Half Sigma

The People want their religion!

It’s constitutional to put the Ten Commandments in a park, but unconstitutional to put the Ten Commandments in a courthouse. Makes sense? Only to Justice Breyer (who went one way in the first case and the other way in the second case).

But instead of examining the minutiae of the decisions, lets step back and get a holistic view of the issues. A lot of politicians and other people running our governments really really really want to show how the government endorses Christianity. The voters seem to like it when politicians do this. Since everyone “knows” that God gave us the Ten Commandments, isn’t it only proper that the Government remind us of it?

Don’t politicians have anything more important to do? Well, besides spending hundreds of millions of dollars to erect new sports stadiums, no they don’t seem to have anything more important to do. What’s more important than saving people’s souls? (If people don’t believe in Jesus, their souls will go to Hell).

Superstitious nonsense? Only to 5% of the population.

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In this post, Eugene Volokh explains how the Ten Commandments have nothing to do with American law. Duh! Of course they don't. That was just a made up so the Ten Commandments could hang on the wall and save people’s souls.

The Incorporation Doctrine

Given some of the strange comments to my previous post about the Kelo v. New London decision, this is as good a time as any to write about the Incorporation Doctrine.

Most people who haven’t attended law school are unaware that the Bill of Rights was not intended to apply to the states. It was only intended to apply to the federal government. It begins “Congress shall make no law...” and that’s exactly what it means. Congress means Congress and not state legislatures. The theory was that the people of each state counted on their own state constitutions to protect their rights. The worry was that a federal government would become too powerful and start violating people’s rights. (The people who worried back then were right, the federal government did indeed become too powerful and many of the specific words of the Constitution designed to protect the rights of states have subsequently been ignored.)

The above view was confirmed by the Supreme Court in Barron v. Baltimore (1833).

The comments to my previous post mention the Fourteenth Amendment a lot. Unfortunately, the Fourteenth Amendment and the Interstate Commerce Clause have become the two black holes of the Constitution. The Supreme Court has used the Interstate Commerce Clause (in Article I Section 8) as a justification for giving Congress the power to do whatever it wants. And the Supreme Court has used the Fourteenth Amendment as a justification to allow the Court itself to do whatever it wants.

It doesn’t say anywhere in the Fourteenth Amendment that the Bill of Rights is “incorporated.” The drafters of the Fourteenth Amendment weren’t stupid; if they wanted the Amendment to mean that they would have written it in plain English. After the Amendment was ratified in 1868, nothing much changed. In Hurtado v. California (1884), the Supreme Court held that the Grand Jury provision of the Fifth Amendment does not apply to the states, and strangely enough this is still good law today. Most states have done away with the requirement that all criminal prosecutions must be preceded by a Grand Jury indictment.

It was only in the twentieth century, and primarily the post-FDR era of the twentieth century, when the Supreme Court invented the doctrine of “incorporation,” and then proceeded to discover that various provisions of the Bill of Rights were incorporated and applied to the states. There was certainly no original intent for this doctrine.

Takings and the "public"

Professor Bainbridge, Tyler Cowen, Logical Meme and Orin Kerr (just looking at blogs on my blogroll) all have a negative reaction to today’s Supreme Court decision of Kelo v. New London (which holds that the town of New London, CT is allowed to take some private homes so that the land can be used for a new privately owned development).

I just don’t get the reaction. First of all, it’s a local government and not the federal government that’s doing the taking. The Constitution places greater restrictions on the federal government than it does on state governments. The Bill of Rights was never even intended to apply to the states. The very same Fifth Amendment where the takings clause is found also talks about Grand Jury indictments, but most states don’t require a Grand Jury indictment.

The plain words of the Fifth Amendment read, “nor shall private property be taken for public use, without just compensation.” This clearly implies that takings of private property are perfectly constitutional so long as there is “just compensation.” People are taking too narrow of an interpretation of the word “public.” By the very nature of government action, a taking is for the benefit of the public. Whether the property is ultimately transferred to private developers doesn’t change the public nature of the action. The government is certainly allowed to sell its property to the private sector.

