision: Well Said, Your Honors

PHUTATORIUS
Here is a copy of the decision handed down by the Iowa Supreme Court in Varnum v. Brien, which invalidated Iowa's "man and woman only" marriage law.
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I've argued more than once (to M'dates and V'torix in email, on The Volokh Conspiracy whenever I get worked up) that, despite the chorus of complaints from the right every time one of these decisions issues, it's really not the worst thing in the world to deposit with the judiciary the final authority on interpreting constitutional commands like equal protection.

I realize that conferring that authority on a small group of human beings requires a certain amount of blind trust. Quis custodet custodes? everybody on the losing side of a constitutional decision wants to know, when that decision comes down. Who watches the watchmen? And it has become a common practice for people to wrap their displeasure with the decision in an indictment of "runaway ativist judges." "The people make a decision," the complainers complain, "and these judges, who answer to nobody, overrule it. It's undemocratic."

To which I answer: the buck has to stop somewhere. We have constitutions — and the provisions for equal protection within them — precisely because we're not all that trusting, either, of public officials and the political majorities who shuttle them in and out of office. We need someone to measure our laws, the actions taken by our government under them, against our constitutional principles. We could let government actors self-police, or we could refer the questions to another authority.

The more, the better when that other authority employs in its decisionmaking the kind of thoughtfulness, intellectual rigor, and sound argumentation that the Iowa Supreme Court supplied here. Of course I support this outcome, because I support the rights of gays and lesbians and, among them, the right to same-sex marriage. But putting my own prejudices (or lack thereof) aside as best I can, I want to say that anyone who cares about how our government works — including those who profess to be so very concerned about the powers of judges — should take great heart from reading the Varnum decision. By the time one finishes reading it, it's hard to conclude that the Iowa justices took this matter lightly or regarded the case as an occasion simply to impress their own personal whims on the public.

And this is important to remember: it may not seem like much, but there is a centuries-old tradition of jurisprudence by which judges recognize that, when they reach a decision like this, the public is entitled to a careful, written explanation of how they reached it. They recognize, too, that in these writings they need to show deference to the determinations of the political branches, and they need to follow or distinguish with compelling argumentation existing precedents from other courts. Even where a highest court, like Iowa's here, is in a position to announce a new binding interpretation of law, or to depart from precedent in favor of a new rule — even here, judges more often than not do the good work of ensuring that their decisions are factually, logically, and rhetorically defensible. This is an institutional check on judging that has, as I've written, centuries of momentum behind it, and judges do not lightly dismiss it.

Oh, sure: it's worth remembering that judges were once lawyers, and so they have years of training and experience in self-serving justification, the manipulation of language, and so on. But at least they're required to go through the exercise of writing up their decisions. I'd be surprised if any one of the state legislators who voted on the law invalidated here (for or against) put anything close to 10% of the thinking into the question that these Iowa judges did.

So yeah, I don't feel great that somebody has to (and therefore gets to) make supreme, binding interpretations of what our federal and state constitutions say. But that's a fact of life, and I do feel pretty good about the sort of people to whom we entrust this great responsibility. Especially when they're as respectful, cogent, deliberate, and complete as the Iowa judges who signed on to this decision.

MITHRIDATES
Well written (both case and commentary). A few thoughts to add:

• The pros and cons cited by the plaintiffs and defendants are quite telling (pp. 9-11). The plaintiffs outline a number of tangible ways in which their lives are negatively affected; the defendants speculate about unsubstantiated negative repercussions — which the plaintiffs refute with scientific evidence. There are real benefits to allowing civil marriage, but the defendants can't provide any real disadvantages.
• The justices do an excellent job of explaining why the courts should, on occasion, overrule the other branches of government:
  

The idea that courts, free from the political
influences in the other two branches of government, are better suited to protect individual rights was recognized at the time our Iowa Constitution was formed.

and

A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional
beliefs and popular opinion.

• Finally, I just thought this quote was great. Times change. Society advances. So must the law. Thank you, Oliver Wendell Holmes:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

PHUTATORIUS
Yours are good points. One thing that is not very apparent from the political streetfights on this issue is that the stakes for practical living are considerably higher for one side than they are for the other. When a court is asked to do the nuts-and-bolts work of weighing these competing interests, it helps clear a lot of the rhetorical fog.

