January 22, 2016

There is widespread agreement that the Citizens United decision was a disaster for democracy, but little clarity as to what to do about it. Several solutions have been suggested. The obviously preferable but perhaps impractical one is to wait for the Court to reverse itself. It might well do so at some point, possibly in the foreseeable future; the decision, in addition to being illogical and bad policy, was decided 5-4. At the next inauguration, four Justices will be at an age suggesting retirement: Ginsberg will be 83, Scalia 80, Kennedy 80, and Breyer 78. Then there is a gap of ten years in age. The elderly four split evenly on Citizens United, Scalia and Kennedy pro, the others anti. If and it’s a large if, a Democrat reaches the White House, and the conservative retirements equal the liberal, that decision might be revisited. Not surprisingly, opponents aren’t counting on that.

A second suggestion is that Congress could solve the problem, based on a provision of the Constitution dealing with the Supreme Court. Article III, Section 2 sets out the subject-matter jurisdiction of the federal courts. It provides further that the Supreme Court shall have original jurisdiction over a limited range of subjects, and then adds: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make." It is argued that this language empowers Congress to remove from the Court jurisdiction over the financing of election campaigns.[4]  (The removal only could be effective as to appellate jurisdiction, but that would be enough, as campaign finance isn’t included in the subjects over which the Court has original jurisdiction. The article cited does not make that clear). Whether that device would be effective may be in doubt, but even if valid it is a dangerous approach, as it subjects every decision to political cancellation. Also, how likely is it that Congress will so act? We might as well wait for retirements on the Court.

Another proposal is to defy the Court, by adopting legislation contrary to the Court’s ruling, and daring it to reverse again. The author of this plan acknowledges that it risks "a constitutional crisis if the executive branch chose to enforce the law despite the Supreme Court’s contrary opinion."[5]  That doesn’t seem a sensible approach.

The most popular solution is a Constitutional Amendment. I dislike this approach because, as with the second suggestion, of the potential for abusing the method, cluttering the Constitution with issues which should have been resolved elsewhere. However, if change there is to be, and we don’t simply wait, this is probably the best among unattractive options. That brings us to the question of what the proposed amendment should say.

Among the many political e-mails I receive, there are two which propose an amendment, and ask for donations in support, but do not set out a text or even describe the theory it will follow. One of the messages has been coming for some time now. I have sent e-mails twice to its contact address, requesting the text; there have been no answers. The appropriate content of an amendment is not a given, so this is an opaque approach to winning support. (There are two others which advocate action to overturn Citizens United and ask for donations without stating in any way what they intend to do, which is even more mysterious).

Discussion of the case, and of the content of an amendment, has been distorted by misunderstanding of what Citizens United held. It did not hold that corporations are people, but many seem to think that it did. Corporations are legal persons, but that is old law; it was not invented by Citizens United. It did not establish that corporations have first Amendment rights of speech; that too has been around for some time, although the opinion went some distance toward removing any limitations on that concept. Because of the confusion, some proposals are misdirected.

There is an initiative circulating in Washington which has that fault. It asks the Washington delegation to Congress to propose an amendment "clarifying that: 1. The rights listed and acknowledged in The Constitution of the United States are the rights of individual human beings only." The problem with this approach is that, in addition to free speech, there are Constitutional rights which corporations do and arguably should enjoy, such as certain due process protections. Certainly if any such rights are to be removed, it should not be by a blanket declaration such as that above. However, recognizing corporate rights should not mean, as the Court seems to think, that rules cannot be made for such entities which differ from those applying to individuals.

The Washington initiative has one pertinent finding of fact: "Money is property; it is not speech." All of the problems created by Citizens United would have been avoided if the Court had mastered that concept. In addition to limiting rights to natural persons, the initiative proposes this: "2. The judiciary shall not construe the spending of money to be free speech under the First Amendment of The Constitution of the United States." That is more to the point. (A website, "Move to Amend," has the same pair of aims: "amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.")[6]

Another proposal is a constitutional convention.[7] The Constitution, in Article V, provides two methods of amendment: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . ." The latter method is advocated. However, the states need not have the same amendments in mind, so the discussion might be unfocused, and the prospect of a runaway convention, with all manner of notions suddenly becoming Constitutional material, is enough to disqualify this approach.

