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In the Shadow of the Bill of Rights

One point that many judges and scholars make is that our emphasis on the Bill of Rights obscures the role that constitutional structure plays in protecting liberty. In other words, people tend to pay less attention to the internal limits  within the text (bicameralism, separation of powers, federalism, and enumerated powers) than they should. There may be cause and effect here, as the decline of those internal limits in the 1930s at least corresponded with the rise of the Bill of Rights as a prominent part of America’s constitutional culture.

What gets less attention is that you can tell a similar story about the rights that are in the 1787 Constitution. Hardly anyone pays attention to the Contracts Clause now. Likewise, Article III’s guarantee of a jury trial in federal cases is treated as if it were superseded by the Sixth Amendment, though that if far from clear. But there was a time (the 19th century) when Article One, Sections Nine and Ten were referred to in Supreme Court cases as being “in the nature of a bill of rights” when no such praise was given to the first set of amendments. (The Contracts Clause also played a leading role in many major early Supreme Court cases.)

My point, which I may develop more forcefully as I present the book, is that using the Bill of Rights as a means of constitutional categorization has costs. Some get downgraded by their exclusion and some get unduly elevated by their inclusion. (More on that next time.)

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John Bingham on the Expulsion Power

I’ve taken a closer look at Bingham’s final speech in the House of Representatives, in which he discussed expulsion. (The cite is Cong. Globe, 42nd Cong, 3d Sess. App. at 136-140 (1873). In that speech, Bingham rejected the argument that any house of Congress could expel a member for misconduct that occurred prior to his election. Since this point bears directly on what might happen with Roy Moore, I thought that I would provide some quotes from the speech. For the most part, JAB discussed the precedents of Parliament and Congress, though he also made a textual point that I’ll discuss at the end of the post.

Here is how Bingham summarized the internal precedents as of 1873:

It has been solemnly declared that no such power belongs to either House, to wit: to try and expel a member of either body for offenses, though infamous in their character, committed before his election.

He further denied that the House had “jurisdiction over the past life of every man who by the suffrages of the people may be elected a member of Congress.” At one point he hedged a bit and suggested that a criminal conviction during that Congress for past misconduct might present a different question, but that hypothetical does not cover the Moore case.

Bingham’s textual argument went something like this. Article One, Section Five of the Constitution states: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” He argued that the language about disorderly behavior referred to only behavior as a member, and thus the next clause about expulsion should also be so limited. (In other words, expulsion is a specific punishment and thus linked to the prior clause.) He also, of course, argued more broadly that voters should be able to choose their representatives subject only to the qualifications in the Constitution (age, citizenship, residence).

I highly doubt that anywhere close to two-thirds of the Senate is interested in expelling Senator Moore, but if the idea is taken up seriously here is one source people should consider.

UPDATE: Or, if Jones wins, never mind.

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FAN 172 (First Amendment News) Books Issue — 15 New or Forthcoming Titles

Prof. Jerome Barron

It began nearly a quarter-century ago with the publication of First Amendment Law in a Nutshell. Now, that treasure trove of information appears yet again in “nutshell” form, this in its fifth edition. Compact in size, accessible in style, reliable in substance, and current up to Matal v. Tam (2017), this jem of a book is an indispensable resource for anyone interested in the First Amendment’s five freedoms.

Sadly, Jerome Barron’s friend and co-author Thomas Dienes died in 2013. “I did not have the joy the joy of working with him in this edition,” wrote Barron, “as I did in the first four editions of this book. I miss the benefit of his knowledge, insight and friendhip but I am grateful for the many years in which we worked on this and other books.”

Abstract: This book provides a short and readable source for individuals interested in constitutional law, First Amendment law, and communications law. It is divided into four parts: the history, methodology, and philosophical foundations of the First Amendment; topics such as First Amendment issues that arise in cable television and in regulating children’s access to the Internet; issues in First Amendment law such as the public forum doctrine, the compelled speech doctrine, and the free expression rights of government employees; and the text, history, and theory of the religion clauses, chronicling the ongoing battle in the Supreme Court between accommodationists and separationists. The Fifth Edition brings the book up to date with modern First Amendment jurisprudence, including a focus on racist and offensive speech, electoral spending, and other topics covered by recent Supreme Court cases and discussions.

