Cakes, Clerks, & the Precarious Rule of Law

By Julian Dunraven, J.D. M.P.A.

Recently, one of my Constitutional Law students asked me to distinguish between the case of the Christian cake bakers judicially ordered to bake a cake for a gay wedding against their will, and the case of Kim Davis, acounty clerk in Kentucky currently in jail for refusing a judicial order to begin granting gay marriage licenses.  My student already had an inkling that the principles underlying these two cases were quite different, and thus was unsurprised to discover that although I have great sympathy for the bakers, I have none for Ms. Davis, and believe she is exactly where she belongs. 

On first glance, these two cases do appear to be similar.  Both involve deeply pious individuals who belong to particular sects of Christianity which happen to teach that same-sex marriage is sinful.  Due to this belief, both the bakers and the clerk sought to abstain from any type of participation in same-sex marriages through their professional work.  Both were also thwarted by the courts.  However, it is the difference between them that really matters:  while the bakers were private citizens operating their own private business, the clerk is a publicly elected official operating a government office.  

In the case of the bakers, as private citizens, they have a property interest in their labor and products.  While government has a legitimate interest in ensuring they fulfil their contracts without fraud, when the government starts telling them who they must take as clients, even if they do not wish to do so, the government begins to impose a type of slavery, however minor it may be.  The Constitution’s Equal Protection and Due Process Clauses were never intended to prevent private citizens from discriminating as they saw fit; they were designed to ensure government did not do so, and treated all its citizens equally under the law.  The right of expressive association (and disassociation) contained in the jurisprudence of the First Amendment further supports this idea. 

Things changed during the Civil Rights Movement.  Then, the U.S. faced the loathsome problem of racism.  Congress tried to address the issue through the Civil Rights Act and other remedial statutes to forcibly eradicate such discrimination—in both the public and private spheres.  Knowing that this noble endeavor would fail under traditional readings of the Constitution (at least in the private sector), the Court supported the effort by taking an astonishingly expansive view of the Commerce Clause of the Constitution.  In short, the Supreme Court declared that, if you were engaged in a business that somewhere, somehow, used a part or ingredient that had been shipped in interstate commerce before it became your final product, then the government could regulate you as engaging in interstate commerce.  In other words, if you bake cakes in Oregon, but use flour from wheat which was grown in Nebraska, then you have engaged in interstate commerce.  That rather all-encompassing rationale allowed the government to carry out a variety of anti-discrimination efforts, not just in the public sector, but in private business as well.  

Of course, with that sort of rationale, one wonders if there is anything the government cannot regulate.  For many years, the answer was that there was nothing the government could not reach.  It is only in the last few years the Supreme Court has recognized that it may have built a bridge too far, and begun to scale back the scope of its Commerce Clause interpretation.  After all, today it may not be needed.  Any business that openly discriminated on the basis of race, gender, or even sexual preference would quickly be boycotted and driven out of business.  The market might have been seen as too slow for the days of the Civil Rights Movement, but our various media forms allow it to act quite swiftly today, and it has shown a distinct distaste for intolerance.

   

Allowing the market to function on its own would be the best way to deal with the bakers.  It would allow them their fundamental freedom of association and expression, as well as protect their interest in their own labor and property.  It would also allow others to freely decide whether to frequent that shop.  If enough people did not like buying cakes from bigots, they would go out of business with no help from the law.  Unfortunately, our legal system has not returned to such a free market solution.  The courts are still largely using the interpretation of the Commerce Clause established during the Civil Rights Movement to navigate anti-discrimination legislation.  As a result, we get a situation in which private bakers find their fundamental freedoms oppressed by the very courts charged with protecting them.  Those courts also find themselves in the untenable position of making absurd balancing tests between someone’s fundamental freedoms on the one hand, and the government’s interest in obliterating invidious discrimination on the other.  It is unsurprising that individual freedoms rarely weigh more on such inappropriately weighted scales. 