This was definitely a case written not just for the consumption of the lawyers, but of the public, too. You can always tell a significant case from the length of its preamble — the ideas being (1) that the public will want an explanation that isn't peppered to death with citations (like much of the legal discussion that follows), and (2) that lazy journalists will cherrypick their quotations from just the first part.

Two sections jump to mind as directed specifically to the public and really novel and interesting in their approach. First, there's the bit in which the court describes cases where judges very controversially (at the time) struck down discriminatory laws and shows that years later, these decisions are hardly controversial, and the laws (laws that returned escaped slaves, laws that kept women from practicing law) are relics of history. Second, there's the bit in which the court confronts religion — the elephant in the room — and explains that religious belief does not present a compelling argument for rejecting same-sex marriages (given that a number of religions tolerate them), and even if it did, that basis would not be a proper consideration to guide the court.

There was clearly an effort here to confront and address every facet of this question — even those, like the religious dimension — that hover palpably over the case but are not discussed in court.

Oh, and one more thing: not a single dissenting vote on the court. Beat that, California, Massachusetts.

MITHRIDATES
" . . . lazy journalists will cherrypick their quotations from just the first part." Busted.

Bachmann-Geithner Overdrive

PHUTATORIUS
If you aren't closely following Michelle Bachmann's political career, you're missing great comedy. (Think Sarah Palin, crossed with Glenn Close from Fatal Attraction.) Ms. Bachmann (R-MN), seen here in "Hiya Sailor" mode with President Bush, and here calling for an inquiry into anti-American sentiment in the United States Congress, proposed an amendment to the U.S. Constitution yesterday. That amendment provides:
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The President may not enter into a treaty or other international agreement that would provide for the United States to adopt as legal tender in the United States a currency issued by an entity other than the United States.

This in response to testimony over the past few days from Treasury Secretary Tim Geithner, who apparently did not react emphatically enough to the suggestion of a Chinese treasury official that the international community adopt a global "supercurrency" for reserves. Bachmann doesn't think Geithner gives a damn about a Greenback Dollar, so she proposes that we amend the Constitution to calm her nerves.

(You see, as we've noted before, the Framers of the Constitution, in their considerable wisdom, withheld from the House of Representatives any role in negotiating (the Executive's job) or ratifying (the Senate's) treaties. So this was Bachmann's only angle: the "nuclear option," to be sure, but the circumstances clearly call for it. By tomorrow we all could be speaking Chinese.)

Putting aside the question whether we should treat our currency as a point of cultural pride alongside, say, fried chicken, a man on the moon, or the cure for polio — all right, all right: I didn't really put that question aside — is the dollar really in such great immediate danger? The answer is no. And that makes Bachmann either completely off her rocker in her assessment of the situation or cynically determined to misassess the situation to Americans with her treatment of it. I.e., either she's really stupid, or she's evil and manipulative and thinks we're all really stupid.

Do I have to choose?

Oh, and see also George Packer's recent commentary in The New Yorker about paranoia and populism in politics. On point, and good stuff.

Wyeth v. Levine: SCOTUS Gets One Right

PHUTATORIUS
Not so long ago I declared that the fix was in — that the Supreme Court was preparing to cede complete regulatory authority over drug safety to a pharma-friendly Food & Drug Administration that can't be bothered to intercede to protect the American people, when there's all this money to be made in RLS suppression and chemical erections.

Turns out I may have spoken too soon on this subject. (But what did you expect — a moderate, modulated wait-and-see attitude? Two days ago I accused a guy of murder on scant circumstantial evidence.) SCOTUS voted 6-3 last week to uphold the plaintiff's verdict in Wyeth v. Levine. Holy crap.
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Ms. Levine brought suit against a health center, her doctor, and Wyeth after the doctor, in the course of administering an "IV push" of Wyeth's anti-nausea drug Phenergan, tapped into an artery instead of a vein. As the Court explains, Phenergan "is corrosive and causes irreversible gangrene if it enters a patient’s artery." The mistake resulted in the amputation of Ms. Levine's right arm and ended her career as a professional musician. Ms. Levine settled claims against the clinic and the doctor; her claim against Wyeth went to trial, and a jury awarded her $7.4 million.

