Politico Magazine has a lengthy featured about Al Snyder–the father of Matthew Snyder, whose funeral was protested by Fred Phelps and the Westboro Baptists.
The first indication that Al’s suffering would be compounded came at the viewing the following night, when a family friend made a passing reference to the prospect of “protesters” at Matt’s funeral. Al’s first thought was that anybody doing such a thing must be an anti-war activist. But then someone mentioned Westboro Baptist Church, which Al immediately remembered from news of the 1998 funeral service for Matthew Shepard, a 21-year-old college student who had been brutally murdered near Laramie, Wyo. Westboro became a national spectacle at Shepard’s funeral, parading with signs saying “Matt in Hell” and “AIDS cures fags.” By the time Al had heard the rumors that his own son’s memory might be treated to such an indignity, members of the Westboro church had already posted notice of their intention to their website. In their announcement on www.godhatesfags.com, the group said it was hoping to use Matt’s military funeral to call attention to America’s permissive views on homosexuality. Skilled in the art of protest, Westboro immediately requested the protection of law enforcement.
Though Matthew Snyder wasn’t gay, his father was.
It didn’t seem to matter to them that Matt wasn’t gay—and the church knew nothing of Al’s sexuality. To them, the funeral represented a place to make a provocative point.
He describes the scene of the funeral:
Al remembers the scene: Reporters swarmed, a motorcycle group arrived to form a kind of peace-keeping shield between the mourners and the activists, and a SWAT team sat at the ready in a nearby Winnebago. Mostly, he recalls that the demonstrators from Kansas had succeeded in turning a solemn service for a fallen Marine into a circus. “All we were trying to do was bury Matt,” Al now offers.
And this report of how he came across the Westboro Baptist’s website missive, that was not resolved in the case:
In the days and weeks after Matt’s funeral, Al drew strength from the outpouring of support he received from strangers scattered across the country. The Internet was initially a place of comfort where he could respond to those who said they were praying for Matt and his family. He got in the habit of googling his son’s name to read seemingly heartfelt greetings offered for his loss. But one day, a random Internet search yielded a screed that had been posted by the Westboro activists. It was titled “The Burden of Matthew Snyder:”
After reading the web site, Al reached out to attorneys, though they insisted that they did not want to make this a “gay issue.”
Al reached out to two local attorneys, Sean Summers and Craig Trebilcock, asking them about his legal options to respond to the disruption and distress the Westboro protesters had caused. The lawyers offered to volunteer their time on the case—though Al would be responsible for any damages or costs incurred by suing the Westboro church—and then they filed a formal complaint in federal court claiming invasion of privacy and the intentional infliction of emotional distress. The suit made headlines and commenced a discovery process that would last more than a year—a process that Al knew could get very personal.
Early on, Al and Walt decided to keep their own sexuality out of their case against Westboro. According to Al, it was Walt’s idea. “He said, ‘What it’s going to do is make this a gay issue and it’s not.’ He was right,” Al remembers.
“We wanted to put the focus on a human issue,” Al now says. “It didn’t have anything to do with gays. It was about doing this to our military people. I’m gay, but the other 400 families who were then in the same situation likely weren’t gay.”
It’s fascinating how Al worked to keep his sexuality out of the case, even when pressed by Westboro lawyers. Judge Bennett insisted on keeping this issue out of the litigation.
When the attorneys could not agree how to proceed with the deposition, an emergency call was placed to Bennett, who again thwarted any questioning that addressed Al’s sexuality. On the call with the judge, Katz persisted, arguing that if Al was gay, the psychological review that Westboro’s expert doctor had performed would need to be changed. In a case seeking damages for emotional distress, Katz argued, Snyder’s sexuality was an issue.
“Let me just cut right to the core,” Bennett said. “There is no reason to file a motion for reconsideration, no reason to ask the question. The court has ruled: One’s sexual orientation has nothing to do with this case.” The following day, Walt was deposed, and when asked about his connection to Al, he replied, “He is a good friend.”
