A GERMAN BRANDENBURG V. OHIO, SORT OF

The Bundesverfassungsgericht has issued a unanimous opinion protecting the speech and assembly rights of right-wing extremists. The decision is not on line yet, but the press release is available here. Here are two key passages in a rough translation:

The basic right of freedom of opinion is a right that also protects minorities; its use cannot be placed under the restriction -- in a general fashion and without reference to a set of limiting factual conditions -- that the expressed opinions shouldn't contradict reigning social or ethical views. . . .

Public order is not an inherently constitutional reason for banning extreme right-wing views because of their content.

Das Grundrecht der Meinungsfreiheit ist ein Recht auch zum Schutz von Minderheiten; seine Ausübung darf nicht allgemein und ohne eine tatbestandliche Eingrenzung, die mit dem Schutz des Grundrechts übereinstimmt, unter den Vorbehalt gestellt werden, dass die geäußerten Meinungsinhalte herrschenden sozialen oder ethischen Auffassungen nicht widersprechen. . . .

Die öffentliche Ordnung ist auch keine verfassungsimmanente Grenze für den Inhalt rechtsextremistischer Meinungsäußerungen.

The case has been heavily litigated already. It involved a right-wing extremist group that originally wanted to march in Bochum in June under the slogan "Stop the constitution of the Synagogue -- 4 million for the people." Local authorities prevented the march on the grounds that the slogan and the march were a threat to public order and also ran afoul of laws that prohibit arousing hate against part of the populace (Volksverhetzung). A court lifted the prohibition on freedom of assembly and freedom of speech grounds (see here), then was overturned by the appeals court (Oberverwaltungsgericht Nordrhein-Westfalen, or OVG NRW, whose decision is outlined in a press release here). The appeals court noted that the demonstration was an attack on a part of the populace and that the references to Nazi Germany were too strong to be ignored. Attempts by the group to get an expedited appeal failed.

The demonstrators then changed their slogan -- "No tax money for building synagogues. For the freedom of expression" -- and applied for a new date for their demonstration. Local authorities claimed that the group was simply trying to get around their earlier prohibition, which they said remained in place for the "new" demonstration. The OVG NRW held its ground.

Then the Bundesverfassungsgericht issued an order allowing the new demonstration to take place on June 26th (see this account of what happened). The opinion released this week is a justification for that order.

The case is a bit complex because there was some division of views at the lower level about whether or not the original demonstration would constitute Volksverhetzung. The Bundesverfassungsgericht's decision rested partly on this division; if there was an expectation of criminal activity, including Volksverhetzung, then there would be grounds for prohibiting the march. So the opinion is not an attack on laws (as such) that American courts would consider a restriction of free expression. It is, however, an attack on the authority of judges to read restrictions on free expression into the constitution.

For more details, see the leftist die tageszeitung here, a detailed account in the Neue Ruhr Zeitung here, and der Tagesspiegel here.

ON THE CAUSES OF WAR

Consider the following passages on the causes of war:

The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion--the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.

. . .

Has it not [. . .] invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.

A while back, Josh Chafetz put out a plea for increased distribution of the Federalist Papers in Arabic (see also here), for the purposes of teaching the "mores and norms of democracy."

I wonder what folks in Iraq and elsewhere would make of the above arguments from Federalist #6. As expressed in Federalist #6, at least, the mores of democracy include a skepticism about the motives of popularly elected leaders who send their country to war.

TUCKER, THIS BIRD'S FOR YOU

Busy today, but I'm trying to think about how to raise the tone (or at least not lower it) while still expressing my frustrations. Here's what I've come up with:

Tucker, for attempting to rewrite the shameful story of vote suppression in Florida in 2000, this bird's for you.

See Media Matters on Tucker Carlson's revisionist history, here.

