A "Local Crime" Across Multiple State lines: The Peculiar Preference for FGM

In a decision that is causing shock waves in the media, a federal District Court has found unconstitutional on federalism grounds a statute banning female genital mutilation ("FGM"). (I am uncomfortably reminded of the Supreme Court’s prior blithe dismissal of of an admittedly meritorious death penalty appeal with the blithely bloodless opening line, “This is a case about federalism”)

The District Court decision and Ilya Somin’s defense of it do not, to my mind, bear close scrutiny.

The federal government put forward two arguments for the constitutionality of the statute: first, that the statute fell within the scope of Congress's power under the Commerce Clause, and, second, that the statute was enacted in fulfillment of the ratified treaty, the International Covenant on Civil and Political Rights. Tellingly, the District Court admits "that it may invalidate a federal statute “only upon a plain showing that Congress has exceeded its constitutional bounds, and that the lack of constitutional authority to pass the act in question must be clearly demonstrated.” (Decision at 3, citations and Court's quotation and editing marks omitted).

The Somin post, like the decision, is based on the assumption that FGM is, as the District Court held, a purely local, intrastate crime, a factual assumption belied by the very facts of the case before the court, in which several of the the victims were brought across state lines to undergo the procedure.

Somin acknowledges that the court “potentially misses a key point. To the extent that FGM targets almost exclusively girls rather than boys, and the practice is the result of ingrained sexism in the societies that engage in it, it seems likely that banning really does help ensure that girls get the "measures of protection" needed by minors on par with boys [under the International Covenant on Civil and Political Rights]. The connection between FGM and gender-based discrimination against girls is much stronger than Judge Friedman suggests.” But he falls back on the District Court's false description of FGM as a “purely local crime” to find the treaty doesn’t apply, again due to federalism. Critically, the opinion itself notes that “The government alleges that four of the victims are residents of Michigan, three are residents of Illinois, and two are residents of Minnesota,” so one can hardly see how the "purely local crime" rationale applies to the facts of this case.

Moreover, the court makes no findings as to whether the clinic or doctors accepted a fee for performing the FGM, which is kind of critical in an interstate commerce determination where the interstate nature of the transaction is clear as to 5 of the 9 victims.

It is true that the Rehnquist Court did radically rewrite federalism limitations, and, as Roberts is a Rehnquist protege, he could push to do so even more. But my position is pretty simple: even if the statute’s constitutionality doesn’t extend to “purely local crimes,” (that is, violations purely within the geographical boundaries of one state) the interstate dimension of the case at bar would render that argument inapt as to this case.

Under the Court's and Somin's logic, the long-standing, Supreme Court-affirmed Mann Act would be unconstitutional. The Supreme Court held to the contrary in 1914, and that decision remains good law today.

One can hope that this decision is reversed, as it should be, under long-standing Supreme Court precedent, but if we've learned one thing about the Roberts Court, it's that consistency and stability in the law are not afforded a high value in its stochastic holdings.

Advise and Dissent: A Question of Character

Judge Brett Kavanaugh in his opening statement this evening established beyond doubt that he will not be capable of serving as a Justice of the Supreme Court:

This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars and money from outside left-wing opposition groups. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country, and as we all know, in the United States political system of the early 2000s, what goes around, comes around.

How can any party aligned with the Democratic Party or liberal causes appearing before Justice Kavanaugh--if he is confirmed--even pretend to believe that they are appearing before a neutral? In a closely divided Court, where most of the "big" cases will be decided on a 5-4 vote, Kavanaugh's vote will not carry legitimacy in the eyes of those who lose. That's a problem for the Court, which is itself becoming increasingly perceived as partisan, and, as a recent study has found, indeed appears to be ruling in a more partisan way even in the previously neutral area of free speech:

Ideology is not a significant predictor of votes—indicating no meaningful difference between liberal and conservative justices for conservative expression. The gap only emerges when the speech falls into a liberal grouping, as indicated by the positive Justice Ideology Liberal Speech. That is, the difference between liberal and conservative justices grows larger when the speech originates from a liberal enclave. Notice too that Liberal Speech is negative and significant, suggesting that conservative justices are less likely to support liberal speech than conservative speech.

And indeed, 4 of the 9 have recently indicted their fellow members of the Court on just such grounds, in National Institute of Life Advocates v. Beccaria:

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and “what is sauce for the goose is normally sauce for the gander.”

The Court is at a point where its own members are questioning its impartiality and its commitment to the Constitution which it is tasked with protecting. This is, quite simply, quite dangerous.

Kavanaugh's open contempt for the Democratic senators was striking--he tried to turn the tables more than once, and ask his questioners the questions they asked him. This was especially jarring in his blatant disrespect toward Senator Amy Klobuchar:

Kavanaugh's drinking as a high school and college student has become a line of questioning in a hearing about sexual assault allegations made against him. The Minnesota Democrat addressed her father's own struggle with alcoholism during the Senate Judiciary Committee hearing, including the fact that her father still attends Alcoholics Anonymous as age 90 to combat his struggle. She then asked Kavanaugh if he had ever drank so much he "didn't remember what happened the night before or part of what happened."
"You're asking about blackout, I don't know, have you?" he responded.
"Could you answer the question, judge?" Klobuchar said, looking somewhat surprised by the response. "So, you have, that's not happened? Is that your answer."
"Yeah, and I'm curious if you have," he added.

While he did apologize to Klobuchar (though not to the other senators he interrupted, and quizzed as though he were the judge, Kavanaugh's nastiness and presumptuousness--demonstrated that he is a bully and a partisan--just what you don't want in a member of the United States Supreme Court. (He similarly repeatedly asked Senator Whitehouse if he liked beer, after testifying that he did.) At times, he was, in my opinion, patently lying (the "Renate alumnus" testimony, in particular rang brazenly false), squirming away from questions, filibustering to avoid them. Kavanaugh's repeated refusals to request an FBI investigation does not bode well, either--he seemed desperate to avoid a closer look at his past. When Dick Durbin pinned him down, he simply rolled his eyes and sat in silence.

Finally, I cannot write about this without saying something about the compelling, heart wrenching testimony of Christine Blasey Ford. I felt utterly nauseous as I listened to her and watching the Republican men on the committee viewing her with overt indifference and as a speed bump to roll over. Simply, Dr. Ford was brave, credible--and ignored by the majority. It was a dreadful spectacle, and while Dr. Ford presented her account with grace and strength, the reactions in the room suggest that even if they acknowledge the truth in their hearts, these men will ram through this nominee.

The institutions we rely on are creaking.

Clarence Darrow's Betrayed Hope: The Persistence of the Penalty of Death

I'm currently blowing through John A. Farrell's compellingly readable Clarence Darrow: Attorney for the Damned (2011), which is, quite simply, the best biography of Darrow since Irving Stone's Clarence Darrow for the Defense (1939). Previous biographies failed to match Stone's sweep and narrative verve, or, like Kevin Tierney's Darrow: A Biography (1981), are too glib in making the revisionist anti-Darrow case (Tierney's book has aged especially badly with his dismissal of Darrow as "old fashioned as William Jennings Bryan," and his blithe assumption that religious fundamentalism was essentially a spent force in American life before the Scopes Trial). A notable exception to this trend, Geffery Cowan's The People v. Clarence Darrow: The Bribery Trial of America's Greatest Lawyer (993) is not a comprehensive story of Darrow's life, but focuses on his defense of the McNamara brothers for the Los Angeles Times bombing and his subsequent trial for jury tampering. The book is superb, although Farrell has uncovered further and better particulars to flesh out the story.