And this vignette from inside One First Street:
There was little doubt that Al would try to take his appellate loss to the Supreme Court. This time, Walt was at his side. When the argument was held on Oct. 6, 2010, the two men sat together in the Supreme Court, along with Al’s daughters and his two sisters. By then, Walt was walking with a cane, having been told he was suffering rheumatoid arthritis. “Several of the Phelpses showed up wearing shirts that said ‘Jews killed Christ.’ I was surprised they were allowed in court like that,” Al recalls. “And when the oral argument ended, the Westboro contingent gathered outside the court and sang Ozzy Osborne’s ‘Crazy Train.’”
And, tragically, Al’s boyfriend was diagnosed with terminal lung cancer, but prayed to hear the Court’s decision–it would not be in their favor.
One month after the argument, Walt was diagnosed with lung cancer. His diagnosis was terminal. “He told me God has to let him live to hear the decision, he wouldn’t be that cruel,” Al remembers. That wish came true, though the decision wasn’t the one they had hoped for.
Read the entire thing.
For your amusement:
(The AAA was the Agricultural Adjustment Act,which was upheld in United States v. Butler).
(This one is really ironic because Lincoln also threatened to ignore the courts if they ruled against him).
Marvin M. Brandt Revocable Trust v. United States is a case that (perhaps) only property professors can enjoy. In another installment in the lengthy “Rails to Trails” litigation, this case considers whether the government retains a reversionary interest in an easement that was granted, and abandoned, by a railroad.
In the mid-19th century, Congress began granting pri vate railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads’ rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad’s right of way granted under a particular statute—the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?
Writing for 8 Justices, Chief Justice Roberts notes that the Court previously adopted the position the Solicitor General successfully argued in 1942 (the SG in 1942 was Charles Fahy):
The Govern ment loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).
Yet, 70 years later the Government takes a different position.
Contrary to that straightforward conclusion, the Gov ernment now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and min-
erals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as “easements” to that context. Even if the right of way has some features of an easement—such as granting only a surface interest to the railroad when the Govern ment wants the subsurface oil and minerals—the Gov ernment asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.
Roberts even finds this change of position “ironic”:
We cannot overlook the irony in the Government’s ar gument based on Sections 912 and 940. Those provisions plainly evince Congress’s intent to divest the United States of any title or interest it had retained to railroad rights of way, and to vest that interest in individuals to whom the underlying land had been patented—in other words, people just like the Brandts. It was not until 1988—12 years after the United States patented the Fox Park parcel to the Brandts—that Congress did an about face and attempted to reserve the rights of way to the United States. That policy shift cannot operate to create an interest in land that the Government had already given away.5
So now, the United States is estopped by positions taken 70 years ago on property issues.
More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied rever sionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are con cerned.” Leo Sheep Co., supra, at 687.
Justice Sotomayor doubts that the government actually changed course, noting the critique is misplaced here
Even assuming that it is an injustice for the Govern- ment to change positions on an issue over a 70-year period, it is not clear that such a change in position happened here. Yes, the Government argued in Great Northern that a right of way was an “easement.” It proposed, however, that the right of way may well have had “some of the attributes of a fee.” Brief for United States in Great Northern R. Co. v. United States, O. T. 1941, No. 149, pp. 36–37. The Government contended that it is “ ‘not important whether the interest or estate passed be consid- ered an easement or a limited fee,’” observing that an easement “may be held in fee determinable.” Id., at 35–36 (quoting United States v. Big Horn Land & Cattle Co., 17 F. 2d 357, 365 (CA8 1927)). Indeed, the Government expressly reserved the possibility that it retained a rever- sionary interest in the right of way, even if the surround- ing land was patented to others. Brief for United States in Great Northern, at 10 n. 4. The Court is right to criticize the Government when it takes “self-serving” and contra- dictory positions, ante, at 12, but such critique is mis- placed here.
The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B
By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.
Here is a photograph form 1906 of the Drexel Furniture Company in Drexel, North Carolina that employed child laborers.
The company’s first plant burned in 1906. The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity. An addition was added in 1918.
Equal Protection and Segregation
- Citizenship Clause (768-771).
- Dred Scott v. Sandford (771-794).
- Dred Scott notes (794-800).
- Segregation Cases (1337).
- Railroad Company v. Brown (1337-1339).
- Plessy v. Ferguson (1339-1346).
