5

The Vermont Ratification Convention

Here’s something that I didn’t know until yesterday: Vermont held a convention to ratify the Constitution. Vermont was an independent country (in other words, it was not part of the Union under the Articles of Confederation). In 1791, delegates were elected for a convention and they voted by a large margin to ratify. (Shortly afterward, Vermont was admitted as a state in time to also ratify what became the Bill of Rights.)  I’m going to read the records, though at first glance it seems like the focus was mostly on whether Vermont should stay independent rather than on what the Constitution said.

3

Who Would Be the Senate Majority Leader?

I’m working on the galley proofs of my Bill of Rights book–the last stage before publication. This puts me in the mood to daydream about far-fetched legal scenarios.

Suppose the Senate is divided equally between the parties. Under that scenario, the party of the Vice-President is the majority because the VP breaks ties. But what if the VP dies and the office is vacant? Does the Majority Leader remain the Majority Leader? Or is there no Majority Leader until a new VP is confirmed?

One way of thinking about that is that the Majority Leader must be affirmatively deposed by some Senate resolution or ruling of the Chair. In other words, the status quo is preserved. But what if there was a Senator from the “majority” who was ill (as Senator McCain is now). Then the other party could muster a 50-49 vote ousting the “Majority Leader” and the former majority could not muster a similar vote until the VP was confirmed (which the same Senate could delay).

Of course, the Senate does not have to have a majority leader to function. Perhaps the best rule in such an interregnum is that the office of Senate Majority Leader is also vacant.

An even more complex question would be presented if the VP was merely incapacitated (say, in a coma) rather than dead. Can a majority rest on a comatose VP?

1

FAN 159 (First Amendment News) Flying Dog quits Brewers Association over censorship flap

It’s a free speech issue, but not a First Amendment one. Still, a censorship battle has been been brewing for a while and now it’s come to a head:  Flying Dog Brewery has just terminated its Brewers Association membership. And why? According to Craft Business Daily and confirmed by Jim Caruso, Flying Dog’s CEO:

Bob Pease

“When Brewers Association president Bob Pease announced plans to crack down on offensive beer labels earlier this year [see Craft Business Daily, 4-12-2017], we had a hunch (as did most people) that this new initiative would not sit well with the people at Flying Dog Brewery . . . . Flying Dog ended its relationship with the BA at the start of last month. The departure, as predicted, is in response to the BA’s recent tweak to the language in its Marketing and Advertising code [see here].

Jim Caruso (credit: Atlast Society)

In a prepared statement for Craft Business Daily,  Mr. Caruso stated: “The BA’s new Marketing and Advertising Code is nothing more than a blatant attempt to bully and intimidate craft brewers into self-censorship and to only create labels that are acceptable to the management and directors of the BA. By contrast, Flying Dog believes that consumers are intelligent enough to decide for themselves what choices are right for them: What books to read, movies to watch, music to listen to, or beers to consume (and whether or not they like the labeling).”

According to Craft Business Daily (and confirmed by Mr. Caruso):

“When Flying Dog first started barking at the BA over the announcement, Bob Pease allegedly tried to keep the relationship in tact by assuring the brewery that the BA has ‘no issue with any Flying Dog brand.’ But Bob’s claim ‘entirely missed the point,’ Jim said, and appears to have set the brewery off even more. After announcing its intention to part ways with the BA on June 1st, Flying Dog CEO Jim Caruso penned a six-page letter to Bob that made Flying Dog’s position clear: ‘On principle, Flying Dog will never contribute to, support, or in any way sanction any organization that is so averse to freedom of expression that it actively engages in any form of censorship. “Everybody finds something offensive,’ Jim continued. ‘That’s just part of life. People have the right to choose what they like and to reject what they find offensive. To us, the BA’s anti-free expression stance is offensive, and we are exercising our freedom to choose by rejecting the BA,’ Jim wrote.”

Flying Dog’s statement ended with this: “Flying Dog is contributing to the 1st Amendment Society an amount equal to double the tens of thousands of dollars it has spent on its BA membership and BA-related events annually.”

Invitation to respond 

Mr. Bob Pease, CEO of the Brewers Association, has been invited to respond to Flying Dog’s comments.

Related 

1

Lampkin v. Connor

I am working away on my draft paper arguing that the congressional reapportionment process is unconstitutional under Section Two of the Fourteenth Amendment. In the course of my research, I’ve uncovered a fascinating unknown (or at least unheralded) story about the Civil Rights Movement.

In February 1963, Daisy Lampkin wrote a letter to the Secretary of Commerce. Lampkin was an activist for woman’s suffrage who became the national field secretary of the NAACP in 1935. After leaving that role in 1947, she became the first woman to serve on the organization’s Board of Directors. Lampkin’s letter asked the Commerce Secretary, who was responsible for the reapportionment calculations under the relevant statute, to enforce Section Two of the Fourteenth Amendment and lower the number of representatives from the South while increasing them elsewhere. The Commerce Secretary replied in a letter that he lacked the statutory authority to do what Lampkin wanted.

Shortly thereafter, the NAACP Legal Defense Fund (with Lampkin as the lead plaintiff) filed suit in the District of Columbia against the Commerce Secretary and the Director of the Census. The suit sought a declaratory judgment against these officials stating that the Reapportionment Act imposed a duty on them to enforce Section Two as part of the 1970 census. If the statute could not read as imposing such a duty, then the Act should be declared unconstitutional. Jack Greenberg (who succeeded Thurgood Marshall as the Head of the LDF and was part of the Brown litigation) was on the brief and (at least according to a newspaper article that I found) was assisted by Constance Baker Motley.

