Category: General Law

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Direct Taxes and the Border Adjustment Tax

Former Solicitor General Ted Olson has an op-ed in The Washington Post arguing that a border-adjustment tax would be subject to the state apportionment requirement of the Constitution’s Direct Tax Clause. I see no prospect that a border-adjustment tax will be enacted, but if one is I think that Olson’s argument is without merit.

Let’s start with a point that is missing from the op-ed. The term “direct taxes” in the Constitution is largely a euphemism for “taxes on slaves.” Supporters of slavery in the Constitutional Convention faced a dilemma–suppose Congress were to tax slaves at a very high rate? Would that not give Congress the power (in practice) to abolish slavery? The solution was to say that direct taxes had to be apportioned among the states, which meant that even states with no slaves would have to pay a slave tax.  This was a strong disincentive for such a tax, which was never enacted.

When the Supreme Court first interpreted the Direct Tax Clause in 1795, Justice Patterson (who was a member of the Convention) explained this point in his separate opinion. The import of this history is that the Court never (despite many invitations) applied the Direct Tax Clause from 1795 to 1895. (To the extent that Congress did, it was only for taxes on land.)  In 1895, the Court deviated from this deferential posture and held that the income tax was a direct tax, but that was overruled by the Sixteenth Amendment. Since then, no other tax has been deemed direct.

In the face of this original understanding and overwhelming precedent, Olson musters very little in response. He simply tries to define a border-adjustment tax as direct from first principles. Maybe if given the chance he could say more (an op-ed is, after all, a very limited forum), but I doubt it.

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FAN 150 (First Amendment News) Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”

Throughout our history, the ACLU has stood up for freedom of speech and the right to dissent.  From providing know-your-rights materials, to sending trained legal officers to protests, to bringing critical lawsuits defending free speech, the ACLU is on the ground across the country ensuring that people’s voices can be heard. — 2017 Workplan

After a two year hiatus, the American Civil Liberties Union has reaffirmed its long-standing commitment to free-speech rights, this in its 2017 workplan. The group’s latest workplan contains a section on safeguarding free-speech rights. The 2017 “ACLU Strategy for Defending the Constitution” includes a segment entitled “Standing Up for Free Speech and Protestor Rights.” This portion of the work plan was part of an eight-page mailer sent out to ACLU members. The 2016 and 2015 workplans, by contrast, omitted any mention of protecting First Amendment free-expression rights.

“From Standing Rock to the Women’s March, from airport protests of the Muslim ban to Black Lives Matter marches across the country,” the workplan states, “we are experiencing historic levels of protest.  The whole point of lifting up your voice is making sure your elected officials hear you.”

Anthony Romero, ACLU Executive Director

“The response to these powerful displays of democracy in action? Legislators in at least 15 states have proposed new laws to criminalize and penalize protest activities. Some of these have been dressed up as bills having to do with obstruction or public safety, but at their core they have one intent and effect — and that is to suppress dissent.”

“. . . The ACLU will fight in statehouses against any bill that violates the First Amendment, and for any that become law, we stand ready to go to court.  We’re confident the courts will see these bills for what they are: unlawful infringements of people’s right to speak out.”

“We’ve also seen a troubling trend of companies attempting to squelch the freedom of speech of the people who disagree with their practices.  Take the residents of Uniontown, Alabama for example. When four residents of Uniontown — a poor, predominately black town with a median per capita  income of $8,000 — decided to fight the hazardous coal ash that Georgia-based Green Group Holdings keeps in a landfill in their community, they were sued for defamation by the company to the tune of $30 million.”

“No one should face a multimillion-dollar federal lawsuit just for organizing and speaking out for the health and well-being of their community. The ACLU took up the case and won a critical victory on behalf of the residents of Uniontown when the court dismissed the case. . . .”

