I am delighted for the GLBT couples who, assuming yesterday’s ruling is upheld on appeal, will finally have full and equal legal recognition of their marriages.

I nevertheless remain of the mind that, as a matter of practical politics, this is not a battle that can be won through litigation.  This is demonstrably not an effort to achieve substantive equality at the state level: that fight has already been won in California, where our civil union laws are so expansive that GLBT couples can already be married in everything but name.  Rather, this was an effort to achieve equal dignity and social acceptance — and while I absolutely appreciate why GLBT couples would desire such things, I would remind them that they’re not remedies that are within the power of courts to award.  Social acceptance has to be won through the long, arduous process of persuasion, and attempting to short-circuit that process via litigation invites entrenchment and lasting strife.  Witness how the culture wars over abortion continue to simmer some 37 years after Roe v. Wade.

I am sickened by the unbridled sanctimony — the transparently-phony paeans to libertarian anti-majoritarianism — that this has occasioned.  Let’s be very honest: many (if not most) of the people who are today making oh-so-earnest pronouncements about how fundamental rights should never be subject to popularity contests will go to the polls in November and vote enthusiastically for politicians who’ll do everything in their considerable power to further fold, spindle, and mutilate my rights: for example, my right to purchase, own, and peaceably use firearms.  So as happy as I am for GLBT couples who’ll now be able to legally wed, I’ll be even happier when same-sex marriage supporters in general develop a little intellectual honesty and embrace libertarian anti-majoritarianism in fact, rather than merely rhetorically.

It recently came to light that seven lawyers who received political appointments to the United States Department of Justice had previously done pro bono work on behalf of Guantanamo Bay detainees or other terror suspects.  Various folks on the center-right, including Liz Cheney (Dick Cheney’s daughter), have made hay about this, which has provoked furious responses not only from the Justice Department itself…

“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.

…but also from the broader legal community (including other center-right luminaries such as Ken Starr).  These folks haven’t been too proud to refrain from claiming that they’re trying to vindicate a principle — the zealous representation of unpopular clients — that runs back to John Adams’ defense of the English soldiers involved in the Boston Massacre.

And there’s certainly some merit to that.  It’s, in general, unfair to conflate the views of lawyer and client.  Nevertheless, I find much to agree with in this post by Stewart Baker at the Volokh Conspiracy.  These lawyers weren’t simply providing otherwise-indigent clients with counsel; rather, they were performing extensive pro bono work on behalf of clients who were already represented by military lawyers, and who had access to every resource the government could command.  Moreover, the British soliders Adams defended were ordinary criminal defendants accused of murder; he was not representing spies or pirates (the eighteenth-century equivalent of modern ”enemy combatants,” who in those days, if they were captured, were most often summarily shot), trying to get them released from the brig in the middle of a shooting war.  Baker:

As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you’ve got a wide choice of pro bono cases, it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.

It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.

Cutting against this analysis is the argument that lawyers often defend even unpopular and unlikeable clients in order to preserve an important principle.  In that well-worn narrative, lawyers bravely stand against the tide of popular opinion to vindicate a principle, not to help a particular client.  But does that trope really apply to these representations? How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases. It’s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you’re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts. The precedents set in these cases will, as a practical matter, apply almost exclusively in a swatch of Cuban scrubland ten miles square.

But put that aside.  I don’t doubt that many of the pro bono lawyers for the detainees saw themselves in exactly that light — they intended to vindicate principles they valued, and not to give comfort to the defendants.  We can still learn a lot about a lawyer who takes a case on that basis.  Almost by definition, issues that split the Supreme Court can be argued either way. But these lawyers felt so strongly about these arguable principles that they sacrificed paying work and instead went to work without charge for people they loathed – just to turn their principles into law. Doesn’t this tell us something about the strength and content of their principles? And isn’t it fair for Liz Cheney to ask whether the rest of the country shares those principles?

As a lawyer, I certainly think so.