In early 1965, the Federal District Court dismissed the suit for want of standing.  Part of that conclusion rested on the fact that the plaintiffs were individual voters who might have lacked the concrete interest necessary to bring the claim. The court’s opinion, though, was also full of quotes from Justice Frankfurter about the need for courts to say out of political disputes.Shortly after this decision, the Voting Rights Act was signed by President Johnson.

A year later, the D.C. Circuit affirmed the dismissal, though on prudential standing grounds. Basically, the panel said that the wise approach was to see how the Voting Rights Act was implemented prior to the 1970 census before taking on the statutory and constitutional issues raised by the plaintiffs.

The suit was never refiled. One can understand why–the Voting Rights Act worked well. The problem, as my paper will explain, is the legal issue identified by the NAACP (that the reapportionment statute is unconstitutional under Section Two of the Fourteenth Amendment) was not fixed by the VRA and thus still stands. In a case with proper plaintiffs (states rather than individuals) this can be addressed.

Anyway, one of those curious “What If?” scenarios.

7

Clinton v. Jones and President Trump

I’ve posted before about the litigation pending against President Trump from his run as the host of The Apprentice. The President’s attorneys have moved to have the case thrown out, and in part they are arguing that Clinton v. Jones should be read as applying only to civil lawsuits filed in federal court. The pending lawsuit is in state court, which (under the President’s theory) allows him to obtain immunity.

I don’t think that this argument is persuasive. Clinton v. Jones was a misguided decision, but it’s hard to see why a President should get civil immunity for private acts only in one kind of forum. To a certain extent all that does is deny a remedy to plaintiffs who live in the same state as the President (therefore making diversity of citizenship impossible) while allowing plaintiffs from other states with the same claim to have an action.  How does that make sense?

Who knows, though, what the Supreme Court would do if ever called upon to reconsider Jones.

1

Library Fines and Regulation

This is a growing movement for public libraries to slash overdue book fines. (My local library just reduced its fines by half.) The rationale for this change is that fines impose a disproportionate burden on poor patrons and tend to discourage them from borrowing. A more effective (and distributively neutral) approach is to impose short suspensions of borrowing privileges on people who keep on returning books late.

I wonder if there is an insight here for other areas where fines or damages are used to regulate behavior.  Bail is a good example, as there is increasing interest in bail reform motivated by the fact that bail operates in a manner that discriminates against the poor (i.e. bail is being set too high for many criminal defendants).

0

Secret Service Harassment

The Secret Service is charged with the vital task of protecting the President, his family, ex-presidents, ex-First Ladies, and major presidential candidates.  They must, of course, also investigate credible threats against those that they are asked to protect. But . . .

There are reports in the media that the Secret Service questioned Kathy Griffin following her tasteless photo shoot holding a faux severed head of the President. If this is true, then I submit that this was harassment pure and simple designed to chill speech critical of the President.

Here’s why I say this. Even the densest blockhead knows that Kathy Griffin was not planning to kill the President and was not part of any such plot. She was being crude and offensive, but she has a First Amendment right to do that. The Secret Service (if they really questioned her about that stunt) was acting in bad faith purely because of her offensive speech.

I would be curious to know (if the reports are true) why the Secret Service decided to do this. I would further note that one of the articles of impeachment against Richard Nixon (Article II) was based on his misuse of the Secret Service “in violation of or disregard of the constitutional rights of citizens.”

6

More on Legacy Preferences

My most recent post on legacy preferences at state universities referred to an article by Professor Carlton Larson that argued that these admission preferences are unlawful. I asked in my post why we see no litigation challenging these preferences.  Below is Professor Larson’s response, which I am posting on his behalf:

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Thanks to Gerard for the reference to my article on legacy preferences.  He raises a great question – why, nearly ten years after publication, haven’t litigants and courts rushed to embrace my theory?  (A question that most law professors have about nearly all of their law review articles.)

In addition to my Titles of Nobility argument, attorney Steve Shadowen has argued that the original understanding of the Fourteenth Amendment is inconsistent with legacy preferences by state universities.

When our papers came out around the same time, both Steve and I were interested in finding litigants willing to push our theories.  Although we have had a few queries, nothing has panned out.

I think there are several reasons for this.  First, only a handful of public universities are sufficiently selective that admissions preferences are a genuine issue.  Moreover, of those, only a few employ legacy preferences.  So the universe of potential defendants is small, at least when compared to the affirmative action context.

Second, even challengers to affirmative action programs have trouble finding good litigants.  An ideal plaintiff would be someone who would have gotten in, but for the legacy preference.  Granted, the Supreme Court in affirmative action cases has been exceptionally generous in finding standing for challengers, but a challenger who can show real concrete harm is ideal.  That applicant, however, is likely to have gotten in somewhere else, where he or she is probably perfectly content.  So these cases are unlikely to be generated by individual litigants seeking out a lawyer.

To really push these cases, then, one needs significant institutional players who are willing to hunt up litigants in the same manner that anti-affirmative action groups have done.  So far, there has been no player or political movement willing to do so.

 

18

Legacy Preferences at State Universities

Here’s a question that I want to pose. There’s a pretty good argument that can be made against the constitutionality of legacy (i.e., children of alumni) admission preferences at state universities.  My friend Carlton Larson wrote a great article about this years ago.  Why, then, don’t we see any litigation challenging these preferences?

I guess the answer is that some people must feel that a successful challenge to these preferences would undermine the use of racial preferences in admissions.  I’m not sure that’s true–I think they can be distinguished. Moreover, ending legacy preferences might improve diversity, though one would need data on how legacy preferences work to know that. Are there any other explanations?