Thursday, October 23, 2014

The Beginnings of First Amendment Jurisprudence

So, with that general background in mind, let us have a look at early First Amendment cases before the Supreme Court.

The first case widely quoted was Schenck v. US.  The case was actually decided in 1919, after WWI was over, but while the post-war Red Scare was at its height.  The Bolsheviks had taken over Russia and were engaged in civil war against a wide range of opponents.  The Bolsheviks had only recently changed their name to Communist and founded the Comintern, an international organization of Communist parties, all taking orders from Moscow, and trying to stir up revolution in prostrate belligerents of the war.  Left-wing revolution and attempted revolution and right wing repression were breaking out all across Europe.  The United States was not spared as radical Socialists declared general strikes, government and veterans cracked down, and the worst race riots since Reconstruction gripped the land.  A short but severe post-war depression did not help.  It was in this atmosphere that the Supreme Court received the appeal of the prosecution of Charles Schenck, a Socialist for circulating anti-draft pamphlets to young men subject to the draft, urging them to resist.  He had not engaged in any sabotage or terrorism.  Convicted, Schenck appealed on the grounds that the pamphlets were protected by the First Amendment.  The Supreme Court unanimously upheld the conviction in an opinion written by Oliver Wendell Holmes.  Holmes conceded that the First Amendment might do more that just forbid prior restraints (this issue had never been decided at the time).  He also conceded that "in ordinary times" saying all that was in the circular would have been protected.  But he argued that war as an extraordinary situation, and that if obstructing the draft could be a crime, so could conspiracy to obstruct the draft, as by circulating pamphlets.  The opinion contains two famous quotes.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."  This, of course, is usually paraphrased as, "Freedom of speech does not include the right to yell fire in a crowed theater."  Holmes was arguing that circulating such pamphlets in wartime was tantamount to yelling fire in a crowded theater.  He also argued that the First Amendment did not protect words that "create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."  "Clear and present danger" has become a watchword for when free speech may be restricted.

Most accounts I have read of the First Amendment cite Holmes' authorship of Schenck and leave it at that.  They go on to describe how Louis Brandeis began dissenting, how he won Holmes over, and how the two of them ultimately changed the mind of the entire Supreme Court.  But Wikipedia gives a fascinating and little-known sidelight.  An earlier case reached the Supreme Court in which the defendant was prosecuted for signing an anti-war petition.  While the majority favored upholding the conviction, Holmes wrote a dissent powerful enough that the Court backed down and dropped the case altogether.  So apparently Holmes had some unease with such prosecutions from the start.

The Supreme Court ruled the same way, again in 1919, again unanimously and again in an opinion by Holmes in Frohwerk v. US.  This time, the defendant was prosecuted for publishing an anti-war newspaper.  The paper was not specifically sent out to potential draftees, but was quite strong in its denunciations of the war, sometimes to the point of appearing to favor Germany over England.  Holmes acknowledged that, "We do not lose our right to condemn either measures or men because the country is at war," but argued that speech advocating a crime was not protected.  And, as in Schenck, the Court held that an anti-draft publication was sufficient grounds for conviction for conspiring to thwart the draft.

Holmes made it three for three in the unanimous Supreme Court cases he wrote in 1919 when he wrote Debs v. US, this time  upholding the conviction of Socialist leader Eugene Victor Debs for an anti-war speech.  This time Holmes felt the need to emphasize that criticizing the war was not, in and of itself, a crime, so long as the criticism did not interfere with the draft.  But Debs praised people imprisoned for interfering with the draft, and that was grounds enough for the Supreme Court to uphold his conviction.

But he changed his mind, still in 1919, in the case of Abrams v. US, in which the Supreme Court upheld yet another conviction under the Espionage and Sedition Acts but Holmes, joined by Louis Brandeis, dissented.  In that case, four Russian Jewish anarchists and one socialist distributed anti-war pamphlets directed primarily at US intervention in Russia's civil war, and including some that openly called for revolution or at least strikes in the munitions industry.  They were convicted under the Espionage and Sedition Acts, and appealed on the grounds that their publications were protected by the First Amendment.  By a vote of 7-2, the Supreme Court upheld their conviction, but this time Holmes dissented.  This case was a bit delicate because, despite the inflammatory language of the leaflets, they were not actually directed at our official, declared war against Germany, but only against our unofficial, undeclared intervention in Russia's civil war.  Technically speaking, the Sedition Acts were only aimed at speech the disrupted the war against Germany.  In fact, the defendants argued just that.  The majority, however, said that their call for a general strike would disrupt the war effort against Germany, so the speech was illegal.  As for the First Amendment, the majority simply cited Schenck and Frohwerk to show otherwise.  

