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William Howard Taft on Voting Rights

92px-WhtaftPeriodically I like to do basic research in the hope that this generate new ideas and that I’ll learn something.  In addition to reading all of the party platforms (still working on that), I decided to read all of the presidential inaugural addresses.  One of the most interesting passages I’ve come across so far was in President Taft’s 1909 Inaugural.  This gives a clear (though unsettling) account of how people viewed race relations and suffrage at the time.

The consideration of this question can not, however, be complete and full without reference to the negro race, its progress and its present condition. The thirteenth amendment secured them freedom; the fourteenth amendment due process of law, protection of property, and the pursuit of happiness; and the fifteenth amendment attempted to secure the negro against any deprivation of the privilege to vote because he was a negro. The thirteenth and fourteenth amendments have been generally enforced and have secured the objects for which they are intended. While the fifteenth amendment has not been generally observed in the past, it ought to be observed, and the tendency of Southern legislation today is toward the enactment of electoral qualifications which shall square with that amendment. Of course, the mere adoption of a constitutional law is only one step in the right direction. It must be fairly and justly enforced as well. In time both will come. Hence it is clear to all that the domination of an ignorant, irresponsible element can be prevented by constitutional laws which shall exclude from voting both negroes and whites not having education or other qualifications thought to be necessary for a proper electorate. The danger of the control of an ignorant electorate has therefore passed. With this change, the interest which many of the Southern white citizens take in the welfare of the negroes has increased. The colored men must base their hope on the results of their own industry, self-restraint, thrift, and business success, as well as upon the aid and comfort and sympathy which they may receive from their white neighbors of the South.

There was a time when Northerners who sympathized with the negro in his necessary struggle for better conditions sought to give him the suffrage as a protection to enforce its exercise against the prevailing sentiment of the South. The movement proved to be a failure. What remains is the fifteenth amendment to the Constitution and the right to have statutes of States specifying qualifications for electors subjected to the test of compliance with that amendment. This is a great protection to the negro. It never will be repealed, and it never ought to be repealed. If it had not passed, it might be difficult now to adopt it; but with it in our fundamental law, the policy of Southern legislation must and will tend to obey it, and so long as the statutes of the States meet the test of this amendment and are not otherwise in conflict with the Constitution and laws of the United States, it is not the disposition or within the province of the Federal Government to interfere with the regulation by Southern States of their domestic affairs. There is in the South a stronger feeling than ever among the intelligent well-to-do, and influential element in favor of the industrial education of the negro and the encouragement of the race to make themselves useful members of the community. The progress which the negro has made in the last fifty years, from slavery, when its statistics are reviewed, is marvelous, and it furnishes every reason to hope that in the next twenty-five years a still greater improvement in his condition as a productive member of society, on the farm, and in the shop, and in other occupations may come.

The negroes are now Americans. Their ancestors came here years ago against their will, and this is their only country and their only flag. They have shown themselves anxious to live for it and to die for it. Encountering the race feeling against them, subjected at times to cruel injustice growing out of it, they may well have our profound sympathy and aid in the struggle they are making. We are charged with the sacred duty of making their path as smooth and easy as we can. Any recognition of their distinguished men, any appointment to office from among their number, is properly taken as an encouragement and an appreciation of their progress, and this just policy should be pursued when suitable occasion offers.

But it may well admit of doubt whether, in the case of any race, an appointment of one of their number to a local office in a community in which the race feeling is so widespread and acute as to interfere with the ease and facility with which the local government business can be done by the appointee is of sufficient benefit by way of encouragement to the race to outweigh the recurrence and increase of race feeling which such an appointment is likely to engender. Therefore the Executive, in recognizing the negro race by appointments, must exercise a careful discretion not thereby to do it more harm than good. On the other hand, we must be careful not to encourage the mere pretense of race feeling manufactured in the interest of individual political ambition.