Woman Convicted for Laughing During Congressional Hearing

One horselaugh is worth ten thousand syllogisms.” — H.L. Mencken

Ms. Desiree Fairooz

According to Ryan J. Reilly writing in the Huffington Post,  a “U.S. Capitol Police officer . . . decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January . . . . [P]rosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody. . . .”

“Desiree Fairooz, [a librarian and 61-year-old] activist affiliated with the group Code Pink, . . . laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of ‘treating all Americans equally under the law is clear and well-documented.’ Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room. . . .”

**** Ben Mathis-Lilley writing in Slate has just reported that a “jury in Washington has convicted a 61-year-old protester named Desiree Fairooz of disorderly conduct and “parading or demonstrating on Capitol grounds” because she laughed out loud during Attorney General Jeff Sessions’ confirmation hearing. Fairooz could be sentenced to up to a year in prison. . . .”

Press Advisory, CODEPINK Members Stand Trial for Intervening at Jeff Session Confirmation Hearing, May 1, 2017

James Bovard, Arresting someone for laughing may sound funny, but it’s no joke, Washington Post, May 3, 2017 (“It isn’t the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was okay, and some wasn’t: When then-Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.”)

Christopher Mele, Is It a Crime to Laugh at a Congressional Hearing? A Jury Will Decide, New York Times, May 3, 2017 (“Two other activists, Tighe Barry and Lenny Bianchi, dressed as Ku Klux Klan members with white hoods and robes, stood up before the hearing started and were also charged.All three pleaded not guilty to the charges, rejecting a plea deal and demanding a trial. If she is convicted on both charges, Ms. Fairooz said she faces up to 12 months in prison.”)

Headline: Trump’s Chief of Staff threatens free speech crackdown Read More

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Bushrod Washington Biography

I’m about 85% sure that my next book is going to be about Justice Washington. I want to do more research on him before I write a proposal for publishers, but I’m feeling good about this. So I thought I might take a moment to explain why I feel this way and what I look for in book projects.

I have a few criteria for writing a book. First, do I find the subject very interesting?  (If not, then that’s a lot of time to spend on boredom.) Second, do I think that I can say anything distinctive about that interesting subject? Sometimes I look into someone or something and conclude that someone else has already written a terrific book or has said what I would have said.  If that’s true, then what’s the point of doing one of my own. Third, do I think that the project is of manageable length?  I’m not yet at the point in life where I want to spend twenty years writing a book about something when that kind of effort is required by the amount of available material. (Maybe I’ll do one of those someday.) Fourth, because I have a young child I won’t do something that requires me to travel a lot (say to archives or libraries).

Bushrod Washington fits all of these conditions and more.  Get ready for lots of posts about him and about the Marshall Court.  I’ll start, though, with this irresistible quote from a letter he wrote in his early twenties shortly after he got married.

“I am scarcely yet entitled to the appellation of husband as the ardor of a lover has not left me . . . “[H]aving said this, I suppose it will be unnecessary to add that I have not yet been surfeited [i.e., satiated].”

And off we go for book #5.

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The Pursuit of Happiness

We all know the pedigree of this phrase as part of the Declaration of Independence.  What I was surprised to learn, after doing some research, is how often the Supreme Court has quoted this term of art to support the creation or existence of an unenumerated constitutional right.  Indeed, the pursuit of happiness does more work in this respect that the Ninth Amendment, even though the former is . . . well . . . not actually in the Constitution.

Here are some examples:

Cummings v. Missouri (1866):

“The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law.”

Meyer v. Nebraska (1923):

“While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Olmstead v. United States (Brandeis, J., dissenting) (1928):

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

Loving v. Virginia (1967):

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

I wonder if there is an article or Essay in this.

 

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Carol Sanger Replies to Rachel Rebouche: Images, Imagination and Ideology

In focusing on Chapter 6, You Had Body, You Died, Rachel Rebouche goes directly to the emotional complexities that derive from the corporality of prenatal life.  The title comes from a poem about abortion called The Mother by Gwendolyn Brooks.  Its last two lines read: Oh, what shall I say, how is the truth to be said? /You were born, you had body, you died.   Chapter 6 considers how seeing a fetal body—or even an image suggesting a body—influences how the entity is imagined and how it is responded to as a dead body.

