Posts Tagged ‘constitutional law’

Q&A Roundup Part 1

Friday, September 18th, 2015

I get a lot of questions over at my comic and on Tumblr, and try to answer most of them as best I can. Some get answered privately, but some are out there for all to see. It occurs to me that there may be readers of this blog who may not want to be seen reading a comic, or be caught dead lurking on Tumblr. Fair enough. But my ego’s strong enough that I think there’ve been a few exchanges you might be interested in.

So I’m basically going to just cut-and-paste this and the next few posts from stuff I’ve already written in response to questions elsewhere.

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First off, I love your comic and your blog. Reading your analysis has made me feel more informed when I read the results of court cases or existing law.

Second, I have a question for you. From what I understand, many of the initiatives meant to overturn Citizens United (http://www.wamend.org/https://movetoamend.org/) have as part of their text “human beings, not corporations, are persons entitled to constitutional rights.”

Am I correct in reading this as overthrowing Dartmouth College v. Woodward (https://en.wikipedia.org/wiki/Dartmouth_College_v._Woodward) and invalidating contracts held by corporations? Would this mean that contracts of employment would also be invalidated?

I tried looking through your blog to see if you’d written about Citizens United before, but didn’t find anything.

Thanks, I really appreciate it!

As for the Citizens United issue, the phrase “human beings, not corporations, are persons entitled to constitutional rights” flies in the face of a lot of constitutional law. Dartmouth v Woodward was perhaps the beginning of corporate personhood, but there’s much more to it than that.

Corporations are fictional persons created by the state, and in order for that fiction to make sense the courts have recognized that corporations have to have at least some of the protections our Constitution grants to individuals against the government. But not all of them. Importantly, they are not “citizens” for the purposes of the Fourteenth Amendment (the big one when it comes to whom the Bill of Rights protects). They cannot vote. They don’t have the right against self-incrimination under the Fifth Amendment. They don’t have “personal” rights that human beings would have, such as the right to get married, to travel, to run for office, to sit on a jury, etc. The Privileges & Immunities Clause doesn’t apply to corporations, nor do they have the right to Liberty that is protected by Due Process.

The difficulty is that the courts really haven’t given us much guidance on what rights can apply to corporations and which belong strictly to human beings. When they say a corporation has a right, the reasoning usually boils down to “because we said so.”

If you look at all the various constitutional rights, some may seem obviously personal and some may seem obviously applicable to corporations, but there’s a lot of gray area that’s not so obvious. That’s why reasonable people differ. And that’s why “because we said so” case law only breeds frustration. Citizens United and Hobby Lobby are only the most recent instances of frustration and disagreement. Until the courts come up with an underlying principle to guide their jurisprudence, there’s only going to be more.

In a case like Hobby Lobby, you could reduce the confusion and frustration by limiting a corporation’s standing to sue. In Hobby Lobby, for example, the issue was that the corporation’s human owners didn’t want to have to do something. Hobby Lobby kinda sued on their behalf. But you can’t sue on someone else’s behalf. To have standing, you yourself had to be harmed. The individuals should have tried to enforce their own right not to be forced into doing something, rather than the corporation saying it shouldn’t be forced to do something its owners didn’t like. Then you don’t have to worry about whether the corporation is “closely held” or whether it can practice a religion or what have you.

Still, that doesn’t do much for a case like Citizens United. There, the corporation would have been harmed by not being able to support candidates and policies that could affect its bottom line. It has standing, and the issue is whether the government can prevent it from supporting candidates.

Some say the corporation should not be allowed to do that, because it amplifies the support of its shareholders – they can all support a candidate individually one time, and then a second time in the aggregate. If that is the principle, then corporate taxation should go out the window. The shareholders are already being taxed once on their income, and taxing them a second time in the aggregate violates this ideal.

Some say the corporation simply shouldn’t count as a person at all. But that principle would also mean a corporation could not be sued or held criminally liable for its acts – something very few who profess this principle would like to see. Generally, those who want to abolish corporate personhood also want to be able to hold corporations liable for their misconduct and even their mistakes. You can’t have it both ways.

What seems to make the most sense to me is to say yes, corporations are fictional people, and yes, in order to function they need certain rights. And we can pick and choose which rights apply and which don’t. BUT, in so doing, we don’t have to say those rights apply to corporations in the same WAY that they apply to people.

There’s no reason (other than judicial laziness) why rights couldn’t be applied to corporations differently than for humans. If allowing corporations to donate to politicians leads to unwanted distortions of our politics, there is no reason why we couldn’t limit the corporate right in such a way as to minimize those distortions. The First Amendment right to fund political speech doesn’t have to work exactly the same way as it does for humans. The corporation is a creation of the state, after all, and the state can fiddle with it without harming any actual citizens.

A simple guiding principle could be that a corporation’s rights can never outweigh the rights of human beings, and if the protection of a corporation’s rights would give it greater weight than humans then that protection would have to give way. Sort of a “your right to swing your fist ends where my nose begins” analogy, with the added sense that humans outrank fictional entities. You’d still have plenty of wiggle room and gray area in which to draw lines, but principled jurisprudence would do away with much of the unpredictability and frustration our “because we said so” case law has created.

Anyway, that’s my quick two cents off the top of my head. Better stop now before I get in too deep and start spending hours researching policy arguments and case law to support what I’m saying.

Is New York City’s Gun Law Unconstitutional?

Thursday, December 23rd, 2010

The short answer is yes.  Yes, it is.

One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves tend to be fairly liberal.