So what do we do?  Well, the easiest solution is to appoint more judges who have greater respect for private property and labor, and are willing to restore the Commerce Clause to its original limited purpose of eliminating interstate tariffs and shipping requirements.  Although it would be more difficult, we could also narrow the scope of the Commerce Clause with a constitutional amendment, which would have the advantage of being far more lasting.  Until then, though, under our Constitution, as Justice Marshall stated, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison 5 U.S. 137, 177 (1803).  It may take quite a while to overcome the precedents already set.  What we cannot do, though, is discard the Constitution and the Rule of Law itself.  Yet, that is the very approach Kim Davis is advocating

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Kim Davis is an elected clerk for Rowan County, Kentucky.  Like the bakers, she is religiously opposed to the idea of same-sex marriage.  Thus, as County Clerk, she has refused to grant marriage licenses to same-sex couples.   She was sued, and asked the courts to allow her an exemption from the duty to issue such licenses because of her religious beliefs.  She lost: at the district level, on appeal, and before the U.S. Supreme Court (which refused her request without comment).  Now, a federal judge has jailed her for continually refusing to comply with his order to issue the licenses.  She remains in a cell.

One of my most honorable friends recently described Ms. Davis as a hero of conscience and integrity, a crusader for religious freedom.  This is an easy mistake to make.  Americans love an underdog, and staying true to one’s conscious while facing the entire weight of the American Judicial system is a hard image to resist.  However, it is a false image.  

Ms. Davis is not a private citizen.  She is a publicly elected executive charged with carrying out the functions of government.  Unlike private business, the Equal Protection and Due Process Clauses of the Constitution were aimed squarely at governmental officials.  The government does not get to choose which citizens it will represent and serve, and which it will ignore and deny; the government must treat everyone equally under the Law.  

According to her attorney, Ms. Davis has proposed severalalternatives.  These include having the chief executive of the county, or perhaps a state official issue the licenses.  Alternatively, she has proposed removing her name from licenses issued to same-sex couples.  These, solutions, however, are untenable.  Having some other office grant same-sex marriage licenses amounts to abdicating her duties as a county clerk, as well as imposing an additional hardship on same-sex couples which different-sex couples do not have to endure.  It also adds a disdainful stigma to same-sex licenses, which would be massively amplified by also removing the county clerk’s name from the documents.  This sort of treatment is reminiscent of the separate and not-so-equal practices of the reconstruction era, and stand as flagrant violations of the Equal Protection Clause.

Ms. Davis claims to understand all this, but maintains that, because of her deeply held religious beliefs, she should be granted an exception to compliance.  Were she a private citizen, I would be happy to agree with her.  She is not a private citizen, though; she is a government official.  The First Amendment does not just grant individuals the free exercise of religion; it also prevents government from establishing any particular religion in law.  Yet, that is precisely what Ms. Davis is attempting to do.  

Ms. Davis did at least one thing correctly in making her argument in court, though.  As an elected official, she certainly had an interest in ensuring that her principles, which she was presumably elected for, were at least zealously defended.  But she lost.  Now, if Ms. Davis believes that the law her position operates under has become so onerous that she can no longer perform her required duties without violating her conscious, then she should resign.  Honorable resignation in the face of unethical behavior is, in fact, a recognized duty for many professions, including law.  As a private citizen, she would then be free to work to change the law or amend the Constitution.  Instead, she took the dishonorable approach and rebelled against it.

Unhappy that the courts ruled against her, Ms. Davis decided she did not need to perform the duties required by her executive position.  She went on to appoint herself a legislature of one, and demand legal changes to how marriage licenses are issued that the state has not seen fit to alter.  She has also placed her own interpretations of the law above that of the entire U.S. judiciary by blatantly refusing to comply with the judgement of the courts.  In doing all this, she has not only violated the First, Fifth, and Fourteenth Amendments to the Constitution, she is rebelling against the very framework of the Constitution itself and declaring her own whim to be above the Law.

