Marriage Amendment Was Validly Enacted

The Wisconsin Supreme Court has held that the amendment to Wisconsin's constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.

The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.

Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:

"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing "a legal status identical or substantially similar to that of marriage."

By way of full disclosure, I filed an amicus brief supporting the state's position.

Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.

It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.

Cross posted at Marquette University Law School Faculty Blog.

It Takes an Awful Lot of Nerve

I have no idea whether the tragedy at the O'Donnell Park parking structure is attributable to deferred maintenance and neither, as far as I can tell, does anyone else. To reach that conclusion one would have to know why the accident happened and then identify some particular proposed action that would have prevented it or uncovered the flaw that caused it. To simply note that O'Donnell Park has had problems or that there are proposed repairs to the structure that have been deferred tells us exactly nothing about the connection of these matters to the accident. Scott Walker says the County was aware of no needed repairs or existing problem that could have caused such a collapse. While the investigation is just beginning, no one has pointed to a single fact suggesting otherwise. It may turn out to be so, but we don't know yet.

But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.

But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?

McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?

I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.

Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.

Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.

I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.

Reflections on the World Cup

Every so often, we have this debate about soccer. Real Americans, we hear, don't like soccer. Even my own son says that he thought ESPN was running binary code (0010011110)but it turned out to be soccer scores.

There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.

If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.

I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.

The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.

Reflections on Father's Day

I had a nice Father's Day. Had you walked into my kitchen at the right time yesterday, you would have come across three generations of Esenberg males imitating the buzz of the vuvuzela. No, I don't know why (no alcohol was consumed by either adult),but Caleb (almost 2) sure seemed to like it.

Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:

Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.

Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.

The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.

The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.

Shark on Wisconsin Eye

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel's Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee's sick pay ordinance,* and the legislature's $ 200 million dollar "raid" on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.

Cross posted at Marquette University Law School Faculty Blog.

Indicted for Blogging?

The local political blogs are (can't really say "atwitter" any more) but interested in an apparent investigation of the left blogger Chris Liebenthal by the Milwaukee County District Attorney's office. The investigation may have been undertaken in response to a complaint by Citizens for Responsible Government suggesting that Liebenthal, who works for Milwaukee County, has been blogging on government time.

It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)

But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.

I thought that about the caucus scandal. I think it about this.

Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.

And maybe the DA will agree.

But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.

UPDATE: CRG lists additional dates.

Critical Announcement !!!!

My son Christopher is a trainer for M & I Bank. He is also one of the finalists for the august title of M & I Idol. (It's a very big company!) The competition will take place at 12:30 on the M & I Classic Rock Stage at Summerfest on July 4.

And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.

Curb Your Enthusiasm

I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)

As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.

I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I do think Mike should be careful. This was several bridges too far.

Cross posted at Marquette University Law School Faculty Blog

The Obama Administration's War on Scientists

Let's say that the Bush administration had consulted with a group of biologists on stem cell research. Imagine that it had placed summarized that consultation and made some policy recommendations in a memorandum that had then been approved by these scientists. The report went on to stated that the report's recommendation had been peer reviewed by the listed scientists.

But before it was released, administration officials - oh, let's say a Cabinet level secretary - added a recommendation that there be a blanket moratorium on stem cell research. It retained the language that the scientists had "peer-reviewed the recommendations, but the scientists never saw that recommendation for a blanket recommendation. They did not "peer review" it. They do not agree with it.

It'd be another example of the Bush administration's so-called "war on science."

This very thing just happened but not, obviously, in the Bush, but in the Obama administration. A peer reviewed report on off shore drilling was modified - after it was reviewed by its scientists - to include Secretary Ken Salazar's call for a blanket moratorium on off shore drilling. The scientists have now said that they never saw the language on a blanket moratorium (they had only approved the recommendation for a more limited moratorium) and do not agree with it. They say that the "[t]he Secretary should be free to recommend whatever he thinks is correct, but he should not be free to use our names to justify his political decisions.

Secretary Salazar has apologized. Secretary Browner, apparently unable to understand that there is a difference between acting on information provided by others and stating that the others have reviewed your action, has said that they did nothing wrong.

Glenn Reynolds says he is beginning to lose confidence in there people.

If it's a Diet, it's Atkins

There are millions - even billions - awaiting the creation of the first truly effective painless diet. If someone can follow Drs. Melik and Aragon in Sleeper and figure out how to lose weight on steak, cream pies and hot fudge, there is serious money to be made.

Tom Barrett is giving the political equivalent a try. He's going to put Madison on a diet, but it won't hurt a bit. It's not that his plan doesn't have some good ideas but what they have in common is that no one (save prisoners, persons engaged in "fraud" and "waste" and some unidentified middle managers)must make the slightest sacrifice. Turn off the computers at the end of the day, go paperless, provide something called "accountability in state contracting training" and there's a billion dollars for you.

