The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. To be sure, such reasoning held meaningful sway with the Supreme Court until 1937, when a majority of the Court, after a game of chicken with FDR, relented and began recognizing greater congressional power to legislate under the Interstate Commerce Clause. Among other things, Congress could regulate activities that, in the national aggregate, substantially affected interstate commerce, regardless of whether a given activity was interstate or intrastate and regardless of Congress’ actual motives or purposes. Under this approach, not only were various New Deal statutes upheld, but so were subsequent statutes in the 1960s and 1970s concerning such matters as civil rights and environmental protection.

Over the past two decades, however, the Court has again shown a willingness to henpeck Congress regarding its commerce-based legislation. The turning point occurred in a 1995 case, United States v. Lopez, in which the Court by a 5-4 vote struck down a federal statute criminalizing gun possession within 1000 feet of a school. Five years later, in United States v. Morrison, the Court again by a 5-4 vote struck down a federal statute creating a cause of action, and authorizing civil liability, for gender-motivated violence.

Both of these statutes, said the Court, governed conduct that was not commercial in nature, and neither statute was part of a larger federal scheme of commercial regulation. Nor did either law require proof that a defendant’s conduct actually bore a relationship to interstate commerce. The Court also noted that the statutes touched on one or more areas, such as criminal law, traditionally within the legal domain of the states. Given these factors, the Court in both cases concluded that Congress had exceeded its interstate commerce authority.

In light of these recent decisions, the defendants’ arguments can hardly be characterized as frivolous, much less bird-brained. Like all litigants, however, they should be wary of counting their legal chickens before they’ve hatched. As it turns out, most statutes challenged since Lopez have not suffered the same fate as those at issue in Lopez and Morrison. Lower courts have generally been reluctant to apply the Lopez factors too strictly, and the Supreme Court itself—with the exception of Morrison—has only made suggestions of potential unconstitutionality with regard to other statutes, otherwise upholding every law it has reviewed under the Interstate Commerce Clause. In the 2005 case of Gonzales v. Raich, for example, the Court (by a different majority) upheld an application of the federal Controlled Substances Act to the intrastate cultivation and possession of marijuana used for medical purposes pursuant to a state law. Congress, meanwhile, seems to have taken at least somewhat seriously the admonitions of Lopez and Morrison and appears less likely today to enact statutes possessing the flaws of the statutes struck down in those cases.

The relevant provision of the Animal Welfare Act, 7 U.S.C. § 2156, covers a range of conduct related to “an animal fighting venture.” (This provision, among others, resulted in NFL quarterback Michael Vick’s 2007 federal conviction for financing and participating in dogfighting operations, which partly took place in South Carolina.)  Taken together, § 2156’s subsections make it criminal “to knowingly sponsor or exhibit an animal in an animal fighting venture,” § 2156(a)(1); “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture,” § 2156(b); “to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture,” § 2156(c); or “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture,” § 2156(e). A violation of any of these subsections can lead to a fine, to imprisonment up to five years, or to both (see § 2156(j) and 18 U.S.C. § 49). The term “animal fighting venture,” though expressly excluding hunting, is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment,” § 2156(g)(1).

Applying the Lopez and Morrison factors to § 2156, it is apparent that some of its prohibitions are clearly constitutional. Those that target inherently commercial activities such as buying and selling, and especially those that also expressly link the activity to interstate commerce or to a channel or instrumentality of interstate commerce, seem well within the judicially defined scope of Congress commerce power. Conversely, those that target activities that are not inherently commercial—for example, exhibiting or possessing—potentially stand on a weaker footing, but they do explicitly require proof that the animal or object be knowingly destined for use in an animal fighting venture that (by statutory definition) is “in or affecting interstate or foreign commerce . . . .” To be sure, the federal prosecution introduced evidence of out-of-staters that traveled to the event; of out-of-state items—including feed and a host of resources used for the fighting—that were shipped to individuals at, or seized from the scene of, the event giving rise to the convictions; and of the deposit of event proceeds into a bank account, from which funds were drawn by checks that were then processed out-of-state.

In past Supreme Court cases, most notably Katzenbach v. McClung from 1964, it has been held that Congress’ commerce power can reach a business that receives from out-of-state a portion of the goods that it then sells to customers, even if the customers are generally from in-state. Moreover, the size or amount of the actual portion of goods (or its monetary value) is generally not relevant insofar as Congress may aggregate all like activities when tallying or gauging the overall effect on interstate commerce. Nor does it matter whether or not one can plausibly characterize an activity as local rather than national or interstate. As the Court remarked in the 1942 decision of Wickard v. Filburn, “even if . . . [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”

These are older, pre-Lopez precedents, it is true, but neither Lopez nor Morrison expressly overruled any prior decisions, and the Raich decision approvingly invoked both McClung and Wickard, drawing particular support from the latter. Indeed, in response to the challengers’ heavy reliance on the Court’s more recent cases of Lopez and Morrison, the Raich majority stated that “[i]n their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases” and that “even in the narrow prism of [their] creation, they read those cases far too broadly.”

This could very well be the same response that the Court of Appeals, without much brooding over precedent, will give to most if not all of the appellants in their challenges to the Animal Welfare Act. It may be that the appeals court will find that one or even a few of them have reasonable arguments against the application of the statute, though probably not arguments of sufficient strength to prevail. Insofar as they all contributed to or operated a commercial operation—the interstate effects of which, if aggregated with similar operations nationwide, can plausibly be deemed substantial—the likelihood of an affirmance with regard to their convictions under the Animal Welfare Act would seem to be high. Should such an affirmance occur, one might venture to say that, in the end, the chickens will have indeed come home to roost.

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.  Stevens sat beside Antonin Scalia for much of his time on the Court and was the “beneficiary of [Scalia’s] wonderfully spontaneous sense of humor.”  The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.  (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring and Connecticut v. Barrett, both decided in 1987).  Scalia apparently leaned over and whispered to Stevens that it must be “dumb defendant day.”  Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.  And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.  The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is “worthy of protection from unnecessary desecration.”

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.  Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist’s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida (1996).  “Like the gold stripes on his robe, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.”  Invariably, however, Stevens’ criticisms are based on what he considers to be flawed reasoning and not personal animus.  His disapproval of Rehnquist’s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist’s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court’s business.

Stevens’ evaluation of the current Chief Justice, John Roberts, is very favorable.  He describes him as “a better presiding officer than both of his immediate predecessors” as well as a more skilled representative of the Court in non-judicial settings.  He is particularly appreciative of Roberts’ concurrence in Graham v. Florida (2010) because it represents for him a rejection of the interpretive approach that looks at the “original intent” of the Framers in determining the constitutionality of a given case.  In Graham, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender’s age and criminal conduct on a case-by-case basis.  Roberts recognized a proportionality requirement at variance with Scalia’s dissenting opinion in Harmelin v. Michigan (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens’ words, “that the punishment fit the crime.”

Stevens’ discussion of Roberts’ opinion in Graham highlights two themes of his own judicial philosophy.  According to Stevens, judges and justices should exercise restraint, and decide only what a case “actually presented” without trying “to craft an all-encompassing rule for the future.”  Kyllo v. United States (2001) (dissenting).  This, of course, stems in part from his understanding of the separation of powers in our system of government.  As he wrote in Kyllo, Congress is the branch that “grapple[s] with. . . emerging issues” and it is counterproductive to “shackle them with prematurely devised constitutional constraints.”

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.  Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.  Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.  Stevens quotes Justice McKenna in Weems v. United States (1910), “[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

These two aspects of Stevens’ jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.  Towards the end of Five Chiefs, Stevens writes that he has “no memory of any member of the Court raising his or her voice.”  Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.

Although not yet addressed by the courts, I think it’s worth noting that the Amendment’s language on international law may also be unconstitutional. The reason is the Supremacy Clause. First note that the Amendment explicitly prohibits Oklahoma courts from “considering or using” international law in the form of both treaties and custom. This prohibition is unqualified, and thus at least facially encompasses treaties and custom of all kinds.

Now consider the text of the Supremacy Clause. Article VI, Section 2 of the U.S. Constitution establishes that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” By referencing treaties that are “made, or which shall be made, under the Authority of the United States,” the Clause establishes supreme status for treaties to which the United States is a party.

The argument for the Sharia Law Amendment’s unconstitutionality is pretty straightforward. Insofar as it refers to treaties without qualification and thus includes those to which the United States is a party, the Amendment bars Oklahoma courts from considering or using treaties that have the status of supreme federal law. To prohibit a ratified treaty’s consideration or use is to deny its legal relevance, in effect even its existence, regardless of how significantly the treaty might otherwise affect the outcome of a case. Even litigation outcomes directly at odds with those dictated by U.S. treaties would seemingly be permissible in Oklahoma.

There’s also a Supremacy Clause argument concerning the Amendment’s language on customary law. International custom binds all states that have not timely objected to its development, and thus as a formal matter generally binds the United States. Although recently a subject of pretty heated debate, the traditional view is that such custom is a form of federal common law and thus backed by the Supremacy Clause. If one accepts that view, then it would be unconstitutional for the Amendment to bar Oklahoma courts from considering or using custom in much the same way that it would be unconstitutional to bar their consideration or use of U.S. treaties.

A court might attempt to avoid these problems in a couple of ways. The first would be to narrowly construe the Amendment. There is a fair argument that the text pertains only to treaties to which the United States is not a party, and to custom not applicable to the United States. Certain language, for example, suggests a general intent to adhere to federal law—a body that obviously includes U.S. treaties and at least arguably includes customary norms. Other language states an opposition only to the application of the “legal precepts of other nations or cultures.” The latter does not implicate ratified treaties or binding custom, which are the law of this country. The narrow interpretation would alleviate the Supremacy Clause problem by ensuring that the Amendment’s prohibition applies only to treaties and custom that are not federal law.

Another potential way to save the Amendment from unconstitutionality would be to conclude that custom is simply not a form of federal common law. This position would be contrary to the traditional view, but it has gained at least some support since Professors Curtis Bradley and Jack Goldsmith first articulated it in the late 1990s. If customary law is not federal common law, then the Supremacy Clause does not encompass it, and Oklahoma courts would not be obliged to consider or use it in their decisions.

Both of these efforts to save the Amendment would encounter difficulties, however. First, the narrow interpretation would render the Amendment’s text on international law essentially irrelevant in practice. I doubt that Oklahoma courts encounter many cases requiring them to resolve disputes concerning U.S. treaties, much less treaties to which the United States is not even a party. I also doubt they encounter many opportunities to resolve disputes over obscure principles of international custom that do not bind the United States. And as long as that is true, the narrow interpretation would essentially tell the courts not to do something that they don’t do anyway.

Second, concluding that international custom lacks the status of federal common law would require a departure from the traditional doctrine on that issue. There are, frankly, pretty intriguing arguments on both sides of the debate that the Bradley and Goldsmith argument has generated, but the U.S. Supreme Court has never squarely held that international custom lacks the status of federal common law.

In short, the constitutionality of the Sharia Law Amendment’s language on international law is, at best, uncertain. Its treatment of treaties is either unconstitutional or essentially irrelevant. And its treatment of custom may require courts to resolve a longstanding debate about custom’s domestic status.

According to their announcement, here are some of its attributes:

– Instant return of a time-series plot for one or more comma-separated phrases.

– When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously), as displayed below:

– You may test out any phrase of up to four words in length. Examples include: Habeas Corpus, Clear and Present Danger, Custodial Interrogation, Due Process, Economics, Unconstitutional, Property, and Privacy.

– Each of the phrases you search will be highlighted in blue. If you click on these highlighted phrases you will be taken to the full list of U.S. Supreme Court decisions that employ the selected phrase.

– Click to export the list to Excel or click on an individual case and you will be able to access this case for free.

– Advanced features, including normalization (controlling for docket size) and alternative graphing tools.

– There is available a brief slide-based tutorial as well as an academic presentation by its creators explaining the theory and design of this type of database.

As described by its creators, the database is in a “beta pre-release” phase, and they invite your feedback. Eventually they hope to expand coverage to lower courts, such as the U.S. Courts of Appeals.

Thanks to the creators of this new and free resource, which will no doubt be of significant value to legal historians, other scholars, and legal practitioners.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

The expression of political speech receives the greatest protection under the First Amendment when it takes place in a public forum:

Speech restrictions in traditional public forums are generally subject to the most exacting forms of judicial scrutiny. A government entity may never restrict all forms of communicative activity in these spaces. Public forum doctrine also requires that all restrictions based upon the content of the speech must be subject to strict scrutiny; that is, they must further a compelling state interest in a narrowly tailored way. Courts strike down restrictions on speech in traditional public forums when the restrictions do not satisfy strict scrutiny. In traditional public forums a government may, however, impose content-neutral time, place, and manner restrictions as long as those restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Michael J. Friedman, Dazed and Confused: Explaining Judicial Determinations of Traditional Public Forum Status, 82 TUL. L. REV. 929, 933 (2008).

In contrast, a far lower form of judicial scrutiny applies to evaluate speech restrictions in nonpublic forums. In a nonpublic forum, speech restrictions need only be reasonable and viewpoint-neutral. See id. at 935.

In Gaylor v. Thompson, 939 F. Supp. 1363 (W.D. Wis. 1996), District Judge Barbara Crabb held that the Wisconsin State Capitol is a public forum. This ruling is unsurprising. The interior of the Wisconsin State Capitol building has traditionally been a site for public expression and protest. As a result, any restrictions on speech within the Wisconsin State Capitol building must meet the stricter standard described above.  As stated by Judge Crabb:

In this instance, the state of Wisconsin has opened the capitol rotunda to a variety of displays and exhibits and must be considered a public forum for the purpose of First Amendment analysis. However, that decision does not mean that the state is prohibited from imposing certain regulations on the time, place and manner of the displays. The state can implement such restrictions provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

However, in the case of Bynum v. U.S. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000) the court ruled that the United States Capitol is not a public forum.  The court noted that as early as 1946 the U.S. Congress had passed a law banning protests and demonstrations inside of the U.S. Capitol. That law, coupled with a lack of a tradition of public access to the U.S. Capitol building for protests, and the exclusive control that Congress exercises over the District of Columbia, led the court to conclude that the U.S. Capitol is not a public forum:

Which brings the Court to what may seem a somewhat surprising conclusion that the inside of the United States Capitol is a nonpublic forum for First Amendment forum analysis purposes. While in many respects the Capitol must be viewed as sui generis, it appears that its designation as a nonpublic forum most closely conforms with Congress’ intent and the forum-based approach adopted by the Supreme Court. As a nonpublic forum, the government may restrict First Amendment activity in the Capitol so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” [citations omitted]

Because it found the U.S. Capitol building to be a non-public forum, the court evaluated restrictions on speech within the U.S. Capitol building under the more forgiving standard of reasonableness.

However, it is important to note that, even under this lower constitutional standard, the court still found that the only reasonable justification for government rules restricting speech would be the disruptive effect of the protestor’s conduct. Therefore, even under the nonpublic forum standard, the United States Capitol Police were still prohibited from banning expressive conduct that was non-disruptive.

In the case of plaintiff Bynum, he was a pastor who led a small group in prayer and meditation, in a conversational tone, within Statutory Hall and other portions of the Capitol Building. The Bynum court held:

The Court, however, cannot conclude that the regulation is reasonable in light of the purposes it could legitimately serve. While the regulation is justified by the need expressed in the statute to prevent disruptive conduct in the Capitol, it sweeps too broadly by inviting the Capitol Police to restrict behavior that is in no way disruptive, such as “speechmaking . . . or other expressive conduct. . . .” Because the regulation’s proscriptions are not limited to the legitimate purposes set forth in the statute, it is an unreasonable and therefore an unconstitutional restriction on speech. [citation omitted]

The Bynum court issued an injunction ordering the U.S. Capitol Police not to enforce restrictions on First Amendment conduct within the Capitol Building unless they are addressed towards disruptive or obstructive conduct.

Therefore, even under the lesser standards applicable in a nonpublic forum, the First Amendment prevents the U.S. Capitol Police from completely banning small, non-disruptive protests within the U.S. Capitol building. Any statement in the current written policy of the U.S. Capitol Police that purports to completely ban protests inside of the U.S. Capitol cannot be enforced. For example, in one highly publicized recent case, the U.S. Capitol Police apologized to an individual for mistakenly removing her from the Capitol Gallery for wearing a T-shirt with a political slogan.

[Note: Unlike the interior of the U.S. Capitol building, the grounds surrounding the building are a public forum. See Lederman v. United States, 291 F.3d 36 ( D.C. Cir. 2002).]

The bottom line is that it makes a difference for the constitutional analysis of the new DOA policy that the Wisconsin State Capitol is a public forum.

Might the legislators in Madison pass a bill declaring that the Wisconsin State Capitol is no longer a public forum? Not really, because once a location has become a public forum by tradition the government may not arbitrarily remove that status. In any event, such a law would violate the Wisconsin State Constitution, which provides that the doors of the State Capitol shall remain open while the legislature is in session. There is, of course, no analogue for this provision in the federal Constitution. Even though the Wisconsin Supreme Court has recently treated the “open doors” provision of the Wisconsin Constitution in a rather cavalier manner, it is difficult to conceive how any legislative attempt to completely foreclose protests within the State Capitol building could survive a state constitutional challenge.

It should be obvious by now that the permit policies currently in place at the United States Capitol are completely irrelevant to the First Amendment analysis that applies to a public forum like the Wisconsin State Capitol. As I previously wrote, the new DOA policy is overbroad because it allows fees to be imposed on the indigent as a condition of protesting, it vests unbounded discretion in the Capitol police to determine whether to impose advance fees for security costs, and it requires permits from small groups of four or more protesters. These restrictions fail to meet the strict standards used to evaluate limitations on speech in a public forum. Even in a nonpublic forum like the U.S. Capitol, the federal courts have enjoined attempts to prevent small groups from engaging in non-disruptive protests without a permit.

By looking to the policies in place at the U.S. Capitol, the defenders of the DOA policy have fallen into a logical trap. The advocate thinks to himself, “If only I can argue Proposition X, then I will win the argument.” So the advocate searches high and low for evidence in support of Proposition X. Alas, arguing backwards from a conclusion never works.

Here, Proposition X is the assertion that “Restrictions on speech in the United States Capitol reflect what may be constitutionally restricted in the Wisconsin State Capitol.” As the above discussion illustrates, this assertion rests upon a myriad of mistaken assumptions.

By drafting an overbroad policy with little or no guidance for how the security staff is supposed to implement it, the Department of Administration has placed the Wisconsin State Capitol Police in a very difficult position. Rather than continue in its attempts to justify restrictions that indefensibly infringe upon the First Amendment rights of citizens, the DOA should withdraw its new policy and start from scratch.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.”

