Category Archives: Constitution

I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.

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Disorderly Law

When I read about City-County Councilor Joe Simpson’s arrest last week for “disorderly conduct,” I immediately thought about an incident several years ago involving the then-Legal Director of Indiana’s ACLU.

He had been on his front porch when police descended on the house next door, and he took issue with aspects of their behavior which he believed violated the Constitution. He never left his porch, but he did enter into a verbal exchange with the police, who responded by arresting him for disorderly conduct. Being a lawyer–and an ACLU lawyer to boot–he sued for false arrest. For years thereafter, he liked to say that the City provided the downpayment for his new house.

I don’t know the details of the altercation between Joe Simpson and the police–although I do know that the parallels being drawn between his arrest and past legal problems of other Councilors are ridiculous: surely we can draw a distinction between mouthing off to the police and taking bribes. That said, perhaps his arrest was justified, perhaps not.

My problem is with laws that lack specificity. Laws against “disorderly” conduct and “loitering” are widely recognized as invitations to official abuse. Police are notorious for using these catch-alls to arrest people whose “crime” has been to challenge their authority. As I tell my students, the rule of law requires that laws be written with sufficient specificity and clarity to alert citizens to the sort of behavior that is being proscribed.

It is manifestly unfair to legislate against vague categories of behavior, without defining the elements of that behavior. If the legislature passed a measure outlawing “irresponsible” driving, for example, such a law would fail to provide any meaningful direction to drivers and would vest far too much discretion in traffic police. Instead, we spell out the behaviors we want to prohibit: speeding, texting while driving, failing to wear a seat belt, etc. Policymakers and citizens can agree or disagree about the propriety of those particular prohibitions, but we all know them when we see them.

There is no such clarity with laws against loitering or disorderly conduct.

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What Constitutes “Speech”?

This morning’s news included a report on a Virginia lawsuit brought by sheriff’s deputies alleging retaliatory firing in violation of their free speech rights. They claimed they’d been dismissed for supporting the Sheriff’s (unsuccessful) opponent in a recent election.

The law is pretty clear that public employees do not lose their First Amendment rights simply because they work for government. So long as they exercise those rights on their own time, and avoid behaviors that would compromise the terms of their employment, they cannot be punished for expressing political opinions or otherwise engaging in expressive conduct.

Here, the “conduct” was clicking the “like” button on the opponent’s Facebook page. The question before the court was whether “liking” something on Facebook amounted to Free Speech. The Judge said it didn’t, since no actual words were typed.

The Judge was wrong.

The courts have consistently held that the Free Speech clause of the First Amendment protects the expression of an idea. Marching in a parade, saluting–or burning–a flag, and yes, clicking the “like” button on Facebook, all express agreement and endorsement, and are protected expression. The only reason people want to prevent Nazis from marching is that they get the message, loud and clear. Same with flag burning; the message of disdain for our country is what offends us.

Some messages don’t require words.

The Sheriff obviously thought that “liking” his opponent’s page sent a message. And he evidently understood it.

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More on Bork

In a recent post, I made the case that Romney’s choice of Robert Bork as his legal/courts advisor should disqualify him from the Presidency.

I subsequently ran across a more in-depth discussion of Bork, borrowing liberally from his own writings.

This extended essay is well worth reading in its entirety, but let me whet your appetite with my “favorite” Bork quote: “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

The U.S. Constitution was based upon the Enlightenment belief in personal autonomy; the libertarian principle that humans have the right to pursue their own ends–the right to “do their own thing”–so long as they respect the equal right of others and do not cause harm to the person or property of a non-consenting other.

This is sometimes called “the harm principle,” and it limits the zone of freedom individuals enjoy. If something I am doing harms you, the government is justified in intervening. So, for example, free people can choose to smoke, even though it may be bad for them, but when substantial scientific evidence confirms the harm done to others by passive smoke, government can constitutionally prohibit smoking in public places. People of good will can and do debate whether a particular activity is harmful, of course, but in our system, if your personal behaviors don’t affect anyone else, the government is supposed to butt out.