LARRY KRAMER ON REACTIONS TO BUSH V. GORE

Good passage from The People Themselves on reactions to Bush v. Gore:

One need not take sides on the merits of the case to see that public reactions to the Court's decision cannot be explained as a matter of widespread indifference, much less political consensus. Nor is it anachronistic to observe that if the Supreme Court had stepped in this way when Hayes and Tilden deadlocked in 1876, the half of the country that supported the loser would not have stood passively by. They might have attempted to impeach the Justices or to impose new responsibilities designed to make their lives miserable (as Jefferson did). They might have sought to ignore or frustrate the Court's judgment (as Jackson and Lincoln did). They might have moved to slash the Court's budget or strip it of jurisdiction (as the Reconstruction Congress did and Roosevelt tried to do). They might have done any number of things. But they surely would have done something: something other than submissively yield while explaining that to challenge the Court would look unpatriotic. Which is why, of course, no one at the time of this earlier election -- on or off the Court -- ever dreamed of trying to resolve it in litigation.

The reaction to Bush v. Gore is merley suggestive, moreover, of a larger point. It could well be that a majority of the country presently supports what the Rehnquist court is doing. That still does not explain why all those who disagree, and disagree strongly, nevertheless feel constrained passively to accept the Court's rulings while waiting for the Justices to die or retire in the hope they can be replaced by judges whose views are more sympathetic. Nor does it explain why someone like Patrick Leahy thinks it is his duty "as an American" to affirm that decisions of the Supreme Court are "the ultimate interpretation of our Constitution" no matter how wrong he thinks they are.

What presumably does explain facts like these is the broad change in public attitudes toward the Court that occured in the latter half of the twentieth century. Where most people's unarticulated, intuitive sense in earlier generations presupposed the rightness and naturalness of popular constitutionalism, today that sense has switched to favor judicial supremacy -- a turnabout in beliefs with effects across the whole political and ideological spectrum.

(231-2, footnote omitted). If you want more, you'll have to read the book. It's great.

I wonder if it is possible to link the apparent public acceptance with of judicial supremacy to the late twentieth century decline in social capital (as described by Robert Putnam)? It would make sense: popular perceptions of public activity -- and its expression in popular constitutionalism -- should be responsive to individual experience with public activity, i.e. to social capital on the ground. If you don't combine with your fellow citizens, you don't trust them in general. Why should you trust them to engage in something as apparently specialized and sacred as constitutional interpretation?

GORE WON UNDER THIS STANDARD

From a harrowing article in today's NYT, note the quote at the end of this passage (emphasis added):

The company that makes Miami-Dade's machines, Election Systems and Software of Omaha, Neb., has provided corrective software to all nine Florida counties that use its machines. One flaw occurred when the machines' batteries ran low and an error in the program that reported the problem caused corruption in the machine's event log, said Douglas W. Jones, a computer science professor at the University of Iowa whom Miami-Dade County hired to help solve the problem.

In a second flaw, the county's election system software was misreading the serial numbers of the voting machines whose batteries had run low, he said.

The flaws would not have affected vote counts, he said - only the backup data used for audits after an election. And because a new state rule prohibits manual recounts in counties that use touch-screen voting machines except in the event of a natural disaster, there would likely be no use for the data anyway.

State officials have said that they created the rule because under state law, the only reason for a manual recount is to determine "voter intent" in close races when, for example, a voter appears to choose two presidential candidates or none.

Under the standard as stated here -- i.e., including "overvotes" in the vote total -- Gore would have officially won Florida. As it was, more people showed up at the polls in Florida in 2000 and thought or hoped that they had voted for Gore rather than Bush, but that wasn't enough to give Gore an official victory.

Dear Florida election officials: get it right this time, please.

Can't get on to the Miami-Dade Electoral Reform Coalition web site to see how I can send them some money, but here are links to ACLU Florida's voting page and the NAACP Miami-Dade branch.

JURISDICTION-STRIPPING? FINE BY ME

The debate over the jurisdiction-stripping bill passed by the House last week (H.R.3313), is actually three debates: first, a debate over the meaning of marriage, second, a professional debate over the constitutionality of jurisdiction-stripping measures in general, and, third, a debate over the relative powers of Congress and the courts.

1) Marriage. Most Republicans seem to want marriage to be defined as the "union of one man and one woman," and most Republicans also want this to be an invariable definition embedded in national rules -- localized consent to alternate understandings are not permissible, on this view. (There may be some exceptions among Republicans, but they haven't been talking a lot recently.)

My view is that Republicans are wrong on this score. Marriage does not require a uniform rule, and same-sex partners should be allowed to marry. And it will eventually happen.