An amendment dealing with the money issue, proposed by members of Congress and adopted by it, is the better option. An amendment sponsored by Senator Udall, among others, provided that:

Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

It granted the same authority to states regarding state offices. The amendment was rejected by the Senate in 2014. Because of the requirement of a two-thirds vote in each chamber, passage of such an amendment doesn’t seem likely unless there is political pressure and, better yet, a change in the makeup of the Congress.

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4. Here is one such argument:

http://www.truth-out.org/news/item/6089: constitutional-amendment-not-needed-congress-already-has-a-remedy 

5. http://billmoyers.com/story/we-can-do-this-america-seven-steps-to-reversing-citizens-united/

6. http://www.movetoamend.org/

7. See the article referred to at footnote 2, and http://www.wolf-pac.com/the_plan. Neither sets out a text.

January 9, 2016

It would have been pleasant, and reassuring, to have ended the year thinking about positive developments. There were a few, but even those few seem to have corresponding negatives.

There was an international conference on climate change, which seemed to signal new resolve. However, the U.S. Congress remains mired in denial, and news media continue to report severe, abnormal weather without comment.

Withdrawal from Iraq, and our hesitant, confused drawdown in Afghanistan have resulted in far fewer American deaths than a few years ago. (In Iraq, the fatal casualties dropped to one in 2012, but rose to six last year). However, our invasion of Iraq and meddling in Libya have resulted in empowering radical Islamic forces.

The minimum wage will increase for 2016 in fourteen states, twelve through legislation and two based on the cost of living. (Apparently those two detected an increase which eluded the Social Security Administration). Perhaps that will reduce the number of children in poverty, variously estimated at rates exceeding twenty per cent. We don’t rank well internationally in that measure.

The SEC has adopted a rule requiring companies to disclose the ratio of CEO pay to that of the median worker. Will that result in lowering the former or raising the latter? We can hope. Economic inequality, illustrated by that ratio, is a serious problem, but all we see are new and better methods of evasion: tax shelters, havens, convenient mergers, and the like. Concentration of wealth in a few hands could destroy democracy as we know it, but the odds of serious action to remedy that situation are poor; the wealthy can buy protection from any effort to close the gap. The plutocracy even has a pseudo-scientific excuse for social pathology: "affluenza."

The economy has, perhaps, continued to recover; the Fed has increased short-term interest rates, which presumably reflects such a development. Whatever the Fed may detect, many people see little evidence of increased prosperity, and the stock market reflects no optimism. Fewer people in King County (and probably elsewhere) can afford housing, the cost of which has risen faster than incomes. A recent report details the problem, here and nationally: the inflation-adjusted median household income in King County peaked in 1999. In 81 percent of counties in the U.S., the median income is lower today than it was 15 years ago.[1]  Household debt is up, as is the delinquency rate on student loans.

The white middle class is in serious trouble, by any measure. Loss of well-paying production jobs, weakening of unions, loss of benefits, combined with worries about immigration, have created a large group of Americans who are depressed, afraid and angry. Life expectancy of middle-aged whites without a college education has dropped, in part due to suicides and diseases associated with drug and alcohol abuse. Flirtation with Donald Trump is an indicator of just how alienated many people are. They think, with cause, that the best days, individually and nationally, are behind them.

Fewer police officers were killed by gunfire last year than the year before. However, police killed around 1,100 citizens — the estimates vary somewhat — and the victims were disproportionately black. Accountability is uneven: a grand jury failed to indict the Cleveland policeman who shot Tamir Rice; in Chicago the officer who shot Laquan McDonald has been charged with murder, but a city attorney has been accused of covering up an earlier fatal police shooting. There have been protests, often under the aegis of Black Lives Matter. The protests are understandable, and are necessary if anything is to change, but often they were conducted in such a manner to be counter-productive.