Holmes, joined by Brandeis, dissented.  He argued first that calling for a general strike did not violate the Acts unless it was done with the specific intent to disrupt the war with Germany.   More importantly, he argued that the First Amendment allowed speech to be criminalized only if it posed a "clear and imminent danger" of illegal conduct.  This standard applied either in war or in peace, although it might be more stringently applied during war.  He also argued that the intent to bring about illegal conduct with one's speech was a necessary condition to it being subject to prosecution.  Here, the intent was to disrupt the intervention in Russia, not the war with Germany, so there was no criminal intent.  Holmes cited, of all cases, Schenck, Frohwerk,  and Debs  to support his dissent, even those these cases upheld prosecution of less inflammatory speech.  And finally, for the first time in the history of the Supreme Court, Holmes agreed with the court of public opinion and expressed the view that the Alien and Sedition Acts of 1798 were unconstitutional.

I intend to follow soon with more cases on the growing acceptance of free speech rights by radical groups.

Saturday, October 18, 2014

Background to Our Earliest First Amendment Jurisprudence

I have discussed before the Alien and Sedition Acts of the late 18th Century, which criminalized and "false, scandalous, and malicious" publication against the US government, and how it was treated as an outrage against the First Amendment.  Yet it was neither repealed not declared unconstitutional, but simply allowed to lapse.  (It was set to expire at the end of the Adams presidency by a Congress that apparently did not trust his successor).  Although the constitutionality of the Alien and Sedition Acts were never tested in court, they were clearly found unconstitutional in the court of public opinion.  So it remained throughout the 19th Century, with the general principle that the Alien and Sedition Acts were unconstitutional and vile firmly fixed in public opinion, but never formally held by the courts.  The Supreme Court would not address the First Amendment until the early 20th Century in the wake of other repressive statutes enacted during WWI.

A lot happened during this time.  Most significantly, during the Gilded Age, industrial strife between labor and management grew.  Vested interests of the day greatly feared the unions.  Their fears were often hysterical and unjustified, but they were altogether predictable.  And, in fairness to the vested interests of the day, some labor organizations were genuinely radical.  In fact, as moderate attempts to improve wages and working conditions were met with repression, radical socialist and anarchist movements grew.  Some even considered themselves revolutionary and engaged in terrorism.  (William McKinley was killed by an anarchist).  These radical movements, and the repressive measures against them, reached their height when the US entered WWI.

Some background is in order here.  During the late 19th Century, there was both a rise in nationalism in Europe, and the rise of a socialist movement that proclaimed in international brotherhood of labor transcending national boundaries.  It included everything from  revolutionaries who spurned international war in favor of class war to humanitarian pacifists.  All tendencies within this brotherhood were represented in the US as well as Europe.  Well before the outbreak of WWI, many people could see the handwriting on the wall.  Socialists generally foresaw there would be a major international war.  They also agreed that the international brotherhood of labor had no stake in such a war and should oppose it.  Some, such as Lenin, also recognized that the weakening of the state that goes with losing a major war often leads to revolution.  If such a war were declared, the general consensus was, the labor movement should refuse its support and call a general strike to block the war and (some hoped) launch their revolution.  Then war broke out and socialist parties immediately rallied to their respective countries' war efforts.  The international brotherhood of labor was exposed as a sham -- except in the United States.