The U.S. is a nation of Laws and not of Men.  We are governed through our rules and procedures, and not ruled by the arbitrary whim of individuals.  That is a precarious system, though, and requires constant vigilance to maintain.  None of us get everything we want out of it.  Elections and laws pass with winners and losers on both sides.  Yet, even in loss we believe in our Republic and its Constitutional system.  That is, in fact, what defines being an ‘American,’ for we are a people united, not by ethnic, cultural, or even national background—but by principles—specifically those principles embodied in our Constitution.  We expect an election, a legislative vote, or a court decision to go badly from time to time, and we work toward changing the next one.  Such disputes are not huge threats, but part of our democratic way of life.  When one of our own officials, however, chooses to rebel against the Rule of Law itself, they represent a much bigger threat than a single court decision with which we disagree.  They threaten the very heart of the Republic.

For this reason, I cannot applaud Kim Davis in any way.  Her audacious sense of entitlement to her position baffles me.  Perhaps it is because she took over from her mother and, over some decades, began to regard it as an inherited peerage rather as a civil service.  I cannot know her thoughts.  I do know, however, that she has set herself up, not as a defender of our Constitution and Rule of Law, but as its enemy in open rebellion.  For such traitors to the soul of our Republic, I can have nothing but utter contempt.

Legal Marriage Put Simply

By Julian Dunraven, J.D., M.P.A.

Yesterday, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges (the gay marriage case).  This has, predictably, provoked almost everyone to begin shouting opinions as to the meaning of marriage at one another and, unsurprisingly, each opinion is different.  The Supreme Court will not be deciding this case based on any particular view of marriage, however, but upon the underlying legal issues involved. Let me see if I can dispel some of the confusion about this case, by clarifying those issues.  

First, marriage is three things: it is a sacrament bestowed in various religious traditions; it is a contractual agreement between the married parties; and it is a bundle of rights granted by the state.  The sacramental aspect of marriage is defined entirely by each religion, and is not in dispute.  Under the 1^st Amendment to the U.S. Constitution, the government has no role in this, and never will.  Jewish rabbis cannot be forced to perform Muslim weddings, and Catholic priests cannot be forced to perform gay weddings.  Period.  That is fundamental religious freedom.

The second aspect of marriage, the contract, is more complex, but is also undisputed.  Talk to any ten married couples, and you will get ten different ideas about what marriage is, means, and requires—and they will all be correct.  For better or worse, each couple decides for themselves what their marriage will require of each party.  Sometimes, that arrangement is explicitly stated in a pre or post nuptial agreement; sometimes it is developed organically over time through consensus.  In any case, this is not going to change either, and is not in dispute.

Those two aspects of marriage fully encompass the entire marriage concept to most people.  Yet, it is the third aspect of marriage, the bundle of rights granted by the state, that causes all the legal fuss.  There are several thousand rights involved in the marriage bundle, ranging from medical care and treatment to death and social security benefits.  While the assortment of rights in the bundle are numerous and complex, the issues involving the marriage bundle itself are not terribly difficult to grasp.

The first big legal question is why the Supreme Court should decide this issue, and not a more democratic process.  That is simple: we are not a democracy; we are a constitutional republic.  Under a democracy, the majority will always rules.  Thus, it is nothing more than legitimated mob rule.  Its shortcomings are revealed most starkly in the democracy of ancient Athens, which executed Socrates, perhaps the greatest thinker in history, merely for making the majority uncomfortable.  In the U.S., we framed the Constitution precisely to prevent such tyranny of the majority, and to guarantee our rights and liberties, many of which are specified within it.  A right is absolute, and is not subject to majority rule.  Under our constitutional system, it is the judicial branch, with the Supreme Court at its head, that is most accessible to individuals, and thus serves as the primary guardian of our rights. 