Jerome Barron & C. Thomas Dienes, First Amendment Law in a Nutshell (West Academic Publishing, 5th ed., November 20, 2017)

Brand New: Fellion & Inglis on Literary Censorship

→ Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control (The British Library Publishing Division, September 28, 2017)

Brand New: Fronc on Movie Censorship

Jennifer Fronc, Monitoring the Movies: The Fight over Film Censorship in Early Twentieth-Century Urban America (University of Texas Press, November 15, 2017)

Brand New: More on Film Censorship

 Jememy Geltzer, Film Censorship in America: A State-by-State History (McFarland, November 3, 2017)

Brand New: Free Speech & Hollywood (1907-1927)

→ Jay Douglas Steinmetz, Beyond Free Speech and Propaganda: The Political Development of Hollywood, 1907–1927 (Lexington Books, November 24, 2017)

Coming this January: Easton on the Lawyer for The Masses

→ Eric B. Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech (University of Wisconsin Press, January 9, 2018)

Coming this January: New Life for the Press Clause?
Read More

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One More Thought on Moore

While the constitutional discussion is focusing on whether the Senate could expel a Senator Moore given its past practice, another take that is getting less attention goes something like the following:

Suppose the election is very close. The Senate is the ultimate judge of who won a Senate election. In recent decades, the Senate has deferred to the conclusion of state authorities when an election result is contested. They do not, though, have to defer. It is possible that the Senate could refuse to accept the state’s conclusion that Moore won a very close election, and either seat Jones or order a new election. Granted, if this is just a pretext to exclude Moore, then a suit challenging that exclusion would succeed under the Court’s decision in Powell. You can imagine, though, a scenario in which there could be a mix of motives, which would require a court to uphold the Senate’s decision as a lawful exercise of its Article I, Section 5 powers.

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The Limits on the Expulsion Power

This post may be rendered moot tomorrow, but if Roy Moore is elected the issue of whether he should be expelled from the Senate will arise. On that point, I want to note that there is considerable authority to say he cannot be expelled for his alleged sexual misconduct.

The principle, enunciated many times in Congress, is that a member may only be expelled for something that occurred while he or she was a member in that Congress. Thus, conduct that occurred prior to an election cannot be the basis for an expulsion unless that conduct leads to a criminal conviction during that Congress. (In other words, if Congressman X is convicted for taking bribes five years ago, that conviction can serve as a basis for expulsion even though the bribes were taken prior to that Congress. But Congressman X cannot be expelled just because he took bribes five years earlier.)

In his last speech to the House of Representatives, John Bingham took the position that I am describing and defended the view that the House could not expel a member for alleged misconduct that occurred prior to that Congress. (He was speaking about proposed sanctions for certain members caught up in the Credit Mobilier scandal. The members were instead censured.)  In Powell v. McCormack, the Supreme Court reviewed this point and stated: “The House’s own manual of procedure applicable in the 90th Congress states that “both Houses have distrusted their power to punish in such cases.”

Now I’m not saying that there would be judicial review of a decision to break with precedent and expel a Senator Moore. I’m simply saying that the traditions of both Houses hold that they lack such a power under Article I, Section 5 of the Constitution because Moore’s alleged wrongs occurred long ago.

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Bushrod Washington and Alexander Hamilton

Next year there will be many Bushrod Washington posts from me as my research on this book heats up.  (I’ve been going through the correspondence between Bushrod and George, which contains many gems.)

I thought I’d take a moment to say something about Bushrod’s interactions with Alexander Hamilton, as the musical continues to be a pop culture phenomenon. One fact that made Bushrod important has that George Washington gave him all of his papers. Naturally, many people wanted to look at these materials, and the Justice was forced to think about he should handle such requests. One came from Alexander Hamilton in 1801, though it is not known what Hamilton was requesting. Evidently he wanted a copy of a memo he gave to the President as Treasury Secretary. Justice Washington refused, on the grounds that if he gave Hamilton access then he would feel obliged to give similar materials to everyone. He added that this would mean that some of Washington’s papers would be used for partisan purposes, and that he did think that was in keeping with the President’s wishes. Here is how Washington discussed his thinking to Hamilton:

The opinions delivered to the President by the heads of departments were those I presume of a private council and intended for his information. From hence I conclude that they were not put upon the files of any of the public offices and are to be found only amongst the papers of the General. They could therefore be obtained from no person but myself. Other measures of that administration may be again censured, discussed, and condemned by one party, and vindicated by the other, whilst both must or at least may resort to the same quiver of arms to fight with. Acting with the fairness which shall always mark my conduct, I could not upon such a subject refuse to one what I have granted to the other party, and thus the papers might be used in a way very different from that which I am persuaded was intended by the person who confided them to my care.