The requirement that a fee be paid in advance of the exercise of First Amendment rights constitutes a prior restraint on the exercise of free speech. See Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123 (1992). Advance fee requirements are recognized as a prior restraint because some individuals will forego the exercise of their rights rather than apply for advance permission or pay the fee. Prior restraints on the exercise of free speech are highly disfavored under constitutional law. While they are not per se unconstitutional, prior restraints will be subjected to heightened scrutiny. The Supreme Court has articulated the following standard for evaluating the constitutionality of government permitting schemes:

Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

Nathan Kellum, Permit Schemes: Under Current Jurisprudence, What Permits Are Permitted?, 56 DRAKE L. REV. 381 (1985).

The Supreme Court’s precedent in the First Amendment area has been criticized by academics for lacking a clearly articulated standard that successfully reconciles the Court’s various (and varied) holdings. This is a common complaint in areas such as First Amendment jurisprudence, where the Court’s decisions are typically closely tied to the particular facts of the case before it. Nonetheless, in the context of fees charged in advance as a condition of exercising the right of free speech, the Court’s precedent establishes at least three principles:

1. Fees Cannot Be Imposed If They Deny Speech to the Indigent

The Court has emphasized that the indigent cannot be denied their First Amendment rights solely because they are unable to pay a required fee. The lack of an “indigency waiver” is not fatal in circumstances where an alternative means of expression exists that is available to the demonstrator, however where no such alternative exists there is ample precedent striking down restrictions on speech that do not take into account the demonstrators ability to pay. See Sullivan v. City of Augusta, 511 F.3d 16, at footnote 15 (1st Cir. 2007).

This conclusion is not surprising. As summarized by Professor Eric Neisser:

In addition to what is formally referred to as the public forum doctrine, there are other strands of law designed to maintain ready access to opportunities for public expression. For example, even avenues of expression not strictly designated as public forums, such as the voting booth or the elective ballot, must be kept open to persons or groups of limited income, although it remains unclear which avenues will be held subject to indigents’ access and how poor one must be to qualify for protection. Clearly however, financial obligations cannot be fixed at a level or applied to groups or persons in a manner that effectively bars access to protected forums.

Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Market For Free Ideas, 74 GEO. L. J. 257 ( 1985).

The State Capitol building is a unique location for the expression of protected speech, and there is no equivalent alternative location available to would be protestors.

2. Fees May Not Be Imposed By Government Officials Left With Unbounded Discretion

The Supreme Court has struck down advance payment requirements when officials are left with unbounded discretion to determine when the fee may be required and when it may be waived. Instead, the Court has demanded that the official charged with implementing the fee requirement must be given objective criteria to guide their decision. The ability to impose or waive a fee without any objective criteria allows the government official the ability to favor one viewpoint over another, and unbounded discretion transforms an otherwise content neutral regulation into a regulation that is directed at the content of the speech.

In the Forsyth County, Ga. Case, the Supreme Court struck down a permit process that gave the county administrator unbounded discretion to assess advance fees from a nominal amount up to $1,000 in order to defray security expenses. The Court said:

Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards” guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time–or even whether to charge at all–is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. [citations omitted]

The new DOA policy allows the State Capitol police to determine, with no objective criteria, whether or not to impose advance fees for public safety and in what amount, all in the context of groups containing as few as four protestors.

There is some argument over whether fee policies must still contain written objective criteria for police in the context of parades and marches. The First Circuit has held that no objective written criteria are necessary when police officials estimate costs related to traffic control, street closures and parade security. See Sullivan v. City of Augusta, 511 F. 3d 15 (1st Cir. 2007). However, the Ninth Circuit has disagreed and ruled that the delegation of unbounded discretion to the police is a violation of the First Amendment even when it occurs in the parade context. Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle, 550 F.3d 788 (9th Cir. 2008). And, in the context of a march and rally, the Eleventh Circuit struck down a regulation that allowed police to pass along the costs of additional police protection to those demonstrating in a public forum as a pre-condition to the granting of a permit. See Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985).

Regardless, the new DOA policy does not apply to parades, but rather to government facilities and in particular the State Capitol building. There is no dispute that the lack of objective criteria for the police to determine whether extra security is required violates the Forsyth prohibition on unbounded discretion when it occurs outside of the parade context — such as when advance fees are charged to cover security for campus speeches, Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010). See also Driver v. Town of Richmond, 570 F. Supp.2d 269 (D. R.I. 2008) (involving unbounded police discretion to issue permits for permission to post signage).

3. Fees May Only Be Imposed When Necessary to Advance Significant Government Interests

The government may not use fees on First Amendment activities as a revenue raising device, but instead must clearly demonstrate that any fee is necessary to advance a legitimate interest in regulating the time, place and manner of speech. See Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943). The state does have a significant interest in safeguarding public safety and property. However, the new DOA policy allows the police to charge for extra security for groups as small as four persons.

The legitimate state interest in safeguarding public safety is not advanced by charging advance fees for groups of such small size. The state cannot demonstrate that a group of four persons will of necessity require the assignment of any extra security at all. Parades, rallies and concerts, where large numbers of attendees are expected, may justify the need for extra security and therefore may provide the state with a sufficient interest in charging an advance fee for security expenses. See, e.g., Thomas v. Chicago Park District, 534 U.S. 316 (2002) (upholding advance permit requirement for events of 50 or more people). However, the fact that fees may be imposed on events attended by large groups does not lead to the conclusion that fees may be imposed in advance any time the state wishes.

The Supreme Court has expressed concern over regulations that act to restrict the political expression of individuals or of small groups of people. In the case of Watchtower Bible & Tract Society v. Village of Stratton, 536 U. S. 150 (2002), the Supreme Court struck down a village ordinance that required advance permitting of every door to door solicitor, saying:

The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.

The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

Reviewing the First Amendment precedent, attorney Nathan Kellum concludes:

The constitutional hurdle of demonstrating a legitimate governmental interest before any regulation of speech can be constitutionally valid leads to inquiries about the size of the group impacted by a permit scheme and whether the government has an interest in regulating singular individuals and small gatherings. One of the most frequent justifications for the use of a prior restraint is the preservation of public safety and order. This oft-cited purpose of safety and order only gains practical legitimacy, however, if the ordinance in question seeks to regulate large group activities, such as parades and rallies. Courts entertaining this issue routinely hold that a permit requirement imposed on individual or small group speech to be overly burdensome.

See Nathan Kellum, Permit Schemes, supra.

The Ninth Circuit summarized the precedent on the issue in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009):

It is therefore not surprising that we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (“As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.”); see also Grossman, 33 F.3d at 1206 (holding that the possibility that the ordinance at issue could reach “the actions of single protestors” rendered it unconstitutional); Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance registration requirement because it applied to individuals and therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (“[U]nflinching application” of a permitting requirement “to groups as small as two or three renders it constitutionally infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“[A]pplying the permit requirement to groups as small as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government's interest in protecting the safety and convenience of users of public sidewalks and streets.]“); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down a permit requirement as “hopelessly overbroad” on the ground that the requirement could conceivably apply to groups as small as “two or more persons”).

In summary, the new DOA policy is susceptible to legal challenge on the grounds that it is a facially overbroad infringement upon the First Amendment rights of protestors. This is because, as written, the new policy can be applied in a way that allows the state to impose advance fees on the indigent, on the basis of unbounded police discretion, and in circumstances where the size of the group affected does not justify any purported state interest in public safety. Potential plaintiffs do not need to wait and bring an “as applied” challenge to the law when it is actually applied against them in an unconstitutional fashion. This is because there is a long established First Amendment exception to the “as applied” rule that will permit a facial challenge to be brought. See Forsyth County, Ga., supra.

The federal courts have approved advance fee requirements in certain contexts, such as overnight camping, parades and rallies. However, courts have consistently rejected regulations on the exercise of free speech that are so broad that they reach expressive conduct by small groups of people, whether by regulatory design or because government officials possess the discretion to apply the rules in such a fashion. The drafters of the new DOA policy seem to have taken language from a variety of permitting policies from other jurisdictions that have survived constitutional challenge, without regard to whether advance fees were imposed by those policies, or the relative size of the groups affected by the policies, or the context in which public expression was subjected to those policies. It is a mistake to assume that because advance fees may be imposed under the First Amendment in some circumstances that fees therefore may be imposed any time the state wishes.

The state is not prevented from charging advance fees that are tied to objective criteria, such as the number of anticipated attendees, and that do not violate the three principles discussed above. The state is not prevented from assessing fees after the fact, in order to receive compensation for any damage actually caused by protestors. However, any prior restraint on the exercise of free speech should be designed carefully and crafted narrowly. The new DOA policy announced on December 1 does not meet this standard.

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.

This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.

For present purposes, I take no position on whether a recall of Governor Walker based upon his actions since taking office is a good idea. However, Governor Walker’s supporters contend that the original “design” of the recall provisions is limited to circumstances where there is evidence of criminal conduct or a serious ethical violation. In making such claims, Walker’s supporters are attempting to cast doubt on the underlying legitimacy of the proposed recall drive, rather than arguing that the recall is unwise. Assuming that a recall petition against Governor Walker is filed on November 15, it is therefore worthwhile to ask whether the use of the recall power in this instance would be consistent with the original design of Article XIII of the Wisconsin Constitution. The answer to that question is “yes.”

A comprehensive history of the Recall Movement by Rod Farmer was published in 2001 in the New England Journal of History, entitled Power to the People: The Progressive Movement for the Recall, 1890-1920. Much of the following discussion draws upon the Farmer article, unless otherwise noted. The article is hosted on the website of the Initiative and Referendum Institute at the University of Southern California.

Farmer’s article makes it clear that the recall power was always intended to be extremely broad in practice:

A 1915 political science college textbook explained the recall this way: “In order to complete popular control over . . . government the recall has been adopted . . . [and] . . . it allows the voters to retire officials for any reason whatever which seems satisfactory to the electorate.” The recall rested upon the assumption that government officials should represent the direct will of the citizens.

(Farmer, p. 3)

Notable early advocates of the recall power in Wisconsin certainly agreed that the recall power should be construed broadly. For example, campaign literature put out by Senator Robert La Follette stated flatly that political candidates who campaigned on one platform (say opposition to the tariff), but who governed differently after they were elected, should be subjected to recall:

Senator La Follettte has favored and now favors the recall.

By the recall, a faithless public official may be retired without waiting for the evil to be fully consummated.

Under such a law, the public official will no longer betray his constituency.

Party platforms will mean party performance.

Downward revision of the tariff in the platform will not mean upward revision in accomplishment. The official will no longer rely on the people forgetting before election day rolls around. He will face the immediate dishonor he deserves.

(Shall The People Rule?, La Follette Campaign Literature)

The broad nature of the recall power reflects its role as the intended remedy for a broken democracy. A desire to reform the democratic process in America lay at the core of the Progressive Movement in America. Progressives wanted to strengthen the control of the people over the levers of government, while reducing the influence of the special interests, and the recall power was one way of accomplishing this goal.

Farmer reminds us that the term “Progressive” was an umbrella designation that included persons with many diverse motivations: Protestants demanding social justice for the poor, religious moralists opposed to alcohol consumption, and “good government” political reformers. (Farmer, pp. 4-5).  Many contemporary critics like to attack the Progressives for their economic policies. However, only some Progressives focused on economic reforms. The uniting thread among the various factions within the Progressive Movement was the view that government in the United States had become systematically corrupt. Their common remedy was to install mechanisms into the very structure of government that would increase the role of popular democracy.

Progressives exalted the federal and state constitutions, with their delegations of authority to elected legislators and executives, as the only legitimate vehicle for making and enforcing the law. However, when they looked at how the constitutionally created organs of government were actually being operated during the late nineteenth and early twentieth centuries – as opposed to how they were designed to operate — they saw that the real power of government was being exercised behind the scenes, and not by the people’s elected representatives. Legislative policy choices were being made in back rooms, out of the public eye, by political party bosses and corporate interests. Ready-made legislation was often brought to the floor of the legislature for quick approval, before the public was informed of the content of the bill or given an opportunity to comment. While lobbyists had a seat at the table, ordinary citizens were left with no power to influence policy. [This secretive union of corporate lobbyists and political interests, and the exclusion of public participation in the drafting of legislation, is echoed in the current day activities of the American Legislative Exchange Council (ALEC)].

Progressive critics railed against the “invisible government”: the corrupt union between partisan party bosses, intent on maintaining their own power, and corporate leaders acting in their own narrow self-interest. Senator Elihu Root , addressing the New York Constitutional Convention of 1915, went so far as to argue that the language of New York’s constitution was irrelevant because “machine” politicians Roscoe Conkling and Thomas Platt had effectively ruled the state for decades:

We have spent many days in discussing the powers of this and that and the other officer. What is the government of this state? What has it been during the forty years of my acquaintance with it? The government of the Constitution? Oh no; not half the time, or half way . . . From the days of Fenton and Conkling, and Arthur and Cornell, and Platt, from the days of David B. Hill, down to the present time the government of the State [of New York] has presented two different lines of activity, one of the constitutional and statutory officers of the State, and the other of the party leaders . . . They call the system . . . invisible government. For I don’t know how many years Mr. Conkling was the supreme ruler in this State; the Governor did not count, the legislatures did not count; comptrollers and secretaries of state and what not did not count . . . Then Mr. Platt ruled the State; for nigh upon twenty years he ruled it. It was not the Governor; it was not the Legislature; it was not any elected officers; it was Mr. Platt. And the capitol was not here; it was at 49 Broadway: Mr. Platt and his lieutenants . . . The ruler of the State during the greater part of the forty years of my acquaintance with the State government has not been any man authorized by the Constitution or by the law.

(quoted in Henry Steele Commager, The American Mind, pp. 313-319)

Progressives wanted to place political power back in the hands of the people through three types of amendments to state constitutions: the initiative, the referendum and the recall. All three of these reforms were considered to be tools by which the electorate could ensure that government remained transparent and inclusive:

Within a modern democracy, the ultimate normative objective is mass political inclusion: ‘[E]very individual potentially affected by a decision should have an equal opportunity to influence the decision . . . [C]ollective actions should reflect the purposes decided under inclusive processes.’ These sentiments were amply on display during the Populist and Progressive eras in American politics, as reformers extended the voting franchise, instituted direct primaries, and increased the number of elective offices; anything less than these reforms, it was said, would imply “corruption.” The principle of democratic inclusion remains a touchstone today. Under this much broader conceptualization of political corruption, many common activities in a system of liberal representation – backroom deal-making and logrolling, the mobilization of particular factions to further one’s political causes, brazen appeals to partisanship, for example – might be called into question.

(Redlawsk & McCann, Popular Interpretations of ‘Corruption’ and Their Partisan Consequences, 27 POLITICAL BEHAVIOR 261 (2005), at 264)

Other Progressive Era reforms included efforts to extend the franchise and widen the voting base, the successful push for the direct election of Senators by the people, and transparency provisions such as “sunshine” laws that required the prompt public notice of new laws and guaranteed public access to legislative proceedings. The elimination of the patronage system, whereby government workers were often hired and fired based upon political affiliation, was also an important element of Progressive Era reform. It is worth pausing for a moment in order to consider how many of these “good government” reforms are presently in the process of being rolled back, through voter ID laws, reduced public access to the legislature, and loose interpretations of public notice.

Far from being a radical invention of the Progressives, the broad power to recall public officials has venerable roots in American history. One early antecedent was the practice, common in the colonial era, of town meetings whereby residents met in order to issue instructions to the town’s representative in the legislature. While the representative’s instructions were sometimes labeled advisory, in many towns the instructions to the representative were considered mandatory. The widespread use of instructions in the colonies during this period paralleled reform efforts underway in England at that same time that sought to make members of Parliament subject to mandatory instructions from their constituents.

After the Revolution, the Articles of Confederation provided that the states had the power to recall their representatives to the national government, although this recall power was lodged in the state legislatures and not directly in the hands of the electorate. Nonetheless, when the United States Constitution was drafted, many delegates at the Constitutional Convention objected that the new Constitution did not provide the same recall provisions for congressmen as did the Articles of Confederation. Luther Martin, in particular, feared that the six year term of Senators was too long and would leave Senators unaccountable to the people unless a recall provision was added to the text.

The federal Constitution of 1789 ultimately did not contain any recall provisions, nor did it provide for the right of state legislatures to issue mandatory instructions to their federal representatives. The absence of these provisions reflects the desire on the part of the drafters to give federal representatives the freedom to promote national interests without being beholden to local pressure. However, the desire to advance these federalism principles in the United States Constitution should not be read as a rejection of the use of the recall power when it is exercised at the state level.

In the nineteenth century, first the Populists and then the Progressives picked up on the idea of the recall as a way for the public to hold legislators accountable. The Recall Movement gathered strength after Los Angeles became the first major U.S. city to include a recall provision in its city charter in 1903. In 1908, Oregon became the first state to include recall provisions in its constitution. Wisconsin was one of the last states to adopt a recall provision in 1926, by which time the Progressive Movement had run its course.

Supporters of the recall power argued that its foundation lay in the sovereign power of the people. They assumed that the role of the elected official was the role of a delegate, whose duty was to give effect to the opinion of his district and not to exercise his own judgment. Far from being radical, supporters thought that the recall was necessary in order to “restore popular government to the people by destroying the control of private influences over legislative bodies” (Farmer, p. 14, quoting a 1911 author). Political history in our country has always recognized the primacy of the sovereign people, but what had changed in the opinion of the Progressives was the growth of corporations and special interests that had captured the legislature.

Opponents of the Recall Movement resisted state constitutional amendments on the grounds that the recall power would lead to political instability. They charged that constant recall elections would lead to a form of “perpetual warfare” between political parties. They also charged that recall supporters were socialists who were engaged in class warfare against the educated, property-holding portion of the population. (Farmer, p. 20). In Wisconsin, as well as in many other states, the voters rejected these arguments in opposition to the recall power and proceeded to make the right of recall a part of the fundamental law of the state.

After arguing that the language creating the recall power was too broad, and too radical, those who had opposed the adoption of the recall power modified their argument. Now they claimed that the same language that they had previously criticized for being too broad was, in fact, intended to be construed narrowly, so that recall elections would only take place in those rare instances when candidates had committed serious criminal or ethical transgressions.

An examination of statements by leading Progressive politicians refutes the idea that the recall power was intended to be limited to specific criminal or ethical violations. Theodore Roosevelt, for example, argued that elected officials were held to a higher standard than mere compliance with the letter of the law:

There are not a few public men who, though they would repel with indignation an offer of a bribe, will give certain corporations special legislative and executive privileges because they have contributed heavily to campaign funds; will permit loose and extravagant work because a contractor has political influence; or, at any rate, will permit a public servant to take public money without rendering an adequate return, by conniving at inefficient service on the part of men who are protected by prominent party leaders. Various degrees of moral guilt are involved in the multitudinous actions of this kind; but, after all, directly or indirectly, every such case comes dangerously near the border-line of the commandment which, in forbidding theft, certainly by implication forbids the connivance at theft, or the failure to punish it.

