A Stitch in Haste

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"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission

They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)

To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.

This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.

(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)

Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:

We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.

In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.

Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:

The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]

The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.

There is a downside to the decision, however:

The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.

Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)

(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)

The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."

---

Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.

But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.

If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.

--Is it a proper function of government to criminalize male public shirtlessness? (Via QuizLaw.)

--Special Follow-Up Question: Any hard-core libertarians want to take up the topic of female public shirtlessness and gender-based discrimination between the two?

--Does James Dobson speak for you?

--Who says the dollar is weak?

--Which aspect of the U.S. Naval Academy is more bizarre: compulsory prayers or compulsory tomfoolery?

--Who said this, and in what context?

So they told me that using the download page to download something was not something they anticipated.

...You did remember that today is the fifth anniversary of Lawrence v. Texas, right?

Since I complimented Justice Scalia in the Heller case, let me restore balance in the universe by quoting his disgraceful dissent in Lawrence:

Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized -- which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition."
...
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
...
Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
...
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change.

I suppose, given that we are only figuring out the Second Amendment today, that such an "analysis" about the Ninth and Fourteenth Amendment can be forgiven. Maybe.

In any event, the contradiction between Heller's Scalia and Lawrence's Scalia is Justice Scalia's, not ours. He -- or legal historians -- will have to work it out for themselves.

"Let's be honest about it. This is an actual, enumerated right in the Constitution."
--Orrin Hatch

You can get the straight reporting elsewhere. I will stick to items within my sphere of influence.

Two preliminaries:

1. The biggest story was not so much the adoption of the individual rights view of the Second Amendment; that was widely expected. What was surprising was that the Court did not establish a standard of review, nor did it directly address the question of incorporation to the states. More on both below.

2. In my opinion the objective (i.e., non-interpretative) elements of Justice Scalia's opinion -- especially the historical and the linguistic analyses -- are unassailable. He quite frankly cleaned Justice Stevens' clock.

On to the meat of the opinion:

I previously wrote:

[I]t would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted "collective right," which is exactly what opponents of the Second Amendment try to do. "The people" means, well, the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states -- persons!

Justice Scalia writes:

The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.

So Justice Scalia is willing, when it suits him, to acknowledge that the Ninth Amendment actually exists? Go figure.

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.

Oh really? We do not interpret constitutional rights that way? That seems odd coming from Justice Scalia, who repeatedly insists that "of course" state governments can (among many other things): ban abortion, criminalize homosexual sodomy, employ chaplains and execute the incompetent, simply because they had such authority "in the 18th century."

It is true that Justice Scalia has previously been amenable to "modernizing" some rights, as he seems to be here. Kyllo v. U.S., 533 U.S. 27 (2001), is the classic example. I am not accusing him of being inconsistent in that regard. I am merely accusing him of being schizophrenic in his peculiar form of "originalism," since he appears to be amenable to allowing the Constitution to evolve where technology is concerned, but not where morality or societal norms are concerned. I simply don't see why the distinction is robust.

[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."

True that. But would Justice Scalia be so kind as to explain why one cannot replace the word "Second" with the word "Ninth" without losing any legitimacy? As I said above: "willing, when it suits him."

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."

Here's that bizarre "technology exception" to Scalian originalism again. The "original meaning" of the Second Amendment can't possibly suggest, Scalia insists, that "arms" only means what it meant in 1791 (e.g., muskets and hunting knives). But Scalia is infamous for insisting that "due process" -- or "establishment of religion" or "cruel and unusual punishment" -- can't possibly mean anything other than what they meant in 1791 (or 1868). I just don't get it.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.

I couldn't agree more. So why do we allow such "case-by-case bases" in matters such as defining "public use" under the Fifth Amendment or "reasonable" under the Fourth Amendment? (Note: I am directing that question into the ether and not to Justice Scalia, who voted correctly on both Kelo and Kyllo.

---

As I mentioned above, two huge questions remain unanswered:

--Incorporation to the states. Tim Sandefur has some interesting thoughts; see also SCOTUSblog. My thoughts are as follows: The two famous exceptions to incorporation (under modern due process jurisprudence) -- the entire Seventh Amendment and the right to a grand jury indictment in the Fifth Amendment -- were both special cases that involved complicated questions that are simply not relevant to the Second Amendment. Footnote 23 of the decision, meanwhile, strongly hints that the pre-modern cases holding against Second Amendment incorporation are no longer good law. Expect incorporation to flow quickly from future litigation.

