Required Reading for State House Lawmakers

atfdudeDevoted followers of conservative mayhem at the Tennessee state house will recall one of the finer moments of legislative insanity last winter: a bill aiming to nullify federal firearms legislation by making it illegal for federal agents to enforce those laws in Tennessee. In the wake of an AG opinion that the measure was probably unconstitutional and indications that Gov. Bill Haslam was disinclined to sign the thing, the bill narrowly failed to make it out of committee back in February.

GOP-dominated state houses elsewhere have pushed this gun law nullification thing further along, with Missouri’s in the spotlight this month. That state’s legislature overwhelmingly passed a nullification bill earlier this summer, which Gov. Jay Nixon promptly vetoed. Now the show-me legislature is planning a vote to override the veto when it reconvenes next week. A successful override will require fewer votes than there were in favor the first time around. (And it should be noted that while the bill was largely a GOP effort, it passed with the support of 11 Democrats in the Missouri House and 2 in the Senate.)

So with the Missouri override vote impending, The New York Times runs an op-ed today titled “The Limits of Nullification.” In a state legislature like Tennessee’s, where no failed bad idea isn’t worth bring back for another go, this is a piece that lawmakers need to read for its persuasive case against nullification:

Yes, state legislatures or governors can assert that a federal law offends the Constitution. But as James Madison wrote in his Report of 1800, such declarations are “expressions of opinion” for “exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.” In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states. Strangely, if nullification proponents had their way, Chicago’s gun ban, which the Supreme Court invalidated in 2010, might still be in effect.

The Times op-ed is compelling not just for its substance, but also on account of the impeccable Second Amendment-loving credentials of its author: Robert Levy, chairman of the conservative-libertarian Cato Institute and a guy who was plaintiff’s co-counsel in the landmark 2008 Supreme Court case D.C. v. Heller upholding individual gun rights. For any Tennessee lawmaker thinking of trying again on nullification (I’m looking at you, Mae Beavers), Levy’s closing words should change your mind: “I fully support those who see risks in the expansion of federal power, particularly when it comes to intrusions on basic rights like gun ownership. However, to defend those rights, we can’t begin by flouting the very document that inspires that fight in the first place: the Constitution.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Elect the Tennessee AG?

TennAGSealThe Tennessean editorialized Sunday in favor of popular election of the state attorney general. Tennessee is one of just seven states that don’t elect the AG, and the only state where the AG is chosen by the judiciary (by the Tennessee Supreme Court). In five of the other six states the governor appoints the AG, and in one state the legislature appoints.

Yesterday’s editorial represents a bit of a shift for the daily fishwrapper:

In the past, the editors of this newspaper have praised Tennessee’s status as the only state whose chief lawyer is chosen by the judiciary branch. But the world changes, and with it our expectations. In this era of ever-more-divisive government and heightened risk of corruption through big, anonymous campaign contributions, some priorities have shifted — although not those that matter most: fairness and the belief that the will of people should prevail. In other words, it’s time for voters to get fully involved in how the state of Tennessee is run, and that means popular election of its attorney general, as is the case in 43 states.

Putting aside the editorial’s clumsy attempt to justify a change in position with vapid assertions about “ever more divisive government” and “heightened risk of corruption,” they do reach the right conclusion: the AG should be elected. Many of my liberal fellow travelers will stridently disagree. They defend the current system as one that breeds the appointment of intelligent moderates who privilege legal analysis over ideology, keeping the AG’s office out of the hands of rabid conservatives who might win a statewide election. True that, but do the ends justify the means?

I think not. An elected AG is compelled to advocate with vigor for the people who put him or her in office, which offers the prospect of a more assertive watchdog over popular interests in realms of consumer protection and corporate malfeasance. Some will say, “but the nutter who might win popular election in deep red Tennessee won’t do those things.” Maybe, maybe not, but deciding whether an office should be elected or appointed on the basis of the expected electoral result is both bad public policy and bad democracy. And by the way, the current arrangement does represent an intractable conflict of interest — the Tennessee Supreme Court appointing the state’s chief law enforcement officer, who manages an office that routinely does business in that and other courts on behalf of the state.