That brings us to the subject of guns, about which there isn’t much good to say, other than to note the efforts of several gun-control advocacy groups. Legislation at the state level has gone both ways, with perhaps more people protected by stronger gun-control laws. However, many people are wedded to the good-guy-with-a-gun fantasy, Texas’ open-carry rule being the latest manifestation. Resistance to gun control has become so blindly rigid that even denying guns to those on a terrorist watch list is controversial.

On January 5, the President announced his intention to use whatever power he has to improve gun control, but not much can be done without Congress. In response, Speaker Paul Ryan released a statement which, given its mindless opposition, could have been, and perhaps was, written by the NRA:

From Day 1, the president has never respected the right to safe and legal gun ownership that our nation has valued since its founding. . . . [R]ather than focus on criminals and terrorists, he goes after the most law-abiding of citizens. His words and actions amount to a form of intimidation that undermines liberty. . . . Ultimately, everything the president has done can be overturned by a Republican president, which is another reason we must win in November.[2]

Republican presidential candidates also lost no time in reaffirming their worship of firearms.

At a lecture on Monday, we were advised that the major issue in the presidential campaign will be the Supreme Court, as several positions may open due to retirement. However, appointments must be confirmed by the Senate, so the result may be a stalemate if a Democrat is elected. Perhaps the more important point is that appointments to the Court, and gun control, depend on also electing Democrats to Congress. On December 15, Andy Borowitz’ news-as-irony column was headed "Congress Marks Third Anniversary of Doing Nothing After Newtown;" he noted that "during this same period of time, many of these legislators were able to sleep at night, sources say." Probably they slept with guns under their pillows, determined defenders of liberty that they are.

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1. http://www.washingtonpost.com/sf/business/2014/12/12/why-americas-middle-class-is- lost/

2. http://www.speaker.gov/press-release/president-obamas-executive-order-guns-undermines- liberty

December 19, 2015

To say that Supreme Court Justice Antonin Scalia has created confusion regarding the Second Amendment would be to understate the case. To be sure, others on the Court have subscribed to or restated his views, but his majority opinion in District of Columbia v. Heller [82] led the way, and he has subscribed to the restatements. 

In Heller, in the course of interpreting the Amendment, he rewrote it: by, in effect, expunging the limiting clause, "A well regulated Militia, being necessary to the security of a free State;" by converting the phrase "keep and bear arms" — a militia reference — into "keep and carry arms;" and by reading into the Amendment "the individual right to possess and carry weapons in case of confrontation." The last is a strange principle which suggests that it is good policy to be armed in case an argument might arise. Justice Scalia, like George Will, must have read too many old westerns.[83] 

The Amendment’s statement of purpose, quoted above, was rendered ineffective by labeling it a "prefatory clause," and declaring that it cannot limit the scope of the "operative clause," which is "the right of the people to keep and bear Arms, shall not be infringed." Strait forward textual analysis was abandoned, and replaced by theorizing about what the Amendment should have said. As noted below, what it should have said is an elusive concept.

Moving toward the issue in the case, Justice Scalia’s formula became "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Upon finally reaching the issue, he narrowed the effect of the new interpretation to this ruling: "the District's ban on handgun possession in the home violates the Second Amendment . . . ." 

As he found rights not mentioned in the Amendment, so he found unmentioned restrictions. "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The last would seem to sanction all manner of restrictions on sale. I wonder if he meant that.[84] 

Until Heller, the Second Amendment had been interpreted far more narrowly. In United States v. Miller,[85] the defendant had been indicted under the National Firearms Act for transporting a short-barreled shotgun in interstate commerce, "not having registered said firearm as required." The District Court held that the Act violated the Second Amendment. The Supreme Court reversed, noting that the Amendment pertains to militias: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." In his dissent in Heller, Justice Stevens summarized the Miller holding thusly: "The view of the Amendment we took in Miller — that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption."