The jury found that Wyeth did not satisfy its duty to warn the clinician and Ms. Levine of the specific dangers associated with a Phenergan IV push. Wyeth raised the defense that the FDA had approved its marketing of the drug for intravenous delivery, subject to specific FDA-agreed warning language on the product's packaging; that approval, Wyeth argued, "preempted" any state law judgment that it failed to provide adequate warning of the drug's dangers — first, because any additional warning language interposed by state law (here, Vermont's) would require Wyeth to deviate from the specific language approved by the FDA (so that the packaging would violate federal law), and second, because the verdict would undermine federal law by substituting a "lay jury's" judgment on the matter for "the expert judgment of the FDA."

Six Justices — Stevens (who wrote the opinion), Ginsburg, Souter, Breyer, Kennedy, and Thomas — sided with the plaintiff. It ruled that responsibility for the content of a drug label resides with the drug company: it cannot simply rely on what the FDA regards as sufficient. The Court held, as well, that the several federal statutes and regulations that govern drug labeling were all created against a backdrop of state tort litigation. For generations now the FDA has reviewed and approved drugs for the market, and where — notwithstanding the FDA's conclusions — those drugs have proved to be unreasonably dangerous, injured parties have been entitled to sue the drug companies under state law. The Court wrote last Term that the FDA's approval of a medical device preempted any state law claim against the manufacturer for product defects or failure to warn. It drew the line here, because it could not say with a straight face that Congress ever intended to write out these remedies against drug companies.

Justice Alito's dissenting opinion — joined by Scalia and the Chief Justice — would have turned this 70+ years of law on its head. It's worth repeating that Chief Justice Roberts put himself forward in the confirmation hearings as a cautious incrementalist (AHEM! gun rights!), and we were to expect no dramatic upheavals in the law on his watch. Alito's tact here was to heap scorn on the "Vermont jury," whose word on the question of what a drug company should say on its labels should, in the majority's view, be final — even over FDA experts:

This case illustrates that tragic facts make bad law. The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs.     [T]he real issue is whether a state tort jury can countermand the FDA’s considered judgment . . . By their very nature, juries are ill-equipped to perform the FDA’s cost-benefit-balancing function.

Of course, we trust juries to assess the merits of complicated scientific and forensic evidence in criminal cases, when the defendant's liberty — and in many cases his life — is on the line. God forbid a drug company's earnings should be subject to the whimsy of twelve angry men over the "considered judgment" of an industry lackey with a plum government job.

This case provides yet another occasion to consider the hypocrisy of the conservative justices, who argue so fullthroatedly in favor of their judicial philosophies in some cases, but not others. Here Alito, Scalia, and Roberts, ardent defenders of "text" and bitter critics of the presumption of judges who would interject their notion of legislators' "intent," would invoke the judge-created doctrine of "implied preemption" to invalidate the Vermont jury's verdict, based on a review on Congress's objectives that is necessarily speculative and self-indulgent. And here, too, these three, who routinely invoke "states' rights" and "federalism" to curb individual civil rights set forth in federal law, freely abandon these principles when a federal regulation supports a pro-business outcome.

By contrast, Justice Thomas comes off as principled for voting with the majority here, and for writing a separate concurring opinion in which he argues that only federal statutes — and not the decisions of agencies — should have a preemptive effect. But I've seen Clarence ditch his jurisprudential principles in support of conservative outcomes too often: I'm suspicious that here he simply took the opportunity to appear principled, because the majority already had their five votes. If Thomas had had to break a 4-4 tie, where would he have landed?

But this was a good result, and I shouldn't let These Four drag me down. No dramatic overhaul of the justice system here: FDA approval doesn't release Big Pharma from its duty to review and re-review its product offerings to make sure they're safe — and to tell consumers when they aren't. Hooray!

Do Subscribers Have Free Speech Rights Against Facebook?

PHUTATORIUS
A few posts ago I wrote that "there is no free speech issue" when Facebook — which is not a government actor — censors the expression of its users. I may have spoken too fast. What I wrote is generally true, but you see, Facebook — like most serious-minded dotcoms — is based in California. And California is the home of the famous/infamous (pick a side) Pruneyard decision.

