First the liberal elites represented by the Kos himself and PBS anchor Glenn Ifill gleefully pounced on that bone-headed Sarah Palin for a tweet warning conservatives to continue working to win the upcoming election rather than partying “like its 1773.”
Obviously, thought the great big leftwing brains, she must mean 1776. After all, nothing of any significance happened in 1773. (Except the original Boston Tea Party, of course.)
Then, as William Jacobsen describes, liberal America was laughing itself sick over Christine O’Donnell ’s ignorance of the First Amendment’s wall of separation between church and state.
[At] Widener Law School …as soon as O’Donnell questioned whether “separation of church and state” was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter.
And if O’Donnell’s imperfect—or perhaps nuanced?—understanding of the First Amendment w[as] so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O’Donnell:
“Government shall make no establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads “Congress shall make no law respecting an establishment of religion.”)
Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment which led to O’Donnell’s supposed major gaffe about the Establishment Clause, and how the press has taken O’Donnell’s comments out of context:
O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.
Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.
A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.
In an age of an increasingly sophisticated public in which alternative information channels, like Fox News, AM talk radio, and the blogosphere exist, it is becoming more and more difficult to succeed in winning debates on the basis of crude sloganeering and oversimplification of complex issues and the leftwing mob winds up looking stupider and stupider when it tries relying on its traditional tactics.
Mr. Obama noted that as Solicitor General her “passion for the law” had led her make this year’s landmark campaign finance case, Citizens United v. FEC, her first argument before the Supreme Court.
“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case,” Mr. Obama said, Elena Kagan took it on bravely. “I think it says a great deal about her commitment to protect our fundamental rights,” he continued, “because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. ...
The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”
But her recently unearthed college thesis shows that she once thought a lot more highly of socialism.
In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.
Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? Through its own internal feuding, then, the SP [Socialist Party] exhausted itself…
The story is a sad a but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. ... In unity lies their only hope.”
My class list has been obsessing over Skip Gates’s arrest in Cambridge for a couple of days. Most participants tended to agree that the Cambridge cop had not behaved unreasonably, but a few correspondents were inclined to contend that arguing with police and denouncing their presence and behavior should be considered First Amendment-protected instances of Free Speech.
Captain Brandon del Pozo of the NYPD discusses the Gates arrest from a professional police perspective on Crooked Timber, refuting, I think, effectively the Free Speech claim.
Whether or not a person should be arrested for disorderly conduct depends on subjective assessments that are nonetheless important to make. (more on discretion later) These include the extent to which the interaction is actually in public, the extent to which he has genuinely impeded the investigation by being verbally combative with an officer who needs to elicit investigative information from him, or created a situation of genuine public alarm, and, admittedly more controversially, the extent to which he fosters a climate wherein it’s acceptable for people to harass, berate and otherwise annoy the police as they are trying to conduct routine investigations that are in the interest of public safety. ...
The officer instructs the person to exit the house and talk on the porch. This is standard police safety practice. An unfamiliar building with unknown occupants that is the potential site of a burglary is not a safe place for an officer to enter, especially alone. If he is drawn into the home and attacked there, he can be locked in and will take longer to rescue. Kitchens have a variety of weapons, and rooms have limited sight lines and places for suspects to hide. Bringing a suspect to the porch is a prudent move for an officer.
The man knows what’s going on. He did, in fact, just force his own front door open. All accounts indicate the sergeant showed up moments later; the 911 caller personally informed him, in sum and substance, “he just went into the house a few seconds ago.” There is a continuity of events that indicates a reasonable person would understand why the police came to his door a few moments after he broke it open. The only thing that could indicate a race bias is the unobserved hypothetical that the police would not have been there if he was white. This doesn’t matter; for a homeowner of any race there is a facially plausible race-neutral reason why the police have come to the door.
Around this time, the person begins to accuse the officer of racism, at first refusing to cooperate with the investigation. This makes the investigation more difficult, and might make the officer wonder if he is safe. To assume Gates isn’t the type of man to use violence when he is angry and using obscenities is to emasculate him, or patronize him, or to resort to stereotypes based on age, stature, type of employment, etc. Anyway, early on, the sergeant concludes this man is not a burglar, but reports that the man continues to be verbally belligerent. ...