Personally, I have not the slightest race prejudice or feeling, and recognition of its existence only awakens in my heart a deeper sympathy for those who have to bear it or suffer from it, and I question the wisdom of a policy which is likely to increase it. Meantime, if nothing is done to prevent it, a better feeling between the negroes and the whites in the South will continue to grow, and more and more of the white people will come to realize that the future of the South is to be much benefited by the industrial and intellectual progress of the negro. The exercise of political franchises by those of this race who are intelligent and well to do will be acquiesced in, and the right to vote will be withheld only from the ignorant and irresponsible of both races.

Posner
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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

5

Rotating the Chief Justiceship

John G. Roberts Nominated To U.S. Supreme CourtI thought I’d pose a question as the Supreme Court swings back into action with its conference tomorrow.  Is there any legal barrier to making Chief Justice of the United States a title that rotates among the nine Justices?  In other words, could a different Justice be the Chief each Term, with each taking turns?

Why do this?  Basically, as a way of distributing the assignment and presiding powers.  By tradition the Chief Justice assigns an opinion when in the majority, with the Senior Associate Justice doing so if the Chief is in dissent.  Some appellate courts have used a rotating or random assignment system, and nothing stops the Justices from doing that tomorrow,  Even if they did, though, the power to preside would stay with the Chief (along with the various administrative powers given to that office).

The Constitution does not say that we must have a Chief Justice for life.  We must have a Chief Justice, and Article III judges must serve for life, but there is no such thing as a Chief Judge for life in the circuit or district courts.  Nonetheless, the vote in the Senate to confirm John Roberts was for the position of “Chief Justice of the United States.”  This could mean that only he can be the Chief Justice, but could he delegate to his colleagues and make them “Acting Chief Justice” if he so chose?  Furthermore, if the Senate and President refused to name a Chief Justice after Chief Justice Roberts resigns or dies (and simply name another Associate Justice), would that force the Court to adopt its own system (rotating, seniority, or whatever) to pick a Chief?

UPDATE:  Orin Kerr points to the relevant statutory authority in a comment. I wonder what the powers and duties of the Chief Justice are as defined by statute. (Presiding over a presidential impeachment is the only constitutional duty.)

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Law and the Marriage Gap

 

In his column this week at Al-Jazeera on inequality and marriage,  David Cay Johnston uses our recent book, Marriage Markets: How Inequality is Remaking the American Family, to show why marriage has become a class privilege. He suggests a variety of policies to promote investment in the next generation, policies that start to get at an issue we struggled with in the book (and that we thought would be an easy question): what role did the law play in the emerging class gulf in family formation, with the college graduates who have long been the leading champions of the sex revolution settling down into very traditional marriages while marriage seemed to be disappearing from working class communities that once espoused more conventional values?

Our initial inclination was to say not much. The first section of the book argued that the change in the economy and, particularly the disappearance of well-paying stable blue collar jobs for men, explained most of the shift in family form and, indeed, that the economic changes produced fairly predictable cultural changes that increased gender distrust and produced less reliance on marriage To be sure, we acknowledged Carl Schneider’s work two decades ago arguing that family law plays a “channelling function” in reinforcing shared notions of appropriate behavior. But, we also recognized that the class-based marriage divide is not about different norms; most Americans, regardless of race or class, expect to marry and value what marriage has to offer in similar ways. They differ primarily   in whether they expect to find a suitable partner and a point in their lives where marriage makes sense.

As we dug deeper into the research, however, we ultimately did come to a different conclusion: a conclusion that the law does matter and has something to do with the decision about whether it makes sense to marry a particular partner. Read More

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UC Davis Law Review, Issue 48:2 (December 2014)

Symposium — Not Equal Yet: Building upon Foundations of Relationship Equality

Law Review Symposium 2014 — Keynote by Erwin Chemerinsky
Erwin Chemerinsky

Standing Up for Direct Democracy: Who Can Be Empowered Under Article III to Defend Initiatives in Federal Court?
Vikram David Amar