If you surveyed a crowd, and you asked each respondent to tell you what's special and unique about California, I don't doubt you'd get all sorts of answers. If someone in that crowd were a lawyer, and that lawyer were very much a dork, he might mention Robins v. Pruneyard Shopping Center, a 1979 decision of the California Supreme Court.
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In Pruneyard, student activists sued the Pruneyard Shopping Center, a 21-acre privately-owned shopping mall, after mall security guards kicked them out for violating Pruneyard's rules against leafleting and petitioning on its premises. The California Supreme Court held that the students had a limited state — not federal — constitutional right to engage in political speech on Pruneyard's property. And it went on to write that Pruneyard violated that free speech right.

Driving the Court's thinking was its concern that traditional public market spaces — the old "Main Streets" downtown — were giving way to privately-owned shopping centers. The justices thought that the speech rights California citizens enjoyed in these Main Street spaces would lose quite a bit of their heft if a town's center of gravity shifted to a mall and the mall's ownership were able to restrict speech on mall property.

The Pruneyard decision was controversial at the time (it went up to the Supreme Court); it's controversial now (some California Supreme Court justices want to overrule it); and not a single state has followed California's lead on this issue. Despite all this, it remains the law in California that although most private property owners can invite and exclude whomever they please, the select few who manage vast, populated public spaces — like shopping malls — may not infringe the free speech rights of the visiting public, unless that speech would "interfere with normal business operations."

Enter Facebook. Facebook isn't a mall: the space at issue here isn't "physical" — it's comprised of cyberspace (or server space, depending on your point of view). But that space provides a public forum for more than 150 million subscribers. Contrast Pruneyard Shopping Center, with its piddling 25,000-per-day foot traffic. The space Facebook has created is commercial space, to be sure, but what Facebook is selling in that space is a communications service. That is, it hasn't just invited its millions of users to Facebook to shop, like Pruneyard did; we're summoned to Facebook to communicate with one another. The rationales under California law for extended free speech protection to Facebook's subscribers are arguably even stronger than those discussed in Pruneyard.

I leave it to the commenters to discuss whether or not it makes for good policy, but legally it seems a no-brainer that the Pruneyard principle applies to any well-trafficked online forum that (1) cultivates user-generated content and (2) is based in California. That doesn't mean Burger King gets to mount a core attack on Facebook's business model: under Pruneyard Facebook doesn't have to tolerate users who disrupt "normal business operations. But if Facebook continues down its current censorious path, it could find itself in California state court — and it could lose.

State-Level Turkey-Pardoning: Is It Legal?

PHUTATORIUS
The eyes of the nation continue to be fixed on now-just-Governor Sarah Palin, who amused and bemused us last week with her high-profile turkey-pardoning pronouncement and subsequent "Faces of Death 2008" video-shoot. While I swallowed my dinner back down I had occasion to wonder: does a state governor really get to pardon a turkey?

I don't mean to pile on Ms. Palin. Well, I do — but not today. Today I'm thinking about federalism, the Constitution's Supremacy Clause, preemption, and what could happen to America's turkey factories (er, growers) if the chief executives of the Several States continue to go around relieving the nation's gobblers from their late-November obligations. This wasn't just an isolated incident in Alaska, after all: the governors of Alabama, Minnesota, Missouri, and North Dakota all made news this year with similar gestures of clemency.

This is all well and good, a break from politics for a bit of "levity," as Governor Palin said. But when you consider that these governors probably don't have the legal authority to put these turkeys back on the streets, it all starts to look a bit sinister. It's well-established, under the law, that the federal and state governments operate distinct, parallel criminal justice systems. Indeed, it's constitutionally axiomatic (by which I mean, "everybody but Sarah Palin should know") that the governor of a state can't use his/her pardon powers to excuse a person from federal charges.

With that in mind, and when you consider that Thanksgiving is a national holiday, one can't but conclude that these soft-on-poultry governors are acting in blatant excess of their constitutional powers. It's an open-and-shut case. Sure, all this seems "cute." The people smile and nod while these state officials take aim at the core of our constitutional system. A turkey wins its freedom today, and this seems like a laudable result. But what of tomorrow? What powers will these ambitious governors feel emboldened to arrogate to themselves tomorrow?