Farrell, like Cowan and Tierney before him, inclines toward a belief in Darrow's guilt; Stone and Arthur and Lila Weinberg take the contrary view.

But that's not the point pf this post. Rather, I want to share a paragraph from Farrell's book, because it is all too depressingly true. After telling the story of how Darrow's advocacy saved Leopold and Loeb from the death penalty (and, of course, how the two wealthy families cheated Darrow out o the great majority of his well-earned fee), Farrell writes that:

Darrow believed that the study of criminal justice was at a turning point, and that he represented a wiser and more compassionate future. And maybe as the Progressive Era drew towards its end, he had reason to believe it. It was nice to think so.

His faith was misplaced. The future had nothing but worse in store--a new world war to eclipse the old one, tactics to torment civilians, crazed theories of racial and religious supremacy, death camps, and atomic fire. Over time, Darrow's America would be ripped by witch hunts, race riots, drug-fueled crime, and reborn enthusiasm for dispatching millions of citizens to its broken prisons. Thousands, including innocents and teenagers, would be sent to death rows, to gallows and gas chambers, firing squads and electric chairs and gurneys with poison drips. The future was not Clarence Darrow's. The future was Robert Crowe's [the vindictive prosecutor whose implicit threats repulsed the trial court judge]/

(P. 356).

I'd love to dissent from this eloquent if despairing passage, but I can't. I've worked on two death penalty cases, one when I was a law student assistant to then-Vice Dean Vivian Berger in Saffle v. Parks (1990), and once as a volunteer while in private practice. These cases required me to learn about the habeas revolution in real time, as it played out. The term denotes a series of Supreme Court cases in which ever-increasingly technical grounds were found to dismiss a challenge to the death penalty's application in a case, weakening what was widely known as "the Great Writ" to a technicality-bound "one strike and you're out" game. This extended, despite the Court's having always hedged its earlier opinions, to claims of "actual innocence," which it found precluded by procedural default by the same technical gamesmanship of its earlier cases, leading to a (properly, in my opinion) rebuke by my former professor and mentor Vivian Berger. While, as Vivian has more recently pointed out, there are new hopes for change, the United States was, until 2016, regularly among the nations to use the death penalty the most, and we remain one of the 57 countries to retain it, as opposed to the 141 that have jettisoned it.

Almost a century after Leopold and Loeb were spared, the future, at least here in the United States, is still in the hands of the Crowes of the world--even if their grip is beginning to loosen.

Direct Coercive Advocacy and the Carter Case (Part 2 of 2)

In the first part of this admittedly lengthy exegesis, I summarized the facts of Commonwealth v. Carter, in which a trial court judge has rendered a guilty verdict in a bench trial, and suggested that the Massachusetts Supreme Judicial Court had applied an incorrect standard in allowing the case to go to trial, but had possibly reached the correct result. Here, we'll look at the application of the appropriate standard and distinguish Carter from a decision of a very different kind, Rice v. Paladin Enterprises (4th Cir 1997)

The basic legal analysis is adapted from my 2002 article Brigaded With Action: Undirected Advocacy and the First Amendment (you can also read the article, revised in the second edition of my book. The scholarly apparatus is all there, so I'll spare you here.

***

In Rice v. Paladin Enterprises, Inc., a publisher was held civilly liable for a murder committed by a killer-for-hire who followed the directions in one of its books, Hit Man: A Technical Guide for Independent Contractors. (The book purported to be written by an actual hit man, but the author, under the name "Rex Feral," was in fact a mystery novelist.) The Fourth Circuit found the book to constitute a "steeling to violence" under Brandenburg. Rice is and inconsistent with Ashcroft v. Free Speech Coalition a subsequent Supreme Court decision, and so is of dubious presidential value at best. The reasons that suggest that the Fourth Circuit got it wrong in Rice, suggest that the verdict in Carter, whether right or wrong, does not violate the First Amendment.

In Brandenburg, I argued in the article and at greater length in the book, speech is only subject to punishment if it is tantamount ti what earlier cases call a "verbal act." As I explained there, the decision in Ashcroft is a powerful reassertion of the primary rule of free speech: that, as a general proposition, speech may only be deemed to constitute part of an illegal action under very narrow factual circumstances in which a specific relationship between speaker and actor correlates the speakers' expression to the fact-specific crime in question. the presumption that speech is inviolate is a precondition to such verbal act analysis. It is only upon a showing that the speech is the functional equivalent of a physical act that proscription and punishment are permitted.

Second, some kind of specific connection to the illegal conduct that resulted from the speech is needed--the causal chain must be sufficiently tight that the line between protected persuasion and unprotected verbal act remains as sharp as possible. Thus, in Brandenburg, and Justice Brandeis' Whitney concurrence, the requirement of both the imminence of the resultant act and a specific context in which the act takes place creates a lack of opportunity for reasoned deliberation and the temporary ascendancy of the speaker over the audience. This is similar to an agency relationship that fairly imputes the listener's act to the speaker.

In fact, the relationship of the audience to the speaker is critical in distinguishing a verbal act from advocacy. A classroom professor who instructs her class from the writings of Valerie Solanas, and urges action on the abstract level is not the same as a speaker who is aware that prompt obedience is likely because of a different relationship context. For example, Professor James Moriarity, known as the “Napoleon of Crime,” instructs his direct subordinate Colonel Sebastian Moran to kill Sherlock Holmes. The power relationship between the two make it expected that Moriarity will be obeyed; violent action on the part of Moran at the behest of Moriarity is within the scope of their relationship as negotiated by them, and as practiced. Moran's act is attributable to Moriarity even if attempted after Moriarity's death. Where the relationship is an explicit one, one agreed upon by the parties and acknowledged by them, the lack of imminence alone does not absolve the speaker. The equation is simply that a relationship plus a command equals causation. A relationship where a command takes place with both parties having reason to believe that the command will be obeyed, makes the speaker liable for the resultant act.

Another example may be helpful. Henry II, at dinner with his loyal barons, fatefully muses about his political conflict with the Archbishop of Canterbury, Thomas Becket, asking “will no one rid me of this turbulent priest?” Four of his knights take the King's angry exclamation as an instruction, and butcher Becket in his own cathedral, while at the altar; Henry disavows any intent that they *364 should have so acted. This case posits an interesting question regarding intent: what is meant by a command? If Henry was just letting off steam, and did not intend his knights to act upon his passionate language (an interpretation much in keeping with the King's well-known rages), Henry might persuasively claim that, despite the relationship, his knights did not reasonably take his remark as a command.

That is, Henry might claim either that his statement was not intended to be a command, or simply that the knights unreasonably so interpreted it, regardless of the King's subjective intention at speaking. The latter theory plainly exonerates Henry; if the statement is misunderstood in an objectively unreasonable manner, then the relationship does not act to impute liability to the King. If, however, the King was in the habit of commanding his knights to execute political opponents, and habitually expressed his will so elliptically, the agency relationship might still bind the King, despite Henry's lack of specific intent on that occasion.279
In both of these paradigm cases, immediacy is not required to establish liability because the pre-existing relationship creates a context whereby the speaker knows that the command, if spoken, will be acted upon. Speaker and actor are in a power relationship that supports such a conclusion.

