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On Thursday evening, I attended the Supreme Court Historical Society’s Frank C. Jones Reenactment Series Lecture. Justice Alito presided over a re-enactment of the famous British Debt case, Ware v. Hylton.

The evening began when Melvin Urofsky provided a cogent and entertaining overview of the facts of this case, which dealt with the repayment of debts incurred prior to the Revolutionary War to British creditors.

Justice Alito ascended to the bench, and placed himself back in time to 1796 when the case was originally argued (interestingly enough John Marshall argued that case, unsuccessfully, on behalf of the Virginia debtors).

At the time, there was no Chief Justice on the Court as Chief Justice Rutledge’s recess appointment expired, and he was not confirmed. Presiding on the Court were Justices Cushing, Patterson, Iredell, Wilson, and Chase. Justice Alito noted that his initial inclination was to play Justice Chase, as they both share the same first name–Samuel. However, because Justice Chase was later impeached by the house, Justice Alito sought to distance himself from that pick. Ultimately, Justice Alito assumed the role of his fellow Garden State judicial brethren, Justice William Patterson. It’s a Jersey Thing.

Justice Alito/Patterson surrounded himself on the bench with a semicircle of Green Bag Bobbleheads, including Justices Wilson, and Cushing, and the bobblehead of Chief Justice Jay to represent Justice Iredell, and the bobblehead of Justice Chief Justice Rutledge to represent Justice Chase.

Justice Alito heard zealous advocacy from opposing counsel, who assumed the roles of their 18th century predecessors at the Bar. The Rock Star of One First Street a/k/a the One-Justice Delta Force did not disappoint. Challenging his anachronistic assumptions of our federalist system under the Constitution, Justice Alito prodded counsel to consider the law as it existed under the Articles. Trying to ascertain whether a Treaty made under the auspices of the Articles of Confederation (specifically Article II) could abrogate a state law, and whether the Articles even delegated to the Congress the power to make such treaties, Justice Alito asked probing questions of both sides.

After arguments were delivered, Justice Alito conferred with his brethren (by rotating each bobblehead to face him, and whispering), and delivered a verdict. Much like the original Supreme Court in 1796, Justice Alito found that the debts were recoverable under the Treaty of Paris. Dissenting was Justice Iredell (Justice Alito gave the bobblehead a smack, so his head was shaking no).

After the event, Justice Alito graciously attended a reception at the Court. It was an excellent evening.

In Omniveillance, I questioned whether Google’s policy of self-policing was adequate in light of the enormous amounts of information they possessed. I wrote:

In the case of omniveillance, no valid legal mechanism exists to enjoin this behavior. If at some point in the future, Google, or any other omniveiller, decides to voluntarily make peoples’ faces clear and identifiable, no law or legal concern would prevent it. In the words of the attorney representing the Pittsburgh family who sued Google for invasion of privacy, “[w]hat’s to motivate them to change and put in better internal controls?”225 Short of Google’s self-proclaimed goal to do no evil, it has no legal incentive to protect privacy in America.226

It seems that Google may have violated their policy of doing no evil. Remember a few months ago the story leaked that Google’s Streetview cars were not only snapping pictures, but were also snooping and recording data from unsecured wireless networks. At the time, Google said it was an accident (yeah right). Now it turns out the facts were even worse, and Google has been sitting on this data for a while.

From Google’s Blog:

It’s clear from those inspections that while most of the data is fragmentary, in some instances entire emails and URLs were captured, as well as passwords. We want to delete this data as soon as possible, and I would like to apologize again for the fact that we collected it in the first place.

Here’s some outrage from Gizmodo:

So for months, Google has been sitting on extremely sensitive personal information, and it took outside auditors to get them to find and fix it. And although Google wants to delete the data soon, all that means is that it hasn’t been deleted yet.

In response, Google has appointed a new director of privacy for engineering and product management, announced that they’re going to enhance “core training” for employees privy to private data, and tightened their compliance standards. It’s a little like putting up a stop sign on a busy intersection five months after a terrible accident.

This story is even more egregious in light of the fact that a Google employee was busted for obtaining private e-mail and phone records of minors(?!?) he had befriended.

We can’t trust Google to release news when they mess up. Even when Google messes up, they don’t tell us right away. When they tell us, they only tell us part of the story. And even when the admit they mess up, they promise to fix it “as soon as possible.” For a company adamant on working faster than the speed of light, I find their explanation dubious. They obviously scrutinized this data to realize they found passwords. What other nuggets did they find? Did those pieces of info make their way into Google’s secretive coveted search algorithm? Will they notify the people whose data was scooped? (Probably not because this might set them up for a private cause of action).

So I ask the same question I posed nearly 3 years ago. What happens when Google does some evil?