If people are complaining that these takings of private property are unfair, then that’s related to whether the compensation is just. If the developers are making big profits from the development, then perhaps it would be just if some of those profits were shared with the original property owners. But this issue is separate from whether local governments should be allowed to take property in the first place.

UPDATE

Read my post on the Incorporation Doctrine.

Flag burning Amendment: unconstitutional?

According to the AP:

By a 286-130 vote, House members approved the amendment — as they have six times before — after a debate over whether such a ban would uphold or run afoul of the Constitution's free-speech protections.

Hello???? The whole purpose of the amendment is to change the Constitution’s free speech protections to allow Congress to pass laws prohibiting flag desecration. A constitutional Amendment can’t be unconstitutional because it undoes another amendment!

The mystery here is whether the journalist from AP is a moron, or if the morons in Congress actually debated this. (Hat tip: Jurispundit.)

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And my thoughts on the Amendment in question: don’t our politicians have anything better to do? Since when has flag desecration been such a big problem? It’s just a piece of cloth. Has anyone ever won any converts to their cause by burning a flag?

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We do need a constitutional Amendment to fix one problem with the First Amendment. The free exercise of religion. A dangerous, anti-American religion called Islam is gaining adherents in our own country. We need a constitutional Amendment to give Congress the authority to restrict the practice of Islam.

Photographers harrassed

This audio clip from NPR gets me mad. Photographers have been arrested by police for taking pictures from public places, something they have the legal right to do.

In one case, a photographer was surrounded by multiple police cars and helicopters, as if he were a dangerous murder suspect.

These sort of Gestapo-like behavior on the part of law enforcement should have all Americans outraged, but instead there is nothing but complacency.

If real terrorists were taking pictures, they’d use something small and discreet, they wouldn’t be using a big camera and tripod, nor would they be photographing at dawn or dusk (the favorite time of day for photographers). The point here is that it is impossible to prevent terrorists from taking photos, legitimate photographers are the only ones who will be visible enough to be spotted.

Beating the dead horse of federalism

From today’s NY Times:

A states'-rights challenge to enforcement of the Endangered Species Act, pending at the Supreme Court for more than a year, failed Monday when the justices, without comment, refused to hear it.

The appeal had attracted widespread attention as the most potent of several efforts around the country to make the case that Congress's power to regulate interstate commerce did not extend to protecting animal or plant species that lack commercial value and that live in only one state.

One must remember that denial of certiorari does not mean the Court is ruling against the appeal on the merits. The Court receives far more petitions for certiorari than it is able to grant.

Nevertheless, it sounds to me like a pretty good set of facts to make a point about federalism. How is it possible that that the power to regulate commerce between the states also gives Congress the power to protect local plant and animal species that lack commercial value?

It’s clear that the principle that Congress has unlimited power to do whatever it wants will remain the law of the land for many years to come, even though the Constitution says something very different. What’s the point of having a Constitution if everyone is just going to ignore the parts they don’t like?

Celebrities and juries

O.J. Simpson: not guilty
Robert Blake: not guilty
Michael Jackson: not guilty

This demonstrates the power that celebrities have over the jury. I couldn’t get acquitted in a speeding ticket case, but celebrities routinely get away with child molestation and murder. Jurors are unable to accept the idea that a celebrity would do something bad.

I believe that the big mistake prosecutors make in these cases is that they treat the cases like they are special which elevates the celebrity even more in the eyes of the jury. A normal felony case normally takes about a week from jury selection to closing argument. (I watched several felony cases when I had an internship at the Queens County District Attorney’s Office.) Next time there’s a celebrity trial, the prosecutors should present their case in three days like normal. The worst that could happen is that the celebrity would still get acquitted but at least a lot of the taxpayers’ money would be saved.