Thus, direct advocacy, under certain circumstances, crosses the line to verbal act status. Thus too, indirect advocacy--Henry II's wishing for the death of the “turbulent priest” to those who feel it their duties to anticipate and fulfill his needs--can also cross this line, under the right set of circumstances. However, undirected advocacy--like Hit Man or the S.C.U.M. Manifesto--can only appeal to reason. No power dynamic between reader and speaker exists to attribute the causation of an act to the following of advocacy that is abstract--in that it is untethered to a specific factual context, not that it is bloodless. The mind of the reader remains free to evaluate, to weigh, to accept or to reject the arguments presented. The acts that result, therefore, are not attributable to the speaker, but solely to the actor. The speaker may be the spreader of error and evil counsel, but she is not herself an actor. To hold otherwise is not only to blur the lines between speech and act--even verbal act--but to reject the central tenet of any notion of free speech: that individuals are capable of receiving and evaluating various messages, and choosing between them.

***
Michelle Carter was involved in directed advocacy--she was addressing a particular person, trying to induce (so the trial court found) specific action at a specific time. Actually, she was engaged over a period of time, but at the time of the suicide, particularly when he left the carbon monoxide-filled truck and called her, at that precise moment, she commanded him to "get back in." In refusing to dismiss the case, the Supreme Judicial Court called this statement in particular (among others) "coercive" in the context of their discussions.

The Brandenburg rule captures an unspoken power dynamic: the audience may be swept up in the feeling created by the speaker, directed at that moment at a specific target. In short, a temporary ascendancy due to group feeling and manipulated emotion has created a power relationship such that the causal chain is established. Power, not reason, links speaker and actor.

That captures rather well the facts in Carter as found by the Court in its verdict. Whether Michelle Carter has an appeal on other grounds, her conviction does not seem to infringe the First Amendment.

""Get Back In": Commonwealth v. Carter and the Limits of Free Speech (Part 1)

Today's verdict finding Michelle Carter guilty of involuntary manslaughter is a stage, nearly the final stage, perhaps, in a terrible tragedy. It also raises a paradigmatic case of the limits of First Amendment protection, and the academic manqué in me can't help but want to explore what the case tells us about the First Amendment.

The facts in brief:

A young woman who sent a barrage of text messages to another teenager urging him to kill himself was found guilty Friday of involuntary manslaughter in a case that many legal experts had expected to result in an acquittal.

The verdict, handed down by a judge in a nonjury trial, was a rare legal finding that, essentially, a person’s words alone can directly cause someone else’s suicide.

The judge, Lawrence Moniz, of Bristol County Juvenile Court in southeastern Massachusetts, said the conduct of the woman, Michelle Carter, toward Conrad Roy III was not only immoral but illegal. Ms. Carter, who faces up to 20 years in prison, will be sentenced on Aug. 3.

Ms. Carter was 17 in July 2014 when she encouraged Mr. Roy, 18, whom she called her boyfriend, to kill himself. On July 12, while she was miles away, he drove alone to a Kmart parking lot and hooked up a water pump that emitted carbon monoxide into the cab of his truck. When he became sick from the fumes and stepped out, prosecutors said, Ms. Carter ordered him by phone to “get back in.” He was found dead the next day.

Now, in analyzing the case, I'm going to be relying on the more detailed recitation of facts provided by the Supreme Judicial Court of Massachusetts, reported at 474 Mass. 624; 52 N.E.3d 1054; 2016 Mass. LEXIS 384 (2016), which gives several key exchanges between Carter (referred to as "Defendant") and Roy ("Victim"):

On July 8, 2014, between 8:09 p.m. and 8:18 p.m., the defendant and victim exchanged the following text messages:

Defendant: “So are you sure you don't wanna [kill yourself] tonight?”

Victim: “what do you mean am I sure?”

Defendant: “Like, are you definitely not doing it tonight?”

Victim: “Idk yet I'll let you know”

Defendant: “Because I'll stay up with you if you wanna do it tonight”

Victim: “another day wouldn't hurt”

Defendant: “You can't keep pushing it off, tho, that's all you keep doing”

***

The defendant helped the victim determine the method he eventually used to kill himself. On July 7, 2014, between 10:57 p.m. and 11:04 p.m., they exchanged the following text messages:

Defendant: “Well there's more ways to make CO. Google ways to make it. … ”

Victim: “Omg”

Defendant: “What”

Victim: “portable generator that's it”

On July 11, 2014, at 5:13 p.m., the defendant sent the victim the following text message: “ … Well in my opinion, I think u should do the generator because I don't know much about the pump and with a generator u can't fail”

On July 12, 2014, between 4:25 a.m. and 4:34 a.m., they exchanged the following text messages:

Defendant: “So I guess you aren't gonna do it then, all that for nothing”

Defendant: “I'm just confused like you were so ready and determined”

Victim: “I am gonna eventually”

Victim: “I really don't know what I'm waiting for. . but I have everything lined up”

Defendant: “No, you're not, Conrad. Last night was it. You keep pushing it off and you say you'll do it but u never do. Its always gonna be that way if u don't take action”

Defendant: “You're just making it harder on yourself by pushing it off, you just have to do it”

Defendant: “Do u wanna do it now?”

Victim: “Is it too late?”

Victim: “Idkk it's already light outside”

Victim: “I'm gonna go back to sleep, love you I'll text you tomorrow”

Defendant: “No? Its probably the best time now because everyone's sleeping. Just go somewhere in your truck. And no one's really out right now because it's an awkward time”

Defendant: “If u don't do it now you're never gonna do it”

Defendant: “And u can say you'll do it tomorrow but you probably won't”

5 During the evening of July 11, 2014, and morning of July 12, 2014, the victim and the defendant exchanged the following text messages:

Victim: “I'm just to sensitive. I want my family to know there was nothing they could do. I am entrapped in my own thoughts”

Victim: “like no I would be happy if they had no guilt about it. because I have a bad feeling tht this is going to create a lot of depression between my parents/sisters”

Victim: “i'm overthinking everything. . fuck. I gotta stop and just do it”

Defendant: “I think your parents know you're in a really bad place. Im not saying they want you to do it, but I honestly feel like they can except it. They know there's nothing they can do, they've tried helping, everyone's tried. But there's a point that comes where there isn't anything anyone can do to save you, not even yourself, and you've hit that point and I think your parents know you've hit that point. You said you're mom saw a suicide thing on your computer and she didn't say anything. I think she knows it's on your mind and she's prepared for it”

Defendant: Everyone will be sad for a while, but they will get over it and move on. They won't be in depression I won't let that happen. They know how sad you are and they know that you're doing this to be happy, and I think they will understand and accept it. They'll always carry u in their hearts“

…

Victim: “i don't want anyone hurt in the process though”

Victim: “I meant when they open the door, all the carbon monoxide is gonna come out they can't see it or smell it. whoever opens the door”

Defendant: “They will see the generator and know that you died of CO. … ”

…

Victim: “hey can you do me a favor”

Defendant: “Yes of course”

Victim: “just be there for my family :)”

Defendant: “Conrad, of course I will be there for your family. I will help them as much as I can to get thru this, ill tell them about how amazing their son/brother truly was”

