Constitutional Law I

11 October

• We are starting to run out of time, so he will cover: Proxmire, Lacy, Chadha, and Clinton: no recitation on these.
• So, then. Back to Term Limits
  SCOTUS holds 5-4 that on the issue of federalism, AR can't impose term limits. Four of them say that term limits are a bad idea in the first place. Four dissenters say that they're a good idea. This leaves Kennedy who says that term limits are difficult and interesting, but sides against them on federalism grounds.

  Most people in the US favor term limits, and close to half of states have some form. They tend to pass more in states that have initiative/referenda. If they have to go though the legislature, they tend not to pass. And note that this is all for non-federal offices. Federal offices are off limits for term limits.

  Other arguments against term limits:

  • We want expertise. It would be foolish to boot out veterans. The congress is the backbone of the government.
  • Services to constituents will decrease if office-holders know they are lame ducks. Even moreso, they won't pay attention to legislation-- it's not just services directly to constituents, it's the legacy as well.
  • It's awkward for SCOTUS, with lifetime appointments, to come down on the side of term limits. In that sense, it's amazing that there are four dissents.
  • Term limits might curb corruption some of the time, but not in the last term: legislators who know that their time is up will just spend their time setting up their next gig. And if we make revolving-door legislation (like we have for regulatory agencies), we'll just make it less attractive to go into congress.
  • What about due process-liberty on behalf of the politicians: like Craigmiles-- don't politicians have a personal right to run for office?
  • Basically the system is working-- it's not as though we are on the verge of oligarchy or anything. We should be cautious tampering with it.
  • The constitution contemplates all of this, and has a procedure for enacting changes to it. It's hard to do this, and that's on purpose.
  And pro term-limits.
  • Federalism: let AR decide what it wants to do. We can experiment. If this doesn't work, then we'll know. It's what the people want (see Thomas's dissent pointing out the irony about honoring the peoples' ability to elect whom they want).
  • The existing system is not working. Elections are being distorted, and they're the major barrier between the US and plutocracy/tyrrany. We depend on successful contested elections. We know the system is flawed because the same people keep winning: that wouldn't be the case if elections were working right.
  • Incumbents control the electing process-- this includes the design of the ballot: let's list incumbents first. And let's label them as incumbents. Incumbents also have about 18 full-time staffers at taxpayer expense; challengers don't have this. Incumbents often don't have to worry about primary elections. They have huge name recognition. They get franking privileges, and mail from their elected official is more likely to be read from "candidate for office," and they can cite every bit of pork they ever brought home. And, WAAAAY more important: gerrymandering (the parties collaborate to control the process as a whole), and the ability to raise money (lobbyists don't court people who aren't in office; interest groups donate to the candidate most likely to win by a 5-1 margin). It's not really even an election at this point: all the value of an electoral process is compromised. That is why we need term limits: we have a higher rate of return than the Politburo did, or the British House of Lords does.
  • What this really means is that politicians don't want to take any position that voters might notice. They want to do nothing important, and do only symbolic stuff: let the executive branch take all the heat. Never mind that this takes accountability out of government-- congress is encourged to delegate as much as possible to the executive branch and the agencies. On the other side, challengers can't win as it stands: they have to depend either on mistakes from the incumbent or on uncovering some scandal. As a result, the election is just about personal negative things, not about issues.
  • Expenditures actually go down when we have term limits: where there are no term limits, there's more spending, and legislatures are less cautious about throwing around government money.
  • If congress is effectively not accountable, they'll feather their own nests. They do things like give themselves raises, build their own gymnasia, have wonderful pensions ($2-4M). Way better advantages than their constituents get.
  • Professional politicians are out of touch with voters; they aren't humble, and they don't know how we live, and who anticipate going BACK to the rest of society and living under the rules they've made.
  • We want younger people: our policymakers are at least a generation out of step with the backbone of the economy, the people who are doing all the work.
  • We want people who will take a position on a controversial issue. Term limits free people to do this.
  • It makes lobbying less attractive, because lobbyists won't be able to pay once for long-term relationships. Doubt it? Look at a list of who financed efforts to undercut term limits in CA.
  So there are strong arguments on both sides, to be sure. But the issue is closed at the federal level, most likely. Congress probably won't impose limits on itself.
• IA has tried to de-politicize gerrymandering (putting districting in the hands of neutral committees). How long will those stay neutral?
• OK, time to look at bypassing legislature altogether: direct rule by referendum. We're too big generally for town hall voting, but maybe policy-making by initiative would work... Some bad editing in the materials. In the actual Oregon initiative, things were different. The law used to be that of Lucas (c.f. Property). The OR initiative went the other way: all reduction in value must be compensated. This effectively kills zoning. The part that got left out said that the changes to zoning laws don't affect porn shops, gambling, etc. That's a key piece, and it was omitted.
• League of Oregon Cities
  It is OK to amend the OR constitution by initiative, much as the court dislikes this. But you can't bundle initiatives together. So free speech got bundled in with the zoning. And, arguably, every amendment always affects many things.