In this case, the rights the Supreme Court must consider stem primarily from the 14^th Amendment to the U.S. Constitution.  This is the amendment that guarantees that neither the states nor federal government can deprive any person of life, liberty, or property without due process of law.  It also guarantees that every person will enjoy equal protection of the laws.  At the very least, if any government passes a law or regulation that impacts these rights or liberties, it must have a rational basis for doing so.  That means that the law must make logical sense, and achieve a legitimate purpose.  

So is marriage a right?  Absolutely.  In fact, the Supreme Court has ruled repeatedly that it is a fundamental right, included in the concept of “liberty,” the amendment mentions.  The constitution does not mention it more specifically because the Bill of Rights was never intended to be exhaustive (many founders thought it was unnecessary to include at all), and the founders would have found the idea of specifying a right to marry to be absurd, as it is so fundamental to being human. 

That is the easy part.  While the concept of marriage is irrevocably enshrined in judicial precedent, its legal expression has changed considerably over time.  Long ago, marriage granted a property interest to the husband over his wife and children as an economic unit.  The wife’s legal identity was entirely subsumed beneath her husband, and it was not always consensual.  Of course, this allowed for marital rape.  Interracial marriages were not permitted, nor were marriages of the handicapped.  Both were considered criminal offenses. At times, interfaith marriages were also prohibited.  Those unfortunate enough to be sterile might find their marriages annulled.  All of this has changed.

Today, a legal marriage consists of a consensual and legally equal union between two people of any ethnicity or faith, whom may or may not be sterile, may or may not have children—or even intend to, may or may not cohabitate, may or may not share resources, may or may not be sexually intimate, and may or may not even like one another but, for whatever reason, choose to be married anyway.  

Enter the Equal Protection Clause.  Given the rather vague legal standard for modern marriages, the Supreme Court must decide whether there is even any rational basis for restricting the modern institution of marriage to a man and a woman, thus excluding all same sex partners who wish to participate equally in the institution.  This was the main challenge the Justices put to the opponents of gay marriage. 

In answer, opponents of gay marriage generally cite two reasons for preserving the definition of marriage as limited to a man and a woman.  The first is that it adheres to long tradition, and the second is that it helps foster what the state sees as an idea setting for childrearing.  Both of these justifications were offered to the Court.

Tradition is the weakest of the two arguments.  To argue that marriage has existed for countless millennia unchanged, and has always been between a man and a woman across every culture and civilization is highly misleading.  Two-spirited people in some Native American nations wed either sex.  Many other cultures throughout time had established same sex relationships that carried legal privileges and duties that today would look very similar to modern marriages. The same sex relations of ancient Greece and Rome are especially relevant.  En balance, many marriages between men and women in past ages were conducted according to rules and legal standards we would not recognize as marriage today, and might well find abhorrent.  Several such instances are listed above.  Finally, tradition carries no weight just because it is old.  It also has to be good.  Slavery is perhaps one of the oldest and most culturally universal traditions on earth.  However, it is evil, and was thus abolished in this country.  Thus, the argument for tradition, by itself, cannot stand, and indeed the Justices expressed extreme skepticism for it.  

In answer, the states attempting to preserve their traditional definitions of marriage offered the justification that marriage between a man and a woman serves to honor and encourage an ideal procreative bond between parents and their biological children.  Here too, though, they encountered great skepticism.  States allow marriages to dissolve in divorce proceedings, even when children are involved.  Many women, whether single or in lesbian relationships, undergo artificial insemination with state sanction.  States further permit single parent adoptions, as well as gay adoptions.  States also permit marriages for sterile couples, couples past the age of childbearing, and couples where one party may be in prison, and is incapable of either consummating the marriage, or even of adopting children.  It is exceptionally difficult to see where the interests of the marital children in a stable family unit diverge from the interests of the non-marital children households with similarly stable--but gay-- families, or even in single parent homes.  It is equally difficult to see how those married couples incapable of bearing children or adopting them advance that supposed interest.  Mostly, it seems an irrational distinction.  

