Ouch:
Judge Reinhardt tells me I can “rest assured” that nothing bad will
happen on account of mediation. Judge Reinhardt Statement at 17575.
How would he know? I do not know whether mediation will cause problems
in that faraway land. Unlike my colleague, I know that I do not
know.
In his dissenting opinion in Gonzalez v. Arizona,Judge Kozinski–no stranger to the Internet–relies on Wikipedia to define the “exclusive or.”
Indeed, it is well recognized that “or” can have multiple meanings, with the “exclusive or”—meaning one or the other but not both— being largely useful in symbolic logic rather than common parlance. Wikipedia, Exclusive or, http://en.wikipedia.org/wiki/Exclusive_or (last visited Aug. 21, 2010).
7Wikipedia gives the following example to illustrate the difference between the exclusive and the inclusive “or”: [I]t might be argued that the normal intention of a statement like “You may have coffee, or you may have tea” is to stipulate that exactly one of the conditions can be true. Certainly under many circumstances a sentence like this example should be taken as forbidding the possibility of one’s accepting both options. Even so, there is good reason to suppose that this sort of sentence is not disjunctive at all. If all we know about some disjunction is that it is true overall, we cannot be sure that either of its disjuncts is true. For example, if a woman has been told that her friend is either at the snack bar or on the tennis court, she cannot validly infer that he is on the tennis court. But if her waiter tells her that she may have coffee or she may have tea, she can validly infer that she may have tea. Nothing classically thought of as a disjunction has this property. This is so even given that she might reasonably take her waiter as having denied her the possibility ofhaving both coffee and tea.. . . .There are also good general reasons to suppose that no word in any natural language could be adequately represented by the binary exclusive “or” of formal logic. Wikipedia, Exclusive or, http://en.wikipedia.org/wiki/Exclusive_or (last visited Aug. 21, 2010).
It seems Lysander Spooner disagreed with me about when United States citizenship began. From his classic, the Unconstitutionality of Slavery, Spooner writes that citizenship of the United States began with the adoption of the Constitution. To prove this, he relies on the Article II qualifications clause for the presidency:
Now there clearly could have been no “citizens of the United States, at the time of the adoption of the constitution,” unless they were made so by the constitution itself; for there were no “citizens of the United States” before the adoption of the constitution. The confederation had no citizens. It [*101] was a mere league between the State governments. The separate States belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens. There were, therefore, no “citizens of the United States,” (but only citizens of the respective States,) before the adoption of the constitution. Yet this clause asserts that immediately on the adoption, or “at the time of the adoption of this constitution,” there were “citizens of the United States.” Those, then, who were “citizens of the United States at the time of the adoption of the constitution,” were necessarily those, and only those, who had been made so by the adoption of the constitution; because they could have become citizens at that precise “time” in no other way. If, then, any persons were made citizens by the adoption of the constitution, who were the individuals that were thus made citizens? They were “the people of the United States,” of course ‑‑ as the preamble to the constitution virtually asserts. And if “the people of the United States” were made citizens by the adoption of the constitution, then all “the people of the United States” were necessarily made citizens by it ‑‑ for no discrimination is made by the constitution between different individuals. “people of the United States ” ‑‑ and there is therefore no means of determining who were made citizens by the adoption of the constitution, unless all “the people of the United States” were so made.
As much as I agree with most of Spooner’s writings, his argument here disregards the fact that in order to be a Representative or Senator in 1789 when the first Congress met, one would have had to be a citizen for 7 or 9 years respectively. Citizenship could not have began upon the adoption of the Constitution. Oddly enough, Spooner ignored the Declaration of Independence–a document he revered–in this context. The Declaration, and the laws passed under it by the nascent states, provides a much stronger argument for original citizenship. My piece on Original Citizenship in PENNumbra is coming along quite nicely. I can’t wait to share it. I also received another publication offer for my Pierson v. Post article, which I will announce shortly.
You may recall a story from a few months ago where Oregon official shut down a little girl’s lemonade stand because she failed to obtain a temporary restaurant license.
Now the Idaho State Tax Commission has threatened to shut down kids’ pumpkin stand (H/T TaxProfBlog)
Dan Charais viewed his kids’ pumpkin stand as a great way for his son and daughter to learn entrepreneurship and raise money for school sports. The Lewiston man never dreamed the tax man would intervene.
A representative from the Idaho State Tax Commission stopped by the family’s Normal Hill home Friday and told Dan’s wife, Kami Charais, to shut down the jack-o’-lantern operation, the couple said. “They’re basically trying to snuff out 4- and 6-year-olds’ opportunity and enthusiasm to start a business,” Dan Charais said. “I can’t believe they would waste their time with something like this.” The couple’s children, Jacob, 6, and Sami-Lou, 4, are utilizing sales of the orange Halloween staple to raise money to take part in wrestling, T-ball and dance programs. (Photo: Kyle Mills, Lewiston Tribune.)