--Standard of review. I wonder whether the reason no standard was declared was because the five Justices in the majority couldn't agree on one. In any event, I have no doubt that strict scrutiny will not be the standard eventually crafted (the decision already crafts out too many exceptions for strict scrutiny to be the standard). Rational basis, meanwhile, is rejected wholesale in Footnote 27. I hope that something more exacting than mere reasonableness comparable to the Fourth Amendment obtains (or, worse, the de facto absolute deference standard of Kelo). Justice Scalia's dismissal of the "interest-balancing" quoted above is a good sign. Stay tuned...

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The case is District of Columbia v. Heller, No. 07-290 (June 26, 2008) (PDF - 157 pages)

--Who accused whom of being "like the baseball player who charges kids for their signature"? (Via C&F.)

--Who accused whom of having a "fruitcake interpretation" of the Constitution and of "dragging biblical understanding through the gutter"?

--Speaking of the Constitution and fruitcake: Cruel and unusual breakfast?

--Speaking of breakfast, another Special Pride Month Question: "Where Do Homosexuals Get All Their Energy?"

--Speaking of energy: WUI?

Short version:

Microbiologist: I have published a paper documenting evidence of evolution in E. coli bacteria.

Creationist: I demand to see your data!

Microbiologist: Have you read the paper?

Creationist: Since you refuse to disclose your data, I am going to denounce you as an unethical fraud on Conservapedia!

The data were, of course, in the paper (and the evolved bacteria are, of course, still in the microbiologist's lab).

"Teach the controversy" indeed...

---

Long version here, or here, or here.

... Infra-Red State!

U.S. Rep. Chris Cannon, one of the nation's most conservative congressmen, lost his bid for a seventh term Tuesday in a Republican primary that focused on whether he was conservative enough for Utah's 3rd District.
...
The lobbying group American Conservative Union said Cannon was nearly perfect on its issues in 2007, scoring 96 percent. But [Jason] Chaffetz repeatedly pounded the incumbent, especially on immigration, and pledged to be even more conservative.

His opponent ran -- and won -- on a platform of promising to violate the Constitution:

Chaffetz said he wants the U.S. to deport all illegal immigrants and stop granting automatic citizenship to children born here if their parents aren't legal residents.

As I noted here and here, the notion that Section 1 of the Fourteenth Amendment has somehow been "misread" for over one hundred years, and that the children of illegal immigrants born on United States soil are in fact not automatically citizens, is so facially absurd that one is entitled to simply presume disingenuousness by its proponents.

But when scapegoating some subset of The Others Who Are Destroying America™, disingenuousness is good. Disingenuousness works.

And it seems to work best of all in Utah (cf., here).

More thoughts at Crossed Pond.

The decision was a pure 4+1 to 4 partisan split, with Justice Kennedy again positioning himself into the controlling vote and thereby serving as the opinion's author.

My previous post on the subject here. My thoughts on Justice Kennedy as the "swing vote" here.

Some highlights:

--The "evolving standards of decency" rule for capital punishment analysis continues to guide.

--The death penalty is still not per se unconstitutional.

--The distinction between capital punishment in this case (rape of a child) and Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman) remains robust; today's holding does not flow automatically from Coker, but rather from general Eighth Amendment and capital offense jurisprudence.

--Money quote:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood.
...
It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

Wouldn't it be nice, meanwhile, if "respect for the individual" moderated or restrained the application of all criminal law and not just capital punishment? (Compare, e.g., Lawrence v. Texas with the War on Drugs.)

--Interesting:

We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Putting aside the precedent question of whether anything can ever truly be an "offense against the State," I am utterly dumbfounded as to how "drug kingpin activity" ranks on a par with "treason, espionage [and] terrorism." (Note: Justice Alito shares my befuddlement in his dissent.)

--As I and others noted, elevating child rape to a capital offense makes it far more likely that the perpetrator will kill the victim, since there is no logical reason not to. The Court embraced that reasoning:

Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes. [Citations omitted.]