The US, obviously, was a late comer to WWI.  But when it finally did join, socialist parties and their unions attempted to do what had so signally failed in Europe -- to call a general strike, obstruct the war effort, and block, if not the war itself, at least U.S. participation.  The U.S. government did not take kindly to this attempt.  Shortly after the US joined the War, Congress passed the Espionage Act, which forbade publication of military secrets, or other material that interfered with the war effort.  The executive interpreted this provision very broadly and used it to prosecute, not only the disclosure of genuine military secrets, but also anti-war speeches and publications, and even movies that could be considered anti-British.  It did not help that the Bolsheviks seized power in Russia in November, 1917, setting off a general panic over Bolshevism and revolution in most of the other belligerents, including the US.  In early 1918, Congress passed some amendments to the Espionage Act, known as the Sedition Act, criminalizing any wartime any  "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt.

The Alien and Sedition Acts were back, with some differences.  The original Alien and Sedition Acts were written when the US was in a state of quasi-war, when the decision whether to go to actual war was hotly contested, and were intended to suppress a mainstream political party that opposed the war. The Espionage and Sedition Acts, by contrast, were made at a time when the decision had already been made to go to war, when war fever was gripping the country, and were intended to suppress a radical movement well outside the mainstream that opposed the war.  This is presumably why, unlike the Alien and Sedition Acts which were deeply unpopular from the start, the Espionage and Sedition Acts were widely popular when enacted, and were enforced much more ruthlessly than their predecessors.

There was another difference between the two laws as well.  The Alien and Sedition Acts were never challenged in the federal courts because the federal courts were widely known to be highly partisan (Federalist) at the time.  By contrast, the Espionage and Sedition Acts were challenged in federal courts, at first unsuccessfully, but more and more successfully as time went by.  It was out of these challenges that First Amendment jurisprudence began, and out of these challenges that the ACLU was born.  I will address them in an upcoming post.

Thursday, October 16, 2014

Obligatory Ebola Post

With Ebola very much in the news, I might as well weigh in on the subject.  People are starting to panic because a second nurse who treated Thomas Duncan has come down with the disease.  By way of perspective, let me point out the following:

First, of all of Duncan's contacts outside the healthcare system, none have shown and Ebola symptoms.  Granted, we still have about two weeks to go before we can definitively clear them, but the general consensus is that the time of maximum peril for his contacts has passed.  (And if this sounds like empty reassurance, keep in mind how quickly these two nurses have become infected, although their exposure was later).

Second, the hospitals that treated medical and missionary evacuees have managed to keep any of their healthcare workers from being infected.

Third, if reports coming out of Dallas Health Presbyterian Hospital are to be believed, the hospital did a poor job of maintaining the necessary isolation protocols for a deadly infectious disease.

So, what conclusions would I draw from this:

First, the risk to people outside the healthcare field is minimal.

Second, with proper precautions, we can protect our healthcare workers.

Third, most of our hospitals are not properly equipped and trained to do so.  This last conclusion is based on the assumption that the hospitals that safely treated evacuees are the exception and Dallas Presbyterian is the rule.  First of all, the hospitals treating evacuees knew in advance what they were dealing with.  Dallas Presbyterian did not.  We can assume this will be the general rule:  Hospitals treating evacuees will know what is coming in.  Hospitals dealing with walk-ins will not. Furthermore, we don't have all that much experience dealing with really, really deadly infectious diseases and therefore are not all that good at taking proper precautions.  It seems safe to assume that the Duncan case will serve as a huge wakeup, and that hospitals will start learning and practicing better isolation in the future.  This is both good news and bad news.

The good news is that we will start screening better for Ebola, asking about travel abroad, and preemptively taking isolation precautions, and doing a much better job dealing with any future cases.

The bad news is that there will be a lot of false alarms and panics, and that these will be costly. Consider post-9-11.  There were a lot of false alarms about possible airline hijackers.  Flights were delayed.  Airports or whole wings of airports were shut down.  Passengers were attacked and forcibly restrained.  It was a major nuisance.  But that was all it was.  Delayed flights, inconvenience, and even a few physical assaults are not a serious threat.  People joked about them because it was the sort of thing you can joke about.

False alarms and panics in the healthcare system are a whole lot more dangerous and harmful.  Huge amounts of resources will be devoted to learning isolation and protection.  Extreme isolation measures will be unnecessarily deployed in numerous cases.  These will waste resources that might have been put to better use.  There is shutting down the entire Dallas Presbyterian Hospital to avoid possible risk to other patients.  Emergency rooms and urgent cares may start turning away patients to better isolate possible Ebola cases.  People may start fearing healthcare facilities and refusing to go for fear of being exposed to Ebola.  These will leave many other ailments untreated -- including many that are contagious.