(Theodore Roosevelt, The Eighth and Ninth Commandments in Politics, OUTLOOK, May 12, 1900)

Similarly, when Progressives spoke of pervasive government “corruption,” they did not understand that word to refer to violations of the criminal code. Rather, “corruption” referred to the failure of a government official to put the public good ahead of special interests. In this regard, the Progressives were merely using the word the same way that it was used by the Framers of the Constitution:

The term ‘corruption’ generally was understood [by the Framers] . . . to mean not merely theft . . . . but the use of government power and assets to benefit localities or other special interests (in essence, ‘factions’). . . . Corruption existed when a narrow benefit was sought and received – the mental attitude and approach towards government was intrinsic to the definition.

Moreover, the activities included could be legal or illegal, so corruption clearly is not attached to a set of violations of the criminal law. [Governeur] Morris explicitly said that the corruption concern encompassed lawful abuses of power, not merely unlawful abuses or ‘usurpations.’

(Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 375-376 (2009))

However, Progressives believed that government corruption had increased significantly since the founding of our nation, stimulated by corporate spending on political activity. Theodore Roosevelt made this point extensively in his famous “New Nationalism” speech. While the speech should be read in its entirety, for present purposes it is sufficient to quote Roosevelt’s conclusion about the manner in which corporate money diminishes the ability of the general public to exercise control over the democratic process for the common good:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they have called into being.

There can be no effective control of corporations while their political activity remains. To put an end to it will be neither a short nor an easy task, but it can be done.

We must have complete and effective publicity of corporate affairs, so that the people may know beyond peradventure whether the corporations obey the law and whether their management entitles them to the confidence of the public. It is necessary that laws should be passed to prohibit the use of corporate funds directly or indirectly for political purposes; it is still more necessary that such laws should be thoroughly enforced. Corporate expenditures for political purposes, and especially such expenditures by public-service corporations, have supplied one of the principal sources of corruption in our political affairs.

If some modern readers find Roosevelt’s broad usage of the word “corruption” to be confusing, that may be because a handful of Supreme Court Justices have recently embarked upon a campaign to re-define that word. Intent on advancing the non-originalist idea that corporations have a right of free speech under the First Amendment, these judges have argued that the word “corruption” can only be understood to apply to acts of bribery involving elected officials, where some sort of quid pro quo of cash for specific performance is alleged to have taken place.

As summarized by Professor Zephyr Teachout, “[i]n a handful of cases, and for a handful of Justices, corruption is basically coextensive with the criminal law statutory definition of bribery and ‘political corruption’ – a view coming out of some (probably) careless writing in [Buckley v. Valeo].” (Teachout, p. 388).  In Buckley, the majority opinion of the Court had mentioned the quid pro quo form of political bribery as one type of corruption. Later, in the Citizens Against Rent Control case, Chief Justice Burger would cite Buckley as holding that bribery was the only form of corruption that justified laws restricting free speech in the context of political campaigns. Justice Kennedy picked up on this point in McConnell v. FEC. By the time of the Citizens United case, the idea that corruption could only be defined in the narrow sense of bribery of elected officials became one of the cornerstones in an opinion by five Justices that struck down campaign finance laws that restricted corporate spending. (Teachout, pp. 388-389).

It is a mistake to read the pervasive denunciation of corruption employed by the advocates of the recall power in the more limited sense that these current day conservative judges employ. To limit the word’s meaning in such a fashion is an anachronistic attempt to define deviant conduct downwards. Critics of the Supreme Court’s campaign finance decisions have called on the Court to abandon these efforts and return to the original meaning of the word corruption. However, regardless of the merits of current day attempts to re-define the word, it is clear that the drafters of the Wisconsin recall provisions understood corruption to encompass any conduct by public officials that advanced the objectives of special interests (especially corporate interests) at the expense of the common good.

Not surprisingly, the actual text of Article XIII of the Wisconsin Constitution reflects the history outlined above. In a previous post, I listed the many reasons why the text of the Wisconsin Constitution itself is inconsistent with any limitation of the recall power to instances of criminal or ethical wrongdoing.  First, the right of recall in Article XIII, Section 12, is guaranteed by the text without any limitation on the use of that power. We should not read a narrow limitation into the text without any language to support such a limitation. Second, instances of “corrupt conduct” or the commission of crimes and misdemeanors by elected officials is specifically made subject to the separate impeachment provisions of Article VII. We should not read a general grant of power to be duplicative of a more specialized constitutional provision, because it is improper to read any constitutional provisions as surplusage.

Third, the differences between impeachment and recall are significant. Impeachment, for serious offenses, can occur quickly. Recall elections take a long time, and seem ill suited as a means of removing serious transgressors. By the same token, impeachment is a vehicle whereby legislators un-do the choice of the electorate, so it is appropriate to limit the impeachment power to serious offenses. In contrast, recall is the action of the electorate to un-do its own choice, thereby making a lower standard for removal appropriate. Finally, serious allegations of wrongdoing trigger due process rights to defend oneself, which is the case in an impeachment proceeding. The lack of a vehicle for the recalled official to defend himself in Article XIII indicates that the recall power is not dependent upon any allegation of wrongful conduct.

It is a common technique of textualists to take language out of context in order to construct an alternative meaning wholly divorced from the original intent of the drafters.  Fortunately, the text of the Wisconsin Constitution is sufficiently clear on this matter as to preclude any such mischief here.

To be clear, it is perfectly appropriate to argue that the recall power contained within Article XIII of the Wisconsin Constitution is broadly available, but that it is a power best reserved for extreme violations of the public trust. This would be a statement concerning the circumstances under which a broad recall power should be used, as opposed to an assertion that it is improper to use the power at all. It is equally valid to make the opposing argument, which is that the recall power (and the mere threat of a recall) plays an important role in limiting potential abuses by those who exercise the public trust, and that therefore the electorate should utilize that power freely. This post is intended to clarify the broad scope of the recall power in general, not the wisdom of its use.

People who argue that the recall provisions of the Wisconsin State Constitution were designed solely for the removal of elected officials who violate the criminal law, or who transgress formal ethical rules, are engaged in the worst form of historical revisionism. In so doing, these individuals degrade the public debate over the utility of recall elections, by denying the public a common basis of historical fact by which to measure current events.

Constitutional provisions must be given their intended effect, and should not be interpreted out of existence by people who don’t like them. This requires judges, lawmakers and pundits to respect those Progressive elements that have been written into the Wisconsin Constitution because, as much as any other constitutional provision, they are the law of the land.

Photo: Voters submit petitions in 1910 to recall Seattle Mayor Hiram Gill. Gill was elected on an “open town” platform, and his administration tolerated widespread prostitution and gambling operations in the city. Despite being upfront about his policies, a recall drive was instituted against him. The grounds listed in the petition to recall Gill were 1) gross incompetence, 2) refusal to enforce the ordinances of the city, 3) lack of impartiality in appointing men to public office, and 4) allowing Seattle to become a home for criminals. See Mansel Blackford, “Reform Politics in Seattle During the Progressive Era,” 59 THE PACIFIC NORTHWEST QUARTERLY 177 (1968). Gill lost the recall vote, subsequently switched positions to become a “law and order” candidate, and was elected Mayor of Seattle again in 1914.

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII.

Among other things, the FCC’s revised policy, as described by the Second Circuit, “establish[ed] a ‘presumptive prohibition’ on the use of the F- and S-Words unless their use is ‘demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance,’ or the words are uttered in the course of a ‘bona fide news’ program.” Of course, the policy is not limited to these specific words—they are paradigmatic but not exclusive—and can include instances of nudity, sexual activity, or other words with the same cultural significance as the F- and S-words. More significantly, the FCC policy has been characterized as contextual, depending on the circumstances surrounding each utterance.

Concerns of vagueness and overbreadth naturally abound in the case, and such concerns often provide a judicially attractive way to analyze and invalidate laws without getting unduly entangled in the difficult line-drawing inherent in actually having to define the parameters and boundaries of constitutional protection. But judicial invalidations on the basis of vagueness, in particular, are often just means to delay an inevitable ruling on the merits, and in the case of the FCC indecency rules, the vagueness card has already been played. At some point, such diversionary measures may begin to appear transparent and even unsatisfactory.

At the doctrinal heart of the case (at least from the FCC’s perspective) is a traditional distinction between limited-airwave broadcast media (such as radio and at least earlier versions of television) and the not-so-limited-bandwidth media (such as the internet and its many outlets). According to the FCC’s brief on the merits, the Supreme Court “has long applied less demanding First Amendment scrutiny to regulation of broadcast speech than to regulation of other communications media. That established rule has historically been premised on the scarcity of available broadcast frequencies, the pervasive presence of broadcast media, and the unique accessibility of broadcast programming to children. Those characteristics of broadcasting remain true today.” Historical deference aside, however, each of these characteristics today does not have nearly the force that it possessed in decades past.

Much of the reason that these characteristics have lost persuasive force can be attributable to the final major variable, namely, technological change. With cable, satellite, and internet television and radio (which are generally not regulated by the FCC), it is difficult to speak of “the scarcity of available . . . frequencies.” Moreover, with the prevalence of alternative media devices, from smart phones to tablets, and the diminished role of traditional broadcast media, it is hard to suggest that these traditional media comparatively exhibit a distinctly “pervasive presence.” Lastly, given the content and availability of the internet, not just on PCs but on so many other devices, it is fanciful to speak of “the unique accessibility of broadcast programming to children,” especially when one considers the filtering capabilities built into modern televisions and other media devices and programs.

In the end, this is an important case precisely because it situates the Court at a decisive crossroads. Either the Court can maintain and perhaps try to rework the distinctions that were originally developed amid an era marked by a vastly different technological landscape (and arguably a different cultural milieu) or it can consider revamping its doctrine in a principled way that takes full account of these changes and also anticipates future developments. The latter course need not require the Court to overrule any of its prior decisions, as long as it acknowledges with candor the need to alter its doctrine and maintains fidelity to the deeper import or principles of those cases. Likewise, the latter course also need not lead inexorably to an invalidation of the FCC’s indecency rules, but it would require the Court to chart a new and imaginative course within this branch of the First Amendment.

The worst outcome, I believe, would be a ruling—whether upholding or invalidating the FCC rules—that purports to reach its holding entirely within the existing framework without acknowledging the limited utility of that framework, the vast technological and other changes that exert pressures on the framework’s ongoing viability, and the possibility that the extant framework may (or will) eventually become obsolete.

Interestingly, the language of the 13th Amendment, viewed acontextually, does not foreclose their claim.  It states simply that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  It does not speak of persons or citizens, as do so many other constitutional guarantees, but rather focuses on and prohibits the acts of slavery and involuntary servitude.  Moreover, while the Thirteenth Amendment (or at least its prohibition on slavery) was substantially drafted and ratified for the benefit of black Americans in slaveholding states, the text is not limited to any particular group or class.  Certainly we have seen other constitutional provisions, such as the guarantees of due process and equal protection, judicially extended well beyond their originally envisioned scope.

Does this mean, then, that the orcas’ lawsuit stands a fair chance of prevailing?  I highly doubt it.  Despite the complaint’s concededly sympathetic recitation of facts concerning the species-specific harms visited upon the orcas in question, the lawsuit appears to face at least two serious potential obstacles.

First, while it is true, as alleged, that section 1 of the 13th Amendment has in some instances been described as self-executing (i.e., not needing the medium of a federal enforcement statute), that characterization was often made in particular circumstances at particular points in time and should not today be accorded significant weight.  In fact, the bulk of contemporary federal court authority, generally from district courts, suggests that there is normally not a private cause of action to enforce the 13th Amendment.  As stated by a district judge in the Southern District of California—the very court where the orcas’ suit has been filed—“[f]ederal courts have held that the Thirteenth Amendment does not give rise to an independent cause of action against private parties; plaintiffs must instead base such claims on one of the statutes implementing the Thirteenth Amendment . . . .”  Del Elmer; Zachay v. Metzger, 967 F. Supp. 398, 402 (S.D. Cal. 1997).  To be sure, “[n]either the Supreme Court nor the Ninth Circuit nor, for that matter, any circuit at all, has directly addressed this question.”  Jane Doe I v. Reddy, No. C 02-05570 WHA, 2003 WL 23893010, *9 (N.D. Cal. Aug 04, 2003).

Importantly, the orcas’ suit is filed directly under section 1 of the 13th Amendment and not under one or more federal enforcement statutes authorized by second 2 of that Amendment.  While it may be that these statutes are not broad enough to cover all of the harms alleged in the suit, the more likely reason for avoiding the use of the federal statutes is that they, unlike the 13th Amendment, do employ terms like “person” and thus would pose a serious obstacle to would-be plaintiffs, like orcas, that are not persons in any ordinary sense of the word.

The second serious obstacle potentially facing the orcas’ lawsuit is that of line-drawing.  The judiciary has always experienced unique difficulty defining or delineating rights-bearers under the Constitution, even when the alleged rights-bearers are arguably or even undeniably human beings.  To ask courts to venture via the Constitution into the realm of non-human species, which is exactly what the orcas’ lawsuit is asking, will strike many if not most judges as at best unpalatable and at worst improper.  It would demand of them entirely new doctrines and analysis, would likely expand their docket immensely, and would embroil them in controversies that, at least in the short run, could cause significant damage to their institutions.

Perhaps fifty or one-hundred years from now, constitutional or other legal claims on behalf of non-human beings will be commonplace.  At this point in time, however, there is good reason to think that such claims are beyond the capacity of the written law and beyond the capability of courts to handle them with any degree of competence, consistency, and, not least, authority.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment.

The legality of the extrajudicial assassination of al-Awlaki was the subject of a civil suit in 2010.  After learning that his son had been placed on a CIA/Joint Special Operations Command “kill list”, al-Awlaki’s father brought suit in the U.S. District Court for the District of Columbia against President Obama, Secretary of Defense Robert Gates, and CIA Director Leon Panetta.  In an attempt to enjoin the executive branch from killing his son, al-Awlaki introduced several claims based in both constitutional and tort law.  The court’s lengthy opinion begins with a compelling recitation of the questions presented:

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen –himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 8-9 (D.D.C. 2010).

Before contemplating the more compelling issues, the court first decided the issue of standing.  Al-Awlaki’s father lacked “next-friend” standing because he failed to provide an adequate reason justifying why Anwar could not appear in court on his own behalf.  His father claimed that if Anwar presented himself to authorities he would be exposed to attack.  The court disagreed, citing public government statements indicating that if al-Awlaki surrendered peacefully he could not be executed without due process.

The court also denied third party standing, holding that Anwar’s father could not show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.  Anwar’s status as an adult was of particular importance because a parent does not have a constitutionally (or common law) protected liberty interest in maintaining a relationship with his adult child free from government influence.

Prudential standing was denied because, among other reasons, the court refused to “unnecessarily adjudicate rights” that it believed al-Awlaki did not wish to assert himself.  The court noted that al-Awlaki made numerous public statements professing his contempt for the U.S. legal system.  Al-Awlaki did not believe that he was bound by U.S. laws because, in his view, they are contrary to the teachings of Allah.  I personally find it difficult to believe that a person would not want to contest his own assassination, but it also seems unlikely that al-Awlaki would wish to assert legal rights in a court system that he did not recognize as authoritative, especially in a country that he openly despised.

Ultimately, the most compelling issues were not addressed because the court found that judicial review was inappropriate.  The court held that separation of powers and the political question doctrine prohibited interfering with the executive branch’s orders with respect to military action abroad.   Meaningful review was deemed impossible, because it would require an unmanageable assessment of the quality of the President’s interpretation of military intelligence and his resulting decision (based upon that intelligence) to use military force against terrorist targets overseas:

[T]his Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” (citation omitted), the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, (citation omitted), presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,”(citation omitted) But as the D.C. Circuit explained in Schneider, a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” (citation omitted) Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Al-Aulaqi, 727 F.Supp.2d at 52-53.

It is unfortunate that the Aulaqi case never made it beyond the issue of standing, but perhaps that was the proper outcome.  Although Awlaki was a U.S. citizen (and a citizen of Yemen), he was also clearly a member of al-Qaeda.  Shortly after 9/11, Congress passed the Authorization for Use of Military Force (“AUMF”).  The AUMF provides that:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States…

Everyone (except for the guy who leaves “9/11 was inside job” comments beneath every news article on the internet) knows that al-Qaeda is the organization that planned and committed the terrorist attacks that occurred on 9/11.  Al-Awlaki was indisputably a member of al-Qaeda.  The Executive’s killing of al-Awlaki was certainly aimed at preventing future acts of international terrorism against the United States.  If the AUMF can be read as authorizing al-Awlaki’s killing, then it would appear that the President assassinated him with congressional approval.  In that scenario, Justice Jackson’s concurrence in Youngstown would indicate that the President was acting at the highest ebb of his authority.

Still, many columnists and politicians like Ron Paul believe that Obama’s decision was illegal on due process grounds.  Might Ron Paul be engaging in political grandstanding?  I do seem to remember hearing something about an upcoming election.  On the other hand, the AUMF only authorizes necessary and appropriate force.  In his suit against the Executive, al-Aulaqi suggested that imminence is the key factor in determining whether lethal force is justified.  It would have been interesting to find out what legal standard the court would apply to the use of lethal force on foreign soil against a member of al-Qaeda holding U.S. citizenship, but that issue was never addressed.

Was the force used against al-Awlaki necessary and appropriate?  It seems difficult to determine without a meaningful presentation of evidence against al-Awlaki.  Personally, I don’t think I’ll hold my breath waiting for the day that the general public is offered an explanation as to why al-Awlaki couldn’t be captured and tried in a U.S. courtroom.  It is troubling to know that the President can order the extrajudicial execution of a U.S. citizen based upon secret evidence.  On the other hand, it has been said that the Constitution is not a suicide pact, and it’s comforting to know that the President is tracking and killing those who are actively trying to kill Americans.

After reading the al-Aulaqi opinion, I was left feeling unsatisfied with the court’s decision to defer to the other branches of government, but I understood why it did so.  In many ways, the moral issue of al-Awlaki’s murder leaves me feeling the same way.  I think it’s unfortunate that al-Awlaki was not indicted, captured, and tried in Federal court.  I also understand that applying traditional due process to a terrorist abroad might create a logistical nightmare and place many innocent lives in danger.  Is this a slippery slope?  If so, wouldn’t requiring the judicial approval of military strategy abroad be just as slippery?  Either way, I respect those who speak out in favor of due process.  I also wonder how many of those people, if faced with the same choice as the President, would choose differently.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot. Beginning in the case of Anderson v. Celebrezze, and continuing in the case of Burdick v. Takushi, the Court has held that state election regulations are subject to a sliding scale of judicial review, with laws that significantly burden the right to vote receiving greater scrutiny than laws of general application which operate merely as an inconvenience to voters. This sliding scale of scrutiny has come to be called the Anderson/Burdick test.