Justice Scalia instead contended that Miller’s reference to militias merely meant that "the type of weapon at issue was not eligible for Second Amendment protection", because it was not a typical militia weapon. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." That interpretation was based on Miller’s statement that, when called for militia service, "men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Justice Scalia also took the opportunity to reiterate his revision of the Amendment by asserting that the "traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense." In doing so, he reduced the reference to militias to an arms inventory, and again substituted self-defense as the right protected.

The Miller opinion is not a model of clarity, but Justice Stevens’ interpretation is more persuasive, especially as Justice Scalia’s version creates more problems than it solves.

Given the above reading of Miller, Scalia’s alleged originalism, and his contention that the Amendment must be interpreted against the background of eighteenth-century English law, one might expect him to conclude that only weapons known at the time of ratification would be protected. Early in the opinion, he seemed to reject that: "Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. . . . [T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Later, he reversed course: "We think that Miller's ‘ordinary military equipment’ language must be read in tandem with what comes after: . . . ‘men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ " Again: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ See 4 Blackstone 148-149 (1769) . . . ."

How, then, does Justice Scalia protect modern weapons, which were not in common use in the Eighteenth Century, which would be dangerous and unusual compared to those which were? He might argue that modern pistols are "of the kind" used in the Seventeen Nineties, but what of other weapons? Are assault weapons merely the modern form of muskets? Apparently not; following the citation to Blackstone, he said: "It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause." Well, yes. May they be banned? Perhaps: "It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." The "prefatory" clause recedes even further into the background. He may be saying that only handguns are protected, or perhaps adding simple types of rifles. This is the sort of confusion which arises when a court attempts to legislate.

Justice Scalia’s inventive redrafting of the Amendment is anomalous in the light of this statement of his philosophy, also found in Heller: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." If he really means that, there must be an exception where future judges think the original scope too narrow.

Justice Scalia ended his opinion with this partial concession: "We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution." He rejected that approach: "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home." (The D.C. law was not an absolute prohibition, although it was very restrictive).

In McDonald v. Chicago,[86] the Supreme Court extended the Heller decision to the states. The plurality opinion, written by Justice Alito, and joined by Scalia, at one point more or less accurately recited the holding in that case: "In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense." However, at another point, it slipped in a broadening of the rule: "our central holding in Heller [was] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home" (emphasis added). Possession of a handgun for protection of hearth and home was expanded to keeping and bearing "arms," apparently of any kind, for lawful purposes, apparently anywhere.

This year, the Court of Appeals for the Seventh Circuit, in Friedman v. City of Highland Park,[87] upheld a municipal ordinance which "prohibits possession of assault weapons or large-capacity magazines (those that can accept more than ten rounds)." The Supreme Court, apparently either believing that Highland Park conforms to Heller, or regretting the latter decision, denied review by a vote of 7 to 2. Justices Scalia and Thomas dissented in an opinion written by Thomas but presumably reflecting Scalia’s views. They recited the expanded McDonald formula: "a personal right to keep and bear arms for lawful purposes," but then declared that Heller "asks whether the law [being challenged] bans types of firearms commonly used for a lawful purpose . . . ."

Now the right is not possession of a handgun in the home (the actual holding of Heller), nor the use of arms by law-abiding, responsible citizens in defense of hearth and home (Heller intermediate formula), nor possessing and carrying weapons in case of confrontation (Heller general formula), nor keeping and bearing arms for a lawful purpose (McDonald), but possessing arms "commonly used for a lawful purpose." Used by whom? The military? The police, very much militarized? Even limiting the reference to the hypothetical law-abiding citizen, that would include assault rifles, which some find necessary in hunting. Indeed, the Highland Park dissent noted that the city ordinance in question "criminalizes modern sporting rifles (e.g., AR-style semiautomatic rifles), which many Americans own for lawful purposes like self-defense, hunting, and target shooting." Perhaps they are, after all, not dangerous or unusual, and merely are modern muskets.