 

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Conditional Ratification

I’ve started drafting my next article, which will be about the recent attempts to revive the Equal Rights Amendment. One issue that I have not posted about before involves the form in which Congress could declare the amendment ratified.

To recap some old posts: Nevada ratified the ERA in 2017. Depending on how you count the number of state ratifications, the amendment could be just two states short of the 3/4 that are required by Article Five. Nevertheless, Congress declared in a 1978 Joint Resolution that the ERA must be ratified by a specific date in 1982 to be valid. Thus, Congress would need to repeal that Joint Resolution for the ERA to be ratified.

The unusual circumstances surrounding any proposed ERA ratification raise the following prospect. Suppose Congress concludes that enough states (with or without rescissions) have ratified the amendment and that the old deadline should not apply. In taking those steps, Congress could also formally state its understanding of what the ERA does or doesn’t mean. For example, the Joint Resolution repealing the 1978 one can say: “We declare the Twenty-Eighth Amendment ratified, but also declare that this amendment does not apply to abortion.”

This sort of conditional ratification does not bar a future court from giving a contrary construction (as would be the case if the text of the amendment made an exception for abortion), but it would provide clear and powerful guidance for courts. More so than just having some members of Congress express their view in a speech endorsing or rejecting ratification.

One wonders if this sort of compromise might be necessary to get the ERA deadline waived should the issue ever arise.

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FAN 171.1 (First Amendment News) Met Refuses to Remove 1938 “Offensive” Painting — Free Speech Advocates Rally to Museum’s Defense

Throughout his career, Balthus rejected the usual conventions of the art world. . . Prime Ministers and rock stars alike attended the funeral of Balthus. Bono, lead-singer of U2, sang for the hundreds of mourners at the funeral, including the President of France . . . and others.  Elisa 47

Moral panics often inspire demands for censorship and this is no exception. The MET absolutely made the right decision.  Robert Corn-Revere

* * * * 

Thérèse Dreaming (Metropolitan Museum of Art)

Censorship is never a safe haven for art, be it paintings, photos, poems, films, or music. Could art, as we know it in our constitutional government, exist if it could not be offensive at times? After all, safe, sanitary, and uncontroversal art is never in need of First Amendment protection. The 1791 guaranty is there to protect art that sometimes offends, that sometimes angers, and that sometimes even trades in taboo. Or so goes the creed of the defenders of free expression who came to the defense of The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts “the sexualization of a child.” That painitng is Thérèse Dreaming, a 1938 work by Balthus.

Here is how the Met describes it: “With closed eyes, Balthus’s pubescent model is lost in thought. Thérèse Blanchard, who was about twelve or thirteen at the time this picture was made, and her brother Hubert were neighbors of Balthus in Paris. She appears alone, with her cat, or with her brother in a series of eleven paintings done between 1936 and 1939.”

Others see it differently.  As reported by Natalie O’Neill in a story in the New York Post: “‘The artist of this painting, Balthus, had a noted infatuation with pubescent girls and this painting is undeniably romanticizing the sexualization of a child,’ writes Mia Merrill, 30, a New York City entrepreneur who started the petition. ‘Given the current climate around sexual assault … The Met is romanticizing voyeurism and the objectification of children.'”

→ See petititon: “Metropolitan Museum of Art: Remove Balthus’ Suggestive Painting of a Pubescent Girl, Thérèse Dreaming” (10,995 supporters). Here are a few excerpts from that petition:

  • “When I went to the Metropolitan Museum of Art this past weekend, I was shocked to see a painting that depicts a young girl in a sexually suggestive pose. Balthus’ painting, Thérèse Dreaming, is an evocative portrait of a prepubescent girl relaxing on a chair with her legs up and underwear exposed.”