There is another argument not mentioned in the Tennessean editorial: we also should elect the AG because we need more statewide elective offices. It is not a good thing that U.S. Senators aside, the election for governor is the only statewide race we have. The lieutenant governor should be elected as well. The parties need more opportunities to develop political bench strength in the heat and light of statewide races.

The current AG, Bob Cooper, is by all accounts a thoughtful human who, given an elected AG, could well be replaced with someone less measured and more ideological. I probably won’t be happy at all with the newly elected AG, and the constructive role that AG legal opinions have played in recent years tempering some of the worst impulses of the legislature will likely diminish. But those are reasons to try to win an election, not reasons to have no election at all.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


The Bigoted Stylings of Justice Alito

justicealitoThe U.S. Supreme Court’s exciting final day of the term was highlighted by its 5-4 ruling tossing most of the insidious Defense of Marriage Act onto the dustbin of constitutional history. Much of the gravity in the three separate dissents penned by conservative members of the Court — John Roberts, Antonin Scalia and Samuel Alito — was technical having to do with standing and jurisdiction rather than with the equal protection merits.

But beyond the technical issues, Alito and Scalia did take the opportunity in their dissents (pdf) to tell us how they really feel about marriage equality. Alito in particular went off the rails. Here are some excerpts from the world of equality according to Sam Alito:

It is beyond dispute that the right to interracial marriage is not deeply rooted in this Nation’s history and tradition…Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if interracial marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing interracial marriage will seriously undermine the institution of marriage… Others think that recognition of interracial marriage will fortify a now-shaky institution. At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of interracial marriage will be…The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of a different race, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of interracial marriage.

Ok, he didn’t quite write that … I changed “same-sex” to “interracial” and “a different race” where underlined. But otherwise he wrote exactly that. The Supreme Court figured out 46 years ago in Loving v. Virginia — a unanimous ruling — that in equal protection terms Alito’s kind of logic applied to interracial marriage won’t fly: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.” Polls now show most Americans believe in that sentence even with the word “racial” removed. The Alitos out there will eventually be dragged into the twenty-first century (or should I say the late 1960s).

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


The Hypocritical Stylings of Justice Scalia

ninoscaliaSay what you will about affirmative action, voting rights, same-sex marriage, the Supreme Court as an institution … but as the Court wraps up its term with today’s final decisions, we pose the question on everyone’s mind: Is there a bigger hypocrite than Justice Antonin Scalia in all of American jurisprudence?

Scalia’s ability to twist his reasoning and his opinions to suit the outcomes he apparently prefers is legend. Not sure where he stands on waterboarding, but his inclination to torture a legal argument until it confesses his desired conclusion has been in full bloom these last two days, with the Court’s rulings on the Voting Rights Act and the Defense of Marriage Act.

Today, writing in dissent (pdf), Scalia excoriated the majority that ruled DOMA unconstitutional for elevating the Court’s judgment over the prerogative of the legislative branch. Bloviate away, Nino:

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

Yet just yesterday Scalia signed on to Chief Justice Roberts’ majority opinion eviscerating an act of the people’s representatives in Congress. Roberts’ opinion complained that “Congress did not use the record it compiled” when it reauthorized the Voting Rights Act. Congress’ continued reliance on VRA’s prior preclearance formula is an act of “irrationality.” We are left “with no choice but to declare [VRA] section 4b unconstitutional” because Congress chose not to update the formula.

In the DOMA dissent today Scalia was eager to point out that the presence of any legitimate justification for a duly enacted statute removes the need for Court review. He wrote of DOMA: “There are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case.” Does anyone doubt that there were many perfectly valid rationales for Congress’ 2006 reauthorization of the Voting Rights Act? Even the Roberts majority — which Scalia signed on to — recognized that the country has made great strides because of VRA and acknowledged that there can still be a role for VRA as a whole and preclearance in particular.