The right may be to possess or it may be to carry ("bear"). The right may be limited to handguns or it may apply to "arms." The right may be limited to law-abiding, responsible citizens, or it may extend to anyone. It may be limited to bearing arms for lawful purposes, or it may cover possession (and carrying?) of arms "commonly used" for a lawful purpose.

Most of the discussion has to do with possession, rather than use, and limits on use are not considered, other than some references to lawful use. The Highland Park dissent apparently would not look to the use in any specific case: the issue merely is "whether the law bans [possession of] types of firearms commonly used for a lawful purpose." Leaving that aside, and assuming that the formula will require "lawful" use, what is the result if a given use is prohibited by local law? Might the Second Amendment override that and, if so, what is the test? Also, consider the stand-your-ground statutes, which encourage shooting people. Has the Court spread the cloak of the Second Amendment over those laws by finding "the individual right to possess and carry weapons in case of confrontation"?

It isn’t clear where the Court is going, which isn’t surprising, as it doesn’t seem to know either.

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82. 554 U.S. 570 (2008)

83. In the Nov. 15, 1993 issue of Newsweek, Mr. Will devoted a long article to a book by someone named Jeffery Snyder whose answer to crime - and, apparently, to mere incivility - is to arm everyone. He cited a line from a science-fiction novel that "an armed society is a polite society." Mr. Will expanded on that by reference to a novel in which the immortal line "When you call me that, smile" is found and declared: "Such was politeness in the armed society of 19th-century Wyoming."

84. I made a more extended comment on in the post of 7/6/08.

85. 307 U. S. 174, 178 (the 1939)
86. 561 U. S. 742, 780 (2010)

87. Decided 4/27/15.

November 30, 2015

On Sunday, we encountered a literal sign of the times. At the entrance of the 5^th Avenue Theater in Seattle (at a performance of The Sound of Music), there was one reading "No firearms." How did we reach the point at which more-or-less-peaceful Seattleites would need to be reminded not to pack a gun into a theater, one which counted many children in its audience?

It’s sadly true that mass shootings have become common; some have political or cultural motivation, but some merely reflect anger and real or imagined slights. They can’t be dismissed, as the NRA would do, as the acts of a few mentally disturbed people. All of them manifest the gun culture: easy access, irresponsible use.

President Obama issues an anguished response to each of the more notorious incidents, but his comments have no effect other than to prompt the usual inane complaint that he is playing politics, as if there were no political issue here. Republican leaders, even when not advocating looser gun laws, adamantly refuse to consider tougher ones because the NRA would denounce them. In addition, they seem to think, what’s the big deal about a few more gun-related deaths? As Jeb Bush put it in response to the shooting at Umpqua College, "stuff happens."

Leaving mass shootings aside, perhaps the bottom was reached as to the use of a gun to express anger — in this case at a mere inconvenience — in a Biloxi, Mississippi, Waffle House, where a waitress was shot and killed by a customer who objected to being told not to smoke in the restaurant.

November 23, 2015

The Seattle Times carried a column recently captioned "America isn’t broken; its leadership is." While there is something to be said for the former statement, and much for the latter, I think the formula gives the citizenry too easy a pass. It’s true that politics, in the sense of the actions of the political class, is in terrible shape, and there is no reason not to be frank about the primary source: the Republican Party, in action and in obstruction. Adding the failings on the Democratic side, we could, therefore, legitimately focus on "leadership" as the problem to be solved. However, that analysis avoids the root cause: too many voters choose Republicans.

At first glance, it’s difficult to see how GOP dominance will end, given the flood of money available, directed unevenly toward Republicans, and the effects of gerrymandering and voter suppression. Neither of the latter two are going to go away soon since both are the work of Republican legislatures. However, that dominance need not last forever; there are many potential votes not being cast.