Scalia sucks (Gonzales v. Raich)

Today’s Supreme Court decision of Gonzales v. Raich (link to PDF of decision) holds that the state of California isn’t allowed to make intrastate medical use of marijuana legal. The AP article says “the decision is a stinging defeat for marijuana advocates.” As usual, the popular press gets it wrong. Much worse, this decision is a stinging defeat for federalism.

I am extremely disappointed with Justice Scalia for voting with the majority. Thomas is often considered his clone, but we see here that Thomas is the better of the two Justices. And kudos to Rehnquist and O’Connor, whom we normally think of as more anti-federalism than Scalia, for also siding with the principles of federalism.

David Bernstein does a great job expressing how I feel about Scalia:

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

UPDATE

Marty Lederman says:

[W]hat's really notable about today's decision is that it was not 9-0, but was instead 6-3.

I say what’s even more notable is that it’s 6-3 and not 5-4. That one extra vote is Justice Scalia. Until today I thought that Scalia was the primary force on the Supreme Court in favor of the doctrine of original intent. And the original intent of the Constitution was that Congress’s power be limited to those specific powers enumerated in Article II Section 8. And this intent was further clarified in the Tenth Amendment. This is the concept of federalism, that the states retain their own authority except where such authority is explicitly granted to the federal government.

When the man we consider the Court’s chief supporter of federalism sides with the evil doctrine of Wickard v. Filburn (1942), we may as well kiss the notion goodbye that things are ever going to change. This is why the post is entitled “Scalia sucks.”

UPDATE 2

Jeff at Caerdroia asks:

Why did it require a Constitutional amendment to ban alcohol, but not drugs?

Obviously the answer is that in the early 1900s it was commonly understood that the Constitution didn’t grant Congress a general “police power” authority. But since 1942 it has been commonly understood that Congress has nearly unlimited power to do anything it wants.

An even better question to ask is “why doesn’t anyone ever ask this question?” What percentage of Americans who didn’t go to law school are even aware that there was a radical change in Constitutional interpretation during the time of FDR’s presidency? Why do people think the Constitution is the greatest document ever when they have no clue what’s in there? The very fact that important parts of the Constitution are ignored would seem to indicate the opposite viewpoint, that the Constitution was actually a really crappy document but luckily we live in a modern society where judges are smart enough to ignore it.

Copyright and the greedy record industry

Given the controversy surrounding my previous post about music file sharing, I present the following classic post from my old blog:

September 10, 2003 – Twelve Year Old Victim of Record Industry Lawsuit

The news story today is that a twelve year old girl from the housing projects was sued by the record industry for downloading music from the internet, and her parents had to pay $2,000.

Music sharing: I agree with the college students

Professor Bainbridge criticizes an editorial in the UCLA student newspaper. The editorial complains about the unreasonable penalties assessed against those found liable for sharing music files:

Let's look at the comparison of stealing a candy bar and the punishment it carries. Stealing anything worth less than $400 is considered petty theft and is punishable by no more than six months in jail, a fine of $1,000, or both.

But in reality, few petty thieves receive the maximum penalty, especially for first offenses. In some cases, California law permits the victims of minor crimes to completely forgive the perpetrator.

Even a more serious crime like driving under the influence is counted as a misdemeanor for the first offense, with a punishment of 96 hours to six months in jail.

But sharing 10 or more "phonorecords" with a total value of $2,500 or more can result in up to five years in prison and hundreds of thousands of dollars in fines and civil penalties.

But Professor Bainbridge responds:

You complain that the penalties for stealing music are higher than for stealing a candy bar. So what? It's just basic economics. Deterrence depends on the expected sanction (the probability of conviction times the nominal sanction). Since the probability of being punished for stealing copyrighted music is so low, you need high nominal sanctions in order to deter.

While I see the Professor’s point, and agree that only very high punishments will deter file sharing because the likelihood of being punished is low (see my recent post on the economics of cheating), I am on the side of the college students here. Society is not falling apart because of file sharing. When I was a kid we copied records for each other using the available technology. We copied movies too. The behavior of today’s youth is no different, except they have better technology. Does the Professor remember what it was like to be young?