The State Tax Commission said they would not shut down the stand, but merely wants to educate people about state tax policies. The mother of one of the kids disagrees. And what is the problem? Well the kids are unlawfully competing with a nearby Grocery store.
A representative for the state tax commission in Coeur d’Alene said when reached by phone Friday it has no intention to shut down such stands but to educate people about state tax policies. But Kami Charais said tax commission compliance officer Patrica Gilmore came to her door Friday morning with paperwork telling the family to purchase a license and pay sales tax or be closed by the state. It wouldn’t matter if the family was selling pumpkins, or lemonade, she was told.
“She told me I was in direct competition with A&B foods who is paying the sales tax,” Kami Charais said. The grocery store is one block from the family’s home.
The family is not flinching, and will keep their business open.
“They’re shutting down kids because they don’t have a sales tax permit,” Schweiter said. “Sales tax would be $10.”
But the family hasn’t been spooked by the potential for closure. Jacob and Sami-Lou have already raised a few hundred dollars to pay the fees for sports and dance programs. And Kami Charais said they plan to continue selling pumpkins from their front yard.
“We’re still open,” she said.
Death and taxes.
All too often federal judges wax lyrical about the state police power, and the ability of the states to proscribe individual liberty to achieve health, safety, morals, and welfare, in only the most general of terms. In the case of Robinson v. Crown Cork & Seal Company, Justice Don Willett of the Supreme Court of Texas, a friend of this blog, wrote a brilliant concurring opinion that explores the police power and liberty from a perspective we seldom see–from that of a state Supreme Court Justice. In this post, I will excerpt some of the best quotes, and expand on the broader themes. I encourage you to read the entire opinion. While there is a citation to Star Trek, the citations to Burke, Hume, Jefferson, and Madison are much cooler.
Every case that reaches this Court concerns real people buffeted by real problems in the real world. This dispute, however, possesses a transcendent quality, touching not only these parties but also building-block constitutional principles that belong to all Texans. In that sense, it affords a whetstone on which to sharpen our thinking on some bedrock notions of government and how the Texas Constitution assigns democratic responsibilities. More to the point, it teaches a vital lesson about diminished liberty stemming from government overreaching: The Legislature’s police power cannot go unpoliced.
Usually when I see the word transcendent in judicial opinions, it is connected to dimensions of the transcendant type But in this case, it fits quite well. This opinion considers whether a law passed by the state legislature violates the retroactivity prohibition in the Texas Constitution. Retroactive laws are “are constitutionally permissible if they are a ‘valid exercise of the police power by the Legislature to safeguard the public safety and welfare.'” Thus, to resolve this question, Justice Willett considers whether this law was in fact a valid exercise of the police power.
I remember sitting in Con Law class as a 1L, and I asked my prof what the police power actually was? I received an unsatisfying answer, and was told it meant basically anything the state wanted (in contrast to the enumerated powers of the Federal Government). I wasn’t buying it then. After reading this opinion, I’m definitely not buying it.
In this case, the act passed by the legislatures seems to provide a special carveout that blocked certain types of asbestos suits against a specific company, effectively denying Barbara Robinson a remedy (rent seeking 101).
House Bill 4 was enacted against a backdrop of urgency, but with legislative police power, unfettered must never be unfretted. As litigants often discover, in the Legislature a deal is sometimes a raw deal. But unfair does not always equal unconstitutional; even vested rights can be impinged if lawmakers have a good- enough reason.
…
Nobody disputes “the authority of the Legislature to make reasoned adjustments in the legal system.”17 But lawmakers aiming to statutorily prescribe what is constitutionally proscribed must make a convincing case. As the Court carefully explains, the sparse record underlying chapter 149 falls short of what must be shown before someone is made to surrender a constitutional right.
Indeed, constitutional rights are not absolute. But, according to this opinion, the legislature better have a damn good reason (and not just a “rational basis” in the Lee Optical sense) before negating a constitutional liberty.
Following this discussion of Texas law, Justice Willettt goes meta. What is the relationship between the individual and the state?
Today’s case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves.
Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen’s relationship with the State has confounded for centuries longer.
• From 1651, Leviathan: “For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, ’tis hard to passe between the points of both unwounded.”18
Willett draws four principles from the police power.
First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.”
First, the police power, by its very nature, requires infringing the rights of the few to benefit the many. This resolves many collective action problems that would exist in its absence.
Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency. That is, there must exist a societal peril that makes collective action imperative: “The police power is founded in public necessity, and only public necessity can justify its exercise.”22
21 See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”
Second, the police power can only be exercised when there is a public necessity, and not merely when some urgency arises. A line from the Wrath of Khan in footnote 21 illustrates that principle nicely.
Third, whether the surrender of constitutional guarantees is necessary is a legislative call in terms of desirability but a judicial one in terms of constitutionality. The political branches decide if laws pass; courts decide if laws pass muster. The Capitol is the center of policymaking gravity, but the Constitution exerts the strongest pull, and police power must bow to constitutional commands: “as broad as [police power] may be, and as comprehensive as some legislation has sought to make it, still it is subsidiary and subordinate to the Constitution.”23
Third, the courts have an engaged role in its exercise of the judicial power to ascertain whether the negation of individual liberties is in fact necessary.
Fourth, because the Constitution claims our highest allegiance, a police-power action that burdens a guarantee like the Retroactivity Clause must make a convincing case.24 Finally, while police power naturally operates to abridge private rights, our Constitution, being inclined to freedom, requires that such encroachments be as slight as possible: “Private rights are never to be sacrificed to a greater extent than necessary.”25
Fourth, simply put, if the Legislature is going to infringe on a constitutional liberty, they need a very good reason, and can only do so when absolutely necessary. To quote Team America, Freedom isn’t Free.
Willett next wades into the topic of Judicial Review, and the role of the Courts. Adjudication must not decay into abdication, contra FN4 of Carolene Products.
If judicial review means anything, it is that judicial restraint does not allow everything. Yes, courts must respect democratically enacted decisions; popular sovereignty matters. But the Texas Constitution’s insistence on limited government also matters, and that vision of enumerated powers and personal liberty becomes quaint once courts (perhaps owing to an off-kilter grasp of “judicial activism”) decide the Legislature has limitless power to declare its actions justified by police power. At that constitutional tipping point, adjudication more resembles abdication.
The value of an engaged judiciary is to ensure that bounds on governmental power are preserved, and overreaching is cabined. While the cats are away, the mice will play, I suppose.
But we should steadfastly resist defining desperation down. Exceptions to constitutional guarantees are real but also rare, just like modern citations to Marbury v. Madison: “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”28
The “danger that liberty should be undervalued” necessarily implicates “the adjustment of theboundariesbetweenitandsocialcontrol.”29 There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands. If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable.
To be sure, constitutional analysis is nuanced and not prone to doctrinaire absolutes. It is easy to say the sovereign’s shield must never become a sledgehammer, but it is more difficult — and every bit as important — to discern the moment at which it threatens to become a switchblade, carving quietly yet critically away at cherished rights.
Next, in an ode to the Jeffersonian maxim that eternal vigilance is the price of liberty, Willet expresses a caution about the stated purposes of government actions.
Our Bill of Rights is not mere hortatory fluff; it is a purposeful check on government power. Everyday Texans, and the courts that serve them, must remain vigilant, lest we permit boundless police power, often couched in soaring prose, to abridge our Constitution’s enduring “principles of liberty and free government.”33 As Justice Brandeis warned in his now-celebrated Olmstead dissent: “Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent.”34
But is Willett second-guessing (the dreaded role Courts cannot do) the motivation of legislators? Nope.
FN37. To be sure, Members of the Texas Legislature have sworn to “preserve, protect, and defend the Constitution and laws of the United States and of this State,”36 and they doubtless believe their enactments honor basic constitutional guarantees. I never second-guess the Legislature’s motives and goodwill (and have never needed to); we are blessed with 181 lawmakers who serve Texas with full hearts.37 But where the Constitution is concerned, the judiciary’s role as referee [J.B. Not “umpire”]— confined yet consequential — must leaven big-heartedness with tough-mindedness.
Next, Willet avoids the Judicial Restraint/Judicial Activism quagmire, and adopts the term “Judicial Engagement.” This is a term I have used before, and most popularly put forth by the Institute for Justice (see also David’s Hammer by Clint Bollick).
But an important point must be made: There is a profound difference between an activist judge and an engaged judge. I am honored to serve with none of the former and eight of the latter. Nothing in this concurrence should be distorted into criticism of either lawmakers who passed chapter 149 or judges who passed upon it. My cautions today about unconstrained police power are entirely forward- looking, speaking to what can happen if judges, while not activist are also not properly active, instead preferring to leave police power unpoliced, thus inviting the other branches to flex ever-broader powers. My concerns are less centered on this case than on future ones.
In summary:
Summing up: Judges are properly deferential to legislative judgments in most matters, but at some epochal point, when police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction. The Legislature’s policymaking power may be vast, but absent a convincing public-welfare showing, its police power cannot be allowed to uproot liberties enshrined in our Constitution.
This is just a taste. Please read the entire opinion.