…

Victim: “Idk I'm freaking out again”

Victim: “I'm overthinking”

Defendant: “I thought you wanted to do this. The time is right and you're ready, you just need to do it! You can't keep living this way. You just need to do it like you did last time and not think about it and just do it babe. You can't keep doing this every day”

Victim: “I do want to. but like I'm freaking for my family. I guess”

Victim: “idkkk”

Defendant: “Conrad. I told you I'll take care of them. Everyone will take care of them to make sure they won't be alone and people will help them get thru it. We talked about this, they will be okay and accept it. People who commit suicide don't think this much and they just do it”

6 At various times between July 4, 2014, and July 12, 2014, the defendant and the victim exchanged several text messages:

Defendant: “You're gonna have to prove me wrong because I just don't think you really want this. You just keeps pushing it off to another night and say you'll do it but you never do”

…

Defendant: “SEE THAT'S WHAT I MEAN. YOU KEEP PUSHING IT OFF! You just said you were gonna do it tonight and now you're saying eventually. … ”

…

Defendant: “But I bet you're gonna be like ‘oh, it didn't work because I didn't tape the tube right or something like that’ … I bet you're gonna say an excuse like that”

…

Defendant: “Do you have the generator?”

Victim: “not yet lol”

Defendant: “WELL WHEN ARE YOU GETTING IT”

…

Defendant: “You better not be bull shiting me and saying you're gonna do this and then purposely get caught”

…

Defendant: “You just need to do it Conrad or I'm gonna get you help”

Defendant: “You can't keep doing this everyday”

Victim: “Okay I'm gonna do it today”

Defendant: “Do you promise”

Victim: “I promise babe”

Victim: “I have to now”

Defendant: “Like right now?”

Victim: “where do I go? :(”

Defendant: “And u can't break a promise. And just go in a quiet parking lot or something” (emphasis added).

The Court also added that "Cellular telephone records that were presented to the grand jury revealed that the victim and defendant also had two cellular telephone conversations at the time during which police believe that the victim was in his truck committing suicide.7 The content of those cellular telephone conversations is only available as reported by the defendant to her friend, Samantha Boardman. After the victim's death, the defendant sent a text message to Boardman explaining that, at one point during the suicide, the victim got out of his truck because he was “scared,” and the defendant commanded him to get back in." The Court also found relevant that:

It was apparent that the defendant understood the repercussions of her role in the victim's death. Prior to his suicide, the defendant sought (apparently unsuccessfully) to have the victim delete the text messages between the two, and after learning that the police were looking through the victim's cellular telephone, the defendant sent the following text message to Boardman: “Sam, [the police] read my messages with him I'm done. His family will hate me and I can go to jail.” During the investigation, and after cross-referencing the text messages in the defendant's cellular telephone and those in the victim's cellular telephone, the police discovered that the defendant had erased certain text messages between her and the victim. The defendant also lied to police about the content of her conversations with the victim. Finally, the defendant acknowledged in a text message to Boardman that she could have stopped the victim from committing suicide: “I helped ease him into it and told him it was okay, I was talking to him on the phone when he did it I coud have easily stopped him or called the police but I didn't.

The Supreme Judicial Court found that the First Amendment did not prevent criminal punishment for Carter's role in Roy's death on the ground that "The speech at issue in this case is not protected under the First Amendment to the United States Constitution or art. 16 of the Massachusetts Declaration of Rights because the Commonwealth has a compelling interest in deterring speech that has a direct, causal link to a specific victim's suicide."

This is, to put it mildly, unpersuasive.

The actual standard applicable to claims that advocacy of unlawful conduct is properly subject to legal sanction is that of Brandenburg v. Ohio (1969), providing "that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

So the Supreme Judicial Court's First Amendment analysis is quite superficial, and doesn't use the right standard.

Which in this case doesn't make it wrong.

Next: Directed Coercive Advocacy and the Carter Case

Certified Rehabilitated

The recently-retired District Judge John Gleeson of the Eastern District of New York issued an interesting opinion regarding a criminal case. It's a strikingly original and frank assessment by a federal judge of the harm incarceration inflicts even after the offender is released. The Times has a good synopsis of the situation and the judge's solution (though it loses the erudition and scholarship of his opinion):

In 2003, John Gleeson, a federal district judge in Brooklyn, presided over the trial of a woman charged for her role in faking a car accident for the insurance payments. After a jury found her guilty, Judge Gleeson sentenced the woman to 15 months in prison.

Many judges might leave it at that, but in an extraordinary 31-page opinion released on March 7, Judge Gleeson stepped back into the case. Finding that this one conviction continued to scare off employers and make it impossible for the woman, identified in court records only as Jane Doe, to get hired as a nurse, Judge Gleeson gave her what amounted to a voucher of good character — he called it a “federal certificate of rehabilitation.”

No such certificate exists under federal law, so the judge designed one himself and attached it to his opinion.

While he believed the original punishment he gave Jane Doe was fair, Judge Gleeson wrote, “I had no intention to sentence her to the unending hardship she has endured in the job market.”

Jane Doe had asked the judge to expunge her conviction from the record. “I just feel intimidated when I see that question,” she told the judge, referring to the standard inquiry into a job applicant’s criminal history. “If you put ‘yes’ on there, that’s it. You are not getting that job.”

But Judge Gleeson declined her request, saying expungement was reserved for “unusual or extreme” cases. Instead, he opted for forgiveness over forgetting, as he put it. While the certificate has no legal effect, when Jane Doe shows it to a prospective employer or landlord, it should, the judge wrote, send “a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community.”

Unfortunately, the Times doesn't say--and indeed it may be too early to say--if the certificate helped Ms. Doe. If it did, I congratulate Judge Gleeson for finding an outside-the-box way to redress a serious wrong done in our society--the failure to take reasonable steps to re-integrate offenders into society after their sentences have been served. New York State is one of the better states at this, but still, we as a nation have a long way to go.

I'm rooting for Ms. Doe.

Antonin Scalia

Antonin Scalia died today. He was one of the longest serving justices in American history. I have written here often about his drawbacks, and the damage his increasingly lawless decisions were causing to the structure of constitutional law. I won't link the posts; I stand by them, but his better side deserves mention too.

I also have noted that he was a firm believer in the Sixth Amendment--the only one on the Court, currently. In early years on the Court, he joined in Texas v. Johnson, defending speech he hated. Even recently, he could surprise, rising to the defense of an increasingly tattered Fourth Amendment. His off the bench writings could be engaging, and in A Matter of Interpretation, he engaged constructively with his critics, exhibiting less pugnacity and more perspicacity.

I think he enjoyed being Antonin Scalia; he was one of three justices (that I can think of) who were the subject of a play. (Scalia, depicted in The Originalist, O.W. Holmes in The Magnificent Yankee and W.O. Douglas (sorta) in First Monday in October).

May he rest in peace.

The Silence of the Justice

From The New York Times today:

When the Supreme Court returns from its winter break this month, it will hear two minor cases and reach a major anniversary. Unless something very surprising happens during the arguments that day, Justice Clarence Thomas will have gone 10 years without asking a question from the bench.

Maintaining a decade-long vow of silence takes monkish dedication and a certain stamina, and Justice Thomas has no modern competition. It has been at least 45 years since any other member of the court went even a single term without asking a question.