I don’t see how anyone deserves such a severe punishment for doing what everyone else is doing. According to a Wall Street Journal article, one record industry executive admitted that even his own daughter was downloading music from the internet. It represents a basic breakdown of our society when we have laws with severe punishment that everyone breaks. I have the same problem with drug laws, but these punishments for file sharing are even worse.

Ernest Miller of Corrante also disagrees with the Professor, but I come down even more strongly on the side of the college students. I believe that society needs to rethink the wisdom of outlawing music file sharing.

UPDATE

Read my more detailed analysis of this issue.

Steinbuch v. Cutler lawsuit in newspaper

News of the lawsuit that Robert Steinbuch filed against Jessica Cutler appeared today in the pages of a semi-real newspaper. But you read about it here first!

Writing under the nom de plume "Washingtonienne," Miss Cutler last year briefly kept an X-rated online diary of her simultaneous relationships with up to six men around town, including an unidentified Bush administration appointee.

What about “F,” the married “Chief of Staff” who paid Miss Cutler for sex? The most likely choice is Brian Gunderson who an anonymous email source said sometimes goes by his middle name “Frizzell.” The source also said that Jessica is his type and that he’s “weird enough to have to pay for sex.”

I’m worse than Newsweek.

Robert Steinbuch sues Jessica Cutler for blog

Robert Steinbuch, a staff attorney for Senator Mike DeWine as well as a part time ethics instructor, filed a lawsuit yesterday against Jessica Cutler for revealing personal (and pretty darn embarrassing) details about their relationship on her blog. The Smoking Gun has a copy of the complaint available online.

If you’re not familiar with the Jessica Cutler story, you can visit my Jessica Cutler page which explains the whole thing.

You have to love item 11 of the complaint:

Cutler’s public blog described in graphic detail her ongoing sexual relationships with six men, including Plaintiff. At the time of his relationship with Cutler, Plaintiff did not know that Cutler was simultaneously engaged in sexual relationships with another man, let alone five other men, and let alone that she was prostituting herself to some of them.

And in case you’re wondering about some of the graphic detail, it involves “spanking. (Both giving and receiving.)” Jessica also wrote:

So it turns out that RS cannot finish with a condom on. He can barely stay hard. So he ends up taking it off and humping away at me. Maybe I forgot to tell him that I'm on the Pill. Note to self...

I also learned that he was a cop, so he has scary police shit like handcuffs in his closet. He implied that we would be using them next time, which is intriguing, but I know I'm going to get scared and panicky. (Which would probably turn him on.)

It should be noted that Mr. Steinbuch wasn’t a real cop, but rather an auxiliary police officer.

I think this lawsuit, besides being quite humorous, raises some interesting questions about blogging. Jessica Cutler certainly isn’t the only person to reveal personal and embarrassing details about others in her blog. To what extent can you be held liable for spilling the dirt about someone you know?

Gay marriage, Judge Kramer, and the California Constitution

Skippy is not a bad person at all (after all, he linked to my blog today, thanks very much), but unfortunately I strongly disagree with his recent post about Judge Richard Kramer, the California Superior Court Judge who concluded in March 2005 that “no rational purpose exists for limiting marriage in [the State of California] to opposite-sex partners.”

The Constitution in Exile and "man dates"

What does one have to do with the other? Orin Kerr at The Volokh Conspiracy explains:

Any old newspaper can report on a real trend, but it takes the paper of record to invent one. Feeling emboldened by their successful invention of “man dates” last week, the editors wanted a greater challenge.

I didn’t understand the whole “man date” thing. I thought the article was making way too big a deal about two men eating at a restaurant. Men have to eat. I’ve eaten at restaurants with my male friends all the time without ever thinking about any gay connotations. What’s gay would be two men staying home and cooking.

Back to the Constitution in Exile: I’ve been receiving emails from the Federalist Society for years and I’ve never heard the term used before. But it kind of has a nice ring to it. It accurately describes how the Constitution has been ignored since FDR appointed his anti-Constitution guys to the Supreme Court (see my previous post on the subject).