B. Crawford v. Marion County Election Board

The key United States Supreme Court case analyzing the constitutionality of state voter ID laws is the 2008 case of Crawford v. Marion County Election Board. In 2005, Indiana passed a state law requiring every person casting a ballot in person to present a government-issued photo ID. The law did not apply to votes cast via absentee ballot. Various exemptions allowed indigent individuals and those with religious objections to being photographed to cast a provisional ballot which would be counted if the voter traveled to the circuit court clerk within 10 days after the election date and executed an affidavit. Under the Indiana law, residents are entitled to free state-issued photo IDs.

The Indiana Democratic Party, among others, filed a lawsuit challenging the Indiana Voter ID law. The plaintiffs alleged that the Indiana Voter ID law was unconstitutional on its face because the requirement of a photo ID imposed a substantial burden on the right to vote as guaranteed by the Fourteenth Amendment.

In a fractured ruling by the United States Supreme Court, a total of six Justices voted to uphold the Indiana Voter ID law but none of the written opinions was joined by more than three Justices. In a plurality opinion authored by Justice Stevens, and joined by two other justices, the Court applied the Anderson/Burdick balancing test. The plurality opinion weighed the legitimate state interests of Indiana in passing the regulation against the burden that the law’s requirements placed on those wishing to vote. Justice Stevens concluded that the plaintiffs had not provided evidence of widespread impediments to voting under the law sufficient to outweigh the state’s interest.

The plurality opinion identified Indiana’s interests in passing the law as being the deterrence and detection of voting fraud, the prevention of voter fraud, and the safeguarding of voter confidence in the integrity of the electoral process. Justice Stevens accepted the validity of these state interests as unquestionably legitimate. The plurality did not require Indiana to provide evidence of past voter fraud, nor did it demand evidence of the greater potential for fraud associated with in-person voting as opposed to absentee voting, nor did it ask Indiana to provide evidence of the asserted connection between voter ID legislation and increased voter confidence. In fact, the plurality expressly noted the absence of any evidence in the record to support the existence of these three state interests. Yet it found these state interests to be legitimate nonetheless.

Against these interests, the plurality weighed the burdens imposed by a photo ID requirement imposed on voters. Justice Stevens noted that IDs can be lost or stolen, but considered the denial of the right to vote under these circumstances to be infrequent. The plurality found that the fact that Indiana provided free IDs meant that the most common burden faced by those who did not already own a photo ID would be limited to traveling to the department of motor vehicles, gathering the required underlying documentation, and posing for a photograph. While certain individuals might find these actions burdensome, for most of the population they would be nothing more than an inconvenience.

For those limited number of persons who did find compliance with the law to be more difficult than the average voter, the plurality opinion stated that the Indiana statute’s grant of a right to cast a provisional ballot without obtaining a photo ID would mitigate the severity of the burden caused by an ID requirement. The lack of a serious burden on a widespread basis, and the fact that the law’s burdens were imposed on all voters on an even-handed basis, led Justice Stevens to conclude that the plaintiffs had failed to meet the heavy burden of persuasion necessary to overcome Indiana’s interests. Therefore, the plaintiffs failed in their facial challenge to the Indiana Voter ID law.

A facial challenge to a statute asserts that the law may rarely if ever be constitutionally applied. To succeed, a plaintiff must demonstrate that there are no possible circumstances under which the law is valid. In contrast, an “as applied” challenge is a claim that a statute is unconstitutional in a particular case. The plurality opinion left open the possibility that a challenge to the Indiana Voter ID law might be possible on an “as applied” basis if a particular voter or group of voters could demonstrate that the law imposed an unjustified burden specifically on them.

In a concurrence, Justice Scalia argued that the plurality opinion should have applied the Anderson/Burdick test in a manner that is even more deferential to the state. He argued that only laws that “severely” burden voting rights should be subjected to heightened judicial review. Because he viewed any generally applicable, non-discriminatory voting regulation as incapable of placing a severe burden on the exercise of voting rights, Justice Scalia argued that the Court should defer to the state legislature’s judgment that the regulation is justified. He concluded that neither a facial challenge to the Indiana law nor an “as applied” challenge should be permitted.

In the absence of facts demonstrating a severe burden, Justice Scalia would hold that the Constitution requires nothing more than that the Indiana law not significantly increase the typical burdens associated with the voting process, and that Indiana identify an interest in the law sufficient to justify any minimal burden imposed. Only when state laws impose severe and unjustified burdens on the right to vote, according to Justice Scalia, should the Court proceed to apply heightened scrutiny to the state law.

However, only two Justices joined Justice Scalia’s concurrence. Instead, the three Justices in the plurality and the three dissenting Justices applied the Anderson/Burdick test in a way that required the Court to balance state interests against the burden placed on the right to vote in all cases, however slight the burden, and not just in cases where the particular burden might be characterized as “severe.” In addition, these six Justices also appeared to agree with the proposition that, even if the plaintiffs in the Crawford case had failed to meet the high burden required to prevail on a facial challenge to the law, it remained an open issue whether the Indiana law might be unconstitutional on an “as applied” basis.

Two dissents were filed in the case. The dissenting opinion authored by Justice Souter (joined by Justice Ginsburg) argued that the proper application of the Anderson/Burdick test requires the state to provide factual evidence in support of its proffered interests before the Court will allow the state interest to overcome a demonstrated burden on the right to vote. The dissenting opinion authored by Justice Breyer argued that Indiana had failed to explain why it could not satisfy its purported interests in a photo ID and still permit the use of a broader array of IDs, such as student IDs or employer-issued badges.

The Crawford decision has been criticized for misapplying the Anderson/Burdick test. Critics have argued that the plurality opinion in Crawford applies the balancing test in an overly deferential way that approximates mere rational review of the Indiana statute. However, the Court’s original explication of the Anderson/Burdick test indicates that, while something less than strict scrutiny should be applied to laws uniformly burdening voting rights, the Court intended to preserve some form of heightened scrutiny in order to ensure that the state can document that the voting regulation at issue is justified. These critics believe that the dissenting Justices in Crawford applied the Anderson/Burdick test correctly.

Admittedly, the original language the Court quotes setting forth the Anderson/Burdick test is vague and confusing, leading other critics to focus not on the Crawford decision but instead cast blame on the Anderson/Burdick test itself. These critics argue that, by adopting a balancing test for challenges to non-severe and even-handed restrictions on the ability to vote, the Supreme Court’s rulings in Anderson and Burdick essentially overturned prior precedent recognizing that the right to vote was a fundamental right. In addition, the Anderson/Burdick test itself can be criticized for allowing a judge’s subjective opinion of what is and is not a “severe” restriction on the right to vote to determine the standard of judicial review.

C. The Implications of the Crawford Decision for Future Litigation

In the wake of the Crawford decision, it is clear that four significant hurdles stand in the way of any future litigation challenging a state voter ID law. First, the Court has imposed a heavy burden on plaintiffs who wish to bring a legal challenge to a state voter ID law. To succeed, plaintiffs would have to provide factual evidence of widespread and significant burdens that a photo ID requirement actually imposes on individuals who wish to vote. In addition, should a plaintiff in such a case actually acquire a photo ID at any time after filing suit, they would no longer be injured by the law and their claims would become moot. In other words, in order to succeed in a challenge to the law the plaintiffs must provide both factual evidence of widespread barriers to the possession of a photo ID and, concurrently, the plaintiffs’ ongoing inability to successfully obtain an ID. Gathering this empirical data and identifying the appropriate plaintiff(s) will not be easy.

Second, the Crawford plurality rejected the plaintiff’s argument that all laws burdening the ability to cast a ballot should be subjected to strict scrutiny. Instead, the plurality applied a balancing test whereby the court must weigh the burden imposed by a voter identification law against the relevant and legitimate interests of the state. A balancing test is inherently subjective, and gives individual judges leeway to apply pre-existing biases, opinions and/or political philosophies to the weighing process.

Third, the Crawford plurality explicitly found that the state’s interest in preventing potential fraud, and in maintaining public confidence in the integrity of the voting process, was sufficient to outweigh the burdens imposed by the Indiana law. The state of Indiana was not required to produce any evidence of actual voting fraud in prior elections.

Finally, none of the typical burdens associated with voter ID laws was found to be sufficient to outweigh the state’s interest. The Crawford plurality recognized that voter identification laws may require persons to travel significant distances to motor vehicle licensing centers, and that many people would find it difficult to reach these centers using public transportation, and that the elderly and the indigent might find it difficult to obtain identifying documents such as birth certificates. None of these typical burdens associated with a photo ID requirement were found to be sufficient enough to outweigh the interests of the state of Indiana.

D. Possible Legal Theories Still Viable to Under the U.S. Constitution

Despite the barriers to future litigation erected by the Crawford decision, there remain at least two viable legal theories by which to challenge a state voter ID law under the U.S. Constitution.

1. Proof of a “Disguised” Poll Tax

In Harper v. Virginia Board of Elections, the U.S. Supreme Court found that a state law conditioning the right to vote on the payment of a poll tax was an invidious restriction on the right to vote, because the ability to pay the poll tax is unrelated to any legitimate voter qualification. The Crawford plurality opinion did not purport to modify or overrule this precedent, and, in fact, suggested that the failure to provide free photo IDs would have been fatal to the Indiana Voter ID law.

2. Possible “As Applied” Challenges to a Voter ID Law

A successful “as applied” challenge to a Voter ID law would require empirical data on the number of registered voters who do not already possess an acceptable photo ID and, in addition, either cannot obtain an acceptable ID under the law or else would face a significant burden in obtaining an acceptable ID.

On the one hand, it might be possible to provide empirical evidence that under the Wisconsin Voter ID law a distinct population of Wisconsin residents is absolutely denied the right to vote. For example, individuals who are homeless and who live on the street may find it impossible to satisfy the requirement to demonstrate residency in order to obtain a photo ID. However, specific data on the number of homeless persons who live on the street in Wisconsin, and who cannot provide acceptable evidence of residency under the law, would be difficult to collect.

More likely, it might be possible to gather empirical evidence demonstrating that distinct populations within the state face a more significant burden under the law than the typical voter. Post-Crawford, an “as applied” challenge might be possible on behalf of those who 1) find it prohibitively difficult to travel long distances to nearest available department of motor vehicle office; 2) lack access to mass transit or other forms of transportation (especially in in rural areas); 3) or are unlikely to possess the underlying documentation necessary to obtain a photo ID (passport, birth certificate, etc.) due to the passage of time or due to geographic distance from their place of birth.

Distinct populations that might share one or more of these characteristics include the elderly, the disabled, the indigent, students who are residents but who are from out of state, and voters whose current name differs from the name on their birth certificate. A successful “as applied” challenge might be brought on behalf of one or more of these groups if there were empirical evidence that 1) large numbers of persons in these groups did not already possess an acceptable photo ID and 2) complying with the law would impose a significant burden on these individuals.

E. The Voter ID Law and the Wisconsin Constitution

In general, state laws which set forth the time, place and manner in which elections are conducted will be upheld provided that they do not impermissibly infringe upon a fundamental right, do not apply unequally to state residents, and do not contravene express provisions in the state constitution that limit the legislature’s ability to place restrictions on the exercise of the franchise.

1. Equal Protection

An argument can be made that state laws requiring voters to present a photo ID when voting in person violate the equal protection clause of the state constitution because not all voters are equally burdened. In particular, absentee voters are not required to possess or present a photo ID in order to vote. In addition, some state supreme courts have interpreted the equal protection clause of the state constitution to provide a broader scope of protection than the equal protection clause of the United States Constitution.

For example, in Weinschenk v. Missouri, the Missouri Supreme Court struck down the Missouri Voter ID law, relying in part on the fact that the Missouri Constitution has been interpreted to provide greater equal protection against unequal rights than the federal Constitution. The Weinschenk opinion also noted that the equal protection clause of the Missouri Constitution required the court to apply strict scrutiny to state laws that impinge on fundamental rights, and that Missouri precedent provided a strong basis for concluding that the right to vote is a fundamental right protected under the Missouri Constitution.

Wisconsin courts often have used language suggesting that the right to vote is a fundamental right protected by the Wisconsin Constitution. Where a state law touches upon important individual rights, the Wisconsin Supreme Court would normally apply a heightened form of judicial scrutiny in order to assure a close fit between the law’s means and the law’s ends. This analysis would suggest that the Voter ID law should receive heightened scrutiny under the equal protection clause of the Wisconsin Constitution.

However, precedent interpreting the Wisconsin equal protection clause does not typically grant that clause a more expansive scope than the 14th Amendment of the United States Constitution. Instead, Wisconsin precedent generally emphasizes that Wisconsin’s own equal protection provision is to be interpreted as co-extensive with the equal protection provision of the federal Constitution. In the absence of strong precedent indicating that the state constitutional provision has a broader scope than the 14th Amendment of the U.S. Constitution, it appears unlikely that a Wisconsin court would apply strict scrutiny to the Wisconsin voter ID law. Instead, were it to reach the issue, the Wisconsin Supreme Court might be expected to follow the approach used in the Crawford decision and to evaluate any state law regulating the right to vote under a more deferential balancing test.

2. Article III Right to Vote

A second, although related, argument in favor of expanded protection of voting rights under a state constitution is that constitutional provisions listing the qualifications of voters are the exclusive permissible qualifications on the right to vote. Therefore, the state legislature may not make substantial changes to these qualifications, or add additional qualifications, in the absence of an amendment to the constitution. This argument stresses that the legislature lacks the power under the state constitution to amend the list of voter qualifications contained in the constitutional text merely by passing a statute. In order to prevail under this argument, however, the plaintiff must convince the court to interpret the state constitution’s listing of specific voter qualifications as if the specified qualifications were the exclusive qualifications permitted.

In addition, the explicit voter qualification provisions located within state constitutions also support the argument that the right to vote is more of a fundamental right under a state constitution than it is under the federal Constitution. After all, the federal Constitution lacks any provision listing the explicit qualifications for casting a ballot, and instead largely leaves the regulation of elections to the states. Therefore, the argument goes, state constitutions should be interpreted to provide greater protection for voting rights than the federal Constitution. This argument was stressed by the Missouri Supreme Court in the Weinschenk case.

Article III of the Wisconsin Constitution contains the following provisions:

Electors. Section One. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.

Implementation. Section Two. Laws may be enacted:

1. Defining residency.

2. Providing for registration of electors.

3. Providing for absentee voting.

4. Excluding from the right of suffrage persons:

a. convicted of a felony, unless restored to civil rights.

b. adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.

5. Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.

It is possible to argue that Article III should be interpreted to create an absolute right to vote on the part of the electorate so long as the qualifications of Section One are met. Under this interpretation, age, citizenship and residence are the exclusive qualifications for casting a ballot in Wisconsin, and the Wisconsin legislature may not add additional requirements to the list contained in Section One. In contrast, Section Two, which is titled “Implementation,” allows the legislature to define residency and to provide procedures for registration, but it does not allow the legislature to add additional substantive qualifications to the list in Section One. The possession of a state-issued photo ID might be viewed as a substantive qualification limiting the pool of eligible voters, and therefore beyond the constitutional authority of the legislature.

However, arguing against this interpretation is the fact that the right to vote in an election is not explicitly guaranteed by the language of Section One of the Wisconsin Constitution. In addition, nowhere does the text of the Wisconsin Constitution explicitly state that the qualifications listed in Section One should be read to comprise the exclusive list of permitted qualifications in the absence of a constitutional amendment.

It is relevant to note that, while the Missouri Supreme Court interpreted the Missouri Constitution to contain an exclusive list of voter qualifications in Weinschenk, a case that pre-dated the Crawford decision, subsequent to Crawford the highest state courts in Indiana, Georgia and Michigan have all declined to interpret their state constitutions in such a fashion. Instead, these later cases read the photo identification requirement as akin to a “time, place and manner” regulation that occasionally operates to prevent votes from being cast, such as a provisions dictating when polling places open or close, and not as an attempt to add an additional qualification for voting rights.

F. Conclusion

Litigation challenging the constitutionality of state laws imposing a voter ID requirement faces an uphill battle under existing judicial precedent. Individuals and advocacy groups concerned about the possibility that voter ID laws may act to disenfranchise certain populations should not look to litigation as a “magic bullet” to overturn such laws. Instead, critics of voter ID laws should consider working to elect representatives who will amend or repeal such legislation. Alternatively, critics should consider forming or supporting non-profit entities that work at the grassroots level to identify and assist anyone who needs help in obtaining a photo ID.

If that sounds a bit abstruse, here’s the issue put more concretely: can Congress restore the United States copyright to J.R.R. Tolkien’s Lord of the Rings trilogy? Or once a work is in the public domain, for whatever reason, is it there irretrievably? The first volume of The Lord of the Rings was published in the United States in 1954 with a paltry 1,500 copies; even though the Hobbit had done well, Tolkien’s publishers did not anticipate what a blockbuster success The Lord of the Rings would be. As a result, the copies soon sold out, and instead of running another U.S. printing, Houghton Mifflin, Tolkien’s U.S. publisher, imported more copies from the UK to fill demand. But apparently Houghton Mifflin screwed up, because they accidentally imported too many: U.S. copyright law at the time contained a protectionist “manufacturing requirement” for books, requiring books sold in the United States to be printed in the United States, with only limited exceptions. A paperback publisher discovered the error in 1965 and printed 150,000 copies of the trilogy without paying any royalties to Tolkien or his publishers.

The Lord of the Rings is just one example of foreign copyright owners getting tripped up by U.S. copyright formalities. U.S. copyright law used to require that a copyright notice in a particular form accompany the published version of any work. Copyright owners were required to register their copyrights to receive protection, and to have the authors renew those copyrights in their 28th year to extend that protection. Foreign copyright laws generally lack any of these sorts of formal requirements for receiving copyright protection, and at least some foreign authors and publishers may have been unfamiliar with them. Others may have simply made a calculated decision to, e.g., not pay for renewal of copyright in a work that had not sold well in the United States. Still others may have failed to comply with U.S. formalities, but due to mistakes that American copyright owners were equally capable of making at the time as well, such as an unintentional omission of the copyright notice on published copies.

As part of world trade negotiations in 1994, an effort was made to harmonize international copyright laws, to accord equivalent protections to copyrighted works in all countries signing on to the General Agreement on Tariffs and Trade (GATT). The United States wants other countries to beef up their protections for U.S. copyrighted works, given the number of global copyright industries centered in the United States: television and film production, record labels, the software industry, book publishing. But in return, copyright owners in other countries have demanded that the United States eliminate some of the idiosyncratic features of U.S. copyright law: formalities, our nebulous definition of fair use, the lack of protection for creators’ “moral rights.” The URAA was passed in 1994 to at least address the first issue, and, it was hoped, give the U.S. better leverage in negotiation increased protection of U.S. works abroad.

The URAA added Section 104A to the Copyright Act. Section 104A provides that “[c]opyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration”–the “date of restoration” for most countries being January 1, 1996. A “restored work” is defined under Section 104A as a foreign work of authorship that is still within the maximum term of protection in the United States, is currently protected by copyright law in its home country, and:

(C) is in the public domain in the United States due to—

(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;

(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or

(iii) lack of national eligibility.