Once one eliminates tradition and child rearing as sufficient justifications for excluding same sex couples from the legal institution of marriage, only two explanations remain, both of which are legally invalid.  The first is animus, or disapproval of same sex relationships and the belief that they should not receive the same honor or sanction as heterosexual relationships.  While everyone is free to take moral positions on any issue, creating separate legal statuses for a disapproved class of people violates the equal protection clause, and is thus unconstitutional.  

The second remaining objection grows out of conceptions of marriage rooted in its sacramental aspect for many religions, or  its contractual aspects in many personal preferences, where the idea of a same sex union may have no place.  These are important aspects of marriage, certainly, but they are not legally significant, nor would they be impacted by any legal ruling.  They remain firmly within the domain of personal religious belief, protected by the 1^st Amendment, but also prevented by that amendment from becoming universal legal standards.  

These deficiencies in the arguments of those states attempting to preserve the definition of marriage as exclusively between a man and woman are why every federal court save one has ruled in favor of gay marriage.  It is extraordinarily difficult to find a rational basis for the exclusion, given our society’s nebulous definition of marriage and rather open standards for adoption and child rearing.  Many have suggested that the government get out of the marriage business entirely and leave the concept to churches and individuals.  That would probably be the most principled solution.  However, so many legal rights and structures are tied up in the bundle we call legal marriage, that our societal structures would not tolerate a complete state withdrawal from the concept—nor is that an option the Court could take in this case.  As a result, it looks quite likely that the Court will rule in favor of extending the fundamental right of marriage to same sex couples, not because they want to change the definition or meaning of marriage, but because they cannot find a logical reason to prevent the changes we have already made from applying to same sex couples too.     

The 4th Amendment: A Right—Not a Privilege

By Julian Dunraven, J.D., M.P.A.

What is the difference between a right and a privilege? Answering that is a difficult task, for our legal system so often conflates the two concepts. Yet, in the simplest sense, a right is basic liberty intrinsic to being human, while a privilege is granted or purchased from someone else. Legal privileges, or government granted rights, are created, granted, and maintained by government. In this area, you will find your right to drive on public roads with a driver’s license, your rights to attend public schools, and your right to one vote at the age of 18 for government elections—often provided you are not a felon. These are lesser rights, more properly called privileges. Your greater human rights, however, are innate to you just by being. Governments do not create them, and cannot take them away. Governments can only recognize and respect them, or oppress them; in either case these fundamental rights remain absolute regardless of the government. In the United States, some of these greater human rights are expressly enshrined within the Constitution—especially the Bill of Rights and the 14th Amendment.

Within the Bill of Rights, the 4th Amendment is perhaps most foundational to this country’s origin. It expresses a principle we borrowed from our British forbearers, who already held it in great reverence. I think it was best stated by William Pitt, the British Prime Minister, in a now oft quoted speech, just a few years prior to the American Revolution:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

Unwisely, the British forgot that brave and noble principle in their management of the colonies, and forced upon them the hated Writs of Assistance and General Warrants. When the colonists finally began to stand up to these dreaded instruments of oppression, as John Adams said, "there the child independence was born." And to ensure such atrocities never again occurred, the founders gave us the 4th Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds very nice. Most people read this and believe themselves secure from government searches, seizures, and arrests unless there is probable cause and a warrant from a court. Unfortunately, most people would be wrong. All the forces of the Republic have proven much more pernicious than all the forces of the Crown, and warrants today are the rare exceptions to law enforcement activity.

Today, law enforcement can look through your phone records, your internet activity, your bank records, your trash, and many of your business operations, all without warrants. Schools or workplaces can offer no protection, and even your own body is open to inspection without warrant. Criminals—whether convicted or merely accused—get no privacy at all, and if you happen to be at an airport or a border crossing, neither do you. Indeed, the searches now conducted by the U.S. national security apparatus are indistinguishable from the General Warrants that led to the Revolution. So what happened to the 4th Amendment?