When it comes to Antonin Scalia’s approach to legal reasoning, the ends don’t just justify the means; they define them. The result is quiet acquiescence in judicial activism — Congress must be stopped! — in order to rein in voting rights, but indignant horror at the evils of judicial overreach — We must defer to Congress! — when it comes to equal protection.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


SCOTUS on Voting Rights: Dueling Metaphors

roberts-ginsburgThe U.S. Supreme Court rendered today its highly awaited ruling on the Voting Rights Act, finding 5-4 that the Act’s preclearance mechanism is in theory acceptable but in practice unconstitutional. In an opinion (pdf) penned by Chief Justice Roberts, the five conservatives on the Court reasoned that the preclearance provision is “irrational” because it relies on a “formula based on 40-year-old facts having no logical relation to the present day.” In dissent, the Court’s liberal justices respond that there is plenty of connection between the Act’s history and the present: “second-generation barriers to minority voting rights have emerged” in the jurisdictions covered by the Act, replacing those original barriers (like poll taxes and literacy tests) that justified preclearance in the first place. This, Justice Ginsburg’s dissent argues, amounts to “powerful evidence” that preclearance “remains vital to protect minority voting rights.”

This is all important stuff, sure, but my favorite aspects of the decision and the dissent are the dueling metaphors contained within. Who has the better one? You make the call.

First a bit of background: When Congress last reauthorized the Voting Rights Act in 2006, it kept in place without modification the existing formula for determining which states and jurisdictions remain subject to the requirement that changes in voting procedures must be precleared by the Justice Department or a federal court. It is Congress’ failure to update the coverage formula that leaves the Court “no choice but to declare section 4(b) unconstitutional,” Roberts wrote. With a better, presumably less irrational formula, preclearance is still acceptable. The Court could have invalidated the entire concept of preclearance, as the Alabama county that brought the lawsuit asked, but only Clarence Thomas was willing to go that far.

So preclearance survives conceptually, but is essentially moot unless and until Congress can legislate a more up-to-date formula for deciding which states and counties are affected. That might seem doable given that when Congress reauthorized the Act in 2006 it did so with huge majorities in both parties. But in today’s increasingly polarized legislative environment, getting a new voting rights preclearance formula through Congress seems (metaphor alert) like an uphill battle to say the least.

Now on to the Supreme metaphors! Let the battle commence.

First up is the majority opinion, tackling a claim by the dissent that Alabama’s Shelby County, which brought the suit, lacks standing to challenge the Act because Shelby itself is a place where voting discrimination has been documented. Roberts swings the metaphorical bat:

That is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.

Now to the dissent, attacking the majority for underplaying what it calls “volumes of evidence” supporting Congress’ determination in 2006 that backsliding was a realistic prospect. You’re up, Ruth Bader Ginsburg:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

I like Roberts’ simile because it succinctly and colorfully captures the argument he is trying to make, although it is technically flawed by irrelevancy. There is no conceptual link between hair color and license validity, whereas in the voting rights case, we are talking about related things: Shelby County’s empirical record of voting discrimination (the expired license) and the county’s objection to voting discrimination rules in force (the stop-all-redhead policy). Even so, a nice one; I give Roberts a B+.

Ginsburg’s umbrella simile is clumsier because it doesn’t capture the essence of her argument as neatly, and actually distorts its target — the other side’s claim. For its many flaws (and there are many), the majority opinion does not deny that preclearance has worked and can continue to work. The Court’s ruling doesn’t throw away the umbrella, though it does declare use of the umbrella off limits until its design is improved. Also a good one, but Ginsburg only rates a B.

On the merits I find the dissent more compelling, although only slightly so. The majority opinion’s logic is stronger in many respects, but its legal foundation is suspect. But logic and legalities — those are just sideshows. The metaphors are the main event — and on that stage … a narrow win for Roberts and the conservatives!