Dred Sott v. Sandford
This is Chief Justice Roger Brooks Taney, the author of Dred Scott v. Sandford.
This is Dred Scott.
This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854.
This is the Court’s judgment in Dred Scott, dated March 7, 1857, and seems to have been signed by Chief Justice Taney.
The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states.
This map illustrates the free and slaves states in America.
Plessy v. Ferguson
We actually do not have any confirmed photographs of Homer Plessy (there are some floating on the internet, but we aren’t sure if they are really him). Here is his grave.
This is Adolph Plessy’s Birth Certificate from Orleans Parish, from 1863.
This is Judge John J. Ferguson.
This is an obituary for Judge Ferguson. It makes no reference of his role in the case of Plessy v. Ferguson.
Here is a newspaper account from the Times Pacayune, June 9, 1892, with the headline, ” snuff-colored descendant of Ham kicks agains the ‘Jim Crow’ law.”
Yesterday afternoon at 4:15 o’clock private detecting C.C. Cain arrested from the East Louisiana [Homer] Adolph Plessy, a light mulatto, and locked him up in the Fifth Precinct station on a charge of violating section 2o of act 111 of the statute of 1890 relative to separate coaches. Detective Cain made an affidavit this morning against Plessey [sic] in the Second Recorder’s Court.
Capt. Cain, speaking of the circumstances of the arrest, stated that he and the conductor had ordered both the man from the white coach into the one set apart for colored people. The negro refused to leave the coach, saying that he had bought his ticket and was going to ride to Covington.
Capt. Cain here told him he would either have to retire to the other coach or go to jail; to which the negro responded that he would sooner go to jail than leave the car, and he was accordingly arrested.
Previous to the arrest the conductor asked, “Are you are a colored man!”" “Yes,” was the answer. “Then,” said the conductor,” you will have to retire to the colored car.” The man refusing, Capt. Cain was invoked, and entering the car, he said to Plessy, “If you are colored you should go into the car set apart for your race. The law is plain and must be obeyed.”
The set upon which the affidavit is based is known as the “Jim Crow Car” bill, and in substance as follows.
“An act to promote the comfort of passengers on railway trains,” requiring all railway companies carrying passengers on their trains in this State to provide equal but separate accommodations for the white and colored races by providing separate coaches or compartments so as to secure separate accommodations, defining the duties of the offers of such railways, directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong, authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railways company from blame or damage that might proceed from such refusal; to prescribe penalties for all violators of this act.”
On the 25th of May last, the Supreme Court rendered an opinion in a suit entitled “State of Louisiana Ex Rel W.C. Abbott v. A.W. Hicks, Judge et al, construed the law as not applying to interstate passengers and applying only to domestic passengers.
Plessy was arraigned before Judge Moulin this morning. He was represented by J.C. Walker, Esq. who waived examination on the part of his client, and the judge committed Plessy to the Criminal District Court under a bond of $500, which was signed and Plessy released.
Plessy boarded the East Louisiana Railroad Co. train at Press and Royal streets.
Here is a photograph of the nearby West End station.
Judge Ferguson found that Louisiana could regulate railroad companies if they only operated in state boundaries. Plessy was ordered to pay a $300 fine.
Albion Tourgee´ represented Homer Plessy before the Supreme Court. He asked the Justices to imagine if they were black.
And in a story almost too good to be true, descendants of Homer Plessy and John Ferguson have started a non-profit known as the Plessy and Ferguson Foundation. Here are Keith Plessy and Phoebe Ferguson. I’ve spoken on the phone to Keith Plessy.
Here is Plessy’s grand-nephew, Keith Plessy, standing at the site where his ancestor was arrested, Press and Royal streets.
The intersection of predictive analytics and policing stands to drastically reshape how the police investigate crimes, and perhaps, anticipate crimes. A new article in the Pennsylvania Law Review, titled “Big Data and Predictive Reasonable Suspicion” addresses just this issue. Here is the abstract:
The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.