(From online petition)

  • It is disturbing that the Met would proudly display such an image. . .  The artist of this painting, Balthus, had a noted infatuation with pubescent girls, and it can be strongly argued that this painting romanticizes the sexualization of a child.”

Removal or Trigger Warning Urged

  • “I am not asking for this painting to be censored, destroyed or never seen again. I am asking The Met to seriously consider the implications of hanging particular pieces of art on their walls, and to be more conscientious in how they contextualize those pieces to the masses. This can be accomplished by either removing the piece from that particular gallery, or providing more context in the painting’s description. For example, a line as brief as, ‘some viewers find this piece offensive or disturbing, given Balthus’ artistic infatuation with young girls.‘”

Ms. Mia Merrill

 Mia Merrill Twitter message: “I put together a petition asking the Met to take down a piece of art that is undeniably romanticizing the sexualization of a child. If you are a part of the movement or ever think about the implications of art on life, please support this effort.”

Met Responds

As reported in the Post, Kenneth Weine, spokesman for the Met, stated:“[Our] mission is to collect, study, conserve, and present significant works of art across all times and cultures in order to connect people to creativity, knowledge, and ideas.  Moments such as this provide an opportunity for conversation, and visual art is one of the most significant means we have for reflecting on both the past and the present.”

Free-Speech Advocates Defend Met

  • “The National Coalition Against Censorship (NCAC) strongly supports The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts ‘the sexualization of a child.’ . . . The protesters’ claim that displaying the painting implies institutional approval of an unhealthy sexualization of young women . . . fundamentally misconstrues the role of cultural institutions, which is to facilitate a diverse public’s engagement with a rich array of cultures and objects by framing and contextualizing them. . . . NCAC applauds The Met’s refusal to bow to its critics. We will continue to support cultural institutions that allow members of the public to make up their own minds about what is ‘offensive.'”

“Great museums don’t need to be lectured about the supposedly baleful impact of their exhibitions; in each generation, they need to be protected from well-meaning but art-threatening ning censors who seek to substitute their notions of morality for artistic judgments about what to paint and what to display.” — Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel

— “Especially in light of the Museum’s advance notice to potential viewers that “Some of the paintings in this exhibition may be disturbing to some visitors,” it would be inappropriate for the Museum to deprive all visitors of the opportunity to view the work and to discuss the issues it illuminates. This is particularly true during this “Me Too” moment, given the important public focus on pertinent issues, including Roy Moore’s sexual pursuit of young females.” — Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School

 “The Metropolitan Museum of Art has been forced to respond to would-be censors since the 1880s. The claim of harm to children was always the easiest to make. During the era in which Comstock Laws were enforced most broadly, reproductions of nudes exhibited at the Met were deemed obscene, burned and destroyed, while the originals were held to be art, and therefore not subject to suppression. Claims were made by Comstock and his employers about the ways in which the particular effects of originals ameliorated their ‘bad tendencies’ but in reality this responded to the political problems raised by questioning the morals of wealthy donors. Bravo, Met, once again.” — Amy Werbel, Associate Professor, Fashion Institute of Technology, State University of New York and author of Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (forthcoming 2018)

Woodhull Freedom Foundation does not support censorship in any form, especially when it comes to works of art that raise troubling themes. We do support high standards for interpretive materials and believe that at their best they should reflect the most current understanding or knowledge about an artist, issue, historical era, or work of art. While coverage of this petition has focused on the call to remove the work, we do note that the author of the petition offers a choice, where providing better interpretive material would facilitate the display of the work in question.”  — Elizabeth Wood, Senior Strategist, Woodhull Freedom Foundation

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FAN 171 (First Amendment News) Masterpiece Cakeshop Case: Oral Argument Summary & Resources’ Roundup

The tone and nature of Kennedy’s questions suggest that he is inclined to rule for the baker. But his ruling would effectively still be a win for gay rights laws. Kennedy can hold that CADA itself — like hundreds of other civil rights protections — remains completely valid. But this particular proceeding, he might conclude, was infected by anti-religious bias.– Craig Konnoth, Wash. Post, Dec. 6, 2017

It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief., — Roberta Kaplan, The Advocate, Dec. 6, 2017 

 

The information below consists of a topically organized set of excerpts from oral arguments in the Masterpiece cake case that was argued in the Suprme Court yesterday. Following that is a roundroup of recent articles.  