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Two Questions for Republicans

My questions are catalyzed by Bill Clinton’s convention remarks about voter suppression and reaction to it. This is not a topic Clinton dwelled on, but he did say this:

If you want every American to vote and you think it’s wrong to change voting procedures just to reduce the turnout of younger, poorer, minority and disabled voters, you should support Barack Obama.

Responding over at National Review Online the next morning, veteran conservative pundit John Fund accused Clinton of “shamelessly playing the race card” with criticism that qualifies as “reckless and irresponsible.” Fund was especially galled by Clinton’s timing:

His timing in attacking efforts to combat voter fraud couldn’t have come at a more ironic time. Just yesterday, a Democratic state legislator in Clinton’s native Arkansas pled guilty along with his father, a West Memphis police officer, and a West Memphis city councilman to a conspiracy to commit voter fraud. Democratic representative Hudson Hallum was part of a conspiracy to bribe voters in three separate elections in 2011.

A quick read through the U.S. Attorney’s news release (pdf) announcing the charges and guilty pleas reveals some serious warp in Fund’s sense of irony. The charges were hardly the kind of imagined voter fraud that the recent spate of laws is supposed to combat in order to preserve the republic. These clowns in Arkansas helped absentee voters obtain and complete ballots, bribed them with food and hooch, collected the ballots in unsealed envelopes, looked at them, and then sealed and mailed only those who voted for Rep. Hallum. In other words, much that is felonious, but nothing that voter ID requirements or curtailed voting hours would halt.

So here are my two question for thoughtful GOPers:

First, when a venerable commentator like John Fund has to rely on a transparently irrelevant example of election fraud in order to justify these new laws, does that not reveal for all to see, as opponents of these laws have been claiming all along, that this is a solution in search of a (non-existent) problem?

And second, when Bill Clinton suggests that Republicans are tinkering with voting laws in a specifically calculated effort to “reduce the turnout of younger, poorer, minority and disabled voters,” can you honestly look yourself in the mirror and assert with genuine conviction that this is not precisely the intent (not just the effect, but the intent) of those pushing these laws?

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Facebook “Likes” and Free Speech

When I told a CNN reporter last week that surely, the Virginia case of a sheriff’s deputy fired for “liking” his boss’s opponent will be overturned on appeal, it didn’t occur to me that any reputable constitutional scholars would make a case to the contrary. But surprisingly, according to a story Monday in the Hampton Roads, Virginia Daily Press, First Amendment expert Robert M. O’Neil at the University of Virginia thinks the lower court ruling dismissing the deputy’s case could stand. Here’s how the Daily Press reported O’Neil’s comments:

O’Neil said he didn’t agree with Jackson when the judge seemed to indicate that “actual statements” were needed for something to qualify as free speech. But he said he agreed that more evidence is “crucial” to determine if someone was expressing a view by hitting the “Like” button.

“I am not sure that I would recognize that hitting the ‘Like’ button is an expression,” said O’Neil, who said he’s typically a strong supporter of the ACLU and free speech.

“Judge Jackson I think is correct,” he said. “‘Liking’ something isn’t sufficiently expressive, not by itself. There should some credible evidence of like or dislike that would create a context. I would expect evidence of intent, some context …more than simply pushing the ‘Like’ button.”

O’Neil said it was hard to know what the Court of Appeals would do, but he predicted that if the case ever got to the U.S. Supreme Court, “it would affirm Judge Jackson’s view” in some fashion.

O’Neil is no slouch — he’s a law professor emeritus at UVa, a former president of the university, and a former director of the Thomas Jefferson Center for the Protection of Free Expression. In a case where virtually every legal expert who has weighed in with an expectation that the District Court decision to dismiss will not stand, O’Neil’s input is a surprising reminder that there are two sides to any case. (But surely he’s wrong nonetheless!)


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