An illustration came from a column by Ron Judd, also in The Seattle Times, which pointed out the irony in the passage of Initiative 1366 - the convoluted attempt to require a two-thirds majority in the Legislature for any tax increase - with only a bare majority of votes, far less than two thirds. He pointed out that the "yes" vote amounted to 16% of registered voters: a super majority rule imposed by a small minority. (The final tally put the yes vote at 19.06% of registered voters, but his point stands). According to the Secretary of State’s office, the number of registered voters, 3,975,958, is only 76% of those eligible to register (hereafter "eligible voters" or "eligibles") have done so. That would put the number of eligible voters at 5,231,524, so the yes vote on I-1366 amounted to 14.4% of eligible voters, and the total vote, yes and no, was 28.12% of the eligibles. Apart from whatever significance that has for the Initiative, it reflects a serious disconnect between citizens and their government.

It isn’t a phenomenon peculiar to Washington, or to this year’s election. In the 2014 election — an "off year" in the sense of not including a presidential race, but more significant than this year — the national turnout was 36.3% of eligible voters. As The New York Times put it, "The abysmally low turnout in last week’s midterm elections — the lowest in more than seven decades — was bad for Democrats, but it was even worse for democracy. In 43 states, less than half the eligible population bothered to vote, and no state broke 60 percent." That is indeed a problem for Democrats, but it also suggests a solution. Yes, they need to continue opposition to voter-suppression laws, but they need to get out the vote, and if demographics are any guide, there are a lot of potential Democratic votes out there. The Times attributed the poor turnout to "apathy, anger and frustration at the relentlessly negative tone of the campaigns." Not much can be done about the last, and anger, it seems to me, is more significant as a spur to conservatives than a disincentive to liberals. Apathy is the problem for Democrats. They need to present a program which people will believe is in their interest. Thus far, Bernie Sanders is one of the few to realize that.

November 15, 2015

The Roberts Court has made its mark in judicial history, although not in a way any believer in good government would admire. A recent issue of The Nation contained reviews of its most controversial decisions in an article entitled "The Case Against the Roberts Court: A Decade of Justice Undone." Included were District of Columbia v. Heller, (guns), Citizens United v. FEC, (money in elections), Shelby County v. Holder, (voting rights), Burwell v. Hobby Lobby (religious rights of corporations), along with restrictive decisions on access to federal courts, among others.[79]  The significance of three of the decisions was graphically portrayed in charts. Gun homicides per capita in the U.S. are more than four times the nearest developed nation; the ratio to the UK is about 25:1. "Outside group" spending on elections was about 3.5 times greater in 2012 than in 2010, the year of Citizens United, and the ratio of conservative to liberal spending in 2012 was about 2.5:1.[80]  Since Shelby County, legislation restricting voting has been introduced in forty-one states. The first illustrates the uncivilized dimensions of the gun problem, which Heller made worse. The other two measure the results of the decisions.

The Nation included a review of the Court’s more liberal decisions, including recognition of same-sex marriage and rejection of efforts to invalidate the Affordable Care Act ("Obamacare"). However, the principal challenge to the ACA, National Federation of Independent Business et al. v. Sebelius, illustrates another problem: the Court’s misuse of authority. A majority, speaking through Chief Justice Roberts, held that the individual mandate — the requirement to purchase insurance — could not be sustained under the Commerce Clause.

Justice Roberts acknowledged an impact on commerce: "People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce." In this case that means that those who fail to purchase health insurance drive up the cost for everyone else. "Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act." True; what is the problem? "That is not the country the Framers of our Constitution envisioned."

Why does he think that? "James Madison explained that the Commerce Clause was ‘an addition which few oppose and from which no apprehensions are entertained.’ The Federalist No. 45, at 293." Madison did say that, but he did not, as Roberts seems to imply, state that the Clause was innocuous and must not be used vigorously. Never mind: "While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have ‘always recognized that the power to regulate commerce, though broad indeed, has limits.’ Maryland v. Wirtz, 392 U. S. 183, 196 (1968)." The issue there was the reach of the federal minimum wage law; several states and a school district argued that the law could not extend to schools and hospitals operated by the states or their subdivisions. The opinion in Wirtz indeed recited the rule about limits, but did not apply it, holding that, under the Commerce Clause, the minimum-wage rules applied to the state entities. Justice Roberts’ restrictive reading of the Commerce Clause was in aid of states’ rights, so his citation of Wirtz is doubly inappropriate.