The Law is the Law. Unless the President of the United States intervenes to save them, these turkeys must die. For the sake of our nation, these turkeys must die.

Q & A: The Constitutional Conundrum of the Proposition 8 Litigation

PHUTATORIUS
Q. Can anti-Proposition 8 interests really get the California Supreme Court to invalidate a constitutional amendment?

A. They can try. That's how the Court ruled last week.

It looks like one "surface question" for the Court to consider is to what extent the constitutional change to ban same-sex marriage must be accomplished by "revision" rather than "amendment." The words sure do sound synonymous, but under the California constitution they are terms of art: an amendment requires only a two-thirds vote in both houses of the legislature, followed by an up-down majority ballot-initiative vote — as happened here. A revision requires the convening, after a two-thirds vote in both houses to proceed, of a constitutional convention.

Naturally, the California constitution doesn't say a heck of a lot (nothing, actually) about what sort of measures are appropriate for amendment and what sort ought to run the more rigorous procedural gantlet. But the general gist of the law on this point is that the little piddling changes are the stuff of amendments, whereas the grander "what are we doing to our government?" questions are appropriately resolved by revision.

The second "surface question" is whether it violates the constitutional separation of powers for the legislature to prepare a ballot initiative that would overrule a decision by the state's highest court on a matter of a fundamental right.

I talk of "surface questions" because these two questions, which the Court specifically designated as appropriate for judicial review, are really the constitutional "hooks" for considering the real matter at hand: what should happen when you have a general antidiscrimination principle in your constitution that, when applied in a specific case, results in a ruling that extends a right to a political minority, and then the legislature pushes through a plebiscite that results in the overrule of the Court's decision by a majority vote?

The separation of powers question taps in this issue because it's the judiciary, by and large, that bears the responsibility of protecting the rights of political minorities (especially "discrete and insular" political minorities) from incursion by the "majority rules" political branches. This is arguably a court's most important constitutional responsibility. Although practices vary (quite a lot of state court judges are elected, and not life-tenured), we expect judges to insulate themselves from the political exigencies of the moment. When a constitution promises equal protection under the law, and the government fails to deliver, it's the judges' gig to set things right. The notion that a court's exercise of this solemn responsibility merely bats the ball back cross-court to the legislature — so it can take another swing — seems constitutionally problematic.

About as problematic is the notion that protections constitutionally conferred on political minorities might be blithely overrided by a fast-track amendment process that requires only the approval of the legislature (by a 2/3 supermajority in both houses, admittedly), followed by a ballot initiative. A constitution is hardly protective of minorities of any kind if a majority can amend it to preclude those protections, simply by virtue of majority rule. So the California Supreme Court finds itself asked by the anti-Prop 8 litigants to push this issue into the category of very significant constitutional changes that must be wrought by revision, and not by amendment.

As someone who supports same-sex marriage and the constitutional role of the judiciary in protecting the rights of minority groups, I find the plaintiffs' arguments pretty compelling here. But there are important arguments to consider on the other side: in our state and federal systems we generally accept that the judiciary has the last word on constitutional matters, and the concentration of that power in the hands of very few is easier to swallow when we know there's an amendment process out there — just in case. While I don't think that amendment process was appropriately invoked here, and I would support an invalidation of Prop 8, things necessarily get a bit dicey when a court invalidates a constitutional amendment that overrules a decision that invalidated state action. We surely wouldn't want that same court to get too comfortable acting in that fashion. These controversies are always a game of chicken between the legislature and the courts, and each new round of action brings the cars closer to crashing.

What's brilliant about the legal arguments here is that the Court isn't required to favor one constitutional dictum (don't discriminate . . .) over another (. . . but in this one case it's OK). Massachusetts almost got to this point on the same-sex marriage issue, and at least one Justice in the Supreme Judicial Court rumbled that, notwithstanding that the proposed amendment articulated a specific exception to the general antidiscrimination mandate, he might just rule that some constitutional requirements (specifically, the bits that call for equal protection) are more equal than others. The California court has an out, and the anti-Prop 8 plaintiffs found it: this ballot initiative doesn't make it into the constitution, because it ought to take more than a legislative vote and ballot initiative to undercut minority rights.