In short, the risk of Ebola to people outside the healthcare system is minimal.  But the risk to our healthcare system from panic is a serious concern.

At the same time, thus far the danger of panic seems to exist mostly on internet sites, while ordinary people are very sensibly going on about their lives.

And finally, there has been talk about a travel ban to and from Liberia, Guinea and Sierra Leone, except for emergency personnel.  Cancel all tourist visas to and from these countries and require everyone else to undergo 21 days quarantine.  What would I think of that?  I am open to persuasion either way.  Intuitively it is appealing, but if you can convince me it is not worth doing, I am open to persuasion.  Certainly if the disease gets as badly out of hand in these countries as the World Health Organization fears (10,000 cases a week by two months from now) I see little choice but to impose such a ban.  At the same time, if there start being real signs of a panic in our healthcare industry, that alone may be grounds for a ban.

Monday, October 13, 2014

Comments on Halbrook

So, having given an overview of Stephen Halbrook's article on Presser v. Illinois, what do I think of it?  The article addresses two issues I intend to address in this continuing series, in particular, the rights of left-wing radicals and, if the Second Amendment protects the right to form private armies, who has that right.  It also addresses an issue I have addressed in the past -- the nature of the militia.

Halbrook's article more-or-less acknowledges that not all private paramilitaries have been as nice as insurrectionist theorists of the Second Amendment tend to assume.  He talks at length, for instance, about the violence and brutality of the Pinkerton detectives, a point well taken.  The conservative of the day denounced the union forces by comparing them to the Ku Klux Klan, many people's main point of reference for a private paramilitary at the time.*  Halbrook is indignant at the comparison. The Pinkertons and the Illinois National Guard were a closer parallel to the Klan, he says, while the union's paramilitaries were more like hapless black militias organized in self-defense.  He also goes out of his way to emphasize the peaceful nature of the union's forces -- unlike the Pinkertons and the National Guard, they never engaged in actual violence.

In fact, Halbrook makes his analogies quite clear.  In the post-bellum South, the select (i.e., all-white) militia oppressed black freedmen.  When the Federal Government disallowed that arrangement, the Klan took over the role of the all-white militia.  Freedmen used armed force and formed militias only in self-defense.  Likewise, in Illinois the Pinkertons terrorized unions and the Governor replaced the general militia with a select militia -- the National Guard -- that joined them.  The union paramilitary was intended for self-defense only and never engaged in actual violence.

Thus so far as I can tell, Halbrook's position is as follows:

  1. The true militia is and must be all able-bodies men of fighting age.  A select militia of anything less will become an instrument of oppression.
  2. Entrenched interests sometimes form private paramilitaries to terrorize anyone who would challenge their wealth and power.
  3. The targets of such terror must therefore be allowed to form their own paramilitaries as a matter of self-defense.
To put it more crudely, today's "Patriot" militias take the Second Amendment as a broad authorization of right-wing paramilitaries and have generally not addressed whether left-wing paramilitaries are also allowed.  Halbrook, by contrast, seems to see right-wing paramilitaries like the Pinkertons or the Klan as illegitimate and believe that the Second Amendment mostly authorizes left-wing paramilitaries in self-defense.**

Halbrook certainly does a good job of pointing up the establishment's hysterical overreaction to a rather minor challenge to its hegemony -- just as Southern whites hysterically overreacted to challenges to their racial dominance.  What he does not acknowledge is that this sort of hysterical overreaction is not an outlier.  It is, sadly, the norm.  Furthermore, when violence breaks out between right-wing and left-wing armed groups, the state's normal reaction is to overreact to the threat from the left and to underplay the threat from the right until it becomes overwhelming.  

Even if the state stays neutral, Halbrook falls into the same trap as many romanticizers of left-wing revolutionism; he ignores just how nasty violent strife between armed factions can be, and the tendency of nice guys to lose out in such strife, and the participants to be brutalized.  It also ignores what the outcome of taking up arms about the people who control the levers of power is likely to be.