2) The professional debate is nicely summarized by an outline provided by Eugene Volokh. For an eloquent explanation of "VI. Major Theory #2: Dissenting View -- Mandatory Federal Jurisdiction Theory," see Josh Chafetz's posts here and here.

I don't really have an opinion on the professional controversy as such, for reasons that should be obvious from what I write below. One response to Josh's point about the Eleventh Amendment (which he knows more about than I) is that the existence of a constitutional amendment is not necessarily a judgment on the constitutionality of an identical statute. It's at least possible that the appeal to an amendment process is an attempt to enforce a rule that members of Congress, say, believe is constitutional, but that a recalcitrant and overreaching judiciary might declare unconstitutional. It's an empirical (or historical) question whether or not the Eleventh Amendment fits that category, though.

3) But the professional debate doesn't really matter all that much, at least in the following respect. Jurisdiction-stripping bills should be celebrated as an attempt by members of Congress to engage in substantive constitutional lawmaking. Jurisdiction-stripping is an attempt by Congress to claim more authority over certain areas of legislation. It shouldn’t trouble Congress all that much whether or not the professional legal culture produces more and better arguments that say that such actions are unconstitutional.

Contrast this action with, for example, congressional and executive punting on the question of campaign finance reform. By this I mean: congress passed a big listing steamship of a law and forced a court to take a look at it right away; President Bush signed the law and many Republicans voted for it even though they believed it was unconstitutional; they probably hoped that a free-speech friendly Supreme Court would invalidate it, and they didn't want to spend too much political capital on defending the role of money in politics. Ask yourself: is it better, in general, for Congress to claim responsibility or to abdicate it?

On a more mundane level, imagine a world in which there was a definitive and authoritative resolution – in the negative -- to the question of the constitutionality of jurisdiction-stripping (not that hard to imagine from this Court, at least). Congress would be deprived of one of its very few powers to signal courts that they are treading on dangerous ground.

Perhaps the loss of the jurisdiction-stripping threat wouldn't matter all that much. After all, if members of Congress are really serious about something, they can tinker with judicial administration, vote to impeach offending judges, and go public with their concerns. But in the current institutional environment, Congress probably needs all the help it can get.*

Right now, it is pretty uncontroversial to say that jurisdiction-stripping is "irresponsible [,] reckless and unconstitutional". I'm not so sure that any of these descriptions are correct, and it seems to me that the really interesting puzzle if is figuring out the genesis of this widespread view.

It probably results from such high-school civics tropes as the division of labor theory of constitutionality: Congress passes laws, the President signs them (and implements them), and the Court determines whether or not they are constitutional. Professional legal opinion also helps out here, as does the experience of the Warren Court (for folks on the left) and the Rehnquist Court (for folks on the right).

One might also add that belief in the interpretive superiority of courts could be an unintended consequence of Reaganite government-bashing. For Reaganites, "government" can't be trusted to make good decisions, but courts can somehow be above the political fray, as long as judges possess the requisite virtues (which, amazingly enough, Republicans are better able than Democrats to perceive in judicial candidates). It's a nice, self-reinforcing argument. For folks on the left, the Republican takeover of Congress in 1994 probably didn't do much to sustain their faith in Congress as a constitutional interpreter. H.R. 3313 doesn't help much, either.

Nonetheless, Democrats shouldn't be too harsh in their criticism of jurisdiction-stripping as such. When they're in charge of Congress again, their time will come as well. It probably won't be too long, either.

For more on the debate, see Will Baude here, and see a nice post by Larry Sullivan on an earlier jurisdiction-stripping proposal, here.

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*MORE: I say these even though, as I've noted before, I think that one shouldn't overstate the extent to which the Supreme Court is more powerful than Congress. Republican court-bashing often proceeds from faulty empirical assumptions that actually rest on claims of judicial supremacy. There are always lots of ways to respond to court rulings, and other actors need only to avail themselves of those options.