Democrat Franklin D. Roosevelt politicized the courts

Professor Bainbridge seems to be saying that it’s appropriate for Republicans to have an opinion regarding how judges should be ruling. I agree, because I certainly have my opinions. One of the cornerstones of a free country is the right to have an opinion regarding how it should be run.

I would like to remind the world that it was Democratic president Franklin D. Roosevelt who first politicized the courts. Back in those days, the Supreme Court held that under the Constitution, the federal government had only limited powers (which are enumerated in Article I Section 8 ).

The history books remember FDR’s plan (which didn’t have the support of Congress) to pack the Supreme Court, but they tend to forget that during his four terms as president he appointed eight Supreme Court justices (Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, Robert Jackson, and Wiley Rutledge), and every single one of them agreed with FDR’s way of thinking when it came to the powers of the federal government.

After FDR changed the makeup of the Supreme Court, we saw a radical shift in constitutional law, and often the new members of the court abandoned the principles of stare decisis and completely ignored the old rulings. In Wickard v. Filburn (1942), the Court ignored its entire history of rulings and established the new principle that Congress has the power to do anything it wants.

In a comment to a previous post, Kathy questioned my statement that liberals achieved their policy goals by having their guys on the courts. Hopefully, this post will serve as an additional example of how that happened.

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Shortly after posting the above, I noticed a post at the Volokh Conspiracy discussing an article in today’s NY Times Magazine about the Constitution in exile, which is all related to my FDR theme.

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Captain Ed thinks that the NY Times Magazine article is part of a left-wing offensive against GOP judicial nominees.

This piece didn't just appear by accident in the NYT. This article coordinates with a campaign under way by the Democrats to paint GOP judicial nominees as dangerously extremist and out of the mainstream.

Whatever the motive for the piece, I think that by getting into print the actual details of what conservative jurists believe, it will help publicize a point of view that has been completely ignored by the mainstream.

Barely Legal: The Blog

Russ asked me to promote his Barely Legal blog. (One day, when I become a big blogger like Glenn Reynolds, I will just ignore these kinds of requests like Glenn does, but right now I don’t see any reason not to give another blogger a plug.)

Unfortunately (or fortunately if you are surfing from work), the Barely Legal blog is not a blog with pictures of eighteen year old hotties, but rather it’s a blog about law school. I liked the post about the frat boys in law school.

I also appreciate that Mike is a fan of Miranda, who I agree is the cutest of the Sex and the City girls. (Sarah Jessica Parker who plays Carrie is just a short skinny nerd.)

My advice to Russ and Mike who run the blog is that they should drop out of law school now and not throw good time and money after bad. I sure wish I had dropped out. (Once again, I’m going to plug my essay, Law school: the big lie.)

Is law school too soft?

Glenn Reynolds, the law professor, suggests that the problem with legal education is that it’s too “soft.” “The result is that law schools are doing a poor job of preparing students for practice.”

Lacking any other context, I have no idea what Glenn is getting at. I thought that law school did a fine job of actually teaching me stuff. And even though I went to a state law school, the program was still more rigorous than my Ivy League undergraduate education.

The biggest problem with law school is that there are too many law schools turning out too many wannabe lawyers. See my essay law school, the big lie.

The next biggest problem with law school is that it’s too long. Law school doesn’t need to be three years. The third year of law school was pretty much a big waste. Two years is more than enough to train students to read appellate cases and “think like a lawyer.” A third year of the same really doesn’t accomplish much.

The real purpose of law school is to serve as a barrier to entry to the legal profession, thus keeping wages high for those who have passed through the barrier. The third unnecessary year of law school creates that much more of a hurdle to pass over (but given the huge numbers graduating each year, it’s apparently not a very effective hurdle).

The suggestion to shorten law school to two years probably won’t be greeted very enthusiastically by law professors, because essentially it means that one third of law professors will have to lose their cushy jobs.