Count me skeptical. Politicians have been promising easy savings to avoid addressing spending cuts or tax increases for at least as long as I have been sentient. I've got no problem with most, if not all, of Barret's ideas but I wouldn't count the money just yet.

The President Apparently Has Standards After All

During the election campaign, the President famously said that he would meet with our enemies. He'd talk to anyone. Since the election, he has proved that he will bow to anyone.

But he has his limits. He apparently has not spoken to BP CEO Tony Hayward. You know, they guy who controls technology that the federal government does not have and whose neck our boot is supposed to be on while we kick his ass?

Of course, I don't think that Tony Hayward and Barack Obama would hop on a boat and git 'er done. It is the particular conceit of guys like this to suggest that they can do things like that (or at least make them happen). But a few well placed words from the most powerful man on earth at the right time (it's really too late now)might have helped - both practically and politically. It may have concentrated the mind much sooner than events did.

Back From DC

Blogging has been glacial as I've been working on four law review articles and just returned from a talk at the annual meeting of University Faculty for Life at Catholic University Law School in DC.

Some random observations:

I didn't do anything touristy in DC, but I did notice an absence of hagiographic Obama merchandise for sale compared to the last time I was there (November). I suppose that stuff has a limited shelf life, but still ....

My former partner Fred Geilfus has a column in the BizTimes discussing Accountable Care Organizations, a concept that is to be tested under the Obama health care bill - although I would be surprised if it hasn't already been tested in other contexts. The idea is to move away from fee for service on the theory that this creates incentives to provide more service. As Fred knows, this is an issue with lawyers as well. Hourly fees create an incentive to run the clock. Folks in the legal community talk all the time about moving to different fee structures and sometimes they do. But it's not easy and comes with its own costs. My impression is that, for twenty five years or so, it is far more talked about than implemented. I don't know that ACOs are a bad idea but I think, as with so much of ObamaCare, it falls into the trap of thinking that we can get something for nothing. Nor is it clear why, if they work, they wouldn't develop in a true market.

Dan Bice points out that Ron Johnson opposed the proposal to remove the limitations period for suits against organizations claimed to be responsible for the crimes of child sex abusers. Good for Ron Johnson. The bill was a bad idea and opposition to it does not imply a lack of sympathy for victims or lack of revulsion for perpetrators (who are almost never the ones who have to pay civil judgments).

Responding to Johnson's opposition to the bill, Peter Isley of SNAP had a moment of candor - otherwise known as a gaffe - when he said that ""It's interesting they send a Lutheran down to fight a Catholic cause." He wonders "what would Martin Luther say?" The idea that Isley thinks Lutherans should be hostile or indifferent to the concerns of Catholics says more about Isley than it does about Johnson.

It has been my impression that the only studies available show that Catholic priests are no more likely to engage in pedophilia than other groups that work with children. (I was surprised by this.) Those who work for the state generally will not cause litigation to be brought against it because the government is generally immune from that form of liability. Those who work for non-episcopal or hierarchical churches won't cause lawsuits to be brought because their employers are not deep pockets. There have been lawsuits against other churches with episcopates like the Lutherans but the Catholic Church is so much larger that it is always going to seem like a predominantly Catholic problem.

This is not to say that the Church's response hasn't often been disgraceful. But whether to bankrupt a charitable organization for the sins of the dead and retired is another question.

Finally, via Richard Dudley Martin and Bill Tyroler, my attention is drawn to this.

Leonard Pitts' Way Back Machine

Patrick McIlheran is properly put out by Leonard Pitts' column claiming that Rand Paul's musings about the Civil Rights Act prove, once again, that social conservatives are always "against us" - "us" being African Americans. Pitts cites arguments against the Act made by segregationists like Richard Russell which, in his view, are similar to Paul's defense of private property.

Pitts commits two errors - a category mistake and an anachronistic fallacy. First, it is not clear to me that Paul is a social conservative. He is pro-life, but there is a huge tension between social conservatives and libertarians. (The most preeminent social conservative in the academy, Robbie George, recently referred to libertarianism as "heresy.") More fundamentally, Richard Russell and other Southern Democrats who opposed the civil rights acts were not necessarily "conservatives" in the sense that we use the term today. They were often progressives who tended to support New Deal and Fair Deal policies. Russell, for example, had little or no concern about limiting the power of the federal government or respecting private property in other areas. He was a staunch supporter of the New Deal and considered his most important legislative accomplishment to be the National School Lunch Act of 1946.