United States v. Windsor, Marriage, and the Dangers of Discernment
David B. Cruz

Constitutional Crossroads and the Canon of Rational Basis Review
Katie R. Eyer

Evaluating the Methodology of Social Science Research on Sexual Orientation and Parenting: A Tale of Three Studies
Gregory M. Herek

The Perils of Family Law Localism
Courtney G. Joslin

Children as Proto-Citizens: Equal Protection, Citizenship, and Lessons from the Child-Centered Cases
Catherine E. Smith and Susannah W. Pollvogt

The Jurisprudence of Denigration
Steven D. Smith

When Governments Insulate Dissenters from Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions
Robin Fretwell Wilson

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FAN 42 (First Amendment News) Tribute to Al Bendich (1929-2015) — the ACLU lawyer who made the difference in the HOWL & Lenny Bruce cases

Al Bendich, April 5, 2013

Al Bendich, April 5, 2013

Some people make a difference in their lives; some people actually add to the bounty of freedom we call ours; and some people are so modest as to go quietly into the dark of their eternal night. Albert Bendich was one of those rare few. Sadly, Al died this past Monday.

Liberty in America is better off because of Al and what he did as a lawyer for the American Civil Liberties Union. He gave legal life to poetry and lawful voice to comedy . . . and more.

To know him was to like him — calm, mild mannered, soft spoken, and kind to a fault. But if you wanted to see sparks of passion — the ones that revealed the fire burning within him — all you had to do was start up a conversation about free speech. When it came to that, this lifetime defender of free expression became quite animated, but always with the composure of a learned lawyer who knew not only the law but also its history and the grand principles underlying it.

“I can’t think of anything more rewarding than fighting for matters of fundamental principles necessary to the preservation of democracy,” said Bendich in 2009. “The ACLU,” he added, “is absolutely necessary in that process. Without it we’d be going backward instead of trying to maintain our position and maybe inch a little bit forward.”

Al Bendich was a true inspiration to everyone in the ACLU community. . . From his time as staff counsel at the ACLU of Northern California, to his days as a teacher, and then a career in music and film with his colleague Saul Zaentz, Al’s passion for the Constitution and his country was a constant. — Abdi Soltani, Executive Director, ACLU of Northern California

The People vs Poetry 

Turn the clock back to 1957. On June 3rd of that year San Francisco police arrested Shig Murao, the manager of City Lights Bookstore, for selling HOWL and Other Poems to an undercover officer. Thereafter, City Lights’s publisher Lawrence Ferlinghetti was arrested for publishing HOWL. (See here and here for accounts of the arrest and what followed).  The case, People v. Ferlinghetti, went to trial.

The trio of defense counsel: the famed and flashy criminal defense lawyer Jake Ehrlich, the talented and knowledgeable public-interest lawyer Lawrence Speiser, and a recent Boalt Hall law graduate, Al Bendich (Speiser and Bendich were ACLU lawyers).

Here is how Nadine Strossen, the ACLU’s past President and a friend of Al’s, described what happened next:  “When Al Bendich worked on the landmark HOWL case, he was a very new lawyer, and the Supreme Court’s Roth decision, defining the obscenity exception to the First Amendment, was a very new decision. The HOWL case was one of first impression — the first actual application of Roth to an obscenity prosecution. Accordingly, Al’s brief in the case played a key role in shaping the law on point.”

“All free speech advocates,” she added, “are eternally indebted to Al for brilliantly managing to construe the Roth obscenity exception as narrowly as feasible, and persuasively explaining why it didn’t encompass HOWL. The brief had a palpable impact on the judge’s historic, speech-protective opinion, which in turn has had an ongoing positive impact on law and literature alike.”

Here is a passage from that brief:

Would there be any freedom of the press or speech if one must reduce his vocabularly to vapid and innocous euphemisms? An author should be real in treating his subject and be allowed to express his thoughts and ideas in his own words. Al Bendich (brief in People v. Ferlinghetti, 1957)

When it was all over, poetry prevailed.