The problem stems from one little word: unreasonable. Over the years, the Supreme Court has held that the first and second clauses of the amendment are nearly separate. In short, a warrant, requiring probable cause and particularity is only necessary if a search is unreasonable. A reasonable search, according to the Court, does not require a warrant. So what is reasonable or unreasonable? To determine this, the court engages in a balancing test. On one scale it places your expectations of privacy which society is prepared to accept. On the other it places the interests and importance of the state getting the information it wants. This defines your right to privacy under the 4th Amendment—and it is no right at all.

The rights protected by the 4th Amendment are fundamental and innate rights. Yet the Court seeks to balance them against Government interests before it will recognize them. If a right is only recognized if the Government deigns to do so, but is reduced or eliminated whenever the government determines a matter sufficiently important, then it is no right at all. Such sufferance at will reduces a right to a mere privilege. And the government will, ultimately, always find its own interests outweigh individual liberty or privacy. The proof is all around us.

Try imagining a TSA agent telling George Washington to spread his limbs while their scanner took a photo of his nude body for security purposes, or their staff conducted a pat down which, anywhere else, would be called sexual molestation. Or perhaps imagine the reactions of Adams, Franklin, or Jefferson in discovering that anything they submit to another person or business, from email via an ISP, or a monetary deposit via a bank—effectively every record and transaction—is subject to warrantless and constant surveillance. Somehow I doubt they would have much sympathy for the idea that it is all an important state interest for the security of the nation.

The problem is now bad enough that at least one Justice of the Supreme Court, Sonya Sotomayor, has suggested abolishing the doctrine that information turned over to a third party (such as an ISP, bank, or phone service) is fair game. Unfortunately, she bases her argument on the idea that the modern electronic age simply allows for too much information to be snapped up by government watchers. This means only that she dislikes the consequential result of the doctrine laid down by the Court. It is not a principled objection; our rights remain subject to her subjective sense of what is or is not too much government intrusion, and mass traffic stops, random personal frisks, and other arbitrary exercises are at the whim of the justices. There is an alternative, however.

If the 4th Amendment were read as a whole, as it should be, rather than as separate parts, then it becomes clear that all searches and seizures must be supported by individualized probable cause. That being the case, the only reasonable searches or seizures which could take place without a warrant would be those crimes directly observed by law enforcement, or those emergency situations to which someone involved consensually invites law enforcement. Those are about the only instances where probable cause can be established directly by a law enforcement officer, and would thus be reasonable. Anything requiring indirect observation, or the compilation of disparate evidence, would of course require the judicial oversight of a warrant.

I have no doubt that governments at every level would scream that this view of the 4th Amendment would make it much more difficult for them to pursue criminals. They would be right. However, the primary function of government is not to pursue crime, or even establish order. Rather, it is to guarantee liberty: liberty of each individual against other individuals, certainly—but also liberty of the citizens against the government. Only through this holistic view does the 4th Amendment take on the power of an absolute principle—a human right—not a government privilege. Anything less leaves it to the subjective, arbitrary, and evolving preferences of the Justices, always with the heavy thumb of the government weighting the scales. Alas, I doubt this will come to pass anytime soon.

Every time I teach 4th Amendment jurisprudence in my Constitutional Law class, I find it fascinating to watch the students. Inevitably, by the end they will be in frothing rages against the almost total abolition of privacy that has befallen this nation, and demand to know why my class is the first time they are hearing about it. The tragic answer is that only Constitutional Law classes—and few enough of those—are even paying attention.

Unfortunately, few of our citizens guard their constitutional rights as they should. Thus, few even know how impotent the protections of the 4th Amendment have become. Elected leaders actually campaign on proposals that undermine 4th Amendment rights in the name of safety, of efficiency, of getting at bad guys and, above all—of national security. So far, the people have bought it all, happily selling their rights in exchange. And so Natural Rights become mistaken for government granted privileges. Until people remember what a right actually is, acknowledge how much they have lost, and demand it back from their government, nothing will change. Until then, we remain under near total surveillance. Liberty requires constant vigilance, and our people have been asleep.