Needless to say, gun control is a wedge issue on which conservatives and liberals in this country tend to have strong, and strongly divergent, views.  Our own personal position on gun control is that it’s best to use two hands when aiming, take your time, and hold your breath while smoothly squeezing the trigger.  But only a fool would claim that public safety is not a legitimate governmental concern.  If anything, it is the number-one job of government at every level.  And only a fool would claim that guns do not affect public safety.  There is certainly some legitimate scope of governmental involvement in who gets to own a gun, and how you’re allowed to use it.

But New York State, and the City of New York, do it wrong.  And in light of the recent Second Amendment decisions by the U.S. Supreme Court, it is now clear that their restrictions are unconstitutional.

We’ve got a case pending where this has become the key issue.  As always, briefing it for the court really forced us to go deep into the competing policies and laws, the history and precedent that got us here.  It’s one of the things that we absolutely love about being a lawyer.  We’re not going to go into any of that here, however.  Instead, we’re just going to focus on the basics.

First of all, gun possession is presumptively illegal here.  There are only narrow exceptions where someone might get a license to own one.  Just applying for the license is prohibitively expensive and takes a very long time.  The licensing decision is purely at the discretion of a bureaucrat, who also has complete discretion to revoke the license later.  A statistically insignificant number of licenses actually get granted.  Of the few licenses that are granted, the vast majority are extremely limited in scope.  And even with a license, one’s gun must be kept disassembled or locked up, with any ammunition stored separately.  Except when  the weapon is actually in one’s grasp, it must be rendered inoperable.  There’s also a presumptive ban on ammunition.

These laws effectively ban gun possession for all but a few people and the police.  To date, New York’s courts have justified this by saying it’s only a privilege to bear arms, and not a right.  So the licensing scheme is perfectly within the state’s authority.  And any review of decisions made by licensing authorities is limited to an arbitrary-and-capricious, abuse-of-discretion analysis.  In other words, you can’t have a gun, and there’s nothing you can do about it.

At the end of the ’08 term, the Supremes issued their decision in (more…)

Justice Souter: Closet Originalist?

Sunday, June 13th, 2010

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It’s hard not to love the recently-retired Justice Souter.  A one-of-a-kind individual who writes, not with a computer or even a typewriter, but with a fountain pen.  Who never uses email, cell phones or answering machines.  Whose home is filled with thousands of books, but no TV.  More than that, he doesn’t fit neatly into any particular camp.  Too liberal for the conservatives, and too old-fashioned for the liberals.  A former farmboy who lived in the same farmhouse all his life (until the weight of his books prompted a move last year), and yet at the same time as ivory-tower as they come.

But we’ve never been particular fans of his jurisprudence.  It seems too far removed from reality — both the realities of modern life, and the realities of law.  And the ironic thing is, it’s precisely because his judicial philosophy strives to reflect these realities as they change over time.  Because, despite being as stuck-in-the-past as can be imagined, he is not an originalist, but one who thinks the meaning of the Constitution must evolve with time.  And, being such an old-fashioned guy, he’s not exactly the most likely to know just how the times be a-changin’.

This was highlighted really well by his speech at Harvard’s commencement ceremonies this year.  (You can, and should, read the full text here.)

Souter used his speech to summarize why he thinks the jurisprudence of originalism is wrong.  Originalism is simply the idea that the meaning and principles of the Constitution do not change over time — and that reading in new meanings is little more than legislating from the bench.  Souter said this is wrongheaded, because the Constitution (more…)

Assigned Counsel are Not Government Actors? This is News?

Tuesday, March 10th, 2009

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The Supreme Court ruled today that defense attorneys assigned by the state are not government actors, merely because the government assigns and pays them. They are attorneys for the defendant, and their actions are actions of the defense, not the government.

This seems like a no-brainer. Every defense attorney knows that his obligations are to his client, regardless of who is paying the bill. But apparently the Vermont Supreme Court needed to be reminded of this fact by a 7-2 decision of the Supreme Court.

Michael Brillon was arrested in 2001, and had at least six different lawyers over the next three years, before finally being convicted after a jury trial and sentenced to 12-20 years. Before trial, Brillon moved to dismiss for speedy trial violations.

The trial court said the delay was caused by Brillon, and denied the motion. The Vermont Supreme Court reversed, saying that at least two of the three years should be charged against the state, because those delays were caused court-appointed defense attorneys. The remaining year, where delays were caused by retained counsel for the defense, was not chargeable against the state.

Writing for the majority in Vermont v. Brillon, Justice Ginsburg stated that the Vermont Supreme Court’s error was in thinking that assigned counsel are state actors in the criminal justice system. Assigned counsel, just like retained counsel, act on behalf of their clients, so delays they seek are ordinarily attributable to the defense.

The Vermont court had tried to assess whether the delay was to be blamed more on the government or on the defense. Because assigned counsel were paid by the government, Vermont felt that they were government actors, so their delay should be charged to the government. But the Supreme Court was obliged to point out that an attorney is the defendant’s agent, regardless of whether the attorney is privately retained or publicly assigned.

This is such a fundamental point, it is amazing that it got this far. Justice Ginsburg took the time to explain that Vermont’s error was such a fundamental misapplication of Barker v. Wingo that the Supreme Court had to step in to correct it.

Justice Ginsburg did leave open the possibility for public defender delays to be chargeable against the state, but only when such delays are caused by a “systemic breakdown” in the public defender system, some sort of institutional problem actually attributable to the government. That wasn’t the case here.

Justices Breyer wrote a very interesting dissent, in which Justice Stevens joined, highlighting some of the unspoken realities of how the Supreme Court works. They did not disagree with the ruling itself, but rather believed that certiorari had been improvidently granted. The issues turned out to be not as clearly defined as originally presented, and there were ambiguities in the Vermont Supreme Court’s decision, so that it did not necessarily misapply Barker v. Wingo unless one wanted to read it that way. Justice Breyer basically said the Court accepted and decided this case because the majority justices wanted to, so very badly.