Of course, what you think you see—the size of an embryo on a monitor, for example—may not accurately capture the entity itself. Rebouche, just back from a photo exhibit in Stockholm, points out that the iconic photos by Lennart Nilsson of Life in the Womb were, with one exception, miscarried or aborted fetal bodies, even if they looked magical and alive.  Yet historically, the benefits of ultrasound were not ideological in nature, but rather, they were aimed at improving public health by detecting early fetal abnormalities for the purpose of a possible abortion.  Thus as Rebouche puts it, “’normalizing abortion’” has always occurred in the area of prenatal diagnosis.

I want to develop Rebouche’s point in the context of the Zika virus.  Here imaging the brain is crucial in evaluating the calcification of the fetal brain so that a diagnosis of microcephaly can be made.  Yet an accurate reading cannot be taken until relatively late in a pregnancy.  In a 2015 case study, ultrasounds taken at 14 and 20 weeks of gestation showed normal fetal growth and anatomy. Only at 29 weeks did the first signs of fetal anomalies show up, and it took the 32 week ultrasound to finally confirm “a head circumference below the second percentile for gestation (microcephaly) [and] numerous calcifications in various parts of the brain.”  The problem is that 17 states have now banned abortions after 20 weeks, most often on the supposition that that is the marker for fetal pain.  This means that women with wanted pregnancies might have to roll the dice before 20 weeks, if they know they would terminate the pregnancy if faced with a diagnosis of microcephaly.  As I’ve said before, the age of Zika is not the time – it is never the time – to play politics with women’s health or their rights.   Perhaps we see the issue more clearly when we are dealing with pregnancies made unwanted on account of environmental threats, rather than in individual cases where it is easy to tag women as careless, selfish, and cruel.

Finally, I turn to Rebouche’s excellent point regarding my call to end abortion secrecy when that call is applied to pregnant teenagers.  She rightfully notes that bypass hearings are all about minors talking, and look how well that turned out! I myself make the case in About Abortion that minors’ testimony at bypass hearings sometimes resembles a compelled form of gossip about oneself.  I certainly agree that testimony is a very different thing from the form of chosen disclosure I have in mind with regard to “abortion talk.”  But Rebouche’s insistence on recognizing minors’ agency is key to fixing the bypass process, as it now exists in nearly 40 states.  As William Saletan made clear in Bearing Right: How Conservatives Won the Abortion War, restrictions on teenage abortion are the easiest thing for even a pro-choice politician to sign on to.  (Bill Clinton, anyone?)  Thus making parental involvement statutes better (in contrast to repealing them; aside from lowering the applicable age to 16 instead of 18) may be where the action has to be just now.  Yet Rebouche imagines a coalition of “clinicians, lawyers, court officials, and young women” who might “share stories, find solidarity, and agitate for change.”  I am with her. It would be great to hear from coalition members to learn when and where and how this sort of respectful and productive talk is underway.

 

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Local journalism as antidote to echo chambers and fake news

Have you noticed all the journalistic tourism to “Trump country” in the aftermath of election 2016?  A very recent example is here, and I have collected numerous stories in posts over at my own blog, Legal Ruralism, here and here.  Of course, some of these intrepid journalists were in places like southern Ohio before the day of doom (as here), and many of those have since returned to what I shall call the scene of the crime.  See more examples here and here.

My personal favorite for shoe leather effort and extraordinary insights is this piece by Alec MacGillis of ProPublica, “Revenge of the Forgotten Class,” published just a few days after the election.  It’s based on the author’s various 2016 visits to Ohio and Pennsylvania, right up to Election Day.  For what it’s worth, I see the best recent journalistic offerings about the working class–with the most compassionate reporting–coming from MacGillis, author of The Cynic, a biography of Mitch McConnell and  brilliant commentaries (including here and here), and from former bond trader Chris Arnade, who brought us this last summer.  Follow them for the real deal–if you have the stomach for it.