In other words, The Lord of the Rings, authored by a UK author, first published in the UK in May 1954, published in the US five months later, still under copyright in the UK, and in the public domain in the US due to failure to comply with the manufacturing requirements, was restored to copyright in the United States on January 1, 1996 — just in time for the movies. What about people, such as Ace Books, who had relied on the Lord of the Rings’ public domain status in the interim, before it was restored? Congress provided that the restored copyright could be enforced against so-called “reliance parties” after a notice period. Reliance parties that had created derivative works based on a restored public domain work — e.g., a film adaptation — can continue to exploit the derivative work, but only on payment of “reasonable compensation” to the copyright owner.

Even if you think all this is an acceptable policy choice, that doesn’t resolve the constitutional issue. Does Congress have the power to remove items from the public domain? I don’t have a strong view. But one reason the question is difficult is that that way of phrasing it is itself somewhat novel. Our current view of the public domain as a repository of information and ideas, crucial to innovation and creativity, has only taken hold with force in the last few decades. Only twenty years ago, when Jessica Litman published her pathbreaking article on the public domain in the Emory Law Journal, it drew a critical response from copyright scholar Ed Samuels challenging the coherence of the very notion of a public domain. The public domain, Samuels argued, is just the leftover bits after the copyrighted and patented stuff has been removed. It’s like the set of all prime numbers, which is the set of numbers after those with non-trivial divisors have been removed — there’s no internal formula that defines it. That view has been largely supplanted in IP scholarship and in legal culture generally in recent years, as seen in the last big public domain case that came before the Court, Eldred v. Ashcroft.

The novelty of concerns about the public domain can also be seen in how it was treated earlier in the nation’s history. There is evidence that Congresses in the nineteenth century did not view according intellectual property protection to items in the public domain as particularly egregious. The First Congress adopted the Copyright Act of 1790, which extended federal copyright protection to “any map, chart, book or books already printed within these United States,” although copyright scholars Tyler Ochoa and Tomas Gomez-Arostegui have noted that that precedent is murky, given that Congress was simultaneously extinguishing possible common law or state statutory copyright protection for those same works. More troubling is the behavior of later congresses in according copyright and patent protection to works and inventions that, for one reason or another, had fallen into the public domain. Patents are thought to be an even greater incursion than copyrights into the public domain — patents reserve the ability to make, use, or sell the patented invention exclusively to the patentee, even if another person should independently come up with the same idea — which is the standard explanation for why patents are so much harder to get. Nevertheless, throughout the nineteenth century, Congress by special legislation “restored” patent rights and copryights to patentees and authors whose protection had lapsed or failed for some technical reason.

It’s difficult to imagine that happening now, but that is a measure of how important intellectual property policy has become — and how politicized. That changed circumstance, as well as the overall change in thinking about private and public rights wrought by the media and information revolutions of the twentieth century — is something the Court is currently ill-disposed to consider. Most members of the current Supreme Court adhere to a more or less originalist theory of constitutional interpretation, one that makes it difficult to admit that constitutional concepts change over time. (Those theories that do admit for the possibility of dynamic interpretation, such as Jack Balkin’s, also tend to be criticized as “not really originalist.”) Most members of the Court will therefore be constrained from concluding, as a basis for a constitutional restriction on Congress’s copyright power, that the public domain simply is more important now, constitutionally, than it was in 1790. But there is no doubt that that is true — along with the fact that both copyrights and the First Amendment itself are also more significant in our current legal culture.

According to a December, 2010 Gallup Poll, a combined 54% of Americans believe that human beings evolved from less advanced life forms, either under God’s guidance or without any participation from God.  Meanwhile, 40% of Americans believe that God created human beings in their present form.  The survey results also indicate that the relative percentage of Americans who believe in some form of evolution (as opposed to creationism) rises as education levels rise.

Why then, do the Republican presidential hopefuls almost uniformly reject a scientific theory that is accepted by the majority of Americans?  Why express an unnecessary position on an issue unrelated to federal policy that runs counter to the beliefs of sixty percent of voters with a college degree?  Most commentators simply assume that any electoral candidate who publicly rejects the scientific evidence in favor of evolution must be pandering to the fundamentalist Christians who comprise the core of the Republican base.

I happen to be Catholic, and therefore my faith does not compel me to reject the theory of evolution. Rather than reading the Book of Genesis literally, the Catholic Church has expressed a lukewarm acceptance of evolution, finding nothing objectionable in the idea that human life developed from lesser life forms so long as God’s role in the evolutionary process is not denied.  Nor do many of the “mainline” Protestant faiths, or people of the the Jewish faith, consider the basic tenets of their religion to be challenged by the theory of evolution.

However, those Protestant denominations who self-identify as “fundamentalist” have historically taken a strong stand in opposition to the teaching and/or the endorsement of evolutionary theory by any official government entity. Fundamentalism in the United States began as a reaction to modernist trends in Protestant theology that conceded the human (rather than divine) authorship of the Bible and that therefore interpreted the text as a product of human history and culture.  Rejecting the modernist approach, fundamentalists defended the biblical text as both historically and scientifically accurate.  While there is a vibrant debate over the extent to which fundamentalism necessarily requires a literal interpretation of the biblical text, those who support the teaching of creationism in our schools strongly oppose any official actions by our secular government that can be construed to deny the legitimacy of a literal reading of Genesis.  For these Christians, it is important that the government either refuse to teach evolution as a fact, or else accord creationism an equal weight with evolution in the classroom.  The most comprehensive exposition of the divergent religious views towards the theory of evolution, combined with a blow by blow account of the infamous “Scopes Monkey Trial,” can be found in Edward J. Larson’s excellent book Summer of the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion.

Many of these fundamentalist Christians will vote in the Republican primaries.  These are the primaries that the eventual Republican candidate will need to win in order to secure the nomination, even if making a public overture in support of creationism risks alienating the moderate and independent voters whose support is needed in order to win the general election.  In fact, some commentators have tied Republican skepticism towards evolution to a similar skepticism expressed towards the science supporting climate change.  Democratic critics have even alleged that there is a broader Republican “war on science.”  Jon Huntsman has warned that the Republican Party risks being perceived as “anti-science” by the electorate.

In today’s political environment, however, I disagree with those who believe that a Republican candidate’s rejection of the theory of evolution will come back to haunt them with independent and moderate voters.  In particular, I think that voters who consider themselves to be members of the “Tea Party” movement may actually view a candidate’s skepticism about evolution to be a positive attribute, and that this positive reaction will be a constant among Tea Party supporters without regard to educational level and religious affiliation.  It turns out that there is an alternative basis, beyond religious belief or a mere lack of understanding, that explains a hostility towards evolution on the part of some voters.  For many likely Republican voters, the theory of evolution has a negative connotation because of the manner in which evolutionary theory was used by progressives early in the twentieth century to justify an “evolving” interpretation of the United States Constitution.

Henry Steele Commager was a longtime Professor of History at Columbia Univeristy and Amherst College.  Just as Walter Lippmann helped to define liberal thought in the early decades of the twentieth century, Commager was highly influential in the development of  modern liberalism in the middle of the twentieth century.  Commager’s 1950 book, The American Mind: An Interpretation of American Thought and Character Since the 1880s, is a tour de force of intellectual history.  However, like Lippmann, Commager’s books are rarely read today.  In fact, most contemporary readers of both men appear to be political conservatives intent on mining the authors’ criticisms of modern society for insights that can be employed, in jiu jitsu fashion, in order to undermine the authors’ liberal objectives.

Here is how Commager describes the influence of the theory of evolution on the interpretation of the United States Constitution:

Evolution gave a scientific foundation to what some of the wisest of the Fathers had known almost intuitively and to what Marshall and Story had from time to time pronounced, but what scholars had forgotten and what the public, so easily contented with political shibboleths had never fully learned — that the Constitution was not static but dynamic.  The historical approach [in opposition to Natural Law] . . . explained much heretofore taken as sacrosanct, as a mere accident, or — if that is too deprecatory — as a product of history.  Thus it made clear that the tripartite separation of governmental powers was not something fixed in the cosmic system but a product of two secular considerations: a temporary and perhaps regrettable misconception of the British constitutional system, and a fear of government tyranny.  And it suggested that with the passing of these considerations there might well be a readjustment of this mechanical feature of the constitutional system to the realities of politics.  It made clear that the profound fear of government which inspired the system of checks and balances . . . was not a reflection of natural law but of conditions peculiar to a time when the moral of history seemed to be that ‘government, like dress, is the badge of lost innocence.’  The conclusion was inescapable that the expansion of government activities was not a violation of the moral code — as it was sometimes assumed to be even in the mid-twentieth century — but a logical shift in the use of the Constitution from symbol to instrument, a logical response to the conclusion that government was made for man, not man for government.  It made clear that the distribution of powers in the federal system was not a revelation of the divine inspiration of the Framers — as Jefferson Davis thought as late as 1881 when he wrote his Rise and Fall of the Confederate States — but an outgrowth of experience in the British Empire, and it indicated that new experience might justify continuous modifications of that original distribution.

(The American Mind, at 320-321)

The belief in evolution, therefore, threatens more than the theological beliefs of fundamentalist denominations.  It can be viewed as a threat to the Natural Law approach of constitutional interpretation and an attempt to unshackle the chains that strict construction of the text place around the federal government.

Commager points to Woodrow Wilson as the key political leader who incorporated evolutionary theory into political science.  He quotes Wilson, who wrote, “Living political constitutions must be Darwinian in structure and practice.”  Commager sees a clear link between Wilson and the subsequent direction of the Democratic Party in the twentieth century:

And when [Wilson] came to analyze Constitutional Government in the United States he anticipated his even more audacious successor.  ‘The Constitution,’ he said, in words that Franklin Roosevelt was to echo, ‘is not a mere lawyer’s document; it is a vehicle of life, and its spirit is always the spirit of the age.’  It ‘was not meant to hold the government back to the time of horses and wagons, the time when postboys carried every communication . .  .  The United States have clearly from generation to generation been taking on more and more the characteristics of a community; more and more have their economic interests come to seem common interests.’  Notwithstanding his southern inheritance, [Wilson] was ready to acknowledge that a nation had evolved and the Constitution must be read in light of that evolution.  As the economy of the nation had become centralized, so must the power of the government to regulate that economy.

(The American Mind, at 324-325)

The Progressive Movement in American history adopted this view of the Constitution and attempted to put it into practice.  To a certain extent, they succeeded.  However, the growing acceptance of a “living Constitution” among many jurists in the years after Commager wrote inspired an inevitable reaction: the growth of originalism as a competing philosophy of constitutional interpretation.  While there are many forms of originalism, in general all “originalists” share the belief that the Constitution should be interpreted through the lens of the original text and intent of the Framers.  While originalists concede that accomodations must be made for new technologies, they insist that the original structural boundaries set by the Framers must be maintained unless the text is amended.

The greatest criticism of the evolutionary approach to reading the Constitution, and the strongest argument in favor of originalism, is that by giving the Constitution an evolving meaning liberal jurists were ignoring the question of consent.  If it is correct that “the people” are the ultimate sovereigns in our constitutional system, then no alteration in the original design of our government should occur without the consent of the people.  While scholars such as Professor Bruce Ackerman have tried to finesse questions of consent in connection with an evolving view of the Constitution, advocates of a “living Constitution” continue to struggle for a convincing answer to this criticism.

In light of the influence that the theory of evolution has had on the dynamic interpretation of the Constitution, it is not surprising that the current crop of Republican candidates feel comfortable publicly expressing skepticism towards the science of evolution.  In addition to placating the religious fundamentalists in the Republican base, a critical attitude towards evolution can also be seen as a signal to the advocates of limited government that the candidate stands firmly on the side of originalism in the constitutional debate over the scope of the federal government’s power.

However, while originalism is currently in ascendance as the predominant form of constitutional interpretation, progressives have not conceded the battle to conservatives.  In particular, a group of scholars, calling themselves the “new textualists,” have challenged conservative jurists to accord the same respect to the Reconstruction Era and Progressive Era textual amendments as they accord to the original constitutional text.  After all, the principle of consent requires that alterations to the text via the amendment process must be respected by the judiciary as an expression of the sovereign will of the people.  Consent cuts both ways.

The structural changes intended by the Equal Protection Clause of the 14th Amendment should not be evaded through artful grammatical parsing (as practiced, to its discredit, by the United States Supreme Court in a series of nineteenth century precedents).  In addition, the Wisconsin state consitutional provisions protecting public access to government (original 1848 text) , preserving the right to vote (added 1986), and providing for the recall of elected officials (created 1926 and amended 1981) should not be interpreted away in contravention of the intent of the voters who approved those provisions.  Textual language that was enacted in order to implement progressive conceptions of “good government” is entitled to the same respect as provisions that embody the political philosophy of the Founding Generation.  Judges are not free to pick and choose which portions of the constitutional text they will respect.

As long as it can be amended, a constitution can never be completely static.  As much as conservatives may wish to ignore the constitutional reforms of the nineteenth and twentieth centuries, and seek to reconstitute the limited role that government exercised in the colonial era, they are not permitted to do so.  Politicians may continue to question whether human beings are descended from lower forms of life, but no one can deny that our constitutions have evolved since 1789.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school.

Immediately she filed a charge of discrimination and retaliation with the EEOC, which eventually initiated a federal district court action against the school. Though the school prevailed at the district court level, it then lost before the Sixth Circuit Court of Appeals.

Underlying the district court’s ruling, and rejected by the Court of Appeals, is a doctrine called the “ministerial exception.” Her case—and indeed the fate of the ministerial exception—are now before the U.S. Supreme Court, which granted review of the Sixth Circuit’s decision last spring and is scheduled to hear oral arguments on October 5.

What, then, is this “ministerial exception” and why is her case potentially of great significance? In essence the ministerial exception is a judge-made exemption from several federal civil rights statutes, such as Title VII and the Americans with Disabilities Act, that the courts believe is compelled by the Constitution’s religion clauses. The exemption extends to religious organizations’ employment decisions where the employee, regardless of his or her title, serves functions comparable to those of traditional clergy. Importantly, it is a categorical exemption, potentially barring suits alleging discrimination on any statutorily protected basis, including race and gender.

From the petitioner’s initial standpoint, as evidenced in its principal brief on the merits, the issue was simply the Sixth Circuit’s application (or, in its view, misapplication) of the exception. The respondent, however, has effectively challenged the validity of the exception itself, capitalizing on two critical realities: first, that the Supreme Court itself has never adopted the exception, even though every federal circuit court (beginning in the 1970s) has done so, and second, that the exception is seemingly at odds with the Supreme Court’s free exercise doctrine, which it substantially reworked in 1990. It thus comes as no surprise that the bulk of the petitioner’s reply brief only cursorily dwells on Cheryl Perich’s actual circumstances and instead spends most of its pages vigorously defending the exception itself.

Thus, all of a sudden, though not entirely unpredictably, the case has now become a vehicle for potentially abrogating over thirty years of lower court rulings. Will the Court view the exception as a misapplication of the Free Exercise Clause, which in 1990 it held does not ordinarily shield religious conduct from the application of neutral and generally applicable laws? Or will the Court view the exception as a viable component of the Establishment Clause insofar as the government is unduly entangling itself in the internal affairs of religious bodies? The fact that the lower courts have unanimously adopted the exception in one form or another is, to be frank, not necessarily the Court’s problem or concern, and the fact that the lower courts have grounded and conceptualized the doctrine in several ways only works against the supposed significance of their unanimity.

The October 5th oral arguments will ideally shed light on the Court’s inclinations, but given the stakes and the multi-tiered nature of the case, not to mention the very able counsel on both sides and a literal deluge of amicus briefs, the likelihood of such illumination is not great. The only definite aspect of the case, it seems, is that Cheryl Perich and her disability-related claims—the very genesis of the litigation—have become merely a secondary story in what is now a major contest over the First Amendment.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

As explained by Michael Kammen, emeritus Professor of History at Cornell University, in his 1988 book Sovereignty and Liberty: Constitutional Discourse in American Culture, the period immediately before and after the adoption of the United States Constitution saw a debate among the public concerning what it actually meant for the people of the United States to hold the ultimate sovereignty in our system of government.

On the one hand, some argued that popular sovereignty was largely a myth, and that the sovereign power of the people only manifested itself on the specific dates of regularly scheduled elections.  In between these elections, went this argument, the sovereign power to govern rested solely in the hands of those representatives of the people who had been elected by the voters.

In opposition to this view, many argued that the sovereign power of the people was in fact very real and that this power was exercised on an ongoing basis even during the period in between elections.  As I have explained in this article in the Wake Forest Law Review, conceptions of limited government in America rest on the idea that the people are the ultimate sovereign and that government only possesses the powers that are delegated to it by the people.  The recent growth of the Tea Party movement in the United States is an expression of the resurgence of this basic concept in contemporary political discourse.  Central to this idea of delegated authority is the principle that elected representatives must act in accord with the wishes of the public, and that the failure to do so is in and of itself sufficient grounds for that representative to be recalled before the end of their term in office.

Consider this quote from George Washington, in a letter to his nephew in 1787:

The power under the [federal] Constitution will always be in the People.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled.

(quoted by Kammen at page 24)

The Wisconsin Constitution clearly reflects and adopts the principle of an active popular sovereignty by creating the unlimited right to recall elected officials.  This is demonstrated by the fact that under Article XIII, Section 12, the power of recall is placed solely in the hands of the public, in the form of a recall election.  Not only does Section 12 explicitly refer to the “right” of recall, this section places the exercise of this removal power in the hands of the people as opposed to in the hands of their elected representatives.  Section 12 is also notable in that it does not limit the grounds of a recall election in any way.

The impeachment power, in contrast, is treated in Article VII, Section 1 of the Wisconsin Constitution.  Removal of elected officials via impeachment is clearly a power delegated to the representatives of the people, with specific powers granted to the Senate (trial) and the Assembly (commencement of proceedings).  Specific procedures must be followed during the impeachment process, in accord with the fact that those officials subject to removal by impeachment are entitled to an official opportunity to defend their conduct.  Most significantly, the impeachment power that is delegated to the people’s representatives is limited to the narrow grounds of “corrupt conduct” or the commission of “crimes and misdemeanors.”  The use of limiting language in Article VII, in terms of both procedure and grounds, and the absence of any similar limitations on the right of recall in Article XIII, clearly express the intent of the drafters of the Wisconsin Constitution to allow for a recall prior to the end of a representative’s term on virtually any grounds so long as a sufficient segment of the public desire that result.

Obviously, the editorial page at the Milwaukee Journal-Sentinel does not like the existence of such an unbounded power in the hands of the people.  As Professor Kammen makes clear, historical efforts to restrict and contain the exercise of popular sovereignty by the people have generally been based on a distrustful view of human nature.  Opponents of popular sovereignty do not trust the general population to make informed or wise choices.  Instead, they would structure the institutions of government in such a way that the ultimate power is placed in the hands of an elite and therefore more trustworthy class.