State of the Union Attack on the Supreme Court Extremely Inappropriate

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

After watching the State of the Union address tonight, I notice not much has actually changed in a year. Fashion, for instance, remains a foreign concept in Congress. We were back to the standard assemblage of wretchedly dull red and blue ties for men, and uninspiring cliché shades of red and blue suits for women. One elected official sitting next to John McCain even tried to combine the standards by pairing a blue tie with a bright red vest. Unfortunately, the result was so appallingly garish that I cannot even given him token points for creativity. At least the politician uniform makes them easy to spot and avoid on the street. I suppose I should just be happy that the President chose to forgo the imperial purple he often wore during the campaign; it would have made his tone even more alarming.

Mr. Obama’s policies were also remarkably unchanged. As many other sources will discuss, he held firm to his ultra liberal commitments to impose cap and trade legislation, impose massive government intervention into the economy and financial sector, and remain firm in his efforts to impose a radical government takeover of healthcare.

Nonetheless, I must admit that the speech carried an appealingly strong tone of disgust with Washington, political games, backroom deals, and irresponsible spending. I might be more impressed if I were able to forget that Mr. Obama and the Democrats have controlled both the White House and Congress for over a year, now, and even held a super majority in the Senate until last week. If politics in Washington are a bit dodgy, one can hardly blame the Republicans or, after a year’s time, continue to whine about the old policies of Mr. Bush.

Perhaps the most amusing point in the speech came when Mr. Obama asserted that responsible budgeting and economics required that we do not reign in spending until we are actually in recovery, and until then we should pour more money into a stimulus bill, which we will now call a jobs bill. I was pleased to see I was not the only one unable to contain my laughter at this absurdity. The Republicans in the chamber all seemed to erupt into derisive chuckles. As the Republican response pointed out, the way to recovery is not through increasing government interference in the economy—not financial, not energy, and not healthcare. Nor is it to excessively spend or tax the wealthy, or increasingly grant loans which we then forgive after 20 years. Rather, it is to roll back government in general, lower taxes across the board, and allow the economy to function on its own, free of the favors or penalties of government.

Mr. Obama did mention a few positives. He seemed willing to talk about nuclear power and off shore drilling, for instance. However, if he intends to include these things as part of larger cap and trade legislation, then he poisons the well of energy before we even start drilling it. He also talked about granting gays equal treatment in the military. However, as commander in chief, he has the power to do this at the stroke of a pen. Whatever you may think of the idea, do not expect his talks with Congress and the Pentagon to produce any results on this matter. The Democrats love to assure GLBT people that they should be treated as equals while doing absolutely nothing to support that idea beyond giving speeches. His other prior work on ending torture and closing Guantanamo Bay, while laudable, was not mentioned at all. His utter lack of progress on that goal might have been a bit embarrassing, I suppose, as would his incomprehensible failure to understand how to properly balance an interest in basic human rights with the need to secure against terrorist enemy combatants. Treating them all as if they were domestic criminals is so profoundly foolish that I believe he was wise not to raise the subject.

Commentators seem to be overlooking the most disturbing aspect of Mr. Obama’s speech, though. He openly criticized the decision making of the Supreme Court and allowed the chamber to applaud his remarks on that subject. It is one thing to express disagreement with the Court on matters of policy in his role as the Chief Executive. It is another to publicly censure the decision making capabilities and the very competence of a Supreme Court decision during the State of the Union address. This was a direct attack on the credibility of the third branch of government, the branch that depends entirely upon the respect of the public for its authority. It was completely inappropriate for the President to make such remarks, and I cannot recall the last time a President made such an overt assault on the authority of a coequal branch of government. It may indeed have been FDR. I suppose I should not be surprised by yet another frightening similarity between the two. Coupled with his arrogant demand that Congress deliver a jobs bill to his desk, I am increasingly alarmed at the astonishing imperial attitude which seems to exude from Mr. Obama.