But what I want to focus on today is not so much this national reporting about poor and working class whites (who, incidentally, often overlap considerably with the rural folks I’ve been writing about for more than a decade).  While this reporting can be excellent, it often features a voyeuristic slant, an outsider-looking-in style that is framed in a “What’s the Matter with Kansas?” tone.  I want to focus on local journalism, especially in small town America, to consider the role of local and regional media in an era when we have become alarmed (justifiably) about the rise of fake news–as well as about the fiscal sustainability of smaller media outlets.

Having set the stage, let me remind you of some good news.  Eric Eyre of the West Virginia Gazette Mail just won the 2017 Pulitzer Prize for investigative reporting.  The Pulitzer jury recognized Eyre for a three-part series revealing how pharmaceutical companies flooded rural West Virginia with opioids; one eye-popping fact:  “780 million pills, 1,728 deaths.”  Here’s an annotated excerpt:

“Follow the pills and you’ll find the overdose deaths,” it begins. It details what happens in places like Kermit, W.Va., where the population is only 392.

“There, out-of-state drug companies shipped nearly 9 million highly addictive — and potentially lethal — hydrocodone pills over two years to a single pharmacy in the Mingo County town. Rural and poor, Mingo County has the fourth-highest prescription opioid death rate of any county in the United States.”

The series was a fabulous illustration of the paper’s motto, “sustained outrage.”  It was exciting to see a reporter in a “flyover state” gain such high-profile recognition.  It would be easy for the Pulitzer jury to overlook or dismiss such reporting, simply because of its provenance and its subjects.  That is, Eyre is not only writing about West Virginia–the butt of innumerable jokes as a state–he is revealing abuse of the downtrodden Trump voter, folks we coastal elites have little sympathy for or ability to empathize with (see my recent posts about Hillbilly Elegy for substantiation of the latter point).  Maybe when these Appalachians are presented as the victims of Big Pharma, we can muster some sympathy for them?

Plus, as Margaret Sullivan pointed out in her mid-April piece in the Washington Post, “Great local reporting stands between you and wrongdoing.  And it needs saving.”  Sullivan quotes Kelly McBride, vice president of the Poynter Institute, regarding Eyre:

I so admire his dedication to the people of Appalachia, which he has approached not only as an excellent reporter but as a member of the community.

Speaking of journalists and publishers being members of a community, even more exciting to me than Eyre’s win was the recognition given Art Cullen of Iowa’s Storm Lake Times, winner of the 2017 Pulitzer for Editorial Writing.  The paper, published twice weekly, is based in Storm Lake, population 10,076, the county seat of Buena Vista County, in the northwest part of Iowa.  NPR’s “On the Media” did this podcast on the Pulitzer win.  I delighted in reading this “take no prisoners” series of editorials, most of which boldly took on BigAg and Governor Terry Branstad in one way or another.  Among the issues raised were diversion of tax dollars that had been earmarked for school infrastructure improvements, used instead to clean up pollution attributable to the agri-industrial complex, as well as the fact that the Farm Bureau had stepped in to cover the county’s legal fees in relation to that pollution, thus creating a conflict of interest.  Cullen also took up the problem of school funding schemes giving rural schools short shrift.  The Storm Lake Times is a family affair (Art is the editor, his brother the publisher, his wife the photographer and his son a reporter), and one clearly adept at the use of FOIA requests.  This is the sort of advocacy every community–rural or urban–needs.  It is advocacy that asks hard questions of politicians, corporations, and other moneyed interests, journalism that looks out for the underdog.