The police cannot be expected to leave a location simply because the person there is screaming at them and ordering them around, even if that person is apparently innocent and likely lives there. They should still thoroughly investigate. If this were a legitimate expectation of the police, then it would sometimes allow genuine criminals to berate cops into leaving the scene prior to a complete and thorough investigation of the crimes they have committed. Officers should leave when they are convinced that the investigation is complete, and that the situation is under control, regardless of the demeanor of a person.
The police need to foster an environment in which they can deliver public safety without being subject to obscenities, accusations and yelling from any party, even innocent parties. The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.
The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that “you don’t know who you’re messing with.” It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of “My daddy donated fifty million to this university, and you’ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.”
It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them who’s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.
It is in the civic interest for cops to have discretion over violations and some misdemeanors.
Steve Chapman, writing in Reason, notes that Congress just proved all over again that our elected representatives never believe in letting the Bill of Rights get in the way of saving Americans from themselves.
(T)he tobacco regulation bill recently passed by Congress indicates that the spirit of liberty is even scarcer than usual in the halls of government.
What motivates advocates of stricter tobacco regulation is the unassailable assurance that they are not only completely right but that their opponents are a) wrong and b) evil. This invigorating certitude makes it possible to justify almost anything that punishes cigarette companies, even if it does no actual good—or does actual harm.
One of the main purposes of the new law is to reduce the number of smokers in the name of improving “public health.” This is a skillful use of language to confuse rather than enlighten.
An individual decision to take up cigarettes is a private event, not a public one, and its health effects are almost entirely confined to the individual making the choice. ...
Cigarette makers are forbidden to use color in ads in any publication whose readership is less than 85 percent adult. They are barred from using music in audio ads. They are not allowed to use pictures in video ads. They may not put product names on race cars, lighters, caps, or T-shirts. From all this, you almost forget the fleeting passage in the Constitution that says “Congress shall make no law … abridging the freedom of speech.”
When it gets in a mood to regulate, Congress doesn’t like to trouble itself with nuisances like the First Amendment. In 2001, the Supreme Court ruled it was unconstitutional for Massachusetts to ban outdoor ads within 1,000 feet of any schools and playgrounds. So what does this law do? It bans outdoor ads within 1,000 feet of schools and playgrounds.
The Court said the Massachusetts law was intolerable because it choked off communication about a legal activity. “In some geographical areas,” complained Justice Sandra Day O’Connor, “these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.”
But to anti-smoking zealots, that effect is not a bug but a feature. The only problem they have with imposing “nearly a complete ban” is the “nearly” part.
Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.
Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.
The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.
“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.
“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”
Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.
In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.
“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.
On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.
The same James Bopp, Jr. mentioned in passing in Politico, who practices law in Terre Haute, Indiana with the firm of Bopp, Coleson & Bostrom, yesterday in the Election-Law listserv, discussed Sotomayor’s 1996 law review article and found her philosophy disturbing.
In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.
Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.
To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.
This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.
This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.
Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.
The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.
Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.
Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).
Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.
There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.
A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.
Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.
Murderous attacks like the recent homicides at Virginia Tech always produce demands for some sacrifice of liberty as part of a program of preventive measures intended to prevent their recurrence.
A PersonfromPolock, at the Volokh Conspiracy, observes (not entirely tongue-in-cheek) that slightly reducing the immunities supplied by the First Amendment would do a lot more to help than eviscerating the Second Amendment.
To the Editor:
A practical, commonsense way of reducing gun violence—especially in the schools—would be a federal law prohibiting, or at least seriously limiting, the interstate reporting of sensational gun crimes like Virginia Tech for five working days.
Such a law would not affect local coverage, where there is a need for the immediate dissemination of information, but would make the event ‘old news’ when it was finally reported nationally and therefore unlikely to get the massive publicity that invites further, copycat violence. Even a small reduction in today’s intense coverage of such events might, by not stimulating some potential gunman to action, save lives.
While ‘gun’ laws are hard to enforce because of the easy concealment of firearms, the public nature of ‘news’ would make enforcement of this law virtually automatic.
Because the delay would be short and serve a compelling government interest, it should pass constitutional muster; the Brady law serves admirably as a precedent here. While First Amendment absolutists will cavil, the simple fact is that it is as wrong to hold that the Press Clause protects a media ‘right’ to lethally endanger the public as it would be to hold that the Religion Clause protects human sacrifice.
For some reason, even though the suggested law would clearly be ‘worth trying’ (a standard rationale of the Left), no ‘anti gun violence’ paper has ever published it.