It's not controversial to accept that the people can amend their constitutions, and that these amendments might even overrule considered constitutional decisions of a polity's highest court. But some thought should be given to calibrating the amendment process so that amendment doesn't simply give the people a second crack at instituting discriminatory policies against a minority. Amending a constitution ought to be hard, and it ought to be especially hard if the amendment would limit minority rights. Prop 8 proponents will argue that the 2/3, two-houses supermajority precondition to the ballot initiative is hard enough. I expect that the California Supreme Court will disagree, and rather than wage branch-on-branch warfare on a separation of powers theory, it will rule that a marriage ban was a matter for revision, not amendment, and invalidate Prop 8.

The big question is, if the Court so holds, and the people go back and push through a marriage ban by revision, will there be more litigation? Still more chicken to be played in California — stay tuned.

George Will on the Constitutional Gun Right

PHUTATORIUS
Six months off news-cycle, George Will has decided to write about the eerie parallels between the Supreme Court's Heller decision, which announced a Second Amendment-based right to possession of a firearm, and Roe v. Wade. Hard to figure the time lag, except that the obvious took a while to penetrate his consciousness (unlikely: Will is an insightful fellow), or maybe there's a provision in The Conservative Writer's Rule Book by which one must allow a considerable waiting period to lapse before one can criticize a decision that the right wing likes. Actually, as the column has it, a conservative Fourth Circuit judge made these points recently in a Court of Appeals decision, and that occasioned Will's writing. Maybe we'd have seen this column earlier if Will had read and credited the insights of folks on the left who saw through this nonsense on Day One.

Anyway, better late than never. Will covers the ground pretty well here, starting with (1) throwing open a whole new litigable subject matter for regulation by the federal courts; (2) making up federal rights out of whole cloth, with the Constitution serving more as guiding light than dictator; (3) showing up "originalism" to be, in Will's words, "no barrier to 'judicial subjectivity.'" Fine, fine, and fine.

But here's the thing, George: you missed a few spots. And you're just wildly off on some others. First, "originalism" isn't so much "the doctrine that the Constitution's text means precisely what those who wrote its words meant by them." That's "strict textualism." "Originalism" is, rather, that farce of judicial prosopopoeia pursuant to which a court takes on the collective persona of the Constitution's Framers and infuses their moral authority into a decision by declaring What The Old Boys Would Have Said about the Fourth Amendment automobile exception, or a judicial override procedure for a minor seeking an abortion, or what have you.

(When I think of "originalism," I like to think of the several scenes in Bill & Ted's Excellent Adventure in which great historical figures walk confusedly around late 20th century Southern California, trying to make sense of what they see. As much as I enjoyed this as a vehicle for comedy, it stuns me that bright people might embrace it as a preferred mode of constitutional interpretation — or that we can take those same people seriously when they presume to know how Madison et al. would feel about these tough modern-day questions.)

Will also misses some important differences between Heller and Roe. One is that far from "being silent" on the question, the Second Amendment did say something about a gun right. It's just not very clear what it was saying. Reasonable judges can disagree, it seems: in Heller the Court split 5-4 on whether the Amendment's "prefatory" clause, "A well regulated Militia, being necessary to the security of a free State," sets any limitations or conditions on the "operative" clause, "the right of the People to keep and bear arms shall not be infringed." (Incidentally, only one of these is a "clause," by any reasonable grammarian's sense of the term; jurists read that term much more expansively.) And if you count the dozens of judges who passed on the question over the last seventy years, you'll actually see the weight of authority supporting the view that the right is cabined to militia-based uses, and that the Second Amendment supports no individual right. Which brings me to my second point of distinction between Heller and Roe: both announced a federal right in the course of invalidating a law, but only one — Heller — also rejected a big, serious hunk of established Supreme Court law. So when we're evaluating the competing claims of "judicial activism here," we might be inclined to take into account now-Chief Justice Roberts's assurances, at the point of nomination, that he would respect settled Supreme Court precedent, and that his vision of the Court's work was a narrow one that would not throw open the doors of the federal courts to massive overhauls of federal, state, and local regulatory schemes on so flimsy a platform as the protection of individual rights. George, I would love to have seen more on this.