When it comes to the federal constitution, it appears that the opponents of popular sovereignty won the battle and succeeded in limiting the ability of the general public to influence the direction of public policy in any way other than by casting regularly scheduled electoral votes.  Kammen attributes this result to “a diminished faith in the capacity of ordinary folk” in the years after 1787 (Kammen at p. 29).  The importance of popular sovereignty at a national level fell into a decline in the following two centuries that the Tea Party Movement has only recently attempted to reverse.

However, state constitutions are different from the federal constitution.  In multiple provisions, state constitutions reflect an intent to give the sovereign will of the people a greater role in the determination of public policy at the state level than it enjoys at the federal level.  For example, the existence of provisions providing for state-wide voter initiatives, most commonly identified with California, reflect a desire to provide a means for the people at large to exercise their sovereign will and create laws independently of their elected representatives.  It remains to be seen whether the backers of the Tea Party Movement, so concerned about limiting federal power in order to promote individual freedom, will rouse themselves to defend the idea of popular sovereignty at the state level.

The recall provisions in the Wisconsin Constitution are a right possessed by the people of Wisconsin.  The Wisconsin Constitution intentionally places this right in the hands of the public, and it is intentionally left unbounded.  To interpret this right to be limited solely to conduct which would also constitute grounds for impeachment would be to eviscerate the right.  Such a result would not only be duplicative of the separate impeachment provisions of the Wisconsin Constitution, it would also limit the ability of the voters of Wisconsin to exercise their sovereign power in any form other than by casting a vote every few years in a regularly scheduled election. One likely result of the removal or limitation of the possibility of a recall would be to make elected officials less accountable to the public and to amplify the influence wielded by lobbyists and corporate donors during the interval in between elections.

The text of the Wisconsin Constitution has been under assault over the past year.  The Wisconsin Supreme Court has construed the “open doors” provision of the Constitution, guaranteeing public access to the legislature, in a manner that renders it largely meaningless.  The Office of the Attorney General argued in court filings that the “publication” requirement of the Constitution could be satisfied without following statutory procedures that call for the participation of the Secretary of State.  Today, there is news that the League of Women Voters will file a lawsuit contending that the new Voter ID law contravenes the right to vote contained in the Wisconsin Constitution.  The recall provisions of Article XIII, Section 12, are now in the crosshairs, and are being subjected both to editorial criticism and to legislative “reform” proposals.

Personally, I have faith in human nature.  I believe that the public at large is capable of making wise and informed decisions on public policy.  I also believe in the oft-stated principle that it is the people at large who are the ultimate sovereigns in America.  Popular sovereignty is not a myth.  However, I also know that if we stop believing in popular sovereignty, if we stop behaving as if the principle is real, and if we accept the premise that the people at large cannot be trusted, then we will undoubtedly succeed in transforming today’s right into tomorrow’s myth.

For young women coming of age today, their equality with men seems assured.  As youngsters they’ve played on co-ed sports teams; they’ve often been more successful than boys in school; they’ve pursued careers in previously male-dominated fields like math and science, medicine and law.  For them, women have always been able to vote, abortion has always been legal, and women have reached high places in politics.  Many probably have mothers (and fathers) who came of age during and after the second wave of feminism, believing they would raise their daughters to believe in their capacity to be equal citizens.

It might surprise some women, then, to learn that women’s equality is not guaranteed, at least not constitutionally.

Neither our constitution nor any of its amendments provide for women’s right to be equal to men.  And, according to Justice Antonin Scalia, the Fourteenth Amendment does not protect women from sexual discrimination.  In an interview with California Lawyer earlier this year, Justice Scalia said,

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

An equal rights amendment to the constitution was first proposed by suffragist Alice Paul in 1923 and introduced in Congress every session since then.  Finally, Congress passed the amendment in 1972, and it was ratified by 35 states, leaving it three states shy of the requisite number needed to add it to our constitution.  The equal rights amendment continues to be reintroduced regularly in Congress, but has gone nowhere.  While there are various federal and state laws that offer women equality and protect them from discrimination, these laws are, like any law, subject to revision or repeal, potentially wiping away any hard-fought protections.  A constitutional right, however, cannot be decimated quite so easily.  (This is not to say that a constitutional right, once given, is always recognized or enforced; the experience of black America illustrates this point.)

Recently, I attended the Southeastern Association of Law Schools Conference where I heard a panel presentation called “The 1988 Brazilian Constitution and Social Composition.”  Panel members David T. Ritchie (Mercer University Law School) and Fernanda Duarte Lopes Lucas da Silva (Universidade Federal Fluminense Faculty of Law) explained how the 1988 Brazilian constitution purposely set out to create a new liberal social order in Brazil.

Many aspects of the Brazilian constitution are interesting, but here I want to focus on a few provisions involving women.  The most significant is that the constitution explicitly provides for equal rights for women.  One of the “fundamental objectives” of the country is “to promote the well-being of all, without prejudice as to origin, race, sex, colour, age and any other forms of discrimination.”  Tit. I, art. 3, sub. IV (emphasis added).  Further, the constitution provides that “[a]ll persons are equal before the law, without any distinction whatsoever, . . . being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms,” the first of which being that “men and women have equal rights and duties under the terms of [the] Constitution.”  Tit. II, Ch. 1, art. 5.   Among the social rights afforded all Brazilians are education, health, work, and protection of motherhood, including a specific right to paid maternity leave for 120 days and free day care for children up to five years old.  Tit. II, Ch. 2, arts. 6 and 7.

Because the 1988 Brazilian constitution guarantees a vast array of social rights and entitlements, there are, in reality, some problems delivering all those entitlements.  For example, while there is free public education, its quality falls well below private education, and there is not yet free day care.  On the other hand, women who work in civil service jobs are, like their male colleagues, paid on a scale that does not vary by sex.  A male judge with a certain number of years’ experience is paid the same as a female judge with the same number of years’ experience.  The constitution demands it.

The 1988 Brazilian constitution is surely ambitious, but its creators have envisioned a different society than what we see in the United States, a society based foremost on the equality of all of its citizens.  That such a concept was so important as to guarantee it in the organic governing document is more than we will see in this country, but the idea makes me wonder:  What would change, what would be possible, if the United States were to truly fully enforce equality of all its citizens?  Why are we in this country so unwilling to do what most other civilized countries have done?

Cross-posted at Ms. JD.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

With respect to the cell-phone counts, Mandel’s argument sounded in entrapment, since it was the c.i. who initiated the calls. (Mandel did not challenge his conviction based on the one call he had initiated.) However, the court did not buy Mandel’s assertion that he was not predisposed to use the cell phone:

Whether the defendant is predisposed to commit the charged crime depends on a number of factors, see, e.g., United States v. Orr, 622 F.3d 864, 870 (7th Cir. 2010), cert. denied, 131 S. Ct. 2889 (2011), “the most important of which is ‘whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.’” King, 627 F.3d at 650 (quoting United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999)).

. . .

Mandel posits that he would not have discussed the murder scheme on a cell phone but for Dwyer taking the initiative in contacting him on his cell, but the evidence suggests otherwise. First, the cell phone was Mandel’s own phone, and although use of such telephones was rare thirty years ago, it is commonplace today—in both law-abiding and criminal domains. Second, Mandel took Dwyer’s calls (and, as the call underlying Count Three demonstrates, returned them) and readily discussed the scheme to kill Antoniou without any apparent reluctance or hesitation. Third, Mandel was not simply a passive recipient of the calls. The call underlying Count Five is one that Mandel himself placed to someone other than Dwyer in order to determine when Antoniou’s visitation with his son would be ending and Antoniou would be returning to his usual abode, so that an appropriate date for the hit could be determined. Mandel’s self-initiated use of his cell phone in that instance puts the lie to the notion that he would not have used the phone in furtherance of the scheme but for Dwyer’s prompting. Finally, to the extent that Dwyer’s calls to Mandel’s cell phone could be characterized as inducement to use that phone to discuss the scheme, they were hardly the sort of extraordinary inducement that is necessary to show entrapment. (13, 15-16)

Mandel relied on an old Second Circuit case, United States v. Archer, 486 F.2d 670 (2d Cir. 1973), which, in the words of the Seventh Circuit, “presupposes that it is improper for a government agent to initiate some action in interstate commerce for the sole purpose of ginning up federal jurisdiction over an offense, even if, as in Archer, the defendant himself willingly reciprocates the agent’s interstate action.” (17) However, the Seventh Circuit noted the lack of subsequent support, even in the Second Circuit, for this broad proposition. Thus, the court indicated that standard entrapment analysis of predisposition should govern claims that the United States has “manufactured jurisdiction.”

With respect to the driving counts, Mandel argued that purely intrastate use of an automobile should not suffice for federal jurisdiction. Under the terms of the statute, however, what is important is not the defendant’s use of something in interstate commerce, but the defendant’s use of something that counts as a “facility of interstate commerce.” That requirement seems satisfied on a per se basis by the use of an automobile: “Automobiles are designed to move people and goods over distances both long and short, and as such they play a crucial role in interstate commerce.” (23)

So, the statute was satisfied.  But, so interpreted and applied, was the statute constitutional? The Seventh Circuit seemed at least a little sympathetic to Mandel’s arguments on this score:

Mandel’s contrary position, that a private automobile must actually be used in interstate commerce in order for it to come within the scope of the commerce power, is not wholly without support. The Eleventh Circuit, in Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1249-50 (11th Cir. 2008), declined to sustain the Graves Amendment, 49 U.S.C. § 30106, which shields car rental and leasing firms from vicarious liability for injuries to persons or property arising from their customers’ use of the lent vehicles, as a valid regulation of instrumentalities of interstate commerce. The court was concerned that if a car’s status as an instrumentality of interstate commerce were by itself sufficient to support the exercise of the commerce power, there would be no limit to the aspects of automobile use that Congress could regulate. “If cars are always instrumentalities of interstate commerce . . . Congress would have plenary power not only over the commercial rental car market, but over many aspects of automobile use” including “such quintessentially state law matters as traffic rules and licensing drivers.” Id. at 1250. (24-25)

Despite some apparent constitutional concern, the Seventh Circuit rejected Mandel’s argument because it was not made below and the issue was not so clear-cut in his favor as to satisfy the requirements for plain error. Defense counsel, take note: if the issue is properly preserved, the Seventh Circuit seems to have left itself some room to rule in a defendant’s favor in a later case.

Cross posted at Life Sentences Blog.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the idea of constitutional limits on the legislature’s ability to create strict-liability crimes, but the court’s reasoning in Shelton strikes me as something less than compelling.

The court relies almost entirely on statutory interpretation cases from the United States Supreme Court. Although one can find plenty of language in these cases about the traditional importance of mens rea as a precondition to criminal punishment, the language was not written with the purpose of creating rules of constitutional law.  It is one thing to rely on background ideals of criminal law as a basis for filling in statutory gaps, but quite another as a basis for overturning a clear expression of legislative intent.

Another difficulty with relying on the statutory interpretation cases is that they do not yield any clear rule.  The district court in Shelton cobbled together an analytical framework from the statutory cases (“Thus, under Staples and its progeny, the tripartite analysis for evaluating a strict liability offense under the strictures of the Constitution involves consideration of: (1) the penalty imposed; (2) the stigma associated with conviction; and (3) the type of conduct purportedly regulated.” (13)), but it seems rather mushy and is sure to raise the hackles of formalist judges (and justices) on the higher courts.

In terms of the application of the “tripartite analysis” to the Florida statute, the court had no difficulty finding that the penalties and stigma associated with a drug-trafficking conviction were quite substantial indeed.  With a maximum prison term of fifteen years for even a first-time violation, it is hard to disagree with that assessment.

The “type of conduct” prong is more complicated, for there is a long tradition of strict-liability criminal laws in the “public welfare” area.  The logic here is that there are certain activities and products that present a sufficiently obvious danger to the public that regulation (including through criminal law) should be expected, and we can fairly place the burden of figuring out the requirements of the law on the people who engage in the activities or handle the products.  For instance, the Shelton court observed,

Knowledge of the hazardous character of substances has also been sufficient to sustain liability in the shipping context. See Int’l Minerals, 402 U.S. at 564. In this context, because “dangerous or deleterious devices or products or obnoxious waste materials are involved, probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them has to be presumed to be aware of the regulation” requiring classification of property on shipping papers. Id. at 565. (21)

Narcotics would seem to qualify as such a hazardous substance that may be regulated through strict-liability criminal laws.  However, the Florida law, at least as the Shelton court understood it, does not even require knowledge that the substance at issue is a narcotic or otherwise hazardous.  The court posed this hypothetical:

Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. (28)

If the statute does not require knowledge of the presence of the substance at issue — at least at the level of knowing, for instance, “there is a white powder of unknown provenance in my book bag” — then the statute does seem distinguishable from the public-welfare statutes in earlier cases.  On the other hand, I’m not so sure this is really the thrust of what the legislature did in 2002.  As I understand the back-and-forth between the Florida Supreme Court and the legislature, the question was whether the state was required to prove knowledge of the illicit nature of the substance, not the presence of the substance.  If that’s right, then the statute could still be interpreted to require knowledge of the presence of the substance, which might bring the statute back within the public-welfare category (albeit with much harsher penalties than are traditionally associated with public-welfare offenses).

In any event, all of this analysis is premised on the assumption that the Florida statute is a strict-liability law.  But is it really?  The fact that the legislature contemplated an affirmative defense for lack of knowledge removes the law from the pure strict-liability category; it is a hybrid of sorts.  As long as we are doing the constitutional analysis in a functionalist way, it seems that the availability of the affirmative defense is something that should figure into the test — maybe we should have a “quadpartite analysis,” instead of a tripartite analysis.

Cross posted at Life Sentences Blog.

What follows are my prepared remarks.  However, I encourage interested readers to follow the above link in order to hear both Attorney St. John’s able defense of the Ozanne decision on separation of powers grounds, and also the questions and answers following our presentations.  I want to thank Andrew Cook and the Federalist Society for the opportunity to present my views.

Prepared Remarks

Mr. St. John has explained why we should adopt a strict, formalistic view of the separation of powers when interpreting our state Constitution.

With all due respect, that’s not his job.

I intend no personal criticism of Mr. St. John, but I am a taxpayer and I do pay part of his salary.

I therefore feel entitled to discuss the job of the attorney general of the state.

That job is not to advance a particular formalistic interpretation of the separation of powers.

How do I know? The Wisconsin Supreme Court said so in the City of Oak Creek case.  The duties of the Attorney General do not include challenging the constitutionality of statutes.

Beyond that, imagine if Attorney General Eric Holder came to speak before this group and said that he viewed part of his job to include advancing a broad interpretation of the Commerce Clause – we would tell him that it was not his job to advance a particular reading of the Commerce Clause, and we would be right.

In arguing what the law is, our state institutions charged with the administration of justice – and I would include here both the courts and the department of justice among those institutions –  should strive to adopt legal positions that , to borrow a phrase from Edmund Burke, “afford both certainty and stability to the laws.”  Our own administrators of justice should not adopt positions that unsettle the architecture of the law unless it is absolutely necessary.

I am not surprised when lawyers associated with think tanks or representing private litigants make arguments that seek to re-shape the existing architecture of the law.  However, I am disappointed when the state department of justice promotes such arguments, and I am doubly disappointed when the state Supreme Court rushes to embrace them without first thinking through the consequences.

I am a process conservative.  My core criticism of the decision of the Wisconsin Supreme Court in Ozanne v. Fitzgerald is that the Court chose to ignore the normal procedural process for taking up a petition for original jurisdiction, and instead invented a new form of jurisdiction called “supervisory/original” and rushed to decide questions of both statutory and constitutional interpretation.  Undoubtedly Justice Prosser and some of the other members of the Court felt that following the normal process of original jurisdiction would have dragged on too long, as it did a few years ago in the case of Green for Wisconsin, and so they were determined to avoid the same delay here.  However, if I had to choose between acting quickly, on the one hand, and the careful weighing all of the legal arguments, on the other, I would certainly choose the latter.

The court’s primary job is to interpret the law.  On the question of whether the case was even properly before the Court, the majority never articulates a general principle of law that both decides this case and that also can be applied to guide future cases of original jurisdiction.

Can parties who have an appeal from a circuit court decision nonetheless file an action for original jurisdiction directly with the Supreme Court, and in effect receive a “do over?”  Apparently the answer is “yes,” with no language in the opinion limiting when this type of forum shopping is appropriate and when it is not.

Under what circumstances is it appropriate to both grant a petition requesting original jurisdiction, and also proceed to the merits at the same time, skipping the separate step of briefing and argument on the merits as set forth in the statute?  The Nader case had combined these two steps on a very narrow set of facts, but there is no discussion by the majority of the Nader case or of how this case is similar or different to Nader.

Turning to the merits, the majority relied upon the separation of powers doctrine to hold that the Open Meetings Law cannot be enforced against the legislature by the courts, even though that is what the law says it intends.  However, the separation of powers argument is but one of several arguments that the Department of Justice tried on and cast off over the course of this litigation. 

First, that the Open Meetings Law did not grant Judge Sumi the authority to enjoin the publication of the act.  Clearly it did.

Second, that the Legislative Reference Bureau could, and did, publish the act independently of the Secretary of State.  The one thing that all seven justices agreed upon in the Ozanne decision was that the actions of the Legislative Reference Bureau had no effect.

Third, that the Secretary of State lacked the authority to rescind a publication date.  Again, all seven justices agreed that the law had not been published, so the Secretary’s rescission must have been effective.

Fourth, that there was no violation of the Open Meetings Law at all.  The facts at trial supported Judge Sumi’s conclusion that the statutory requirements were violated.

The procedural posture of the case I have already addressed.

Finally, the only argument left is that the Open Meetings Law cannot do what it says it does because the state constitution won’t allow it.  This is the argument that the majority adopted.

This was clearly an open question under the precedent.  Neither Goodland, the Stitt case, nor the Milwaukee Journal-Sentinel case dealt with the situation where the legislature passes a statute that fleshes out how a constitutional command will be effectuated, and that also empowers the courts to enforce the legislature’s compliance.  Does the existence of such a statute – the Open Meetings Law – alter the separation of powers analysis that applies in the absence of such a statute?

There is a strong argument that it should.

Constitutions are not statutes.  They are not drafted to include all of the details that a statute would include.  Instead, they include general commands and leave it to the legislature to pass laws effectuating those commands.  It would be absurd for the Wisconsin Constitution to include provisions stating the length of time necessary in order to constitute public notice, or the various types of notice (email, fax, newspaper publication) that satisfy the command of public notice.  How do I know it would be absurd to expect the Wisconsin Constitution to be so detailed?  Because time and time again the delegates to the state constitutional convention stated that constitutions should focus on generalities and should not include detailed provisions.