But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics can forecast who will be the likely troublemakers in a community? The rise of big data technology offers a challenge to the traditional paradigm of Fourth Amendment law. Now, with little effort, most unknown suspects can be “known,” as a web of information can identify and provide extensive personal data about a suspect independent of the officer’s observations. New data sources including law enforcement databases, third party information sources (phone records, rental records, GPS data, video surveillance data, etc.), and predictive analytics, combined with biometric or facial recognition software, means that information about that suspect can be known in a few data searches. At some point, the data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this article poses is can a Fourth Amendment stop be predicated on the aggregation of specific, individualized, but otherwise non-criminal factors?
This article traces the consequences in the shift from a “small data” reasonable suspicion doctrine, focused on specific, observable actions of unknown suspects, to the “big data” reality of an interconnected information rich world of known suspects. With more targeted information, police officers on the streets will have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will be using existing predictive analytics to target suspects without any actual observation of criminal activity, merely relying on the accumulation of various data points. Unknown suspects will become known, not because of who they are but because of the data they left behind. Using pattern matching techniques through networked databases, individuals will be targeted out of the vast flow of informational data. This new reality subverts reasonable suspicion from being a source of protection against unreasonable stops, to a means of justifying those same stops.
By now you have certainly heard about Cato’s brief filed in the Susan B. Anthony case before the Supreme Court, authored by Ilya Shapiro, that makes references to Stephen Colbert and “truthy.” It was such a good brief that an Article III judge sent a note to Ilya about the brief. Except it went to the wrong Ilya–Ilya Somin received it.
Somin replied, with a carbon copy to Shapiro, “I wish I could take credit. But it actually isn’t my brief. It was coauthored by Ilya Shapiro of the Cato Institute, whom I cc here.”
On Wednesday, Aaron Streett made his first argument at One First Street in Halliburton Co. v. Erica P. John Fund, Inc. And for his first argument, he argued alongside David Boies and Deputy Solicitor General Malcolm Stewart!
You can listen to the audio here. Congratulations Aaron!
Here are some shaky clips I captured from my recent appearance on Houston PBS Red, White, and Blue talking about the Supreme Court.
Here is a picture from the set, with the hosts, Gary Pollard, Linda Lorelle, and Davide Jones.
On the Red, white, and blue set talking about the supreme court pic.twitter.com/y5eJOjMEep
— Josh Blackman (@JoshMBlackman) February 20, 2014
Avik Roy breaks down a very difficult metric the government seems to have no interest in measuring–how many people who signed up for Obamacare were previous uninsured:
McKinsey, the leading management consulting firm, has been conducting monthly surveys of the exchange-eligible population under the auspices of its Center for U.S. Health System Reform. McKinsey’s most recent survey, conducted in February with 2,096 eligible respondents, found that only 48 percent had thus far signed up for a 2014 health plan. Within that 48 percent, three-fifths were previously insured people who liked their old plans and were able to keep them. The remaining two-fifths were the ones who signed up for coverage on the Obamacare exchanges.
Of the Obamacare sign-ups, only 27 percent had been previously uninsured in 2013. And of the 27 percent, nearly half had yet to pay a premium. (By contrast, among the 73 percent who had been previously insured, 86 percent had paid.)
Put all those percentages together, and you get two key stats. Only 19 percent of those who have paid a premium were previously uninsured. Among those that the administration is touting as sign-ups, only 14 percent are previously uninsured enrollees: approximately 472,000 people as of February 1.
And why are the previously uninsured people not signing up? Because it is now too expensive–thanks to Obamacare.
Here’s an important finding from McKinsey. The authors of the study—Amit Bhardwaj, Erica Coe, Jenny Cordina, and Mahi Rayasam—asked those who decided not to enroll in a plan what their reasons were for doing so. The most frequent reason—cited by 50 percent of respondents—was that “I could not afford to pay the premium.” Only 27 percent cited technical challenges; 14 percent said they couldn’t find a plan that met their needs. 21 percent said they were still deciding.
This is the biggest problem with the way the “Affordable Care Act” approached coverage expansion. The reason why so many Americans are uninsured is because health insurance in this country is too expensive. Obamacare increases the underlying cost of health insurance, and then uses taxpayer-funded subsidies to offset those costs for some.
Plus, you have to consider that nearly 5 million Americans had their policies cancelled–with many more future cancellations, notwithstanding the most recent decision to extend ineligible plans till 2016.