--The Alito dissent basically rejects the assertion that there is a national consensus on the issue and blames Coker for instead creating a national confusion on the issue -- one that caused state legislators to give up trying to enact capital punishment for child rape in the first place. He rejects the "they may kill the child argument" as irrelevant to the underlying question of, "Is it cruel or unusual punishment?" He points out that the majority is not "declining to extend the death penalty" but rather "choosing to curtail the death penalty" (i.e., since such a capital crime statute as this had never been found unconstitutional before). Finally:

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient.

---

Bottom line, we still have the death penalty and we still don't have a bright-line rule that it can only be applied to first-degree murder, or even only to homicide generally. I guess we'll have to wait for our national standards of decency to evolve some more.

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The case is Kennedy v. Louisiana, No. 07–343 (June 25, 2008) (PDF - 65 pages)

--Which religious sect is, somewhat ironically, the latest to insist that marriage in California should be restricted to one man and one woman? (Hint: Think "one" man and "one" woman.)

--Is it a smart idea for the New York City government, facing an imminent financing crisis due to Wall Street's losses and layoffs, to propose a new tax on some of those very same Wall Streeters?

--How does it "foster tolerance" or -- "celebrate diversity" or whatever -- for public schools to ban Father's Day cards?

Local authorities defended the change, saying teachers needed to act "sensitively" at a time when many children were experiencing family breakdown and divorce.

--Which one "Biblical superpower" would you most like to have? (Via Fark.)

--A Special Pride Month Question: "Does This Shirt Make Me Look Gay?"

Programming Note: I am trying to clear the decks in anticipation of the Heller decision on Second Amendment rights, expected either today or tomorrow. Once it is handed down, that will be my only blogging project until further notice. Expect little or no substantive blogging for a day or two once the opinion is released.

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ITEM: The Supreme Court denied certiorari in a Sixth Circuit case upholding the federal conviction of a petty pizzeria robber who committed all his crimes in a single state. The federal law in question, the Hobbs Act, borrows the abominable reasoning of Wickard v. Filburn (on my list of Worst Supreme Court Cases) that any activity that can be shown to have even the slightest impact, real or imagined, on "interstate commerce" can be made a federal issue — or a federal crime. The case was noteworthy because one of the judges wrote a concurring opinion lamenting this expansive reading of the Hobbs Act specifically and of Commerce Clause power generally. (He felt constrained by Supreme Court precedent, however, and voted to uphold the conviction — i.e., he refused to be an "activist judge.") U.S. v. Baylor, No. 07-3002 (6th Cir., February 26, 2008) (Via Cato@Liberty.)

ITEM: John McCain has proposed a taxpayer-funded $300 million prize for to anyone who can devise a "better" automobile battery. While such prizes are perfectly reasonable and even laudable in the private sector, I have previously argued against their being underwritten by governments (i.e., taxpayers), since they cannot possibly escape political influences, rent-seeking and mundane Kip's Law arrogance.

ITEM: The technology research firm iSuppi has yet again calculated the "cost" of the Apple iPhone based exclusively on the market value of its physical components. As I previously noted when iSuppi issued comparable research regarding an earlier version of the iPhone, the exercise ignores the additional cost of researching and developing the highly innovative product (i.e., it pretends that entrepreneurship is not a factor of production on a par with raw materials and labor).

ITEM: President Bush has nominated the first female soldier for promotion to full (i.e., four-star) general rank. The promotion of Lt. Gen. Ann E. Dunwoody to head the Army Materiel Command circumvents the long-standing tradition of only granting such rank to combat veterans (women are expressly excluded from combat roles). This landmark development raises yet again the question of why — as a possible compromise and alternative to Don't Ask, Don't Tell — gays aren't also allowed to serve openly in non-combat roles, especially given that the excuse for DADT is a concern for "unit cohesion and morale" under combat conditions. I have repeatedly debunked the "unit cohesion" canard — examples here and here.

--Who is describing John McCain's record on gay rights as simultaneously "mixed" and showing "enormous political courage"?

--Why do China's authoritarian rulers hate puppies and kittens?

--What word on a placard did authorities in Scotland recently censor?

--Are consumers more irrational about gas prices or about free ice cream cones?

--A Special Guest Question: "Do Nerds Like Cheese More than Ordinary People?"