I can’t even say that of the statewide newspaper in my home state, the Arkansas Democrat-Gazette.  If its Twitter feed is any indication, the paper covers little more than automobile accidents and shootings.  In tandem with its publication last year of my op-ed about the risk of an industrial hog farm polluting the Buffalo National River (which runs through my home county) and sickening local residents, the Democrat-Gazette published an obnoxious editorial that suggested it was tired of the “he said, she said” nature of the “boring” debate over the industrial hog farm (which, I might add, was the first of its kind in the state, permitted without notice even to the National Park Service).  The editorial suggested–apparently tongue in cheek–that the concentrated animal feeding operation might “enhance” the river.  Geez.  Contrast that irresponsible stance with the Storm Lake Times concerns about agricultural ground water and river pollution and who will pay for its clean up.  No comparison.  The media really can make a difference, not least in our understandings of right and wrong–and, for that matter, science.

All of this reminds me of a change I’ve seen in my own hometown newspaper in the era of Trump.  I only noticed a few months ago that the Newton County Times was carrying the syndicated editorials of Dick Polman, a frequent critic of Trump, but apparently it was picking these up for its online edition as early as late 2015.  Previously, editorials were always written by the local editor, and they were virtually always about (very!) local issues, typically skirting controversies (like the industrial hog farm).  Letters to the editor were the forum where the county’s old-timers (typically conservative) duked it out with the newcomers (often more liberal/progressive), including the back-to-the land crowd that began showing up in that corner of the Ozarks in the 1960s and 1970s.

More recently, though, by publishing syndicated op-eds like “Moscow on the Potomac,” (by Polman) the Newton County Times is sharing (promoting?) views that are highly critical of Trump, even though a vast majority of the county’s voters chose Trump in November.  On the other hand, I’m also seeing the paper pick up op-ed columns like this one by Michael Reagan, President Reagan’s son.  Maybe the paper is playing both ends against the middle, but balance is better than blind loyalty to conservativism, especially when Trump is (apparently) the new standard bearer for it.

I’ll be interested to see if this newfound editorial balance in my hometown weekly (owned by Phillips Media Group, a regional chain) alienates long-time subscribers.  I’m reminded of this story last December about the high price a small-town Oklahoma newspaper is paying for endorsing Hillary Clinton for President.

In this era of liberal and conservative media echo chambers, I can’t help wonder what role local and regional papers might play in bridging the divide.  If they can help small-town folks appreciate the need for checks and balances on government–like the Storm Lake Times–that could be a good thing.  Ditto if they can be a voice for the needs and concerns of the common person, reflecting balance, telling both sides of the story, engaging empathically on tough issues.  Trump has given populism  a bad name of late, but a little populism from local media outlets could be a good thing, especially if they can leverage their trusted stance within a community to help explain complicated issues such as corporate greed that’s fueling the opioid epidemic (like Eric Eyre demonstrated), or the economics of free trade, the mid-to-long-term pros and cons of which are rarely self-evident.

If you don’t already do so, I recommend following some smallish, local or regional news outlets on Twitter or Facebook.  I have been following the Grand Forks (North Dakota) Herald for several months (see resulting blog posts here and here), along with the WV Gazette Mail, and it’s interesting to see not only the local news they report, but also what national headlines they pick up, including the political ones.  I also recommend the Daily Yonder, associated with the Center for Rural Strategies.  It’s been around a bit longer than my Legal Ruralism blog (we’re talking the decade plus mark) and has far more writers, readers, and a broader subject matter reach than I do.  If you don’t believe my admonition to take this forum folks seriously, see this recent feature on Nieman Lab.

In this highly polarized era, we need to look for common ground, and one way to do that is to educate ourselves about what concerns folks in rural America.  And if your instinct is to laugh at those things, try to keep the mocking and ridiculing to yourself.  I used to think that rural and working class folks weren’t paying attention to what coastal elites said about them.  Now, it’s clear they are… with the help of uber conservative outlets (and perhaps some Russian bots).  One thing should be abundantly clear to us at this point:  making rural and conservative folks the butt of our jokes isn’t going to get us out of our current political crisis.