12 November

• The Breyer article: This is a speech that Breyer gave to fellow judges in England about how American judges on the Supreme Court come to their decisions. Because this is a speech, maybe, it's a little more open and casual than a written article. Likewise, the fact that it was given abroad, and to fellow judges. He says that on a textual basis, AR should probably win (this is the term limits stuff), but it's ambiguous. Precedent is a draw, too. Founding fathers disagreed on the topic. What about the rest of the people at the time the Constitution was written? Again, a draw. And 10A favors AR a little, but this is a federal election, after all. So it's close to a draw, but with slight inclinations towards AR. You'd expect him to say it was a close hard case, and AR won. But Breyer didn't vote for AR, and AR didn't win. Basically, none of those things have much impact. Coded message: don't argue those things before the court, realistically. So how do we become good lawyers arguing before the Supreme Court? The article does a great job saying how they don't decide cases. But when he tries to say how they do, he founders a little. He talks only about stability-- he leaves out the policies of term limits. It's maybe revealing: when it comes time to discuss our decisions, we tend to leave out the parts that might be controversial.

  Well, for sure, he says it's not subjective, policy, or ideology. But he also says it's not text, precedent, or history. So what, then? It reflects, he says, somewhat different views of the constitutional framework: different backgrounds and experiences. Well, that's subjectivity.

  So the article starts out lucid, but ends incoherent...

• Back with League of Oregon Cities
  The issue here, for our purposes, isn't the details of the free speech stuff or the OR constitution itself. The two main things here are property issues (zoning, and when should zoners pay), and who should make zoning law. That's our issue: should voters be able to amend the OR constitution through the initiative process? The OR court seems to think not.

  Says Rachel.

  • Constitutions should be hard to amend.
  • But we want direct involvement by the people. And the constitution starts out "we the people," after all, so we want people involved-- that is a strong basic policy.
  • Initiatives can serve as a check on legislative tyrrany.
  • Good policy = what people want. That is a premise of democracy.
  • Giving people a voice gets people involved; they'll be less cynical, less jaded, and more inclined to vote
  And on the other side
  • Textual argument: the federal constitution has a pretty tough process for amendment. And the constitution doesn't say anything about legislation by the people. In fact, Art I says that congress has all legislative power (meaning nobody else does).
  • Art IV: guarantee of republican form of government. That means legislated democracy. So maybe the constitution totally forecloses the whole possibility of initiative legislation.
  • This is such an obvious point: if they'd wanted it in the constitution they'd have put it in there. Of course, the states can maybe still do this, but at the federal level they're not allowed.
  • And we don't want the people to hamstring orderly government: wild fluctuations, etc. A tyrrany of the majority. And no more predictability.
  More than half the states don't have them. The states that do have them exercise them often. The CA constitution was amended this last term to overturn the CA SC on the issue of gay marriage.

  Amending the constitution, in WI is very hard: both houses of two successive legislatures have to agree, and then a popular vote.

• MN v. White
  Supreme court elections: the "announce clause" rule.

  Note that this is based on an ABA rule, and the ABA doesn't like judicial elections. This is maybe because the alternative is appointments. And the appointments would be (naturally) very influenced by lawyers, and that's good for lawyers. Anyway, the ABA's dislike for elections might be a little self-interested.

  Anyway, you can talk about judicial administration, but not decision-making. And there's one substantive thing you can say: that you'll make the courts more open to women and minorities. 1A problem: you can't say make it more open to men. That's preferring one subject matter over another, which really offends 1A generally, but this is so bland that it doesn't get noticed.

  Note: stare decisis is an ambiguous term. You could say that all issues have been litigated, or you could distinguish any case that you cared to.

  The court basically decides to interpret MN's statute in a different way than MN does. This isn't just strict scrutiny, it's strictest: this is the absolute core of 1A and protection of political speech. This isn't even close to permitted.

13 October

• Minnesota v. White
  Note that 1A says "congress shall make no law" restricting free speech. This isn't congress: it's MN, and it's the legislature. But nobody reads it that strictly-- it basically means that government shall make no law.

  The principle purpose of 1A was to inform elections, so here it should apply in its strongest possible form. Also, this is a pre-publication restriction on speech, which is even worse (that's according to another MN case that we don't have). And the restriction isn't content-neutral, which is even worser than worse.