Screen Shot 2015-01-05 at 10.56.30 PM

It was a new day in First Amendment America. HOWL could be sold in City Lights Bookstore and elsewhere. And all of this from a ruling by a San Francisco municipal court judge (Clayton W. Horn) who wrote a remarkable opinion that drew heavily on the work of a young ACLU lawyer named Al Bendich. Incredibly, it was the last time that a poem was the target of prosecution in an American court.

Even so, censors returned to the scene. Decades later, in 2005, Congress raised limits on the fines for indecency on the broadcast airwaves. That enabled the F.C.C. to charge up to $325,000 for every violation of its standards. And those standards barred reading HOWL on broadcast radio or television. “It seems like déjà vu all over again,” said Al.

Comedy on Trial

Imagine being busted for being a tad too colorful in telling jokes (many of them by way of social commentary) in a comedy club . . . in San Francisco . . . in the 1960s. Well, it happened to Lenny Bruce — no joke! The infamous comedian was hauled away from using indecent words during his performance at a club in North Beach in 1961 (see The Trials of Lenny Bruce).

The prosecutor was Hell bent on putting the “filthy” comedian behind bars for words spoken to adults at a joint called The Jazz Workshop where the likes of Thelonious Monk and others performed. No one was offended, no one complained, and no children were in the audience. Never mind. Bruce’s choice words violated sections 176 and 205 of the Municipal Police Code (unlawful presentation of an “obscene, indecent, immoral, or impure” performance) and section 311.6 of the California Penal Code (“lewd or obscene” words used in “any public place”). Now Lenny Bruce would have to face the music — and it wasn’t free-spirited jazz.

Al Bendich & Lenny Bruce at Bruce's 1961 SF obscenity trial

Al Bendich & Lenny Bruce at Bruce’s 1961 SF obscenity trial

Bruce had been looking around for a powerhouse mouthpiece, preferably someone who was “hip” to First Amendment law. Predictably, Al Bendich’s name came up. They met, they spoke, and soon enough Al agreed to defend the comedian on First Amendment grounds. So they went to trial.

The Judge? None other than Clayton Horn, the same judge who followed Bendich’s counsel and ruled in favor of Lawrence Ferlinghetti. Given the Horn-Bendich connection, things looked quite promising for Lenny. Ever the contrarian, Bruce demanded a jury trial. It was insanity. Still, Bendich preserved and thanks to several brilliant legal maneuvers was successful in securing a not guilty ruling.

photoHere is the kicker: the jury wanted to convict Bruce but ruled otherwise solely because of the precise jury instructions given to them by Judge Horn. Said one juror afterwards: “We hate this verdict, but under the instructions there was nothing we could do but give the ‘not guilty’ verdict.”

And who drafted those instructions? Yes, it was that same ACLU lawyer. Bendich had done it again; he had beaten back the forces of censorship. Now norm-breaking poetry and speak-your-mind comedy were safe in San Francisco.

* * * * 

There is, to be sure, more to Al Bendich’s life story than those two landmark First Amendment cases. There is, for example, his many years as counsel for Fantasy Records. And there is also his work on behalf of the constitutional rights of gays (see here, circa 1960), the poor, and the criminally accused.

My last conversation with Al Bendich was about the death penalty. His opposition was deep and passionate. His abiding sense of justice stemmed from multiple sources – his brilliant intellect; his commitment to the constitution and finally, his life experience.

He also spoke with his characteristic humility, but great pride, about his role in litigating one of the  most influential  cases establishing the unconstitutional conditions doctrine for recipients of public benefits, Parrish v. Civil Service Commission. In Parrish the California Supreme Court ruled in the 1960’s that predawn “bed raids” of recipients was a violation of their Fourth Amendment rights, and that the government could not condition continued receipt of public assistance on the forfeiture of constitutional rights. — Dorothy M. Ehrlich, Deputy Executive Director, national ACLU

Remember the First Amendment lawyers 

We think of First Amendment law as synonymous with judge-made law. We know the names of the judges — Holmes and Brandeis, Black and Brennan, etc. — who penned the famous opinions. But what of the lawyers who, like Al Bendich, argued those cases and advanced novel and persuasive arguments? Regrettably, too often they receive too little credit for the work they do. We must do more to remember them, to learn from them, and to share their life stories with new generations of lawyers eager to defend civil rights and civil liberties.