Finally, I think that Halbrook is a bit naive (and occasionally outright mendacious) about the whole idea of a universal militia.  Halbrook is a great admirer of Switzerland, the only country in this day and age to maintain anything like the universal militia he advocates.  I do not know enough to be able to explain what accounts for Switzerland's outlier status in this regard, but it most certainly is an outlier.  Aside from Switzerland, people don't seem willing to maintain the significant burden of training and drill necessary to maintain a universal militia in the absence of some real threat, external or internal. This has been the general experience of countries other than Switzerland that have attempted to maintain a universal militia in the absence of a threat -- the practice atrophies because it is so unpopular.

Such was the experience of the antebellum U.S. -- militia discipline was always hard to maintain, and after the War of 1812, when their ceased to be an external threat, militias atrophied outside of frontier communities and the South.  In frontier communities the threat could be considered external -- it came from the Indians.***  In the South, well, this is where the mendacity comes in.  Halbrook treats a select militia in the 1880's as something new, but of course, it was not. The militias of the antebellum South were clearly "select" in the sense of being all white.  Their role was mostly to act as a slave patrol and guard against the internal threat of a slave rebellion.

Much the same can be said of Israel, the other great example of something approaching a universal militia in the present day.  Israel's universal draft and reserve force were never truly universal; non-Jews were not allowed to serve.  The system stayed in place for a long time because Israel was facing an external threat from hostile neighbors.  That threat has receded over time, but Israel's system of "universal" military service stays in place to deal with an internal threat from Arabs in the occupied territories -- and as the Arabs become a larger and larger minority, the system looks less and less universal.

In short, outside of Switzerland, citizen's militias function under one of two circumstances.  One is when the country is threatened by invasion, in which case the militia really can work as Halbrook envisions.  The other is in case of an internal threat, in which case the militia is not, in fact, universal and does become an instrument of oppression.  Such was the role of an all-white militia in the South, antebellum or post-bellum.  Such was the role of the National Guard in the North during the Gilded Age.

I will finally add that, although Halbrook ends his article with a plea to the courts to declare the Second Amendment to apply against the states, he does not address whether he favors a universal militia in this day and age.  Does Halbrook see the National Guard as an unconstitutional source of oppression?  Does he favor a return to a universal militia?  How does he intend to persuade a reluctant public to submit itself to military discipline and drill?  And what does he intend to do with such a militia?

I now propose to move on to how left-wing revolutionary or semi-revolutionary groups won recognition for their First Amendment rights.  This does not directly address the Second Amendment, but, as I have touched on before, if the right even to address certain opinions was controversial, what are the chances that the right to form private armies on behalf of those opinions was widely accepted?

*It is significant, by the way, that comparison to the Klan was used as an unequivocal term of condemnation in the North in the 1880's.  That may seem obvious to us, but in the contemporary South, the Klan was widely seen as heroic.  Indeed, in the early 20th Century, that view actually became quite widespread.

**I suppose that Halbrook would disagree and say that the real difference is whether the militia is acting as aggressor or in self-defense, not its ideology.  But is writing here seems to show a clear bias in favor of left-wing paramilitaries.

***And, it should be noted, the regular army tended to show more restraint in dealing with the Indians than the militia, and much greater willingness to force settlers to abide by U.S. treaties.

Saturday, October 11, 2014

Stephen Halbrook on Presser

Now, back to the subject of the Second Amendment and whether it authorizes private armies. My last post on the subject discussed the troubling but important case of Presser v. Illinois, which holds that it does not.  The case is troubling because it was written during the Gilded Age, when violence between labor and management was at its height, when management was hiring the Pinkerton Detectives to serve as its de facto private army, but all attempts to suppress private armies were directed only toward military-style companies raised by unions.  I said that Presser raises an important question that I intend to address in succeeding posts -- if the Second Amendment guarantees a right to form private armies, is that right equally guaranteed to all religions and ideologies or only to some.

One person particularly troubled by Presser is Second Amendment advocate Stephen Halbrook.  Halbrook has written a article on Presser that I intend to discuss here.