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Reversing John Marshall

In my research on Justice Bushrod Washington, which I’ll discuss in some upcoming posts, I came across a curious piece of trivia.  How many times was John Marshall reversed by the Supreme Court? The answer is once, in The Adventure, 12 U.S. (8 Cranch.) 221 (1814).

How could this have occurred? The answer is that in C.J. Marshall’s day the Justices “rode circuit” conducting trials and hearing appeals. (Chief Justice Marshall’s circuit was Virginia.) Appeals from these circuit court decisions were sometimes heard by the Supreme Court, and the Justice who sat below sometimes participated in the appeal. This is strange by modern standards, but to do otherwise would have almost always left the Court a man down in cases coming from the federal system as it was structured following the repeal of the Judiciary Act of 1801. Even odder, a Justice sometimes ended up reversing himself. Given that the Court in Marshall’s day usually operated by consensus, the Justice who sat below often joined a decision overturning his ruling below.

The Adventure was a maritime salvage case where Marshall ruled as a circuit judge that an award was justified for the capture of a British vessel on the high seas. (He based his decision on an Act of Congress.) In the Supreme Court, however, an argument not considered below was made; namely, that the salvage award should be reduced and that the rest of the proceeds should be put in escrow for the British owners. Justice Johnson adopted this position in an opinion that Marshall joined.

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Looking back on Bridges v. California (1941) — Some random thoughts inspired by Floyd Abrams’ new book

The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt

Harry Bridges

One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.

In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.

Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.

Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams.  I agree. Many con-law casebooks do not even cite the case anymore.

After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.

Justice Douglas Edmonds

The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the  case in 1939.

  • Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
  • After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
  • And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
  • “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
  • He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”

More, much more, can be said about this remarkable dissent, but that is a task for another day.

A.L. Wirin

The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:

  • Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases  in the Supreme Court.  He was the lead counsel for the petitioners in  De Jonge v. OregonKunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
  • A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States

Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:

“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”

The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290).  With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent.  But then Fate changed things.

Anthony Lewis

As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired.  “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters.  That left the vote at four-to-four.  “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]

And then two new members joined the Court: Justices James Byrnes and Robert Jackson.  Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.

The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.

Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”

While war was afoot in the nation, freedom was being debated in the nation’s highest Court.

The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:

 First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]

And then there was this line: Narrow abridgments have a way of broadening themselves[Newman, supra, at p. 290, n. *]

Hugo Black (1937: credit: Harris & Ewing)

The Importance of the Bridges TestJustice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:

What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

The Importance of  Three PrecedentsAs Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. SullivanHere is how Lewis put it:

  • What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.

What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”

  • “Chief Justice Hughes found affirmative reasons for a free press.”
  • “Justice Brennan spoke of our ‘profound commitment to the principle that debate on public issues should be ‘uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'”
  • And then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”

* * * * *

Justice Louis Brandeis

As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].

True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.

Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]

The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:

The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.  

And to think that much of that heroic spirit traced back to Bridges . .  . first in Justice Edmonds’s dissent, then in the work done by Fraenkel  and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a  fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.  In any event, recalling these has me pondering the book as “Rorschach test,” that in which we can see what we choose to see.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned Enough to be Publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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Steve Bright

Yesterday the Supreme Court heard oral argument in McWilliams v. Dunn, a capital punishment case. The case was argued for petitioner by Steven Bright, the director of the Southern Center for Human Rights. Bright recently announced that he will retire as the Director after more than thirty years of advocacy against the death penalty.

I took a class from Steve Bright when I was a law student, and he is a remarkable man. While I do not believe that the death penalty is unconstitutional under all circumstances, his work and example did convince me that many capital sentences are unconstitutional and that the use of that sentence should be reserved for a handful of cases (far fewer than what is done now). So I just wanted to take a moment to salute him and wish him well in whatever he does next.