There’s a situation in France now. The President wants to raise the retirement age from 60-62. Unsurprisingly, the French protestors take to the street to protest. What is interesting about this protest, is that the unions views a retirement pension not as government benefit or largesse, but rather as a right that is part of their culture. From the AP:

For Gilly and many other Frenchmen and women, social benefits such as long vacations, state-subsidized health care and early retirement are more than just luxuries: They’re seen as a birthright — an essential part of the identity of today’s France.

The protest against a government plan to raise the retirement age to 62 has special meaning for five members of the Eric Gilly clan who are demonstrating in the streets of Marseille.

“We want to stop working at 60 because it’s something our parents, our grandparents and even our great-grandparents fought for,” says Gilly, 50, a union representative at Saint-Pierre Cemetery, the largest in this bustling Mediterranean port city.

“Unionism, it’s in the skin,” Gilly said in an interview with Associated Press Television News. “It’s more than a passion. When something is wrong or things aren’t right, they have to be changed.”

This is a perfect example of a legal concept known as entrenchment. These governments benefits have become so engrained in the national culture that they no longer represent a form of largesse, but have become a matter of right. This argument harkens back to Williem Reich’s seminal law review article, The New Property.

For the French protestors, they no longer see a retirement pension as a privilege. Rather, they see it as a constitutional (lowercase c) right, that cannot be taken away from them.

Last year (in one of my first blog posts) I compared the covers of two prominent constitutional law books–Randy Barnett’s Restoring the Lost Constitution, and Balkin, Siegel, et al Constitution in 2020. Randy was kind enough to provide a link to that post.

Today, I would like to compare the cover of Barnett’s book with Erwin Chemerinsky’s new book, The Conservative Assault on the Constitution.

Any similarities? Well both covers cut out pieces of the Constitution. In order to dissect (no pun intended) the constitutional philosophies of each author, and which cover is better, I will analyze which portions the authors cut out of the Constitution.

Barnett’s book omits these provisions:

• “do ordain and establish”
• “Section I”
• “Legislative Powers herein granted shall”
• “House of”
• “in each state”
• “No Person”
• “representative who”
• “Inhabitant of that”
• “Representatives and direct”
• “Numbers shall be determined”
• “not taxed, three fifths of all other Persons. The actual enumeration”
• “happen in the Representation”
• “Representatives shall chuse”

Chemerinsky’s book omits these provisions:

• Part of “We” in “We the People”
• “and establish this”
• “legislative Powers herein granted shall”
• “Qualifications requisite for electors of the”
• “a Representative who shall not have”
• “The actual enumeration shall be made within”
• “Term of ten years, in such manner as”

So what can we conclude?

Let’s focus on their areas of disagreement. Both Barnett and Chemerinsky seek to excise the following provisions from the Constitution:

• “ordain and establish”
• “legislative Powers herein granted shall”

The preamble doesn’t really have any meaning anymore, so that’s out. By both omitting the phrase “legislative Powers herein granted” from Articel I, I suppose their only area of agreement is that Article I should not include any limitation on Congress’s powers, and that they should be able to do anything they want. I’m glad Barnett cleared that up. I thought he was in favor of a strict understanding of enumerated powers, or something like that. I score that round a wash.

However, Barnett cuts out the 3/5 clause, which is good. Chemerinsky leaves it in, which is bad. So Barnett wins that round.

Final result:

Applying a Presumption of Constitutionality, Chemerinsky wins. Barnett cuts out more provisions. Because the Constitution is good, and cutting stuff out is bad, Chemerinsky wins.

However, applying a Presumption of Liberty, Barnett Wins. Barnett cuts out portions of the Constitution to illustrate the fact that the Supreme Court has ignored some of our most fundamental liberties. Chemerinsky cuts out portions of the Constitution simply to write his name and the title of the book. Much less poignant. He could have just written over a Constitution blurred in the background like some other progressive Constitutional law books, but I suppose he was trying to make a point.

Because I’m not sure which way Footnote Four cuts here, I’ll call it a tie.

Apparently there is a problem with cabbies in Alexandria that aren’t polite. The Alexandria City Council considered a rule that would have required cabbies to be polite, but that plan was dropped.

From the Washington Examiner:

The Alexandria City Council adopted several changes to the city’s taxicab rules over the weekend but dropped plans to require cabbies to be polite.

The council rejected the rule on cabbie behavior before voting 6-1 to adopt new amendments restricting a cab company’s ability to grow or shrink its business based on the company’s compliance with a dispatch quota set by the city.

The behavior rule originally would have required cabbies to be polite to any city official or member of the public even if they are not passengers in the cab. That language was modified at the request of Mayor Bill Euille so that it applied only when cabbies were on duty or dealing with hack officers with the Alexandria Police Department and officials in the city’s finance office, according to deputy city attorney Chris Spera.

Vice Mayor Kerry Donley pushed for adoption of the amendment, but the council, acting on Euille’s recommendation, rejected it.

“I think that’s overkill on the part of the city, trying to manage the employees of a business,” Euille said.

How would politeness be defined? How would this even be enforced?