Halbrook, unsurprisingly, opposes Presser and considers it oppressive.  He begins with some historical background.  Labor strife was becoming intense; people in positions of power felt threatened by it; management responded to the organization of unions by hiring Pinkerton Detectives to act as their private army; the state government responded by organizing the National Guard to suppress strikes.  The union responded by forming its own militia. Halbrook is at some pains to assure us that the union militia was formed in self-defense only and, unlike the forces for management and the state, did not engage in actual violence, and emphasizes the degree of violence used by management.  This led to even greater panic by Illinois' ruling classes and further calls to crack down, and ultimately passage of a law establishing a National Guard and banning all unauthorized paramilitary companies.  Halbrook is outraged, making clear that the only legitimate militia is one that consists of all able-bodied males of military age.  This law was challenged in a test case in court as a violation of the Second Amendment.  The judge ruled in favor of the labor militia.

The opinion was published in the newspaper, but not in any judicial report.  According to Halbrook, the judge held that the right to keep and bear arms was an individual right, rooted in natural right, prior to any constitution, independent of any militia service, and is collective as well as individual.  Furthermore, the militia consisted of all able-bodies males aged 18 to 45 and could not consist of selective individuals.  Halbrook does not dwell at length on what the opinion meant when it said that the right to bear arms applied to people in their collective as well as individual capacity.  However, he does quote Lyman Trumbull, the anti-slavery Illinois Senator as filing a brief that argued for "the right of groups to organize and parade with arms" because " arms are intended for the people in their organized capacity."  In other words, Halbrook appears to argue that Trumbull argued and the court found that the Second Amendment protects the right to form private paramilitaries.

Do I sound skeptical of Halbrook's arguments?  Yes, I am.  Not having seen the court's decision or Trumbull's brief, I do not know whether he is quoting them accurately or in context.  And I have seen enough of insurrectionist interpretations of the Second Amendment in general and Halbrook in particular to be skeptical of their arguments.  They cite the Founders as supporters of modern insurrectionist theories, i.e,, that the purpose of the Second Amendment was intended to preserve the right of citizens to form private armies dedicated to the possible violent overthrow of the US government when actual reading of their sources makes clear that they are citing out of context and distorting the meaning.  Halbrook, for instance, likes to quote Patrick Henry as saying, "The great object is, that every man be armed. . . . . Every one Who is able may have a gun."  He uses this as proof that the Second Amendment is unrelated to militia service and is intended to protect an individual right of gun ownership.  Except that his quote is selectively truncated.  The full quote is quite different:
May we [the states] not discipline and arm them [the militia], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one Who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without. limitation or bounds, how will your militia be afraid?
I have previously quoted Federalist Papers the insurrectionists quote equally out of context.  David Frum (alas, no longer linkable) shows how insurrectionists cite Supreme Court Justice Joseph Story out of context to suggest that he believed in an individual right to own guns for the purpose of armed resistance to government.  So excuse me if I am skeptical that Halbrook is accurately quoting either the decision or the brief until I see it for myself.

Be that as it may, the Illinois Supreme Court upheld Illinois' militia law.  It upheld the definition of "militia" as the militia that could be called out by the the (state) government to "execute the laws, suppress insurrection and repeal (sic) invasion," and that to do so, the state must be be able to organize its own militia for its own purposes.  Even Halbrook acknowledges that this is so, but says that a proper militia must consist of all able-bodied men, not just a select few.  He also says that the court "correctly" distinguished between " the collective right to bear arms as a group and the purely individual right to carry arms for self-defense."  In this, Halbrook seems to say that the Illinois Supreme Court was right in saying that the Second Amendment guarantees the individual right to guns in personal self-defense as well as the collective right to "bear arms as a group."  But by the Illinois Supreme Court's interpretation, there is no Second Amendment right to private paramilitaries. Is Halbrook tacitly agreeing here?