Keep in mind another fact: According to the Associated Press, at least 4.7 million Americans who shop for coverage on their own have had their plans canceled because they don’t conform to Obamacare’s regulations. So Obamacare has disrupted the coverage of millions of Americans, requiring many to purchase costlier policies with higher deductibles and narrower doctor networks, for a fairly modest expansion of coverage.
According to the administration, total sign-ups now exceed 4 million. But on a recent HHS conference call, Obamacare implementation point man Gary Cohen was asked the key question: how many of the people who have signed up for Obamacare were previously insured? His response: “That’s not a data point that we are really collecting in any sort of systematic way.”
So. The whole point of Obamacare was to expand coverage to the uninsured. But for the tens of thousands of regulations that the law has imposed on the country, its authors never bothered to try to measure the one thing that they were actually trying to achieve. That about sums it all up.
This is a pretty good outline for the sequel for my next book on Obamacare, Unraveled.
This column has analyzed the disaster of ObamaCare in terms of three phases. Phase 1, the technical failure, was evident as soon as open enrollment began on Oct. 1 and many of the exchange websites proved to have been incompetently designed. Technical problems continue to emerge, including, as noted here last week, the Internal Revenue Service’s tardiness in preparing the final instructions for Form 8960, which taxpayers must file if they owe the new ObamaCare “net investment income tax.”
Phase 2 is the revelation that ObamaCare’s central promise–”if you like your plan, you can keep your plan”–was fraudulent. In an effort to appease defrauded consumers, the Obama administration has announced a series of unlegislated exceptions to the law, which the president himself attempted to explain the other day….
Even the New York Timesacknowledges as much in an editorial today:
Ideally, President Obama would not have extended the period for retaining the less-comprehensive policies, but in the current political environment, he opted to take a step to protect health care reform against a Republican takeover in the Senate.
The third phase of failure is the slow revelation that the basic economic assumptions behind ObamaCare are wrong. A new survey from McKinsey & Co., conducted in February, found that only 10% of those who lacked insurance pre-ObamaCare had signed up for an exchange plan, and that of those who had signed up, just 27% were previously uninsured.
True, those numbers were up significantly from January’s figures, 3% and 11% respectively. Still, they’re low enough that the Washington Post sums it up: “The new health insurance marketplaces appear to be making little headway in signing up Americans who lack insurance, the Affordable Care Act’s central goal.”
Of late, I am now leaning towards writing the book to coincide with the 2016 election. That should be good timing.
This passage from “The Bully Pulpit” shows how little the coverage of the Court has changed over the last century–reporters wait with bated breath, and as soon as they can, run to file their reports.
ON MARCH 14, 1904, AS word spread that the Northern Securities merger decision was imminent, an immense crowd gathered outside the Supreme Court. For Roosevelt, the outcome loomed with enormous implications for his party, as well as the nation. If the Court sustained the administration’s argument that the colossal merger represented a monopoly that restricted trade, the victory would demonstrate a fundamental shift in the Republican Party’s relationship with the trusts. Inside the chamber, seating was filled to capacity. Dozens of senators and congressmen jockeyed for space in the section normally reserved for families of the justices. At the government bench, Attorney General Knox and Secretary Taft sat side by side, their expressions marked by “nervous expectancy.” Nearby, ranks of powerful corporate lawyers had assembled. At the back of the chamber, more than fifty newspapermen, “paper and pencil in hands,” readied to race to the telegraph wires the moment the ruling came down. “It required but little effort of imagination,” one reporter noted, “to see in the vast background millions of American citizens awaiting the outcome of this judicial battle against daring financiers.” The crowd stood as the Court crier opened the session with the traditional cry: “Oyez, Oyez, Oyez.”
Just like today.
As Justice John Harlan began to read the Court’s 5– 4 opinion, papers reported, “everyone was alert for the significant sentence which should disclose the attitude of the majority.”
Just like today.
Phones, the internet, and the rest of the 20th Century hasn’t quite made it into One First Street.
And it was in this case that Holmes joined the dissent that President Roosevelt famously lashed out against him.