Justice Thomas’s explanations for his disengagement from this aspect of the court’s work have varied, but he seems to have settled on one in recent years. It is simply discourteous, he says, to pepper lawyers with questions.

“I think it’s unnecessary in deciding cases to ask that many questions, and I don’t think it’s helpful,” he said at Harvard Law School in 2013. “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”

His is an unusual conception of the role oral arguments play at the Supreme Court. The justices know the lawyers’ arguments well by the time they take the bench, having read stacks of briefs, most of them very thorough.

Oral arguments are a chance for justices to probe the contentions in the briefs and for lawyers to address the issues that most trouble the justices.

“If oral argument provides nothing more than a summary of the brief in monologue, it is of very little value to the court,” Chief Justice William H. Rehnquist wrote in 1987.

Justice Thomas acknowledged at least the premise of this point in his remarks at Harvard. “Most of the work is done in the briefs,” he said.

But he may well be right that his colleagues go too far in the other direction, interrupting one another and spraying lawyers with questions that seldom get full and considered answers.

“We look like ‘Family Feud,’ ” Justice Thomas told a bar group in 2000.

Asked about the free-for-all state of arguments at Harvard in 2013, he said, “I don’t like it that way, but I’m nobody’s boss.”

Something you won't hear me say often: I see his point. He's not the only one to hold the position, either. Justice William O. Douglas held the same viewpoint, believing they the time belonged to the lawyers, and not to justices who wanted to lobby their colleagues.

Douglas, like Thomas, also had concerns about the seemliness of the way it was done. Having seen some arguments, listened to more, and read the transcripts of still more, I think Justice Thomas is right--there's a tendency on the current Court to showboat, to treat the argument as a sporting event. When I saw it in a death penalty case, at the very beginning of my career, I was appalled at the cavalier attitude several justices betrayed in oral argument toward performing what should be the most solemn aspect of their duties, regardless of one's opinion on the merits of the death penalty.

This isn't to say that no levity, no spark, is appropriate. But an argument in the Nation's highest Court should, perhaps, not be quite so easily confused with a bear-baiting, with counsel as the bear.

"Scalia il Magnifico"?

Rod Dreher, after a couple days when I actually enjoyed reading his blog (he has a very nice tribute to the late, great Robertson Davies), has relapsed again, with an effusion to "Scalia il Magnifico", as he terms the cantankerous member of the High Court, not based on any opinion he's written, but on the basis of a talk Scalia gave at Archbishop Rummel High School in Louisiana, which Dreher attended, and says is accurately summarized at the link:

The Constitution's First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn't mean the government can't favor religion over nonreligion.

That was never the case historically, he said. It didn't become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.

If people want strict prohibition against government endorsement of religion, let them vote on it, he said. "Don't cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it."

Citing a quotation attributed to former French President Charles de Gaulle, Scalia said "'God takes care of little children, drunkards and the United States of America.'" Scalia then added, "I think that's true. God has been very good to us. One of the reasons God has been good to us is that we have done him honor."

Scalia has long been a vocal advocate for a conservative reading of the First Amendment's clause on religion. In Scalia's view, the courts should interpret it based on the text itself, which doesn't expressly prohibit government support for religion, and common practice.

At the time the Constitution was written, religion was ubiquitous. Scalia noted that Thomas Jefferson, who first invoked the idea of a "wall of separation between church and state," also penned Virginia's religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.

Such deference for a higher power has been consistent ever since, Scalia said.

The American people have clearly demonstrated a tolerance for government support of religion by enacting laws that exempt church property from taxation, he said. Congress even has clergymen on the payroll.

Given the history and subsequent common practice, Scalia called it "absurd" to interpret the First Amendment in such a way that banishes any government expression of support for religion.

This is a remarkable speech, if Dreher is right, and the speech is accurately summarized. For one thing, it elides completely the distinction between the First Amendment as originally enacted--solely a restriction on the federal government, not on the states--and the effect of the passage in the Reconstruction Era of the Fourteenth Amendment, which changed the balance between the states and the federal government forever, limiting the states in ways that had not been originally contemplated. As I explained at some length in First Amendment, First Principles: verbal Acts and freedom of Speech, the early jurisprudence bears that out, reflecting a complete disabling of the federal government from acting against speech (or, except in the territories, directly governed by the federal government, religious expression), while leaving the states plenary authority. So relying on the Framer's understanding of the First Amendment as it applied to state action, deliberately left outside its scope, as charting its reach as to what it does control is disingenuous in the extreme.

Scalia's logic about custom and practice seems to me to to break with his normal emphasis on text and language, but, frankly, charting Scalia's inconsistencies in interpretative techniques is old now. I would note that his logic would draw into question the very point of a written constitution, and is much more of a common law approach than one would expect from him. Also, any line of reasoning that suggests that Brown v. Board of Education was wrongly decided because a corrupt bargain was struck to allow the South to set the 14th Amendment at naught for 70 years is, to me, self-defeating.

Leaving all this aside, from Dreher's own personal commitments, this praise seems entirely unwarranted, as Dreher is in fact praising the guy who wrote the opinion that struck down decades of jurisprudence–all from those “activist judges” he deplores–protecting religious groups from generally applicable laws when such laws burden their religious beliefs (That’s Employment Div v. Smith in a nutshell), because he agrees that the government has a right to, when the duly elected representatives of the people decide to do so, favor religion over irreligion?

Same logic that allows for the burdening of of religion by generally applicable secular legislation passed by voters. Absent anti-religious discrimination, majority rule determines religious rights.

It sounds like he may be re-thinking his decision in Smith, now that it’s goring his own ox, but is that really commendable? It was just and righteous for 20 years, as applied to other faiths, but now that his own faith tradition is not winning the majority votes, let’s reverse it?

It’s not unlike his opinions in the ACA cases. In King v Burwell, he dismissed as “applesauce” the majority’s reading of the relevant section of the Affordable Care Act in exactly the same way he had read it in NFIB v. Sebelius, a mere 3 years earlier. (I juxtapose the quotes from the two cases, with links, here:

Scalia il magnifico? He’s going back and forth on basic issues of statutory and constitutional interpretation based on his personal preferences. This means that nobody not already in his camp will view such decisions as legitimate, and that they can only be considered not as constitutional but as partisan political acts?

A Prosecutor Recants: A Free Speech Conversion

This is good to see:

In 1964, Gerald Harris successfully prosecuted Jonas Mekas for showing a 43-minute film by Jack Smith called “Flaming Creatures,” which included nudity and sex acts. Fifty-one years later, after reading an article about Mr. Mekas in The New York Times, Mr. Harris reached out to the defendant to apologize.

Mr. Harris is now 79 and semiretired. Mr. Mekas is 92 and still going strong, making movies and running a film archive.

“I feel I owe you an apology,” Mr. Harris wrote in an email. “Although my appreciation of free expression and aversion to censorship developed more fully as I matured, I should have sooner acted more courageously.”

Mr. Mekas wrote back immediately.

“Your surprise generous apology accepted!” he wrote. “There should be more such examples.”

In his message, Mr. Harris wrote that a few months after prosecuting Mr. Mekas and two other defendants who were working at the New Bowery Theater, he asked to be relieved from prosecuting Lenny Bruce on similar charges because he found Mr. Bruce’s routines hilarious.