Background: Under Maryland v. Buie, 494 U.S. 325 (1990), police who arrest a suspect in the suspect’s home are entitled to, even though they do not have a valid search warrant, conduct a protective sweep of the adjoining areas of the home, where an accomplice could potentially be lying in wait, for the purposes of officer safety.  Any evidence that they discover in the course of such a sweep can be seized under the ”plain view“ doctrine (i.e., police can seize items that they immediately recognize as evidence or contraband in an area where they’re lawfully present, even though that area is otherwise protected by the Fourth Amendment and police would normally require a warrant to search it). 

In United States v. Lemus, 582 F.3d 958 (9th Cir 2009), a panel of the U.S. Ninth Circuit Court of Appeals, relying on Buie, upheld a warrantless search of a suspect’s home although the suspect was arrested in the doorway of his residence with the police never having entered the premises prior to the search.  A judge of the court sua sponte called for rehearing of the case en banc, but rehearing en banc was denied.

Read as Judge Alex Kozinski, dissenting from denial of rehearing en banc, absolutely (and righteously) flenses the court.

It’s often the case, in technical fields, that upper management is decidedly non-technical, and has little understanding of the nature of engineering project management.  As such they are prone to overcommitting to customers, and eventually the day comes when a technical lead or a project manager has to familiarize them with what’s called a project triangle.  The idea is that there are, at bottom, three constraints on an engineering project: budget, time, and scope/quality.  Fixing two of those constraints necessitates tradeoffs on the third.  The way this is usually expressed is: “Good, fast, and cheap.  Pick any two.”

It occurs to me that the Citizens United case, which I discussed the other day, is a case study in a political triangle, analogous to the project triangle in that our politics is subject to three competing constraints.

The first constraint is the common (albeit hardly universal) desire for a large, powerful, activist government.  Many people want government to be able to intervene, authoritatively, in a wide variety of human interactions through regulation, legislation, taxing, and spending.  The problem with this is that money follows power: with so much at stake, someone with a capacious wallet will inevitably want to influence government so that all that power is exercised on his behalf.

Hence the second constraint: people want politics free of the corrupting influence of money.  Our political leaders should act in the public interest, not merely in the interest of the folks who are spending money to influence them.

But that runs headlong into the third constraint: the First Amendment.  Citizens have a right to say what they think, and to spend money to try to persuade others to their point of view.  That right is undiminished merely because they associate in the corporate form.

Like many of my readers, I deplore the influence of money in our politics.  I’m not particularly keen on the idea of, say, Pfizer or the SEIU spending a bajillion dollars in the next election campaign either for or against candidates depending on whether they get sweetheart deals in the healthcare reform bill (this is assuming, perhaps naively, that one actually makes it through Congress).  Disclosure is all well and good, but that doesn’t eliminate the influence; it just puts it into context.

Where I differ from votaries of campaign finance reform is that, to me, free expression is not negotiable.  We can engage in all the intellectual contortions in the world, but at the end of the day Pfizer and the SEIU are spending money on political advocacy — and any effort to limit that does violence to the First Amendment, just as much as if government tells you or me how much we can spend on political advocacy.

So this, for me, becomes yet another very practical reason to sharply limit the size and scope of government.  With a government that was smaller, less activist, and less powerful, moneyed interests would have every right to try to influence politics, but with far less at stake would have much, much less reason to do so.  What I said above — money follows power.  Remove the power, and the money will go away.  And it strikes me as downright sad that so many people take the contrary view, and are willing to curtail others’ expressive freedoms rather than reduce government’s scope in the interest of eliminating corruption.

The popular reaction to yesterday’s Supreme Court decision in Citizens United v. FEC, 588 U.S. ___ (2010), has been utterly unhinged.  Dire pronouncements about how this puts us on the road to cyberpunk dystopia, without the cool parts, abound.  The only thing useful about this is that it’s a helpful exercise in self-identification, allowing us to see who is a real and who is merely a fair-weather supporter of free expression.