Second, it makes little sense to speculate about what Sarah Palin or some other contemporary conservative "would have" done in 1964. Their political views have been formed during a time - and consistently with - a national consensus that racial discrimination is wrong. (In fact, opposition to affirmative action is an application of that principle, albeit not one that all of those who oppose racial discrimination accept.)These people are what they are. Pitts doesn't like them. But it is intellectually dishonest to smear them by imagining that, if they were different people born at a different time, they would have taken positions that they do not, in fact, take.

"Daddy, Did You Plug the Hole?"

The sad fact is that he can't. Just like George W. Bush couldn't stop a hurricane or prevent its foreseeable impact on a city that took no care for its own welfare, Barack Obama can't plug an oil leak that is almost a mile below the surface of the ocean.

In a sense, he is being hoisted on his own petard. There are few, if any things, that he has been willing to admit that the federal government cannot do. This was supposed to be the moment when we begin to "provide care for the sick and good jobs to the jobless" and "when the rise of the oceans began to slow." Instead, it was the moment when we couldn't "plug the damn hole."

Of course, our expectations of the federal government have become oversized without regard to Barack Obama. We think that the President runs the economy and that the federal government ought to bend the laws of nature.

The irony is, having bought into and doubled down by these expectations, the President's first impulse was to blame BP. It was BP's fault. BP's mess. BP's problem.

All of this may be true, but, as he seems to have belatedly recognized, it was his problem as well. The more that he seemed to be blaming BP, the more it seemed that he was not accepting his own responsibility. As Peggy Noonan points out, Katrina fed a certain narrative about President Bush, i.e., that he was clueless and slow to respond. The oil spill underscores a developing narrative about President Obama, i.e., that he is aloof and arrogant. His indifference to concerns about illegal immigration, health care and the rather enormous increase in government spending is exacerbated by the impatient and peevish way in which he responds to criticism. His hectoring and defensive press conference did not help. He should wait at least another 309 days before doing it again.

Don't Cry for Me, Arlen Specter

It's hard to imagine a good resolution for the Democrats on the Joe Sestak mess. If Sestak is telling the truth, there may have been a crime committed. (Rick Hasen has an explanation here.)Very bad for the Obama administration. If he isn't (or exaggerated), very bad for Joe Sestak. What is certainly not going to work is for Sestak and the administration to continue to say no more. I'd look for something tomorrow afternoon.

Don't Hate Me Because I'm Beautiful

Today's self serving award goes to Madison blogger Emily Mills who writes:

Imagine the Democratic Party as Darwin's Galapagos finches, closely related but still wildly diverse and ever-evolving, and the Republican Party as, let's say, a clan of Neanderthals facing a choice between extinction or inter-breeding with Homo sapiens.

There's some brutal honesty for you.

Rand Paul was wrong even on libertarian terms

It was a political and substantive error for Rand Paul to criticize those portions of the Civil Rights Act (largely Titles II and VII) that applied to private business. It is wrong as a matter of constitutional principle. A unanimous Supreme Court upheld Congress' ability to prohibit discrimination in public accommodations in Heart of Atlanta Hotel v. United States. Even if you believe that its scope goes beyond what should be subject to the commerce power (perhaps even even as applied to Ollie's Barbecue, a segregated restaurant that was among the plaintiffs in Katzenbach v. McClung, argued along with Heart of Atlanta and decided the same way), it does not seem unreasonable to think that Congressional authority under section five of the Fourteenth Amendment either supports federal intervention (perhaps to counter the impact of Jim Crow laws) or suggests a rationale for a broader reading of Congressional authority in matters of racial discrimination. In any event, the matter is water under the bridge.

Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.

But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.

Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)

So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.

Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.


Cross posted at Marquette University Law School Faculty Blog and Point of Law

Some Suggested Questions for General Kagan

My Marquette University Law School colleague Peter Rofes has suggested, with tongue placed strategically in cheek, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.

You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?

Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.

Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?

If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?

May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

In other words, is it the role of the Court to "improve" or "balance" political discourse?

We look forward to your responses. There may be follow-ups."

Cross posted at Point of Law.

You Have the Right to Remain Silent

This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don't agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I'd draft, the devil is in the details.

On more fundamental level, it doesn't seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.

I would have preferred to discuss Professor Cole's views in Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which he represents the plaintiffs.

The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ...."

The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the "peaceful" and "violent" aims of terrorist organizations.

Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.

It's true that the government's lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)

The government's lawyer? Solicitor General Elena Kagan. I'm not sure what to make of that, but I thought it was interesting.

Cross posted at Marquette University Law School Faculty Blog.

"Harvard," I spoke the word/ as if a wedding vow

Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!


Cross posted at Point of Law and the Marquette University Law School Faculty Blog


* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.

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