***

At trial, Mr. Harris effectively shut down testimony that “Flaming Creatures” had artistic validity meriting constitutional protection. Ms. Sontag, whose debut article in The Nation magazine was a glowing review of “Flaming Creatures,” was permitted to define underground film, but Mr. Harris objected to her testimony that the film was a work of art, and the three judges — including former Mayor Vincent R. Impelliteri — sustained his objection.

***

But things change. Mr. Harris, who went on to become a judge and the county attorney for Westchester, took up poetry. When he met Ms. Sontag at a poetry reading years later, he said, they had a laugh about his cross-examination.

Before they parted, “I said, I grew up to be the guy who refused to prosecute Lenny Bruce, and she said, ‘Good for you.’”

Mr. Mekas was sentenced to 60 days in the workhouse — a grim punishment for a survivor of a Nazi forced labor camp — but the sentence was suspended. He held no grudges.

I'm glad to see this story, both for the growth on the part of Mr. Harris, and for the generosity of spirit shown by Mr. Mekas. But there's another reason, too. When I was the lead counsel in Nitke v. Gonzales, decided 10 years ago, now, my concern was that the use of "local community standards" on the Internet could be use to hold artists and other speakers to the most restrictive community standard in the country--as, in fact, was the law under US v. Thomas, the leading case prior to our bringing the suit. In the current very free commons of the Internet today, it's easy to forget how concerned the Bush Administration was trying to revive obscenity law, prosecuting not just video or film, but the written word alone. (Because I've been exceptionally busy of late, I didn't see see that one of our original and stalwart witnesses in Nitke, Candida Royalle, passed away last month; I am extremely sorry to hear of it.)

I have to say, my only regret about the Nitke case is that we didn't win outright. Oh our three judge panel rejected the Thomas precedent, and we seemed to put that wrongful principle to bed, at least for now--but as a constitutional scholar and a lawyer, I am as sure that we had the right of the argument now as I was then.

And Mr. Mekas did well in accepting what he called the "surprise and generous apology"; indeed, there should be more examples, and I admire Mr. Harris for being one.

The law is a blunt instrument; it cannot distinguish between true and false ideas of the good. That's why we have a First Amendment.

Be Not Another. . .

Well, here's a new one:

I was the envy of my 30-something friends in Palo Alto, Calif. I had my own law office right on California Avenue. People charged with crimes handed me cash, in advance, over a big oak desk. Occasionally, I’d make a couple of grand in an afternoon.

But soon, my body started giving out one part at a time. First a shoulder, then my lower back, knee cartilage, neck vertebrae. Two groin hernia surgeries later, at 33 years old, I could not lift a bag of groceries, or sit without an orthopedic pillow. After 10 years as a law student and lawyer, working in a profession I didn’t like was taking its toll.

I sold my practice and fled to San Miguel de Allende in the Mexican state of Guanajuato.

And, ultimately, found his bliss in the right profession:

Studying want ads one evening, the one that got my blood moving promised to train me as a party clown, and send me out at $25 per show. Years earlier, I’d dreamed of becoming so weightless that I bounced off the ceiling. I could see myself in a billowy clown suit. After a free training session, I purchased the starter kit for $59 and waited for them to call.

Within a week, the company dispatched me to a party for a 7-year-old at a Ground Round restaurant in Yonkers. I applied colorful makeup, donned oversize shoes, orange wig, bag of tricks. It took a minute to decide on “Bobo” as my name. I silly-walked up to a table of children in the party room. By the end of the performance, the birthday boy said to me, “Bobo, I love you.” In the car later, I rested my head on the steering wheel. An unexpected feeling surfaced: happiness.

Right, you're all expecting me to have a little fun with this guy, right? A sarcastic jibe, perhaps, a little sly humor?

Nope.

Well done, Robert Markowitz. Really, I mean it. There are far too many miserable lawyers out there. Many are trapped in jobs that aren't right for them, but could be happier in a better fitting position (I myself was miserable as a big firm attorney but have loved my public interest work--and even then, other things have called to me to supplement that career--the diaconate, writing, to name the two most important), but a lot shouldn't be lawyers at all.

Seriously, I mean that. If you don't love legal practice, it'll kill ya. It requires a lot of steady hard slog, wading through materials that are very dry, and gratification is delayed for years. If you aren't a natural born lawyer, if the stuff hasn't got a hold of your heart for whatever reason (la Caterina is one, too, but somewhat differently than me)--get out and save yourself, like Robert Markowitz did. Because life's too short.

In his excellent novel The Rebel Angels, Robertson Davies quotes Paracelsus: "Be not another if thou canst be thyself."

Good advice, very good advice.

So bravo to Robert Markowitz, and best wishes for another 20 years of success to Bobo the Clown.

As long as nobody expects me to don the red nose, that is.

Fishing for Sense

Courtesy of Rod Dreher, I have become aware of this recent piece by Stanley Fish:

Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the "lawlessness" of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: "Is Polygamy Next?" (Are we sliding down a slippery slope?)

So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, "lacking even a thin veneer of law" and full instead of "the mystical aphorisms of the fortune cookie"? (2) Or is Scalia's dissent, as his critics charge, "unhinged," "bitchy," "juvenile" and "hysterical" (all words that have been applied to it)? And (3), is it inevitable that the majority's arguments will lead to the legalization of plural marriage? I would answer "yes" to (1) and (3)," no" to (2).

Right, let's stop a little bit here. I should, I suppose, be patient with Fish, if only out of gratitude for his providing the model for David Lodge's wonderful character, Morris Zapp. But, really, this article is written in the most irritating kind of ignorance--pompous, self-assured ignorance. Let me explain.

Fish’s endorsement of Scalia’s dissent contending that the Obergefell majority lacks “even a thin veneer of law” requires ignoring a lot of well established cases.

First off, the Court has held that marriage is a fundamental right since Meyer v. Nebraska, 262 US 390 (1923):

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Even a cursory search reveals that the cases go bak to the late 19th century, in Maynard v. Hill, 125 US 190 (1888).

Likewise, Loving v. Virginia, 388 US 1 (1967), found unconstitutional a bar on interracial marriage, rejecting an argument, like one made in Obergefell, that such restrictions were neutral, as applying equally to white and black citizens:

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [p9] Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

Equal protection requires special care be applied to legal restrictions targeting “discrete insular minorities” who have been historically the subject of prejudice and political disadvantage. United States v. Carolene Products, Co., 304 US 144, n. 4 (1938). That homosexuality falls within this class is pretty clear–leaving aside questions of bias and prejudice, for which there’s a lot of evidence in terms of violence and the workplace, look at anti-gay legislation introduced in 2015 alone. A good example of such legal action was nullified in Romer v. Evans, 517 US 620 (1996), in which Colorado passed a referendum amending the state constitution so that laws protecting GLBT rights could not be passed by the State, limiting the rights of GLBT Coloradans to use the democratic process in a way no others were limited.

So requiring some quotient of a rational basis beyond tradition and moral disapproval slots neatly with classic equal protection law, contrary to the claim of “lawlessness.” It’s consistent with equal protection models dating back to pre WW II, and with a fundamental right status for marriage that’s nearly a century old. In sum, Fish is empirically wrong here.