The factual background of the case is fairly straightforward.  The plaintiff, Citizens United, is a conservative non-profit corporation which produced a documentary critical of Hillary Clinton, and sought to air both the film and TV ads promoting it during the Democratic Party primaries in 2007 and 2008.  Under the Bipartisan Campaign Finance Reform Act of 2002 (BCRA), 2 U.S.C. § 441(b), corporations and unions are prohibited, with certain exceptions, from funding “electioneering communications” out of their general treasury funds.  The Act defines an “electioneering communication” as, inter alia, one that refers to a candidate for federal office, and which is made within 60 days before a general election or 30 days before a primary.  Citizens United sought to enjoin enforcement of the relevant portions of the BCRA on the ground that they violated the First Amendment.  And yesterday the Supreme Court agreed with them, holding that the BCRA’s prohibitions on corporate spending in elections were facially invalid (meaning that they’re invalid across-the-board, not just for this particular plaintiff in this particular set of circumstances).

Let’s simplify that for the sake of readers sitting in the bleachers: the BCRA empowered the government to censor political documentaries during election season.  And it was necessary for the Supreme Court to say, “No, government can’t do that.” 

To the extent that there’s any substance lurking in critics’ conniption-fit over this decision, it seems to boil down to two things: prudential concerns about what will happen if corporations are permitted to spend freely on political advertising, and the notion that corporations, as non-natural persons, are not entitled to the protections of the First Amendment.

The prudential concerns are the simplest to dispense with.  Let us stipulate the possibility that this decision will result in a parade of horrors: greater commercial and possibly even foreign influence on election outcomes, for example.  Yet the prevailing sensibility in American society and law is that the antidote to bad speech is more speech, not censorship.  We tolerate a great many forms of expression that have little social utility, or perhaps are even deleterious — things like flag-burning and hate-speech and broadcasts of PGA events — because, with the benefit of experience, we regard content-based government regulation of speech as a far greater evil.

The other substantive objection to the decision, which Justice Stevens fixated on for an interminable 80-odd pages of dissent, is that corporations are not natural persons.  While it’s absolutely true that corporations are not natural persons, it’s also absolutely irrelevant.  As Justice Scalia explains in his concurrence:

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation.

A corporation is merely an association of individuals.  The corporation’s speech reflects the will of majority owners, as implemented by its board of directors and managers.  These individuals do not surrender their First Amendment liberties simply by virtue of associating in the corporate form.

Consider where Justice Stevens’ logic inexorably leads: Congress can ban the political speech of media corporations.  Granted, Justice Stevens engages in a great deal of unpersuasive hand-waving on this point — media corporations get a special carve-out under the free press clause of the First Amendment, according to him.  But why?  The corporate form isn’t indispensible to being “the press.”  The pamphleteers of the Founding era and the bloggers of today amply demonstrate this fact.  And it’s hardly the case that media corporations have some social value that non-media for-profits and non-profits lack.  So what is the basis for the distinction?  (Hint: There isn’t one.)

The ACLU is not a perfect organization, but it’s a pretty good one, and while it often gets bogged down in the trivial and the banal it’s nevertheless a pretty principled and committed defender of the First Amendment.  Critics of Citizens United are on the wrong side of the ALCU on this, and that ought to be a pretty good hint that they’re on the wrong side of the Constitution, too.

Sometime this year, the United States Supreme Court may accomplish two remarkable things in the same case: one, strike down the odious Slaughter-House Cases decision and its progeny, and thereby breathe new life into the long-neglected Privileges and Immunities Clause of the Fourteenth Amendment; and two, hold that the Second Amendment is not merely a limitation on the powers of the federal government, but on those of the states as well.

That’s the question that looks to be percolating in the mind of U.S. District Court judge Vaughn R. Walker in the case of Perry v. Schwarzenegger, the federal challenge to California’s Proposition 8 ballot initiative.  Though the linked news report is principally about the judge’s denial of a motion to dismiss by the initiative’s sponsors, it also contains this nugget:

Walker made clear that he wants to examine other issues that are part of the political rhetoric surrounding same-sex marriage but rarely surface in courtrooms. Among the questions he plans to entertain at the trial are whether sexual orientation is a fixed or immutable characteristic, whether gays are a politically powerful group, and if same-sex marriage bans such as Proposition 8 were motivated by anti-gay bias.

As written, the Equal Protection Clause of the Fourteenth Amendment prohibits states from denying citizens the equal protection of the law — that is, treating citizens differently based on their membership in some class.  However, we live in a time when the Constitution does not mean what it says, and so we enter the strange world of Fourteenth Amendment jurisprudence where some classes are entitled to greater constitutional protection than others.