However, ignoring the holding and relying on the quote out of context, the Chief Justice concluded: "The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 (J. Madison)." However, Madison was describing the actions of state legislatures, not Congress; the Constitution, including the Commerce Clause, had not yet been adopted. Ignoring that, Roberts continued: "Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government." That appears to be a convoluted way of saying that the government may forbid, but may not compel, conduct, at least under the Commerce Clause. Interestingly, Roberts contrasted the limited power of the Federal Government with the broader "police power" of a State. "Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States." He approved of that despite the legislature’s habit of "drawing all power into its impetuous vortex."

Under the Affordable Care Act, the "commerce" is the health care system, of which insurance is a part, and purchasing insurance is part of that, all of which Justice Roberts acknowledged. He simply thinks that the prohibit/require dichotomy must be maintained to prevent the Government from reaching too far . However, he decided that, simply by calling the penalty a tax (and thereby removing it from the Commerce Clause and placing it under the taxing authority) it was possible to uphold it, even though the penalty is a lever to force people to buy insurance: "Although the payment [of the penalty] will raise considerable revenue, it is plainly designed to expand health insurance coverage." Although "the statute reads more naturally as a command to buy insurance than as a tax," it can be upheld as a tax. Pretending that the penalty is a tax is especially odd after declaring, in another part of the opinion, that it is not. However, it has this advantage for Justice Roberts’ theory: "it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity." Therefore Congress may not command purchase of insurance and assess a penalty for failure to do so, but it may tax the failure to do so, even though the "tax" really is a "command to buy insurance."[81]

Opinions such as this do not engender confidence.
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79. My comments on the named cases are here: Heller 7/6/08, Citizens United 2/6/10, Shelby County 7/1/13 and Hobby Lobby 7/15/14.

80. The ratios are approximate; I’ve scaled the bar charts as well as I can.

81. I discussed the opinion at greater length on 7/15/12.

 

October 29, 2015

On a recent cruise, we were the only Americans, the other one hundred ten or so passengers being Brits. Conversations tended to reveal, amid perfect courtesy, that certain American phenomena are puzzling - well, strange - to them. One of them is our endless and money-driven election season. That inevitably led to: "Is Donald Trump really running for the Presidency?" and "Might he win?"

Of course they are baffled by our gun culture, and who in his right mind would not be? Well, Ben Carson, current front-runner among the Republicans, wouldn’t. (I’m assuming that he is competent, although many of his comments give one pause). Shortly after we arrived home, the Umpqua massacre took place. Dr. Carson’s reaction included this: As a Doctor, I spent many a night pulling bullets out of bodies. There is no doubt that this senseless violence is breathtaking – but I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away." He doesn’t even have the excuse of never seeing a shooting victim; faced with the result of gun possession, his reaction is to swoon over the alleged benefits of the Second Amendment. Leaving aside his politics and the illogic of his position, the man appears to be utterly insensitive. Apparently eager to emphasize that failing, he added the boast that, had he been there, he would have rushed the gunman. In other words, it was the victims’ fault that they died.

A grass-roots reaction to the shooting illustrated how fractured, hate-filled and simply stupid our culture has become: when President Obama traveled to Oregon to console the victims’ families, he was met by hundreds gun-toting protesters carrying signs reading "Obama Go Home," "Obama Not Welcome Here" and "Go Back To Kenya." This underscores not only the fanaticism and rage of gun nuts, but the fracturing of the polity: a twice-elected President is not welcome in part of his country. He received the same reception when he went to West Virginia to talk about drug abuse: at a rally to protest environmental rules that would limit carbon emissions from coal-fired power plants, a man held a sign reading "Obama is not West Virginia’s President!"

Add a few other factors, such as the concentration of wealth at the top and the reimposition of impediments to voting, and it’s difficult to feel optimistic about the state of the Union.