He then compounds his error:

The court now finds itself in the same place with respect to "intimate domestic arrangements" as it has been in for a long time with respect to the issue of conscientious objectors. Before United States v. Seeger (1965) and Welsh v. United States (1970), conscientious objector status was granted to those who had undergone "religious training" and expressed a belief in a "Supreme Being" commanding "duties superior to those arising from any human relation" (Seeger) -- in short, an adherent of a traditional religion. But before it was done the court concluded that a constitutionally protected objection to war "need not be confined in either source or content to traditional or parochial concepts of religion." Instead, what is required is that the person seeking an exemption from military service profess a set of beliefs that "occupy in the life of that individual a 'place parallel to that filled by... God' in traditionally religious persons" (Welsh).

And what might that set of beliefs be? Why, almost anything. The requirement is not doctrinal or ceremonial; it is emotional. The beliefs must be "deeply held," whatever their content, and if they are, that is sufficient to earn the exemption. And given that no device for measuring the depth of one's beliefs -- no sincerity meter -- has ever been invented, there would seem to be no principled basis for denying anyone's claim. (Of course, there is now no draft, but there may be one again, in which case the issue of conscientious objection would return.)

Whatever the problems with the traditional definitions of either conscientious objection or marriage -- and there are many -- they at least provided a formula for adjudicating individual cases: If you're a man and a woman, you can get married; if you believe in God and belong to an established church, you can get an exemption. By departing from tradition and becoming more inclusive and less doctrinaire, the court has deprived itself of any brakes that might stop the train it has set in motion. Many will think this is a good thing. The question Scalia and the other dissenters raise is whether it is a legal good thing.

Now, all this talk about the right to religious accommodation from generally applicable, nondiscriminatory laws, why, that's probative of--not sure what, frankly but it hardly matters, because, as before, Professor Fish is not up on the law. He hasn't read Employment Division v. Smith, 494 U.S. 872 (1990):

We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases). In Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother could be prosecuted under the child labor laws [p880] for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in "excluding [these children] from doing there what no other children may do." Id. at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), we upheld Sunday closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.

Note the Court approvingly cites Reynolds, which Fish is so sure is a dead letter.

Oh, and the author of this decision that rejected the line of cases cited by Fish to vindicate Antonin Scalia in Obergefell?

Antonin Scalia, of course.

Building Better Lives

Here's some good news:

Education Secretary Arne Duncan and Attorney General Loretta Lynch announced the administration's new Second Chance Pell Pilot program during a visit Friday to the Maryland Correctional Institution in Jessup, Maryland.

"America is a nation of second chances," Duncan said. "Giving people who have made mistakes in their lives a chance to get back on track and become contributing members of society is fundamental to who we are. It can also be a cost-saver for taxpayers."

The program will allow, on a temporary basis, federal grants to be used to cover college costs for prisoners for the first time since Congress excluded them from student aid in 1994. It will last three to five years and be open to prisoners who are eligible for release, particularly within the next five years. Inmates could be eligible for the money as early as the fall of 2016.

Pell grants are for low-income people and do not have to be repaid.

Now, this makes all kinds of sense. Indeed, my home state of New York introduced a similar program last year, based on a successful model:

The plan is based on the Bard Prison Initiative, a program created at Bard College in 1999. Since its inception, the Bard Prison Initiative has educated 500 inmates and awarded degrees to 250 people. Of those who have completed the program, only 4 percent have returned to the criminal justice system.

Upon release, prisoners often have trouble reentering society. A criminal record is a difficult stigma to shed. Many businesses are unwilling to hire them. Housing opportunities can be few and far between. If not addressed, these obstacles increase the likelihood that they will find themselves caught up in the system again within three years.

Education decreases these odds. For example, the Five Keys Charter School in San Francisco helps those in jail obtain their high school diploma or GED with great success. Five Keys graduates have a recidivism rate of 44 percent, compared to their fellow inmates’ rate of 68 percent. The dramatic drop in recidivism has saved San Francisco $1.5 million a year incarceration expenses.

Look, it's really quite simple, and the problem has been with us perennially. (Seriously, read Hugo's Les Miserables. Hell, even the musical makes the point.) What do you do with people when their incarceration ends? Let them drift with no credentials, nothing to alleviate their condition, and then feign virtuous surprise when they drift back into crime?

According to 2015 Congressional Research Report, "nearly three-quarters of offenders released in 2005 came back into contact with the criminal justice system, and more than half returned to prison either after being convicted for a new crime of for violating the conditions of their release." Lack of education is a major factor in predicting recidivism.

The report points out that 95% of the incarcerated population will be released one day. So, yeah, anything that may help them find a new place in society, rather than return to the old is worth trying.

The old game is played out. The retribution rationale for the criminal justice system has its place, but doesn't answer the pragmatic question of how to treat an offender who has served his or her time. That's why a rehabilitative component also has its place.

Yesterday the Obama Administration brought a new tool into that all-too-often disparaged component of the criminal justice system. Good for them, and for us.

Obergefell II: The Alt-Histories of Clarence Thomas

Right, not quite finished with Obergefell v Hodges just yet. I've made what points I think are worth making about Chief Justice Roberts's dissent, with one exception. His conclusion is unusually petty and mean-spirited for Roberts, who, while I often deplore his results and reasoning, generally tries to keep a tone that while more casual than most lawyers, is respectful. So his conclusion is a surprise:

"If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Honestly, that's a bit beneath him, in my opinion.

Justice Thomas's dissent, however, does not surprise, either in its rhetorical excess or in, what I called in an online discussion, its laughable history. I was quite properly asked to specify the latter, and, in writing that up, thought I might share a slightly revised and extended version of my remarks here.

Quickly, though, the rhetorical excess. Thomas attacks Justice Kennedy's majority opinion for its reliance on the notion of equal dignity under the law. He writes:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

This is, quite simply, insane. Slaves were, as a matter of law, deprived of their dignity. Read Dred Scott v. Sandford, 60 US 393 (1857):

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.

Legally, they were denied the status of people, the dignitas afforded whites. Thomas is, quite simply, wrong. Moreover, human dignity has increasingly featured in constitutional analysis from Alexander Hamilton through to the present, gathering momentum especially in the 1940s, when we confronted a foreign system based on denying dignity. Justice Frank Murphy's prescient dissent in Korematsu v. United States (1944) indicted the internment on the very ground that to adopt the Government's rationale "is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

Brown v. Bd of Education (1954), generally considered one of the great achievements of the Supreme Court, expressly turned on dignitary concerns; as to "children in grade and high schools, the unanimous Court ruled, "[t]o separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (For more, see Richard Kluger's Simple Justice (1979)).

Clarence Thomas, in short, is not a reliable exponent of history.