Now he stands tall in the memorial ranks of other First Amendment lawyers — the likes of everyone from Walter H. Pollak to Ephraim London to Stanley Fleishman to Bruce J. Ennis and beyond. They were, after all, the ones who helped to shape the law in ways to make the impossible possible. In the process they gave new and vibrant meaning to the First Amendment.

Farewell 

“Al Bendich contributed so much to the strong protection of free expression in the United States,” said Robert Corn-Revere, a noted First Amendment lawyer. “He had the vision and courage to defend speech that many people found to be unacceptable. I hope this sad occasion will at least move us to remember — and to celebrate — his accomplishments.”

With Al in 2013

With Al in 2013

On a personal note: Al was a dear friend. A year or so ago I was with him in Seattle with David Skover, whose law school hosted a conference at which Al spoke (see video here). And then there was the time when David and I spent a wondrous evening in San Francisco with Al and his wife Pam — chatting away for hours on everything from Alex Meiklejohn to Citizens United to Humanitarian Law ProjectDespite a few differences of views, Al picked up the tab (fancy wine and all). The sparkle in his eye, his gentle grin, his soft tone, and the way he spoke with such an admirable commitment to freedom — I remember it all as I write this.

In my mind’s eye I venture to City Lights Bookstore and see Al and Lawrence Ferlinghetti there — the lawyer and the poet — talking about the need for more insurgent poetry. And I imagine the tall poet leaning over to Al and saying: “Poetry is a radical presence constantly goading us.” Al smiles. “Ah yes, and remember,” he adds, “one of the reasons we have a First Amendment is to safeguard that radical presence.”

One final thought: If you believe in the work that Al Bendich did, if you believe in freedom for radical poets and ribald comics, and if you care about free speech in America, you can do something — exercise your First Amendment rights / help to protect the rights of others (even if you disagree with them) / and support the American Civil Liberties Union (go here to donate) or whatever group (liberal, conservative, or libertarian) that supports the principle of free speech for all.

Farewell Al.

Postscript: See also Michael Tigar, “Al Bendich, Mentor, Lawyer, Friend” (1-8-15)

4

Speaker of the House

Constitutional scholars often point out that there is no requirement in Article I that the Speaker of the House must be a member of that body.  Today we saw some votes for non-members, such as Colin Powell, Senator Rand Paul, and Senator Jeff Sessions.

Some crazy issues arise in this context.  Can a sitting Senator serve as the Speaker?  I suppose that there is no constitutional prohibition on that, though it would be hard to reconcile with the structural principle of bicameralism. What about making the President the Speaker?

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Electoral College Reform

In reading the 2012 Republican Platform, I was surprised by this passage:

We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

I did not realize that the GOP even had a position on this.   The constitutional analysis of this question is actually quite complicated, though there is no indication that enough states will join this initiative to present a justiciable case (if it is justiciable).  While I understand the reasoning behind support for the Electoral College, I think the last line about “corruption in every ballot box” is absurd.

0

A Patent Collective Rights Organization

There was an article in the Washington Post the other day discussing a plan by the founder of Priceline.com to create a collective rights organization for patents.  His contention was that patents in the United States are too hard too license, which leads to many innovations going unused and encourages patent troll litigation.

I hope his project succeeds, but I doubt that it will.  Unlike a successful CRO such as ASCAP, the complexity of running one for patents is exponentially greater.  Patents cover a vast range of subject matter and the value of many patents is hard to ascertain.  Songs, by contrast, are very similar to each other and can be administered through a reasonably predictable rate schedule.  One could imagine a CRO that focuses on a specific type of patent, but even that seems hard.

I’m not sure that we have too many unlicensed patents.  We just have too many patents, though the Supreme Court’s decision in Alice Corp. has significantly limited software patents.