MORE, AGAIN: Thomas Nephew has some additional thoughts here, and he points to a brilliant Fafblog post that comes to different conclusions than I do here. And Fafblog is a lot funnier than I am. Go read Fafblog. I think that Thomas and Fafblog are wrong, though, to say or imply that jurisdiction-stripping is an end run around the amendment process. The nice thing about jurisdiction stripping is that it is, in fact, ordinary legislation that can be repealed by Congress. Congress doesn't repeal many laws, to be sure, and one shouldn't overstate the ease with which it does so (but going eastward on Capitol Hill, neither should one overestimate the staying power of Supreme Court decisions). It's an extraordinary power, one that is not likely to be used all that often, and its effectiveness both as a threat and as a legislative device is already clouded by doubts about its constitutionality. Obviously I want to think through this some more, but as I note above, to the extent that jurisdiction-stripping forces Congress to take responsibility for the development of constitutional norms, it should be celebrated, even if this particular instance is a bad idea for policy reasons. The question is, what would be the effect of jurisdiction-stripping as a legislative device over the long term and used by both political parties for ends that you find alternately good and bad?

OK, BUT WHICH BAR?

The AP reports that Ralph Nader was in an unnamed bar in New Haven on Saturday, looking for help in getting on the CT ballot (via Political State Report).

But which bar?

I'm trying to imagine Ralph Nader at C.O.Jones, in front of dozens of folks who are already on their third margarita and would probably be willing -- if not necessarily capable -- of signing anything at that point.

Then the mind shifts to the retro chic (or, more accurately, the 1970s holdover chic?) of The Anchor, with Nader standing beneath the ancient print of the signing of the Constitution, haranguing too-hip-to-be-interested grad students with his tales of a party duopoly.

Then, perhaps, Rudy's, where Nader would find out, to his chagrin, that most of those present are too young to vote, let alone drink. (Just kidding, folks.)

Ah, New Haven.

PUBLIC REJECTS ADMINISTRATION'S POSITION ON DETAINEES

American Samizdat points to this article outlining recent evidence of the unpopularity of the Bush administration's approach to detainees.

The Program on International Policy Attitudes at the University of Maryland recently conducted a detailed poll on the Bush administration, detainees, and the war on terrorism. The poll findings themselves are here (PDF file). The PIPA website reports:

Eighty-eight percent favored having international laws governing detention. Large majorities endorsed requiring registration of all detainees (92%), providing access by the Red Cross (93%), allowing communication with family members (77%) and the right to a hearing (81%).

Told that recently there has been a debate about whether the international treaties governing detainee treatment should apply to combatants who are not conventional soldiers, “such as members of the al Qaeda terrorist group,” 60% took the position that the US should still give them the rights provided by the treaties.

Respondents were also told that the Bush administration has taken the position that if the President determines it is necessary for the war on terrorism, the US has the right to refuse to give a detainee a hearing in front of a neutral judge, but that the Supreme Court had ruled otherwise. Asked for their position, 68% said the President should not have the authority to deny a detainee the right to a hearing.

PIPA notes that the Bush administration has suffered only modest political damage from the public's apparent disagreement with its view on how to fight the war on terrorism. According to the report, two public misperceptions contribute to the public's apparent unwillingness to punish the administration for this disagreement: 1) the public mistakenly thinks that Secretary Rumsfeld did not authorize specific kinds of disfavored treatment of detainees ("going naked" and using dogs to intimidate detainees), and 2) the public overestimates the proportion of "terrorists or insurgents" at Abu Ghraib.

PIPA's findings may help explain why the administration hasn't spent a lot of time criticizing the Supreme Court's rulings in Hamdi, Padilla, and Rasul. To be sure, the administration's response has been muted partly because the Court didn't require very much from the administration. According to O'Connor's majority opinion in Hamdi, the process afforded to detainees (at least to citizens) must be "meaningful," and for more on what this fuzzy term may mean in practice, see Michael Froomkin here. (Froomkin is more optimistic, but also more knowledgeable, than I am.) It may be that the administration will get most of what it wants out of the Supreme Court decision, as Scott McClellan seemed to indicate here:

But we want to make sure that we put a process in place that respects the concerns that the Supreme Court raised and does so in a way that is consistent with the authority of the President to exercise his constitutional responsibility during at time of war. And the court recognized that authority, as well.

So the administration -- not loath to criticize the Court on abortion, child pornography, or sodomy laws -- has less of a reason to criticize the Court in the context of the detention decisions. And if public opinion isn't on the administration's side, why press the point?

It's also interesting to note that PIPA's data highlights the congruence between the Supreme Court's detainees decisions and public opinion. Coincidence?