When the legislature passes a law providing the details of how a constitutional command will be satisfied, the legislature makes several policy choices.  For example, the legislature may decide that publication of a law in a newspaper is required, and it may even specify the particular newspaper of record.  

That policy choice might seem silly to us today in the age of internet communication.  Nonetheless, the courts should enforce that policy choice rather than substitute the policy preferences of the judiciary.  A judge might feel that posting the text of a bill on a website is just as good as publishing the text in a newspaper – or a judge might feel that televised legislative proceedings are just as good as the actual presence of the public in the room.  However, this is not the judge’s policy choice to make.

This is not the same as asserting that the statute has amended the Constitution.  The legislature is always free to amend or repeal its own statutes and to choose a different means of effectuating the constitutional requirement in the future.

For the most part, the judiciary should merely enforce the policy choices of the legislature on how best to satisfy the constitutional requirement.  If, on the other hand, the legislature repealed all existing methods of publication, and substituted instead a provision stating that any law is considered to be published if a single copy is mailed to Ed Fallone, then, in a proper case, the judiciary would have no choice but to consider whether this specific procedure satisfies the constitution’s general requirement that the laws be “published.”

This is the way the process is intended to work.  What are the benefits of such a process?  Certainty and stability.  

Ironically, by not deferring to the policy choices contained in the Open Meetings Law, the majority of the Court substitutes their own policy choice.  Televised proceedings and the presence of the media are apparently enough to satisfy the constitutional command of open doors.  Why?  Because the majority of the state Supreme Court say so.  “Access was not denied,” they declare.

What are the minimum requirements necessary in order to satisfy the open doors command?  We don’t know.  A detailed and predictable statutory procedure is replaced with the need to litigate future cases and await further development from the judiciary.

 Under the Open Meetings Law, everyone knew how much notice was required and whether actual physical access had to be available.  Now there is no standard.

I certainly do not believe that the syllogism put forth by the Deputy Attorney General at oral argument, that “the lack of absolute secrecy = open doors,” withstands any sort of scrutiny.  Is the presence of one person in the room sufficient to satisfy the constitutional requirement?  What if the committee is discussing a bill to regulate the mining industry and the only person present in the room is a mining company executive?  The proceedings are not absolutely secret, but no one would suggest that the public’s right of access had been served.

Much also depends upon whether the open doors provision embodies an individual right.  After all, I have an individual right to confront my accuser in a criminal trial.  This right is not satisfied by a closed circuit video link.  So should my right to observe the workings of the state government be limited to watching an internet feed? 

But let us turn to the issue of the separation of powers.  It is undeniably true that making law falls within the core of the legislative function.

However, saying what the law is falls within core of the judicial function.  That is what the courts do when they engage in the process of judicial review.

Judicial review raises separation of powers concerns all the time because the act of saying what the law is often interferes with the exercise of another branch’s core functions.  The appointment of an executive branch official falls within the core of the executive function, yet the US Supreme Court decided whether such an appointment was final in Marbury v. Madison.  The confidentiality of executive branch deliberations falls within the core of the executive function, but the US Supreme Court rejected a claim of executive privilege in US v. Nixon.  Neither of those cases dealt with the judicial interpretation of whether the actions at issue violated a specific constitutional provision, which Mr. St. John’s argument seems to suggest is necessary in order to support judicial review. 

In fact, the US Supreme Court has never applied the strict and formalistic conception of separation of powers to the process of judicial review in the way that Mr. St. John advances and that the majority in Ozanne accepted.

I believe that the correct approach to the separation of powers in these circumstances was summarized accurately in a 1986 article in the California Law Review (Comment, James Castello, The Limits of Popular Sovereignty, 74 Cal. L. Rev. 491):

“The reason for judicial non-intervention in matters of legislative procedure is not that such rulemaking is an inherent right or that externally imposed rules will cripple the lawmaking process.  Rather, judicial intervention usually substitutes a judge’s opinion for legislators’ opinions.  This substitution is, as the Ninth Circuit observed, “a perversion of the judicial process into a political process.”  Judicial second-guessing in these cases violates the separation of powers and upsets the balance of powers, but it does not abridge any ‘natural rights’ of legislatures.”

(emphasis added)

If we use this standard as a guide to the separation of powers, it is clear that Judge Sumi did not seek to replace the legislature’s definition of open meetings with her own.  Rather, she merely followed the policy choices of the legislature.

How should the Court deal with a statute like the Open Meetings Law that fills in the details of a constitutional requirement and then empowers the courts to enforce the law?

A strong argument can be made that the Court should hold the legislature to its self-imposed procedures.  Separation of powers principles will not be threatened if the Court simply limits the judicial enforcement of legislative procedures in two ways: 1) such review should only be available where the enforcement power is granted to courts by statute in order to ensure compliance with a constitutional command and 2) the Court should adopt an evidentiary rule that the official journal of proceedings shall constitute the conclusive evidence of whether the required procedures were in fact followed (thereby obviating the need for any contentious fact finding by the court).

Such an approach would be fully consistent with the Goodland, Stitt and Milwaukee Journal Sentinel cases (See, e.g., Stitt, 114 Wis. 2d at 365: “[T]he legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution” ) (emphasis added).

I believe that, had the majority opinion taken the time to parse through the issues and examine the arguments on both sides, the justices would have realized that the separation of powers question was not as simplistic as the Department of Justice claimed, and that greater certainty and stability in the law would follow the adoption of the interpretation that I describe.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

A basic premise of constitutional interpretation is that constitutions are not statutes.  Instead, a constitution should espouse general principles and guidelines.  This foundational interpretive approach applies to the procedural rules that the legislature is expected to follow when passing a law or when otherwise fulfilling its constitutional duties as the lawmaking branch of the state government.  The text of a constitution is not the place to locate detailed procedural requirements, especially if the particular procedures might be subject to later change or revision which would necessitate the burdensome process of a constitutional amendment.

The delegates at Wisconsin’s state constitutional convention understood this principle.  Consider this explanation by Jack Stark, in his 1997 book THE WISCONSIN STATE CONSTITUTION: A REFERENCE GUIDE (pp. 7-8):

The other salient quality of the ratified constitution is its generality.  On this point, the delegates did speak fairly often, stating that constitutions should enunciate general principles and leave details to legislation.   . . .   This generality has reduced the need to undergo the cumbersome process of amending the constitution when one of its provisions becomes dated or obviously bad public policy.  . . . This generality also makes the legislature accountable to the electorate; whereas a very specific constitution would have allowed legislators to argue credibly that the constitution had tied their hands.  In short, on this matter the delegates chose wisely.

Accordingly, while the Wisconsin Constitution has a specific command that the doors of the legislature are to remain open while it is in session, it follows that the precise policy decisions of exactly how that command should be accomplished have been left to the legislature to decide through legislation.  This is exactly what the legislature did when it enacted the Open Meetings Law.  The legislature also made the choice to include in that statute an express grant of jurisdiction to the circuit courts to hear cases seeking to enforce the procedures of the Open Meetings Law and the express grant of enforcement powers to the courts (including the power to enjoin legislative acts that failed to comply with the law).  It also retained the flexibility to amend or repeal these procedures in the future.

Note that by following the exact provisions of the Open Meetings Law, Judge Sumi was faithful to the policy choices of the legislature, while the decision of the majority in Ozanne replaces the legislative choices reflected in the Open Meetings Law with the majority’s own conception of how best to comply with the State Constitution’s command of “open doors.”

The majority argues that the legislature cannot choose to give jurisdiction and enforcement powers to the circuit courts because of precedent holding that the legislature has the sole power under the Constitution to determine its own procedures, relying principally upon the case of Goodland v. Zimmerman, 243 Wis. 459 (1943).  However, the Goodland case did not deal with the situation where the court was acting under a statutory grant of power to enforce particular procedural rules.  In addition, the Goodland case, which was decided decades before the passage of the Open Meetings Law, never considered the situation where the statute granting enforcement power to the courts was the particular subset of statute that reflects the legislature’s choice of how best to implement a specific constitutional requirement.

In other words, the Goodland case may have decided that the courts lack the power to interfere with the legislative process in the absence of a statute granting the courts such authority, but it never considered or discussed how that analysis might change in the presence of a statute.  To be clear, I am not arguing that it is settled law to disregard the Goodland rule in such circumstances.  However, I do contend that this was clearly an open question under the precedent, and that there are in fact strong arguments that counsel in favor of a different result from Goodland under such circumstances.

The New Hampshire Supreme Court recognized that the separation of powers argument reflected in the Goodland decision and in other cases might not be applicable where the statute in question is tied to the implementation of a constitutional command.  In the case of Hughes v. Speaker, New Hampshire House of Representatives, 152 NH 276 (2005), the New Hampshire Supreme Court distinguished such a situation from the case before it, noting that the text of the New Hampshire “Right to Know” law does not express any intention to tie the statute to a provision of the New Hampshire Constitution and also that the language of the New Hampshire Constitution relating to open government was more aspirational than specific, in contrast to those state constitutions that specifically command public access to legislative sessions.  It takes but a moment’s reflection to realize that the Wisconsin Open Meetings Law and the Wisconsin Constitution present the exact situation that the New Hampshire Supreme Court recognized as presenting an open legal question.    

In its unseemly rush to decide the case, the majority in Ozanne considers none of this.  Instead, the most notable and (at the same time) pernicious aspect of the legal holding of the majority is the manner in which it applies a strict conception of the separation of powers doctrine in order to hamstring the exercise of judicial review.  The separation of powers doctrine is not an absolute command, and, indeed, any doctrine that can countenance both the Independent Counsel Law and the qui tam provisions of the False Claim Act can only be described as a flexible doctrine.  After all, an absolutist view of separation of powers would never have allowed the United States Supreme Court to decide whether an executive branch official was properly appointed by the President (Marbury v. Madison) or whether the President’s claim of Executive Privilege was correct (United States v. Nixon).

If the majority were concerned about the risks of excessive judicial encroachment into the legislative process, it might have considered whether those risks could be obviated by limiting the exercise of circuit court jurisdiction over legislative procedures to those few instances where a statute declares itself to be implementing a constitutional command.  After all, the one point of unanimity among all seven members of the Court in the Ozanne decision was that a bill could not become a law unless the statutory provisions requiring the Secretary of State to designate a date of publication have been met.  This is exactly the legal argument that I have made all along, and I fail to see how holding the Legislative Reference Bureau and the Senate Majority Leader to the terms of the statutes concerning publication is less of an encroachment upon the legislative branch than holding legislative officials to the terms of the Open Meetings Law.

In addition, as I have suggested previously, there are additional ways that the Court could have limited the risk of an undue encroachment on the legislative branch while still providing for judicial enforcement of the Open Meetings Law.  Merely by adopting an evidentiary rule that the official journal of legislative proceedings will provide the conclusive evidence as to what procedures were or were not followed, the majority could have avoided any risk that future courts would engage in contentious fact-finding efforts when questions of compliance with the statute arose.

What are the implications of the majority’s holding in Ozanne for future cases?  For one thing, we have seen that litigants in other states have raised the same absolutist separation of powers arguments adopted by the majority to challenge the power of the judiciary to enforce public records laws against the legislature.  It is likely that these same arguments also would support a challenge to the judicial enforcement of state ethics laws.  I can find no limiting principles in the majority decision that would prevent its use as precedent in these circumstances.

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections.  As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.”  Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute.  Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

This is not a novel argument.  Over the years, opponents of state “sunshine laws” have filed legal challenges to public records and open meetings laws around the country.  Sometimes, these challenges have been based on First Amendment claims.  At other times, they have attempted to argue that the judicial enforcement of sunshine laws violates the doctrine of separation of powers.

In 1992, the Supreme Court of Florida considered and rejected this exact argument.  In the case of Locke v. Hawkes, 595 So. 2d 32 (1992), the Florida Supreme Court considered whether the Florida Public Records Law could be applied to the state legislature.  The Court summarized the argument before it, which was that the Court lacked the authority to apply the terms of the law to the legislature:

The House of Representatives, representing the legislators involved, asserts that: (1) the judiciary is without jurisdiction over legislative internal operating procedures under the separation of powers doctrine and (2) [the Public Records Law], by its terms, does not apply to the Florida Legislature. In its separation of powers argument, the House notes that article III, section 4(a), of the Florida Constitution, provides that “each house shall determine its rules of procedure,” and that we, in this instance, must apply article II, section 3, of The Florida Constitution which directs that “no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” It notes that we stated in McPherson v. Flynn, 397 So. 2d 665, 667 (Fla. 1981), that “the doctrine of separation of powers requires that the judiciary refrain from deciding a matter that is committed to a coordinate branch of government by the demonstrable text of the constitution.” The House argues that our decision in Moffitt v. Willis, 459 So. 2d 1018 (Fla. 1984), controls because in that decision we expressly recognized that legislative meetings and records are subject to the exclusive control and direction of the legislature and not to the interpretative or coercive power of the judicial branch. The House further contends that under this decision we are without jurisdiction to invade the legislature’s internal procedures with respect to open meetings.

After summarizing the objection to its power of judicial review, the Florida Supreme Court rejected the separation of powers argument and affirmed its power of judicial review:

The application of [the Public Records Law] and its possible interference with the separation of powers provision is not a new issue. In The Florida Bar, 398 So. 2d 446 (Fla. 1981), we were asked to determine whether the unauthorized practice of law investigative files maintained by the Bar were public records subject to inspection by members of the press under the authority of chapter 119, Florida Statutes (1979). We held that neither the legislature nor the governor could control what is purely a judicial function.  In Moffitt, this Court found that the judicial branch could not constitutionally interfere with the internal activities of the legislature with regard to public meetings. We stated: “It is a legislative. prerogative to make, interpret and enforce its own procedural rules and the judiciary cannot compel the legislature to exercise a purely legislative prerogative.” 459 So. 2d at 1022.

The drafters of our constitution emphasized the importance of the separation of powers doctrine by expressly stating that principle in our constitution. Article II, section 3, of the Florida Constitution provides: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” This separation of powers provision was placed in our constitution to emphasize the balance of power between the three branches of state government. We have been very sensitive to separation of powers principles, as illustrated by our decisions in McPherson and Moffitt. Those cases expressed the philosophy that the control or influence by one branch of another branch’s internal operating procedures could interfere with the independence of the second branch and possibly place the enforcing branch in a superior position. Article II, section 3, identifies the branches of our state government, and we hold that this provision was intended to apply to each branch’s constitutional powers as enumerated in article III, the legislature, article IV, the executive, and article V, the judiciary. We hold that our separation of powers provision was not intended to apply to local governmental entities and officials, such as those identified in articles VIII and IX and controlled in part by legislative acts. As the supreme court of the judicial branch, one of our primary judicial functions is to interpret statutes and constitutional provisions. In carrying out this function, we find that we do not violate the separation of powers doctrine when we construe a statute in a manner that adversely affects either the executive or the legislative branch. Clearly, we have the power to determine whether chapter 119 is applicable to the legislature.” (emphasis added)

The Florida Supreme Court recognized the interplay between the legislative and the judicial power.  The power of judicial review falls within the core powers of the judicial branch.  However, there is a danger that while exercising this power the judiciary may go too far and thus invade the core powers of the legislature.  How can the two fundamental principles of judicial review and separation of powers be reconciled?  The approach taken by the Florida courts has been summarized as follows:

It is the duty of the courts to enforce the legislature’s policy choice when it is properly before them in a judicial proceeding.   The role of ultimate interpreter of the law may not be used by the courts to interfere with the legitimate exercise of power reserved by the Florida Constitution for other branches of the government. The most thoughtful comment on this problem was offered by Justice Kogan in his concurring opinion in Garden v. Frier, 602 So. 2d 1273 (Fla. 1992). He noted that when a statute is so ambiguous and vague that the courts have no clear guidance to its meaning, the courts violate the doctrine of separation of powers if they use the interpretative process to provide the necessary specificity to save the statute from being held unconstitutional. If the courts do so, they usurp the legislature’s power and obligation to declare clearly what the public policies are in the statutes. With very few exceptions, the task of developing public policy is reserved to the legislature. The courts are ill-equipped to assume it and should avoid using the interpretative process to accomplish such results.

Some executive and legislative decisions are beyond the powers of the courts to review because they concern the core functions of those branches.  In McPherson v. Flynn, 397 So. 2d 665,667 (Fla. 1981), the court noted that it would refrain from deciding any matter in a judicial forum that was “committed to a coordinate branch of government by the demonstrable text of the constitution.” Such decisions become subject to judicial review only when the legislature specifically has authorized it by statute.

Johnny C. Burris, The Administrative Process and Constitutional Principles: Separation of Powers, 75 FLORIDA BAR J. 28 (2001) (emphasis added).

The precise line at which the exercise of judicial review of legislative acts implicates the separation of powers presents a delicate legal question.  Precedent in Florida clearly holds that the courts may exercise judicial review over the actions of the legislature when that power is granted to them by statute.  Should the Wisconsin Supreme Court adopt a similar rule?

In many respects, the arguments in favor of the judicial power to hold the Wisconsin legislature to the terms of its own Open Meetings Law are even stronger than the situation before the Florida Supreme Court in the Locke case.  The Wisconsin Open Meetings Law expressly states that its terms apply to the Wisconsin legislature (the Florida law did not contain similar language).  The exercise of judicial review to enforce compliance with the Open Meetings Law is expressly granted to the circuit courts by the terms of the Open Meetings Law itself, so it is difficult to argue that by following this legislatively granted jurisdiction the courts are undermining legislative independence.  Finally, the text of the Wisconsin Open Meetings Law states that it must be interpreted against the backdrop of the express command in the Wisconsin State Constitution that the public is guaranteed access to the legislature when it is in session.

Nonetheless, in arguments that were not fully briefed by all parties, in the course of abbreviated appellate proceedings, and on the basis of an incomplete and confusing record, the Deputy Attorney General has argued that the Wisconsin Supreme Court should adopt the same separation of powers and “procedural rule” doctrines rejected by the Florida Supreme Court and proceed to rule that the circuit courts lack the constitutional authority to require the legislature to comply with the law.

Interestingly, at least two early cases of the Wisconsin Supreme Court declared legislative acts void for failure to comply with procedural requirements in their passage: State v. Wendler, 94 Wis. 369 (1896) and Meracle v. Down, 64 Wis. 323 (1885).  These cases were later criticized by University of Wisconsin law student Charles Luce in a 1941 article in the Wisconsin Law Review entitled “Judicial Regulation of Legislative Procedure in Wisconsin.”  However, Luce’s argument against the judicial review of legislative procedure was premised upon evidentiary problems inherent in determining whether the legislature had, in fact, followed the appropriate procedures.  Nowhere did Luce argue that the judicial review of legislative procedure raised separation of powers concerns.  In addition, he argued that the judicial review of legislative procedure, if the Court continued in this practice, should be limited to instances where the procedural defect was plain from the face of the legislative journal.  Significantly, Luce suggested that the legislature might pass a statute that permitted the direct judicial challenge of legislative procedure.  This further supports the conclusion that Luce’s critique was based on evidentiary issues and not on constitutional objections to the practice.  [Luce went on to have a distinguished legal career, clerking for Justice Hugo Black on the United States Supreme Court, working for the Johnson Administration, and serving as the Chairman of Consolidated Edison.]