The only true change I spotted this evening was in the Republican response. Delivering the response in front of a live audience in the Virginia House of Delegates was a splendid change this year. Despite the fact that much of the speech was still pre written, it did respond to parts of the President’s address, and did a lovely job of contrasting the approach of the two parties to our national economic crisis: Democrats believe more government regulation with targeted tax incentives is the answer; Republicans believe government in general should be scaled back and taxes should be lowered across the board. Voters will decide in November which approach sounds more appealing. I have little doubt as to which option they will favor.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Judge Rules Against Bush for Wiretapping Without Warrants: Triumph or Tragedy?

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

All day long, I have listened to the shrieking of my conservative friends as they denounce the ‘terrible’ decision by a U.S. district court judge to end the Bush administration’s warrantless wiretapping program. ACLU v. NSA. It seems they think the honorable judge has put all of national security at risk with the naive notion that we can fight terrorism according to the same rules we use to fight common criminals. Knowing the miserable quality of reporting the major media sources continually exhibit on questions of law, I understand why they hold such a dismal opinion of this case. However, having read the honorable judge’s opinion myself, I am thoroughly convinced that she has actually strengthened national security, and that conservatives would be the last people to take issue with this decision if they only took the time to read it. It is based soundly in traditional conservative principles. Let me see if I can condense it here.

First, no state secrets were ever at risk. The court considered the legality of the wiretapping program based on statements the Bush administration has already made public: (1) The wiretapping program exists. (2) The Bush administration monitors communication between U.S. citizens and people overseas suspected of having some connection, to a terrorist organization. (3) The monitoring is conducted without warrants.

In considering these facts, the court looked to our history. It pointed out that searches and seizures without warrant were among the offenses committed by King George III against the American colonists prior to the Revolutionary War. These searches terrified the people and chilled any speech or publication that might criticize the King for fear of being labeled seditious. After the American Revolution, the Founders enshrined two amendments into the Constitution in order to prevent such abuses from ever occurring again. We now know these as the First and Fourth Amendments to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.--U.S. CONST. Amend. I.

The right the of people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated, andno Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and the persons or things to be seized.--U.S. CONST. Amend. IV.

These two amendments work together to protect some of the most basic liberties we hold so dear. However, Congress is mindful, too, that when it comes to national security, the obligations of these amendments might be too cumbersome to carry out in the ordinary course of business. Thus, Congress passed the Foreign Intelligence Surveillance Act (FISA) as, “the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” 18 U.S.C. §2511(2)(f). This act sets up a special and secret court to grant surveillance warrants to the administration. Acknowledging the need to act quickly in matters of national security, it even gives the administration up to 72 hours after already beginning surveillance to seek a warrant. And so Congress has wisely provided for the administration to see to the needs of national security, while still permitting to judiciary to ensure the protection of civil liberties.

The Bush administration, however, has argued this is insufficient. It claims the President, as Commander in Chief of the Armed Forces under Article II of the U.S. Constitution, should have the right to see to matters of national security as he sees fit, independent of the laws of Congress and the warrant reviews of the judiciary. As one of the great Founders, James Madison, wrote in the Federalist Papers, though, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47. The court refused to allow President Bush to usurp both the Legislative and Judicial branches of government, and reminded the President that he is sworn to uphold and abide by the entire Constitution, not just Article II.

“He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation .”-- The Declaration of Independence

Thomas Jefferson wrote those words over 200 years ago describing a few of the offenses committed by King George III against the American colonists. Today, they could as easily apply to the warrantless wiretapping program of President George Bush II—or they would had the court not stuck it down. In this case, the court defended the U.S. Constitution and the liberties it enshrines, protected the separation of powers from dissolving into tyranny, and provided legitimate means for the defense of this country—all principles long cherished by conservatives. In the end, the court managed to strengthen our national security, both against the terrorists that seek to destroy us from outside our borders, and the possibility of tyranny that could destroy us from within.

As the court noted in its conclusion, “Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.”