Roosevelt was stunned by Holmes’s dissent. “I could carve out of a banana a judge with more backbone than that,” he angrily charged. Years later, Holmes agreed that the Northern Securities case had derailed his nascent friendship with Roosevelt. “We talked freely later,” he recalled, “but it was never the same.”
Eric Posner had this to say about those “libertarians” that carrying around pocket Constitutions.
In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.)
I hope Will Baude brings a Constitution to the next class. I keep one in each suit. That way I always have on nearby.
This is Angel Raich, the lead plaintiff in Gonzales v. Raich.
Here is a photograph of Raich using a marijuana vaporizer.
Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.
Here is Raich finding out that the Supreme Court ruled against her cause.
In honor of President’s Day, I recently visited the National Archives. With the utmost awe and reverence, I walked up to the enclosed cases containing the original copy of our United States Constitution. My eyes slowly panned across my favorite provisions—Article I limiting the powers of Congress, Article III creating the Supreme Court, and Article VI stating that the Constitution is the “Supreme Law of the Land.” But, my immersion in our Charter of Liberty was abruptly interrupted. A guard told me to keep walking: “Please do not read the entire Constitution. If you want to read the entire document, please visit the gift shop.”
I could not believe my ears. Could he possibly be serious? Did he actually just say what I think he said? Now, I recognize the guard was attempting to move the crowd along (a small line had formed), and that he likely had said this many times before. But the thought that a guard would have the gall to tell visitors to our Nation’s capital to not read our Constitution is appalling. By the way, all federal employees draw a salary by virtue of the Constitution’s “Appropriations Clause,” found in Article I, Section 9, in case he allowed anyone to read that far.
No one, myself included, was going to read the entire document. At best, maybe interested guests would look at a few provisions and try to make out the faded letters on the parchment (it is not easy to read). This exercise would take several seconds, at the most. But instead of allowing people—who may only witness the majesty of our Constitution once in their lives—the opportunity to savor the moment, it is apparently the official policy of the National Archives to move people along. Nothing to see here, apparently.
I cannot imagine that any other museum in Washington, or anywhere in the world, would rush people past an exhibit—let alone the Constitution, a document that every American should discuss and learn more about. Any policy that favors rushing more visitors past our founding documents, at the expense of denying them the opportunity to even read a few letters, strikes the wrong balance.
As a surreal post-script to this troubling episode, after I departed from the rotunda containing the Constitution, as the guard suggested, I went to the gift shop. I was drawn to a sign that advertised “The Declaration of Independence in a Bottle” for $2.95. I looked closely at the bottle and saw the phrase, “We the People.” Huh?! This wasn’t the Declaration of Independence. This was the Constitution of the United States. I brought this error to the attention of a manager. She promptly switched the signs around, so that the “Constitution in a Bottle” sign now appeared in front of the Constitutions. No problem, right? That the National Archives made such a mistake is stunning. I have no idea how long the exhibit was mislabeled, and I hope visitors did not buy the wrong document.
These charters of freedom belong to We the People. We should expect better from the museum charged with protecting our national treasures.
Cross-Posted at Law & Liberty.
During oral arguments in NFIB v. Sebelius, the Solicitor General of the United States, charged with defending the Affordable Care Act, made the argument that the law actually promotes liberty. As I retell in Unprecedented, Solicitor General Verrilli drew together a connection between freedom, and health care security.
Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.
Turning to the practical realities at hand, “in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and has the provisions we discussed yesterday, secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to our Constitution, which states that the United States was formed to “secure the Blessings of Liberty to ourselves and our Posterity.”
To many, this is a bizarre notion of liberty. Mandating that millions of Americans purchase a product they may not want, and forcing sovereign states to expand a program against their wishes, so that others have access to more-affordable health insurance is a funny conception of liberty. In response, Paul Clement, who was arguing on behalf of the challengers in NFIB painted a very different vision of liberty.
Without skipping a beat, the Chief Justice said, “Thank you, General. Mr. Clement, you have 5 minutes.” Paul Clement rose to have the last word, and provided an impromptu rebuttal that offered a very different vision of what liberty means.
“Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty–aimed directly at Justice Kennedy.
“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the liberty of Justice Kennedy.