David Mullins & Charlie Craig (Washington Blade photo by Michael Key)

Counsel

  • Counsel for Petitioners: Kristen K. Waggoner
  • Counself for Amicus, supporting the Petitioners: Noel J. Francisco, Solicitor General, Dept. of Justice
  • Counsel for Private Respondents: David Cole, National ACLU
  • Counself for State Respondent: Frederick R. Yarger, Solicitor General, Denver, Colorado

Petitioner Jack Phillips (credit: Slate)

Excerpts from Oral Arguments 

Note: In the name of breveity, the excerpts that follow often leave out replies to the questions asked.

Premade Cakes 

Ginsburg: “What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?” (Trans.: pp. 4-5)

Kennedy: “[I]f you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?” (Trans.: p. 5)

Waggoner: “Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. . . .” (Trans.: p. 6)

Kennedy: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake?”  (Trans.: p. 8)

Kristen K. Waggoner for Petitioners

Roberts: “There’s no -­there’s no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.” (Trans. p. 9)

Kagan: “[A] couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it. Can he then say no? No cake?” (Trans. p. 38)

Sotomayor: “Let’s assume this couple did come in and wanted the rainbow cake. . . . And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. . . . So what are the difference in treatment?”  (Trans. p. 61)

Yarger: “Justice Sotomayor, in that latter case, if that truly a product he wouldn’t sell to any other customer, he would not have to sell it to this customer. But if it’s a question of a cake he would sell to any other customer, he cannot say I have a very strong objection to interracial or interfaith marriages and I don’t want to send message about those — those events, and so I’m not going to sell it to you. That’s discrimination. It wouldn’t be appropriate under Colorado law, and it would be a First Amendment objection.” (Trans. p. 62)

Word Messages

Alito: “So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” (Trans. p. 68)

Expressive Conduct

Alito: “Are the words on the cake expressive conduct or are they not speech?” (Trans. p. 80)

David Cole for Private Respondents 

Cole: “Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that -­that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s — it’s regulating the conduct of refusing a transaction . . . to somebody because of who they are.” (Trans. p. 80)

Cole: “It doesn’t matter whether it’s speech or whether it’s not speech.” (Trans. p. 80)

Alito: “But you just said, and I understand Mr. Yarger’s position for Colorado to be the same, is that someone can be compelled to write particular words with which that person strongly disagrees.”(Trans. p. 81)

Cole: “If he has written the same words for others, and the only difference is the identity of the customer, yes, so, again, a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family, but we would not say that, therefore, it is permissible for a baker to say: birthday cakes for whites only.” (Trans. p. 81)

Alito: “So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?” (Trans. p. 82)

No Request for Design

Cole: “There was no request for a design. There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.” (Trans. p. 77)

Messages Conveyed: Identity of Customer / Identity of Baker

Colorado Solicitor General Frederick R. Yager (credit: SCOTUSblog)

Gorsuch: “The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” (Trans. p. 24)

Gorsuch: “[Assume we have a case involving the] Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” (Trans. p. 84)

Cole: “No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.” (Trans. p. 75)

Hair Stylists & Makeup Artisits 

Kagan: “[What about a] air stylist?” (Trans. p. 12)

Waggoner: “Absolutely not. There’s no expression or protected speech in that kind of context . . . .” (Trans. p. 12)

Kagan:: “Why is there no speech in — in creating a wonderful hairdo?” (Trans. p. 12)

Kagan: “[What about] the makeup artist?”(Trans. p. 12)

Waggoner: ” No. . . .” (Trans. p. 12)

Kagan: : “It’s called an artist. It’s the makeup artist.” (Trans. p. 12)

Kagan: “[Y]ou have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?” (Trans. pp. 13-14)

Ginsburg: “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.” (Trans. p. 26)

Francisco: “[T]hat’s, of course, the question that the Court — Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.” (Trans. p. 26)

Kennedy: “But the problem for you is that so many of these examples — and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.” (Trans. pp. 26-27)

Architectural Design Read More