The Fourteenth Amendment was one of the Reconstruction Amendments passed in the wake of the Civil War, and so courts have had no trouble concluding that race-based classifications are, for the most part, verboten.  Courts call race a “suspect” classification, and analyze laws that make such classifications under the strict scrutiny standard.  This is quite a high bar: the burden is on the government (and not the plaintiff challenging the law) to show that the law is narrowly tailored to achieve a compelling government interest through the least intrusive means.  About the only race-based policies that have survived are bona fide affirmative action programs directed at remedying past discrimination by the sovereign, and even those are of increasingly dubious constitutionality as time goes on.

As for other classifications, courts look to four factors when determining whether they are “suspect,” like race-based classifications:

1. The class is a discrete and insular minority.
2. The classification is based on an immutable trait.
3. Members of the class have historically been discriminated against.
4. The class lacks the political power to redress injustice through the political process.

Based on these factors, courts have found classifications based on national origin and religion to likewise be “suspect.”  Classes based on gender and legitimacy, on the other hand, are merely ”quasi-suspect,” and are given intermediate scrutiny (the law will be upheld if the government can show that the law is substantially related to achieving an important governmental interest).  All other classifications — heretofore including sexual orientation — get rational basis review (the law will be upheld unless the plaintiff demonstrates that the law is not rationally related to a legitimate government interest).

To my mind there’s a decent argument that sexual orientation ought to be a suspect, or at least a quasi-suspect, classification.  While GLBT folk don’t seem to comprise a “discrete and insular minority” the way blacks once did, the classification certainly seems to be based on an immutable trait, and members of the class have historically been targets of appalling discrimination.  It’s that fourth factor that’s, I think, the toughie: the fact that Proposition 8 was opposed by almost 48% of the electorate is, though the measure nonetheless passed, a pretty plain demonstration of the political juice possessed by the class.  Politically-powerless minorities can’t move near-majorities of voters, and so one can envision the judiciary suggesting, in so many words, that the plaintiffs spend less time litigating and more time persuading their fellow citizens.

It’s interesting to see that Judge Walker looks to want to wrestle with this question, and it’ll be even more interesting to see what he decides, and why.

I am pointed, by a post at the Volokh Conspiracy, to a really terrible Indiana Court of Appeals decision (Garcia-Torres v. State):

After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.

In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests (”FSTs”) and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect‘s body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the “[t]he interests in human dignity and privacy which the Fourth Amendment protects” than pat-downs or FSTs.

For the sake of non-lawyers, the Fourth Amendment generally requires officers to obtain a warrant based on probable cause in order to search a person’s body.  The Supreme Court has identified several exceptions to this rule, among which is the so-called “stop and frisk”, or Terry search, that the Indiana court refers to above.  However, when the Indiana court says that, “it is universally understood that [a Terry search] may be conducted on reasonable suspicion,” that’s a half-truth.  A Terry search, consisting of a patdown of a suspect’s outer clothing, may be conducted on reasonable suspicion that the suspect is armed and dangerous, and not merely that the suspect is in possession of evidence.  In other words, Terry searches are justified by a special concern for officer safety, and are undertaken with the specific object of divesting the suspect of weapons (though any evidence or contraband found along the way is, of course, admissible).  Officers can’t conduct a Terry search just to collect evidence, where there’s no reasonable suspicion that the suspect is armed.

Granted, a cheek-swab is arguably less intrusive than a Terry search — but the concerns that justify Terry searches do not exist in the typical cheek-swab situation.  The Indiana court’s decision thus strikes me as pretty unambiguously wrong.

UPDATE: Comments to the Volokh post point out something else I hadn’t considered.  The cheek-swab search is “minimally invasive” only in the physical sense, not in terms of how much information it can reveal about the swabee.  In that sense, it’s extremely invasive, and that ought to be taken into account.

Over the weekend, Jonathan Adler at the Volokh Conspiracy critiqued a column by David Rivken and Lee Casey purporting to demonstrate the unconstitutionality of healthcare reform.  Adler finds himself mainly in agreement with liberal critics of Rivken and Casey, albeit not necessarily on each particular.