Clement echoed a point he had made in his brief: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed . . . However, by making clear that this uncabined authority is not among the limited and enumerated powers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees . . . An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. ”
Clement continued, “And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.” This was not the federalism of Justice Kennedy. Clement wrote, in his brief “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand”
I call these dichotomous views the two conceptions of liberty in NFIB v. Sebelius.
Most strikingly, one of the key benefits that supporters of the ACA cite is that now people, no longer having to worry about buying healthcare, can pursue their own happiness as entrepreneurs. Free health care makes them more free.
This piece in CNN, titled “I’m quitting my job.Thanks, Obamacare!” illustrates this dynamic.
Now that Karen Willmus can get health insurance through Obamacare, she plans to quit teaching 9th grade English at the end of the school year.
The 51-year-old found policies on the Colorado state exchange for about $300 a month. That’s less than what she’s paying now for employer-sponsored coverage and less than half what she paid on the individual market in 2007.
Like Willmus, millions of people could quit their jobs or cut back on their hours in coming years because of Obamacare, according to a recent report from the Congressional Budget Office.
Though, stated differently, the Affordable Care Act will eliminate over 2.5 million jobs during the next decade.
The report found that Obamacare could reduce the labor force by the equivalent of 2.5 million workers by 2024, as many Americans may opt to work less to retain eligibility for Medicaid or subsidies. That sparked a fresh round of criticism that health reform is hurting the economy.
As an economic argument, this position is difficult to digest. Not all of these people leaving their jobs are doing so entirely volitionally. First, the ACA makes employment much more expensive–especially for those at the bottom of the pay-scale. Second, many jobs that were eliminated during the last downturn, will not be recreated, because the marginal cost of the employee is not worth it.
Though, some are spinning this news as a good thing–that people should be able to leave their jobs, retire earlier, and seek out entrepreneurial activities. This is Verrilli’s notion of freedom–that the ACA secures this blessing of liberty.
But for some, Obamacare is allowing them to become entrepreneurs or retire a few years early since they’ll be able to find affordable individual coverage for the first time.
Instead of eating bonbons on her couch, Willmus plans to start her own business with her teen daughter publishing materials for non-native English speakers and others looking to improve their literacy. She expects to work even more than she does now and hire two or three people.
“I can’t afford to go out and buy insurance while trying to start a business,” said Willmus, of Colorado Springs, Colo. “Obamacare will allow me to be more comfortable at risking what I own.”
As a child of two entrepreneurs, I have great respect of those willing to risk their wealth on going it alone. But the unavoidable fact is that nearly all of these businesses will fail. Tyler Cowen addresses this point in his new book, Average is Over.
As we should expect from these developments, many American workers are turning to self-employment. For instance, in 2010 an average of 565,000 Americans a month started businesses, the highest rate of the last decade. We’re not suddenly more energetic; rather, a lot of these people had a hard time finding remunerative work elsewhere. Starting your own business may seem like praiseworthy creative entrepreneurship, but often it is a sign that labor markets are not absorbing everyone at a reasonable wage.
These two differing conceptions of liberty–positive and negative–will frame any debate over how the ACA impacts Americans.
The College Board will be revising the SAT, and (!) include reading passages from our founding documents.
Every exam will include a reading passage from either one of the nation’s “founding documents,” such as the Declaration of Independence and the Bill of Rights, or from one of the important discussions of such texts, such as the Rev. Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail.”
I support this change, wholeheartedly! Let’s hope they can tell the Declaration and Constitution apart.
The President, by pure fiat, has decided that the health insurance plans that we all need to be healthy, are not really necessary until 2016, past the midterms, and he is on his way out of office. No, there is no authority for such an unprecedented failure to take care that the laws are faithfully executed.
So what is the next shoe to drop? We still have the full month of March to go. Maybe he will delay the individual mandate penalty another year? Whatever it takes to get it past the election, right.
I have to second Jonathan Turley here:
“I support national health care, but what the president is doing is effectively amending or negating the federal law to fit his preferred approach,” said Jonathan Turley, a law professor at George Washington University. “Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.”
When President Bush issued a few signing statements, the American Bar Association nearly prepared Articles of Impeachment. President Obama is running roughshod over the Constitution, and no one seems to care.