In addition, in 1976, Wisconsin Attorney General Bronson La Follette filed an opinion discussing the (then) new Open Meetings Law.  In his opinion, he states as follows:

District attorneys and the Attorney General are empowered to exercise reasonable discretion in enforcing the law, including discretion as to the type of legal action to be brought, if any.  Court proceedings should not be instituted on mere suspicion of a violation.  Appropriate action should be commenced if there is apparent material and wanton violation and if there are credible witnesses and evidence available to prove the necessary elements of the violation.

Op. of Atty Gen. 77-76.  Attorney General La Follette expressed no constitutional concerns over the provisions granting the judiciary the power to enforce the law, and focused his concern over the outer limits of judicial review on cases where the evidence of a violation was weak or lacking.       

At the end of the day, I come to three conclusions regarding Ozanne v. Fitzgerald.  First, the standard for the grant of a supervisory writ has not been met.  There is no Wisconsin precedent directly on point on the justiciability of Open Meeting Law violations alleged against the legislature.  Moreover, six hours of oral argument before the Wisconsin Supreme Court has failed to identify any factual or legal finding of the circuit court that was plainly wrong.  Given the foregoing, it is difficult to conclude that the circuit court ruling plainly violated anyone’s legal rights.

Second, this is not the appropriate procedural posture for the Wisconsin Supreme Court to decide whether or not the legislature exceeded its constitutional authority in enacting the Open Meetings Law.  This issue is too important to be decided in the absence of a full record or without a trial court or appellate opinion on this question.  While the Court may have the power to exercise original jurisdiction and take up this issue, it would be wise to adhere to the normal appellate process.

Finally, if the Wisconsin Supreme Court does address the issue, the Court must clearly articulate the reasons behind its ruling on the question of justiciability.  It is not sufficient to cite to prior precedent and simply declare that precedent dictates the result.  This approach is insufficient because the Wisconsin Supreme Court is not bound to follow precedent in any given case.  Above all, the doctrine of separation of powers is not an end to be pursued for its own sake.  It is a practical doctrine that must be take account of and be adapted to the particular facts before the Court.

Therefore, if the Wisconsin Supreme Court chooses to reach the issue of the constitutionality of the Open Meetings Law, the Court should take the time to explain why the result it arrives at is a sound result in light of the text of the Constitution and of the role of the Court in our tripartite system of state government.  After all, given the highly politicized nature of Ozanne v. Fitzgerald, the ultimate decision of the Court will only be recognized as legitimate if it is received by the public as an expression of general principles of law and not as a rationalization intended to support a preordained result.

This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather.  The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed.  Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce.  Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities.  This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause.  However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce.  Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process.  The republican guarantee, by way of the existing political question doctrine, might be interpreted as (1) a jurisdictional basis upon which state legislatures may enact facially discriminatory legislation, as long as such laws do not infringe on other, textually protected individual rights; and (2) a check on the courts’ ability to invalidate such rightfully enacted state laws.

For current purposes, this paradigm could provide support for the recent burgeoning in local food movements.  These movements are characterized by state and municipal efforts to encourage, and even subsidize, local agriculture and food production.  As scientific proof and support mount in favor of maintaining local food systems, states and local communities have taken legislative steps to protect local producers and consumers.  But, these protective laws could face challenges based on the idea that facially discriminatory laws intended to bolster localism violate the Dormant Commerce Clause doctrine.

However, such laws, which reaffirm strong traditions of agrarianism reaching back to the founding of this nation, are at the heart of any republican system of government.  The views of many members of the founding generation support a model of government based on the ability of local food producers and consumers to ensure the continued vitality of their communities through protection of local food systems.  Thus, instead of these laws being invalidated on Dormant Commerce Clause grounds (or even being subject to a Dormant Commerce Clause analysis), attempts at invalidation of local food decisions could be precluded on the theory that, whatever other substantive protections are included in a theory of republicanism, protecting local agrarian traditions is at the heart of the republicanism guaranteed by Article IV.

Fundamentally, the rationale for invalidating such laws under the Dormant Commerce Clause is that such regulation is the province of the national government, and that the economic unification of the States will ensure the success of the Union; that “the peoples of the several states must sink or swim together.”  Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935).  In the context of interstate commerce in food products, however, that rationale was apparently based on a presumption of fungibility of various goods; for example, that milk from one state had the same social, economic, and health benefits as milk from any other state.  But as commerce and scientific knowledge have expanded, scientists, farmers, and food advocates, among others, are pushing back against the notions that all food is equal, and that terroir does not play a role in producing quality, highly nutritious, sustainable food.

Instead, these direct and active participants in our food systems are suggesting that food grown and produced in a local area—a “foodshed”—provides not only greater benefits to the local human social and economic communities, but also greater health benefits, as well as fewer detrimental environmental impacts caused by global food production and transportation.  Thus, these advocates suggest that when it comes to food, perhaps the continued vitality of the Union will be better served by each locality’s reliance on local food, thereby encouraging greater sustainability on the part of each of the Union’s component parts.

To this end, a number of states and communities have enacted laws requiring locally sourced food for various purposes, often in the form of purchasing requirements for local governmental entities, e.g., schools, governmental offices, or state prisons.  Thus, these entities may be required to buy produce, meats, or other food products from local producers, to the exclusion of those out of state.  Although these measures evidently serve numerous valid local interests, an argument can be made that these types of laws are directly discriminatory against out-of-state food producers and that, therefore, the laws run afoul of the Dormant Commerce Clause doctrine’s nearly per se prohibition on laws having such discriminatory effects.  The doctrine has been interpreted to include exceptions for some facially discriminatory laws, when those laws serve otherwise legitimate state interests and when the ends cannot be reached by any other reasonable means.

Resorting to these exceptions under the Dormant Commerce Clause, however, seems to misconstrue the rights that the Constitution affords the people to govern.  This view of the federal government’s powers under the Commerce Clause essentially provides that the people’s powers are limited in the first instance by judicial fiat, with certain popularly ordained actions being acceptable only by the permission of the courts under their implied powers to control commerce.  Instead, the people’s rights to enact locally beneficial laws, where those laws are not prohibited by an express constitutional restriction or preempted by congressional enactments, would seem to be protected by the Ninth or Tenth Amendments; these amendments, however, have been interpreted as affording no such rights.  Indeed, the Court’s attempt to reinvigorate the rights of the people under the Tenth Amendment in National League of Cities v. Usery was quickly overruled in Garcia v. San Antonio Metropolitan Transit Authority, which rejected the notion that the Court could ever ascertain any reliable defining characteristics of state governments that must be protected from federal regulation.

After its impugning of Usery’s “traditional governmental functions” test for determining which state activities should be protected from federal interference, the Court has since sought to revitalize principles of federalism and the powers of the states to self-govern in the face of seemingly ubiquitous federal power.  This trend has included some pulling back from the near-per-se invalidation of discriminatory state laws under the Dormant Commerce Clause, most recently in United Haulers Ass’n v. Oneida–Herkimer Solid Waste Management Authority and Department of Revenue of Kentucky v. Davis.  These cases have essentially recognized a governmental exception to Dormant Commerce Clause restrictions, allowing discriminatory treatment when the legislation at issue serves “traditional public functions.”

With the Court’s pullback from previous Dormant Commerce Clause jurisprudence, and especially due to the theories upon which the Court has allowed discriminatory legislation, there exists another, more textually defensible rationale for allowing the enactment of such locally beneficial laws.  That rationale is found in Article IV’s Republican Guarantee Clause, which provides that “The United States shall guarantee to every State in this Union a Republican Form of Government.”

Long relegated to “constitutional desuetude,” the Guarantee Clause has experienced a sort of slow revival over the past half century, beginning with the Court’s allowance in Baker v. Carr that cases under the Guarantee Clause were not necessarily nonjusticiable, as had been assumed under the Court’s prior precedents throughout the preceding century.  During that pre-Baker period, the Court had determined that any challenge based on the Guarantee Clause presented a nonjusticiable political question whose resolution was dedicated exclusively to the political branches.  After Baker’s restatement of the political question test, courts determining whether to allow a Guarantee Clause claim to go forward look to whether the dispute can be resolved judicially without infringing on the powers and duties of the other federal political branches.

The political question doctrine and the Guarantee Clause, generally, also give rise to another, converse implication of the federal government’s potential authority under the Guarantee Clause.  This implication is that the affirmative powers granted to the federal sovereign concomitantly require that that government respect the authority of the states, and of the people, to engaged in fundamental republican activities without interference by the federal government where there does not exist a clear constitutional basis for doing so.  Under this view, the republican guarantee would thus serve as a limit on the federal judiciary’s attempts to exercise nontextual, implied powers under the Commerce Clause.  Where the federal government has not acted according to its express Commerce Clause authority, the Republican Guarantee requires that federal courts refrain from invalidating state legislation unless there exists a textually demonstrable basis upon which the courts may exercise their remedial constitutional authority, such as that found under the Equal Protection or Due Process Clauses or the First Amendment.

This limitation on the federal government is based on a reading of Article IV’s provision that the United States “shall guarantee” states’ republican governments in such a way as to give fuller meaning to that right in the federal government as also bestowing obligations grounded in principles of federalism.  Hence, the corollary to the oft-stated affirmative powers of the federal government is that “shall” does not only mean that the federal government may act, but that it must also refrain from acting when doing so would interfere with the states’ development, maintenance, and exercise of local republican government.  The critical determination, then, is discerning those governmental actions that fall within the concept of republicanism that is guaranteed to the states and the people.

The Court has provided some guidance in this area, although the entire scope of rights guaranteed within the body of republicanism remains indeterminate.  In New York v. United States, for example, the Court discussed a challenge based in part on the Guarantee Clause, and concluded that even if the Guarantee Clause provided limits on what actions the federal government may take vis à vis the states, the incentives at issue in that case did not violate the Clause’s protections.  Also, in Gregory v. Ashcroft, the Court explicitly held that the Guarantee Clause constrains the federal government’s ability to interfere with the qualifications established for state governmental officials.  The Court made clear that, although Congress may have the power to manipulate such qualifications under its Commerce Clause power, any attempts to exercise that power must be “unmistakably clear,” and that the federal courts must not arrogate to themselves powers to invalidate such fundamental acts of a state government.

The cases adjudicating grievances under the Guarantee Clause illustrate three points.  First, after over one hundred years of having been read to be essentially a dead letter of the Constitution, the guarantee is apparently alive and well.  Second, these cases show that there are in fact substantive elements of the guarantee that the federal courts can recognize, and that these elements can provide a framework of the types of state governmental activities that must be free from federal interference, absent an “unmistakably clear” constitutional or statutory basis.  Third, the Court’s adjudication of these cases shows that the Guarantee Clause could provide a jurisdictional basis upon which states might enact legislation in furtherance of republican governance, much like Congress relies on the Commerce Clause as the jurisdictional basis by which it legislates.

Thus, although the precise content of the republican guarantee is yet undefined, a more robust and textually based interpretation of the Guarantee Clause seems to support broad measures aimed at protecting local agrarian traditions.  Thus, local laws protecting and promoting local food systems should be protected from federal judicial invalidation by the guarantee that the people of every state shall be free to exercise a republican government.  In comparison to the Court’s decision in Gregory v. Ashcroft, for example, if a state’s establishment of qualifications for its officers is within the guarantee, so too must be the people’s ability, through the republican process, to decide how the populace will be fed and, similarly, how the land of the state will be used.  Therefore, under this view of the Guarantee Clause, unless Congress issues a contrary directive governing local food, the republican guarantee would prohibit the federal courts from infringing on the people’s right to engage in an apparently fundamental component of republicanism: utilizing the republican legislative process to protect and promote the production and consumption of local foods.

Criticism of the notion that a court may invalidate an act of the legislature (as opposed to acts of local units of government subordinate to the legislature) is not based on “sixty year old” precedents. The Zimmerman and Goodland cases go to whether a court can enjoin publication of an enacted bill. That’s a different issue.

The idea that a court may not invalidate an act of the legislature for failure to comply with a statutory (as opposed to constitutional) restriction on legislative procedure is based on a long and unbroken string of cases beginning with McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891) and most recently restated in the very case that Judge Sumi now relies on, Milwaukee Journal Sentinel v. Department of Administration, 2009 WI 79. The rationale for the rule was stated in State ex rel. La Follette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983):

Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute.  This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute, Baker v. Carr, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962).  Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by  the constitution.  73 Am.Jur.2d Statutes, sec. 49, p. 296.  If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.  The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.

Id. at 364-365.

Thus, even if – as everyone agrees – the Open Meetings law applies to the legislature – failure to comply with it may not result in invalidation of a legislative action (as opposed to, say, sanctions against individual legislatures). Indeed, the very case relied on by Judge Sumi for the proposition that the Open Meetings Law applies to the legislature -State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313 (1976) – recognizes that very distinction. It could issue declaratory relief as to the actions of individual legislatures and impose forfeitures upon them because it was not interfering with “the functions or separate power of the legislative branch,” id. at 698, and expressly stated that “[t]he case is accepted, as not contrary to separation of powers, in that it concerns application of the forfeiture penalty to members of a body, not to the branch of government.”  Id. at 700.

Ed – and Judge Sumi – want to suggest that this line of cases was somehow broken by Milwaukee Journal Sentinel. As I explained on my personal blog, Judge Sumi flatly misstates what happened in Milwaukee Journal Sentinel. Ed agrees, but argues that what he calls a “regrettable error” has no impact on the validity of the analysis. I respectfully disagree. Here’s why.

Judge Sumi wants to use Milwaukee Journal Sentinel for the proposition that a court can invalidate a law for violation of what she calls a “constitutionally-based procedural statute.” That is, she says, precisely what happened in Milwaukee Journal Sentinel.

That is, in fact, precisely what did not happen. Nor does the Court suggest that an act of the legislature could be invalidated for failure to comply with a statutory requirement.The Court invalidated nothing.

It rejected an argument that an act adopting a collective bargaining agreement amended – sub silentio – the Public Records Law. The majority (over the dissent of the Chief Justice) held that it did not because, were it construed to have done so, the strictures of the state constitution – in particular, Art. IV, sec. 17 – would be violated. It went on to discuss sec. 111.92(1)(a) (which required a bill expressly setting forth whatever statutory amendments are required to conform with the provisions of a collective bargaining agreement), but that discussion is given over to noting that the statute is consistent with the constitution and did not – indeed could not – support an enactment that did not follow constitutional requirements. It expressly disavowed any suggestion that it was acting on the basis of an extra-constitutional statutory rule of procedure, noting the very cases that critics of this aspect of Judge Sumi’s decision rely upon.

Milwaukee Journal Sentinel would be on point if we could conclude that the specific requirements of the Open Meetings law alleged to have been violated here were – like those in Milwaukee Journal Sentinel– constitutionally mandated. But Judge Sumi made no such finding nor could she. The complaint filed by District Attorney Ozanne made no constitutional claims. Moreover, it seems unlikely that he (seeJudge Sumi’s own ruling in the Falk case) would have standing to raise constitutional claims.

Even were this not the case, it would take some heavy lifting to find particular notice requirements in Article IV, sec. 10’s requirement that both houses of the legislature be “open.” But most fundamentally, Judge Sumi made no such finding, stating that the legislature has “chosen” to be governed by the open meetings law. (Decision, p. 10) (Indeed, the Open Meetings Law itself says that either house of the legislature can exempt itself from its strictures by the simple expedient of an internal rule.)

Once we acknowledge, that the Open Meeting Law is a rule of process chosen by the legislature, we are in that line of cases represented by Stitt. A legislative action in violation of a self imposed procedural rule cannot result in invalidation of an otherwise legislative enactment because the legislature is free to abandon that self imposed limitation anytime it wants.  To hold otherwise would violate the principle of separation of powers and the particular command of Art. IV, sec. 8 of the state constitution. One does have to look “further” than Marbury v. Madison to address this issue.

I get the argument that is being feinted at but never fully developed. It’s that a statute can have some sort of quasi-constitutional status such that the normal rules don’t apply. For those “super statutes,” I guess, the argument would be that only express repeal can relieve the legislature of their binding nature. Milwaukee Journal Sentinelmight have stood for that if the Court hadn’t made clear that it thought the requirement of a separate or a companion bill was constitutionally required. Writing separately in Milwaukee Journal Sentinel, Justice Ann Walsh Bradley suggests that a statute can be something more than a rule of procedure but less than codification of a constitutional command and that this might matter, but that she was the only justice who advanced the idea weakens rather than strengthens its currency here

Perhaps Judge Sumi is making new law – creating a new kind of statutory animal. I don’t thing that works. All sorts of legislative rules of procedure can be said to have a constitutional “connection.” But once we agree that a particular statutory requirement is a matter of choice, two overriding principles end the conversation. One is that a legislature cannot bind future legislatures. The other is that courts cannot interfere with the legislature’s determinations as to how it will proceed other than to enforce a constitutional requirement.

There are other problems with the decision. The court (based on that “old” precedent – one that was cited with approval in 1977 and never called into question) lacked the authority to enjoin publication. That question (and the matter of whether the bill was published) is not moot given the adoption of collective bargaining agreements subsequent to the date that the law was ostensibly published. The court has yet to explain why a violation that affected only the actions of the Joint Committee on Conference justifies invalidation of the acts of the Assembly and the Senate which no one claims tp have been taken in violation of the Open Meetings law. The court has yet to expressly address the state’s claims that there were legislative rules that, by the statute’s own terms, supercede the notice provisions of the Open Meetings law – merely asserting that there are “no such rules.” The justification for invalidating the rule is also extraordinarily weak, failing to address why the principles of the Open Meetings Law are served by invalidating a law that was perhaps the most publicly debated piece of legislation in state history and that was passed before thousands of screaming people.

One final word is in order –one that allows us to end in at least partial agreement. Ed castigates the Department of Justice for suggesting that it may seek Judge Sumi’s recusal. DOJ’s point was that, in filing a brief in the Supreme Court defending her actions below, Judge Sumi took a position on a matter that was still at issue in the matter before her and with respect to which (at the time) further proceedings were contemplated. (Indeed, Judge Sumi’s issuance of a final order was rather unusual in that no dispositive motion was before her.)

I would not have written the letter. I can’t see what purpose it served and it is not clear to me that any “bias” exhibited by Judge Sumi stemmed from extrajudicial sources. I have had the pleasure – and discomfort – of being before judges who either loved or hated my case from the get go. But as long as such views are based on the law and the record, they do not reflect impermissible bias. But just as I will not question Judge Sumi’s competence or character behind a decision that I think is quite clearly wrong, I will not join Ed in suggesting that the letter constituted overly aggressive litigation tactics that are somehow at odds with the constitutional responsibility of the Attorney General.