  If we give even an inch here, we'll get restrictions on politicians' speech not long after: that's Cogswell, which accounts for why that case is in the materials.

  Note that this restriction amounts to incumbent protection: you can't win an election if you can't talk about the issues.

  What's the compelling state interest behind the restriction? Fear of corruption, or appearance of corruption, in the courts. Of course, we could just trust them. After all, they're not yet collapsing into outright corruption. And we'll wait until things get really serious before we trash 1A protections. That's why the IL nazi party gets to march in Skokie: we're not in danger of being taken over by Hitlerites.

  And anyway, who wants someone on the court who has reached adulthood and hasn't formulated at least some opinions? We might even want people with political experience: want to turn away Thurgood Marshall because he had litigated civil rights issues? or Ginsburg because she had handled gender equality cases? No! These are the very people we want on the bench.

  And this is over-inclusive, as a restriction. We don't want to bar all political statements whatsoever. We want to bar specific promises (e.g., to overrule some case). Make that a crime, but don't throw out the baby with the bath. And at the same time, it's under-inclusive: candidates can make all the statements they want before they announce their candidacy. So interest groups will already know, because candidates will go tell them. So the measure has a terrible cost, and doesn't even achieve what it wants to.

  The argument that judges don't make policy is bogus: they do. Even those that say they're following precedent still select what precedent they apply. This is American legal realism-- the notion that the law is insulated from policy has been known to be false for about 100 years. Plus, we want judges to make policy because legislatures get squeamish about certain issues, and the biggest problem in US politics is deadlock. This is the affirmative of judicial review.

  And people who make policy should be accountable to the people: that's democracy. That's representative government.

  Brandeis was the first justice ever to have to testify before ascending to the court. Now even at the district level there is a politicized process. So, how long should terms be? Should there be term limits? These topics change to whom elected judges are accountable, and to what degree.

  How should interest group influenced be diminished? Well, if you're WI SC, don't issue a decision like Ferdon, saying that you're going to overturn all kinds of legislative enactments that you don't agree with.

  What about the other side? There's plenty of precedent saying that we can tamper a bit with 1A in order to prevent corruption by interest groups. Campaign finance law, for example. Plus, everyone agrees that we should stomp out specific instances of corruption.

  Also, judicial accountability is a bad thing-- it diminishes the court's role, and makes them indistinguishable from the rest of government. It's better to have them be above the fray. If we politicize elections, the court loses its power: we only accept that they have policy power because of the illusion that they are policy-neutral. If we subject them to the political process, they will lose their Platonic aura, and along with it any justification for having power in the first place.

  Parade of horribles: the states where this is seen as the biggest problem are having elections that are getting horribly politicized. One camp will square off against another. We have extreme worries: the court is turning into a mini-legislature, and that justifies an extreme remedy.

  And politicizing things will lead to scandal and mudslinging: it demeans the process and drives out good candidates. We'll get candidates who are zealots, instead. It's hard enough to entice successful legal minds into this hard life as it is.

  The legislature is susceptible to majority tyrrany by nature, but the courts are supposed to protect the minorities, including criminal rights. Who will protect those important interests if the court becomes a tool of the majority as well?

  Federalism: If MN wants to try this out, why shouldn't the federal government let them? We can see if it really stifles debate or not.

• Dewey: WI has the same issues.
• Cogswell: if you start restricting speech in judicial elections, it quickly bleeds over into political elections. If we restrict speech in any election, we end up restricting it in all.

• Separation of powers

  : perhaps the last and most important bulwark against tyrrany. This was a radical idea in its day (like the idea that government should be anything but tyrannical).
• Proxmire: a fun case. He was the consummate politician from WI. He moved here from IL thinking he'd have a better chance of winning here, and boy was he ever right. He had the genius to see that people were irritated with congress, and created his Golden Fleece of the Month award, which was sheer political genius.
• Hutchinson v. Proxmire
  Hutchinson was an expert on getting grants; in this case, studies of why monkeys clench their teeth. Defamation suit ensues.

  Proxmire says debate in congress is inviolate. SCOTUS says no: you'd be protected if it were debate in either house (never mind that this is in the congressional record).

  The implication here is that congress is not as immune from the law as it thought. Allowing defamation suits can stifle aspects of the political process, though. Of course, so what: everyone can get sued for defamation.

  Anyway, at the end of the day, despite that it's the most important branch, congress is not above the law.

  So Hutchinson has the right to sue. Rather than go through the process, he pays a $10K settlement. The taxpayers cover his $120K attorneys' fees.