In any event, Halbrook eagerly quotes the socialist press in support of his views, that the people must be armed to be free.  Yet another test case was arranged -- the case that went to the U.S. Supreme Court and became Presser.  In the meantime, labor, management, and the National Guard continued to arm further.  When the case went before the Supreme Court, Halbrook eagerly quotes from the brief for the defendant:
"To bear arms", then in the constitutional sense, means to bear the weapons of civilized
warfare, and to become instructed in their use. But this is drilling, officering, organizing; therefore, these are claimed to be part and parcel, of the same impregnable right, and placed by the supreme law of the land, beyond the reach of infringement by the provisions of any military code or, the precarious will, and license of whoever may happen to be Governor.
Once again, I would have to see the brief in full and in context to be sure whether the argument here is that the Second Amendment guarantees the right to belong to the militia, or the right to form private militias.  It is not even clear which of these interpretations Halbrook is arguing.  But which is mean is ultimately irrelevant; the Supreme Court rejected the argument. As Halbrook acknowledges, that opinion was written by a judge who had previously prosecuted the Ku Klux Klan for disarming freedmen in the South.  Apparently he distinguished between the right to be armed in individual self defense and the right to form private armies.

Halbrook appears to blame Presser at least in part for the Haymarket Affair, in which police cracked down on a peaceful union protest and unknown persons threw a bomb at the police, killing several. Eight labor leaders were convicted and sentenced to death for the bombing, even though the only evidence against them was their general political views.  Halbrook quotes John Randolph Tucker, a lawyer representing the Haymarket defendants in their appeal as having written of the Second Amendment, "This prohibition indicates that the security of liberty against the tyrannical
tendency of government is only to be found in the right of the people to keep and bear arms in resisting the wrongs of government."  He also quotes Tucker as arguing to the Supreme Court for the first time that the Fourteenth Amendment incorporates the entire Bill of Rights, including the Second Amendment, against the states.  At the same time, Halbrook acknowledges that the right to keep and bear arms was not at issue in the Haymarket case, and that Tucker did not argue that throwing bombs at the police or other acts of labor violence were protected by the Second Amendment.  (They were arguing, instead, that the defendants' criminal procedural rights had been violated, which, indeed, they had).  The Supreme Court rejected the argument.

Halbrook concludes with a general discussion of the ferocity of labor strife and repression at the time, the overwrought hysteria of the upper and middle classes, and the general retrogression of many rights at the time.  This post has gone on longer than I anticipated.  This one has merely described Halbrook's article.  In my next one, I intend to present a wider analysis of it.

Monday, October 6, 2014

What to Expect if the Republicans Win

Conventional wisdom has it that Republicans will take control of the Senate in November. Conventional wisdom further has it that they will lose control again in 2016 and that our presumed next President will be Hillary Clinton.  True?  Who knows.  Conventional wisdom on the Senate has flipped and my flip again.  A lackluster economy and a war dragging on in the Middle East could deliver the presidency to the Republicans in 2016.  But let's play some what if.

What should be expect if Republicans win the Senate in November?

I am guessing, a refusal to confirm any Obama nominees whatever.  (I am further guessing that the lame duck session will recognize this and ram through as many nominees as possible and Republicans will say that lame ducks are behaving badly and cry foul.  Or fowl?)  Or rather, Republicans will chose who they think should hold each office and inform Obama that if he does not nominate their choice, no one else will be confirmed.  This is at least semi-defensible, in the sense that it is how things work in a parliamentary system with a vestigial executive.  The majority in parliament chooses the nominees and the Queen or other vestigial executive goes through the formality of choosing them.  It is certainly a lot more defensible than the filibuster, which was essentially a Senate minority demanding the right to choose nominees.  But it is not our tradition.  It is a clearly established precedent at least since Andrew Johnson's day that the President should be allowed to hire and fire whatever executive appointments he wishes, subject only to rejection of someone really corrupt or crazy.

Legislation will be impossible, but it has been impossible since 2011, so that won't be new.

Government shutdowns and debt ceiling standoffs will become more common as Republicans see themselves as having the muscle to get their way.  Besides, they have been reigning themselves in in anticipation of winning the election and now can go all-out.  How far they will try to force it is anyone's guess.  What the Republicans still don't seem to understand is that if a measure is unpopular on its own merits, it won't become any more popular if forced over in a government shutdown or debt ceiling standoff.

What if Republicans win the triple crown in 2016?  My guess is that they will start shelving a lot of their nuttier ideas, realizing that they are a lot more popular when talked about than actually implemented.  Huge cuts in the top marginal tax rate.  Deficits will turn out only to matter when a Democrat is in the White House.  But above all, Republicans will breath a sigh of relief that the horror of a Democrat in the White House has finally ended and that the United States will NEVER AGAIN be forced to endure such a travesty.  Of course, we will.  And what the Republican freak out will look like then is something I would rather not even imagine.