This applies even more to his analysis of the Fourteenth Amendment's history. Again, a quotation:

In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”

If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. (p. 6)
. . . .
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. (p. 7)

A very short explanation as to why Thomas's history is laughable goes something like this: Thomas equates "liberty" in the Fifth Amendment with that as described in Blackstone's Commentaries. He then equates the usage of liberty in the 14th Amendment with that as described by Blackstone, on the theory that parallelism should be assumed. He does this by relying on dissenting sources on the meaning of the 14th Amendment, while ignoring, quite literally, the entire jurisprudence of the 14th Amendment from its passage to date. From Chicago, Burlington & Quincy Railroad v. Chicago (1897) through Gitlow v. New York (1920), and New York Times v. Sullivan (1964), the liberty protected in the Amendment was never understood that way. Cases in which parental control of their children's education (such as Pierce v. Society of Sisters (1925) or Meyer v. Nebraska, in no way involve Thomas's crabbed definition of liberty. Even in the great debate over whether and to what extent the 14th Amendment incorporates the Bill of Rights against the States, waged in Palko v. Connecticut (1937) or in Adamson v. California (1947), neither side argued for the Thomas formulation or anything remotely like it. In sum, the Amendment has simply never been understood the way Thomas asserts it should be. (See generally Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights; my old professor Charles L. Black's A New Birth of Freedom: Human Rights, Named and Unnamed is, while less heavy on history, quite helpful, and my own First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004) addresses the incorporation controversy and the history of the Fourteenth Amendment in brief. Justices Black and Douglas--who participated in many of the relevant cases on dignity as well as incorporation each wrote about the subject, Black in A Constitutional Faith, Douglas in The Right of the People. Some of the earlier important cases are collected in The Mind and Faith of Mr. Justice Holmes and some philosophical underpinnings in his Collected Legal Papers).

He's long been against the use of "due process" to derive substantive rights. Fair enough; I think he's right there, though that ship sailed in 1873. That said, the Privileges and Immunities Clause creates a different source for an undefined set of rights, which Thomas would give no effect. (So here he's striking out constitutional text, while in "liberty" he constricts the text to a meaning that it has never had in the 14th Amendment's jurisprudence.)

That's why it's laughable history--it's like a Harry Turtledove novel,an alternative history of the 14th Amendment that never was.

Equal Justice Under Law

Today's decision in Obergefell v. Hodges is really quite a simple one.

It all stems from this: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Shorn of all rhetoric and legal technicality, it comes down to these two interlocking syllogisms:

Syllogism No. 1.

1. The Constitution protects fundamental rights

2. The right to marry is a fundamental right.

3. The Constitution protects the right to marry.

Syllogism No. 2.

1. A strong, constitutionally permissible reason must be articulated to deny people a fundamental right.

2. The only reasons articulated by anti-same sex marriage advocates--"it's against my religion" and "tradition"--are not constitutionally permissible grounds, the first violating the Establishment Clause and the second inconsistent with our system of case by case adjudication.

3. The bans against SSM cannot stand.

Now, since the dissents harp on tradition, let me address that prong at a little greater length. As a wiser judge than any of the dissenters in Obergefell wrote many years ago:

History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

This is the case here. Because when Chief Justice Roberts--in the least offensive of the dissents, one that at least tries to do actual legal reasoning--adverts to the tradition of marriage, he writes:

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.

It's important to note that, in this brief "historical" allusion, he's not following Justice Holmes's advice and bringing the dragon out of his cave at all; he's assuming that all marriage was, in every culture, the same, ignoring the fundamental changes that have been brought to marriage. More bluntly, Roberts is retrojecting his nice, loving marriage, in which each spouse has a right to seek fulfillment in a career into past decades, centuries, and millenia.

In the Framer's generation, Sir William Blackstone, in his Commentaries wrote that "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband . . . For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself," making contracts between husband and wife unenforceable. Blackstone's Commentaries were highly influential in early American law; thus in the 1848 Seneca Falls Declaration, a cause of complaint of women was that man has "made her, if married, in the eye of the law, civilly dead." (More and sources here).

Throughout the 19th Century, a series of state laws chipped away at the inability of married women to own property, fundamentally changing the nature of marriage.

Throughout the Twentieth Century, states began to jettison the 17th Century rule that husbands could not be guilty of raping their wives, "for by their mutual matrimonial consent and contract, the wife [has] given up herself in this kind unto her husband, which she cannot retract." The last one fell in 1993.

I could go on--catalogue the societies in which polygamy has been acceptable, concubinage permitted, and dilate upon the difference between arranged and companionate marriage. All true, all blandly swept into the corner by Roberts.

The fact is, marriage has not remained static. It has grown and evolved and changed fundamentally already. This is just sharing the modern marriage the Robertses enjoy with a class of people who have been excluded until recently, based on theological readings of the Bible that are rooted in a weak and selective example of traditionalist thinking that offshores the cost of obedience on a disfavored minority class--just when Supreme Court review is most called for.

In sum, this was the Court at its best, doing its job.

[Edited to Note Sir Matthew Hale was a 17th Century jurist, not an 18th century one.

Nino Agonistes, and the Limits of Cynicism

Today the Supreme Court issued a decision in King v. Burwell--the challenge to the Affordable Care Acts creation of federal exchanges subsidized by tax credits in states that decline to create their own exchanges--that was surprising. Authored by Chief Justice John Roberts, the opinion is in his trademark vernacular, almost chatty style--at one point he writes "So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer.” (emphasis in original). (How many fewer? About 87 % fewer, Roberts estimates.)

What's surprising about this opinion is that the majority opinion is done in a way we're not used to seeing from Roberts: It is, as far as I can see, apolitical. His own dislike of the statute leaks through in places, as does his disdain for Congress. (So, for example, Roberts refers at one point to the "complicated budget procedure known as reconciliation" through which the ACA was passed, noting that it thus "bypassed the Senate's normal 60-vote filibuster requirement," assuming the Obama-era dysfunction in which every bill was filibustered represents a new but permanent normal.) Still, I agree with Garrett Epps: this is, at least as far as can be seen, John Roberts calling balls and strikes, as he promised to do in his confirmation hearings, not wildly distorting precedents or overruling decades of settled law, as I have previously pointed out. He didn't defer to the IRS, for example, which could have left the door open to a new interpretation under a new administration. No, this was straight up Statutory Construction 101: Read the statute--the whole statute, in context. If there's an ambiguity as to what exchanges were meant, look to the stated purposes of the statute, and be guided by that in selecting the two alternatives.

Now, the dissenting troika of Scalia, Thomas and Alito, would have the reader believe that the one phrase that has been bandied about so much, referring to an "exchange established by a State" was itself dispositive, and that no subsidies were available to those who received their benefits from a federally established exchange.

Well, clearly so. The ACA did not create a fallback for federal intervention of a state declined to create an exchange. Who could think such a thing? Oh, how about Scalia, Thomas, Kennedy (who was in the majority this time) and Alito, in their Scalia-penned dissent in NFIB v. Sebelius (2012):

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1).

Sebelius (Dissent of Scalia, J.) at sec. IV (E)(2) (emphasis added).

So what changed in three years?

Well, I admit I was unduly suspicious about the outcome, but I predicted that Scalia, Thomas, and Alito would not follow their previous reading of the exact same language in NFIB v. Sebelius. Only Kennedy did follow his own prior interpretation of the statute, and thus joined the majority. Scalia and his fellow dissenters not only reversed their own prior interpretation of the text (rejecting arguments to the contrary summarily as "applesauce"), they excoriated anyone who could read it as they did back then, accusing the majority of "chang[ing] the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty." Scalia then goes on to state that

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

An argument that would have been much more credible had Scalia himself not described the language at issue consistently with the majority opinion's reading of it today, a bare three years ago. His bitter quip about "SCOTUScare" suggest his own agenda: ScaliaCare means that statutory provisions mean whatever it takes for Obama to lose any case before the Supreme Court.