I think Rivken and Casey are whistling past the graveyard on this.  You can make a straight-faced, not-completely-barking-insane argument that an individual mandate — that is, a federal requirement that individual citizens obtain health insurance — is a necessary and proper element of the overall federal regulatory scheme.  After Gonzalez v. Raich, 545 U.S. 1 (2005) and United States v. Lopez, 514 U.S. 549 (1995), that’s a sufficient “rational basis” to beat back any challenge to such legislation on constitutional grounds.

But what this illuminates is the degree to which the Commerce Clause — which was intended and originally understood as a robust constraint on federal authority insofar as it was one of a finite set of enumerated powers of the federal government — has been folded, spindled, and mutilated by the federal judiciary to the point where it may as well read, “Congress may do anything that it wants, and the states and the people should just lean back and try to enjoy it.”  When Congress can regulate purely intrastate activity on the grounds that it might, maybe, possibly, somehow, when aggregated with other such activity, have an effect on interstate commerce, we are no longer dealing with the Constitution that the people of the United States ratified.  Rather, we are dealing with something out of Plato’s Republic, with black-robed political appointees providing the mythology to justify the rule of our Congressional philosopher-kings.

In the president’s book, The Audacity of Hope, he devotes an entire chapter to explain what he sees as the appropriate method of constitutional interpretation, and why.  He wrestles at some length with originalism (exemplified however imperfectly by Justice Scalia) before ultimately rejecting it as being too hidebound and inflexible to serve the needs of modern American society.  He then goes on to explain his affinity for living constitutionalism/legal realism (as exemplified however imperfectly by Justice Souter).

I regard living constitutionalism/legal realism as lawless, intellectually incoherent, and corrosive to the social compact that a written constitution codifies.  A written constitution is supposed to be hidebound and inflexible; the entire point is to preserve the substance of the social compact by constraining the method and pace of political change.  If, when attempting to ascertain the meaning of a constitutional provision, your inquiry elevates prudential or structural considerations over the question of what the people actually ratified, then you may be doing many things but you are not honestly and faithfully interpreting the law.

I believe that someone who cannot or will not honestly and faithfully interpret the law can certainly have a brilliant career as an attorney or a legal scholar.  But I believe that such a person is fundamentally unfit to be a judge, where honestly and faithfully interpreting the law is a basic requirement of the job.  And I do not care whether that individual is white, black, Hispanic, male, female, straight, gay, or Martian: I’ll take a bi-racial lesbian polygamist who’ll interpret the Constitution faithfully and honestly over a straight white male whose rulings do violence to its meaning.

I believe that Mr. Obama would not have nominated Ms. Sotomayor to the Supreme Court if she did not share his views with respect to constitutional interpretation.  I believe, therefore, that the burden is on the President and his nominee to satisfactorily demonstrate that Ms. Sotomayor will in fact be guided in her decision-making by fealty to what the people actually ratified, rather than to a political agenda, her own policy preferences, or some visceral, case-at-a-time sense of justice.  Particularly in light of the President’s advocacy for Ms. Sotomayor on the basis of her “empathy,” I do not believe they have met this burden, and I think that Ms. Sotomayor’s nomination ought to be rejected by the Senate notwithstanding her resume.

UPDATE: In response to the “you’d oppose anyone Obama nominated” criticism, I can only say if so, it owes to the fact that anyone Mr. Obama would nominate is a voluptuary of living constitutionalism/legal realism.  The notion that constitutional interpretation is a results-oriented endeavor is not without adherents on the right (see, for example, Richard Posner), but seems to be a regrettably common affliction on the left, these days.

Were Mr. Obama to nominate someone like Cass Sunstein, who wasn’t thrall to living constitutionalism/legal realism, I’d support the nomination unreservedly notwithstanding my political disagreements with the President or his nominee.  While I think the Constitution describes a classically liberal system of government, I do not think that only classic liberals/libertarians are qualified to be judges.  Unfortunately, Mr. Obama’s nominees seem likely to be in the mold of Erwin Chemerinsky.

For the record, of former President Bush’s three nominees to the Court, I supported John Roberts unequivocally, was on the fence about Samuel Alito, and opposed Harriet Miers.