In Bork’s world, however, simple awareness that someone is doing something of which you disapprove constitutes a harm.

In Bork’s world, if “society” believes that a behavior–contraceptive use, sex between unmarried adults,  homosexual sex, masturbation, smoking, whatever–is immoral, that disapproval constitutes a harm sufficient to justify outlawing that activity.

Freedom, in Bork’s cramped vision of that word, is freedom to do the “right” thing–as defined by Robert Bork and his ilk. It is hard to imagine a more unAmerican understanding of our legal system.

Bork actually makes Jay Sekelow–Pat Robertson’s lawyer, and the other Romney legal advisor–look moderate.

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An Interesting Exchange

Like many other civil libertarians, I have been deeply disappointed by President Obama’s willingness to continue many of the security practices of the Bush Administration. It is especially galling because–unlike Bush–Obama quite obviously knows what the Constitution requires, and has nevertheless been willing to engage in surveillance and other practices which most civil libertarians believe cross the line.President Obama gets blamed for many things he clearly doesn’t do, but in this area, disappointment in his performance is justifiable.

Because I have been pretty critical of Administration policy in this area,  I was interested in the following observation posted on the Law and Courts Listserv, a scholarly exchange to which I subscribe.

In response to a post suggesting an equivalency between the policies of the two administrations, Professor Alexander wrote:

“Eugene says the Bush antiterrorism policy “is quite similar to the Obama Administration’s antiterrorism policy.”
I like many others have been deeply disappointed in aspects of the Obama Administration’s policy on detainees and counterterrorism, as well as the efforts by Congress and judges on the D.C. Circuit to force the administration to continue Bush policies. But Eugene’s statement is simply not the case. Contrary to the Bush administration:
     * Obama has withdrawn from combat operations in Iraq and plans to
withdraw from Afghanistan in 2014;
     * Obama found and killed bin Laden;
     * on his first day in office Obama
             1) revoked all the Bush administration OLC memos, executive
orders, and directives on interrogations;
             2) ordered an end to torture, and cruel, inhumane, or
degrading treatment, and compliance with the Army field manual
(regardless of whether one thinks that is the end-all of good
interrogation practice);
             3) ordered all CIA prisons worldwide to be closed;
             4) ordered the closure of Guantanamo — it is decidedly not
his fault that the facility remains open;
             5) ordered that the Geneva Conventions are the “minimum
baseline” for treatment of any individuals detained in “any armed conflict”;
             6) ordered that the International Red Cross be given access
to all detainees;
     * Obama ordered the trial in Art III court of KSM and the other
captured 9/11 plotters — again, not his fault that they must be tried
in military commissions;
     * in March 2011 Obama issued an executive order directing that the
government comply with Art 75 of Additional Protocol I to the Geneva
Conventions “out of a sense of legal obligation” — thereby
acknowledging the binding nature of international law in connection with
the detention of suspected terrorists — and urged Congress to ratify
Additional Protocol II;
      * the Obama administration revamped the military commission
procedures so that — although not as good as Art III courts — they are
much improved over the Bush versions;
     * in particular, evidence obtained by cruel, inhuman, or degrading
treatment is barred;
      * it appears that DOJ and DOD are pursuing and concluding military
commission plea bargains so that evidence in MC trials (such as the KSM
trial) will conform to Art III standards;
     * the President and Attorney General have repeatedly declared that
waterboarding is torture and is illegal (in stark contrast to Bush,
Cheney, and Yoo, who have gleefully affirmed torture as good policy); and
     * no prisoners have been transferred to Guantanamo and the
administration has repeatedly stated that none will be.”
Clearly, Professor Alexander has been following these matters far more closely than I have.
Now, I’ll be the first to acknowledge that being better than the Bush Administration on civil liberties is hardly a “get out of jail free” card. But this list did make me feel better.
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