Will laments the inconsistency between the conservative Justices' positions on rights they do and don't like — as do I — but we're at sixes and sevens, I think, on how that inconsistency ought to be resolved. It deeply troubles Will that federal rights might be expanding. He sees decisions announcing federal rights as cases that "traduce[] federalism," and he is bothered by the notion of courts delving into the policy minutiae that of necessity follow from protecting these rights — e.g., trigger locks (for guns), waiting periods (for guns and abortions), clinic buffers, and so on. None of this stuff is covered in the Constitution, he groans. Let's consider Will's complaints.

Federalism. — It's not federal constitutional rights that threaten federalism; it's federal regulation. The Bill of Rights describes the bare-minimum baseline rights that are to be afforded to every American, regardless of his state of origin. States are free to confer constitution-level prerogatives above and beyond those that the U.S Constitution supplies. The principles of federalism (i.e., the apportionment of powers and responsibilities between the federal government and the state government) that the Constitution advances are set forth elsewhere — in the enumerated powers granted to Congress, in the Supremacy Clause, and in the Tenth Amendment (part of the Bill of Rights, I'll admit, but specifically addressed to define the prerogatives of States, not the People, as the BOR's other provisions are). Sure, in theory it treads on states' rights to require trial by jury, and to protect freedom of speech, but these rights limit the federal government's powers and prerogratives, too, and generally in the same measure. Let's not confuse the two separate power relationships here: government v. people and federal government v. state government.

If I were inclined to be generous (I'm still deciding), I would suggest that what Will would endorse is a very narrowly circumscribed set of federal rights, with state constitutions stepping to the plate to develop "ancillary" state-specific rights (as several have done, for example, with same-sex marriage). In this way the states can serve as "laboratories of democracy" both by regulation and by extension of rights. This might have been a reasonable proposition centuries ago, but the genie is out of the bottle now. The U.S. Constitution is the primary vehicle for protecting individual rights. It's crowded most everyone else out of business, and it's the best (if not the only) game in town. This is an artifact of history: it happened because the states weren't doing their jobs. The states were enslaving people, and after the federal Constitution barred that practice, they found new and clever ways to oppress the same people. One can't seriously cry "federalism" to defeat a federal constitutional right nowadays. States' rights was code for racism forty years ago. That code has been cracked.

Micromanagement. — Ask a conservative about our court system, and by the time he's done talking he'll have you believe that judges are petty tyrants who actively seek out ways to knock down our doors and manage our day-to-day lives. And after every four stanzas of that ballad, there comes the same old refrain: "None of this is in the Constitution/They're making it all up." But let's consider reality here: judges don't create cases. They don't look for controversies to adjudicate. Parties (and their lawyers) bring lawsuits. Certainly the Constitution could not anticipate questions like triggers locks and clinic buffers. Of course they're "silent" on these points. A system that is flexible and adaptive, one that calls for the action of governments to be reviewed against the Constitution at the point of a controversy, is only reasonable. Otherwise we are expecting the Framers to have anticipated everything. It simply can't be the case that the government can freely engage in any action not expressly ruled out by the Constitution's text.

But Will knows this, and his point of attack is sharper, more subtle. And wrong. He contends that the problem isn't that the Constitution doesn't talk about trigger locks and clinic buffers — it's that it never said anything (at all, in the case of abortion, or clear, in the case of guns) about these rights. It's because the Court is manufacturing rights that it then gets bogged down considering all the ridiculous detail that comes with governments subsequently trying to erode/destroy the same rights. But the degree of detail-mongering is no greater for these "controversial" rights than it is for the several other rights that are generally accepted as adequately expressed in the Constitution. Consider the Fourth Amendment right to be free from unreasonable searches and seizures. The Court has been asked to consider the constitutionality of border searches of files on laptop computers, of flyovers of a defendant's property. They have to consider whether it's a "seizure" when a cop smashes into a perp's car during a police chase, or whether a warrant ought to be required to search a car. Details, details. Does the right against self-incrimination extend to a breathalyzer test? A DNA test? Does the First Amendment protect computer code? Detail, details. That's not how "controversial" or "stealth Constitution" rights work. That's how all rights work.

George would rather we all had fewer rights, so judges could get out of our lives. I'm not sold on that proposition. I'd like to see the inconsistencies in judicial philosophy resolved in favor of rights. Aren't rights a good thing, even if it takes judges to midwife them into existence?