Monday, September 1, 2014

A Brilliant Denunciation of Originalism

Following up on my post on law office history, during my research I came across this brilliant piece on why we should take originalism out behind the barn and shoot it.  Originalism was proposed by conservative legal theorists as a way of reigning in activist judges.  Instead of allowing judges to impose their own policy preferences, make them follow what was meant when the Constitution (or the relevant amendment to it) was enacted.  Simple. The problem has turned out to be that it does nothing of the kind.  The historical record is often far from clear, so instead of binding judges by history, originalism simply encourages law office history, i.e., cherry-picking historical evidence and citing it out of context to make a legal argument.
Or, as the author of the article says:
[H]istory shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. . . . But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.
I will concede history can stop a lot of judicial activism that we have experienced.  The author says that basic history shows that references to "domestic tranquility" (or "domestic violence") clearly refer to insurrection and rebellion and not to wife-beating.  I will add that the historical record provides no support for constitutionalizing the issues of abortion or same sex marriage.  But then again, one could figure that out simply by reading the text of the document.

This leads to another point the author seeks to make.  Appeals to history and originalism reduce, rather than increase, the Constitution's accessibility.  The Constitution is written to be accessible to enlightened layperson (i.e., a moderately educated person with no special training in law or history, who has nonetheless read the Constitution itself).  It uses remarkably simple and accessible language with very little legalese.  Supreme Court interpretations of it should be accessible to an enlightened layperson as well.  IMHO (perhaps not shared by the author) that rules out using the Constitution to uphold abortion or same sex marriage, since it says nothing whatever on either subject.  But the author is quite right to point out that if interpreting the constitution requires a detailed study of conditions in the 17th and 18th Century, it ceases being accessible to the general public, or to lawyers and judges, for that matter, and becomes knowable only to professional historians.  "[D]ebates about text and structure and policy and institutional allocation of power are least potentially accessible to the public." More controversially, he argues that being bound by the historical record prevents judges from taking policy into account.  I am not altogether sure I agree.  I basically share the opinion that policy making should be left to the elective branches of the government and not the courts.  On the other hand, to the extent that originalism means that all branches of the government must address the issues of 1787 rather than the issues of today, or that the purpose of the Constitution is to ensure that if anything new and unexpected comes up, the government's hand will be tied and it will be forbidden from dealing with it barring a constitutional amendment, then the point is well taken.

Actually, the warning that mere appeals to originalism are not sufficient to prevent judicial activism should have been apparent for a long time.  Just read the Dred Scott decision. Often I think that debates on the role of judges should have their own equivalent of Godwin's Law -- whoever first compares an opposing viewpoint to Dred Scott loses.  Conservatives use Dred Scott as a code word for Roe v. Wade.  Robert Bork's The Tempting of America holds up Dred Scott as the first example of substantive due process and thus the precursor of all judicial activism.  And these accusations are justified to the extent one means that the Scott is a terrible example of what happens when judges decide the outcome in advance based on their own policy preferences and then seek a rationalization for them.  But it is also a prime illustration of why originalism will not prevent such activism.  Justice Taney's reasoning rests almost exclusively on originalism:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
A better expression of originalism could hardly be found.  Taney goes on to say:
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
Taney then goes on to cherry pick every historical source he can find, from the Articles of Confederation up through 1848 to show that that black people had none of the rights of citizenship when the Constitution was written and were scarcely even considers as persons.  It is as egregious an example of law office history as one could possibly ask for.  And it ends with as fine a statement of originalism as anyone could ask for:
If any of [the Constitution's] provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
Clearly, then, lip service to originalism does nothing to restrain activist judges.  And, indeed, in Scott, one can see why they felt the need to rely so heavily on originalism.  The Supreme Court was making a morally indefensible argument.  Unable to make any plausible case on the merits, the Supreme Court passed the buck to an earlier generation, claiming that its hand were bound by their decisions.  Thus if Dred Scott offers any plausible argument it is this -- if your case cannot be made on the merits, maybe you shouldn't be making it.