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A new paper from Alexander Tsesis, titled Representative Self-Government and the Declaration of Independence, that argues that the Declaration has legal significance. Here is the abstract:

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this Article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progenies, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under Section 5 to the enforcement of judicial rulings. The Boerne line of precedents forecloses ordinary citizens from petitioning legislators to pass innovative laws that prohibit states from violating civil rights. This article is the first to argue that although the Declaration of Independence lacks any enforcement mechanism; its clauses about popular sovereignty establish the people’s authority to engage in representative politics to identify core human rights.

The article also demonstrates the Declaration’s relevance to the issue of campaign finance reform. I use the document’s statement about the inalienable rights that are retained by the people, one of which is the freedom of political expression, to analyze the Court’s equating of corporations and natural people for First Amendment purposes in Citizens United v. Federal Election Commission. I also distinguish the speech of commercial corporations from that of nonprofit associations that are organized specifically for engaging in self-government.

From the article:

To date, commentators have entirely overlooked the relevance of theDeclaration of Independence’s consent doctrine to the Boerne line of cases.Articles on the Court’s notion of judicial review have not reflected on whatthe Declaration’s statements about popular governance indicates about thenature of judicial review. Indeed, scholars who have analyzed that foundingdocument have typically discussed its history without realizing itscontemporary significance. This article demonstrates the document’s relevanceto constitutional evaluations of civil rights statutes passed through Section 5and of campaign finance laws.

…

I argue in this article that although the Declaration of Independencecontains no explicit enforcement provision, it places substantive obligationson government. On my account, the Declaration of Independence requires allthree branches of federal power to protect inalienable rights on an equal basis.The Court’s recent augmentation of judicial power places unwarrantedly rigorous standards on Congress’s ability to respond to constituents’ lobbying efforts to safeguard their essential interests. I claim that the Declaration placesprimary authority to interpret the Constitution in the hands of the people, who can expand rights by petitioning Congress.

I made a similar point about the legal force of the Declaration in Original Citizenship, published this year in PENNumbra.

While Americans are fond of celebrating the birthday of the UnitedStates every year on July 4th, this date, as well as the Declaration, has no constitutional significance. Fireworks and barbecue aside, for legal purposes the practical starting date of the U.S. is 1789, when President Washington was inaugurated and the first Congress met.8 Our courts do not take cognizance of the Declaration. Yet to a member of the first Congress or a federal judge in 1789, the United States was not an infant, but was an old, familiar friend, and by 1789, such congressmen and judges had no doubt considered themselves to be U.S. citizens for quite some time. The Constitution merely represented a new form of government for a preexisting country. Article VII concludes that the Constitution was submitted to the states in the year “of the Independence of the United States of America the Twelfth.” The Constitution includes a direct textual and historical link to the Declaration and the year 1776.

Looks like an interesting read.

A cool prototype from NTT DoCoMo that translates between languages, on the fly. From Engadget:

Whereas Google Translate’s Conversation Mode was a turn-based affair when it was demoed back in January, requiring each party to pause awkwardly between exchanges, NTT DoCoMo’s approach seems a lot more natural. It isn’t based on new technology as such, but brings together a range of existing cloud-based services that recognize your words, translate them and then synthesize new speech in the other language — hopefully all before your cross-cultural buddy gets bored and hangs up.

Check out the YouTube video for a demonstration:

I previously blogged about the debate between Justices Scalia and Ginsburg in Ashcroft v. al-Kidd about the nature of individualized suspicion. This discussion, which Justice Scalia elaborated on at some length, feeds into the constitutional framework I propose in the Constitutionality of Social Cost. What type of “individualized suspicion” is sufficient to justify a warrant (and the accordant deprivation of a person’s individual liberty): a suspicion that someone committed some wrongdoing (the position of RBG), or that someone knows something about a crime (Nino’s position).

The difference between Scalia’s position,and Ginsburg’s position, is that the actor in Scalia’s scenario need not be shown to pose a threat, or harm to others. Someone who committed some ac of wrongdoing, poses a threat to society at large, or in the term of my article, a social cost. The actor in Scalia’s version poses much less of a social cost, if any at all. Ginsburg would only be willing to find a violation of the Fourth Amendment reasonableness if someone actually posed a threat to others. Scalia would broaden it, and permit a reduction of individual liberty even if someone merely knows of some wrongdoing. This is a bifurcation that sounds in the Constitutionality of Social Cost.

Scalia opines at some length on a chain of precedents (that I rely heavily on in my article) to demonstrate where a suspicionless search (that is, a search in the absence of any prospective or possible social costs) are permissible:

There is one category of exception, upon which the Court of Appeals principally relied. In Edmond, 531 U. S. 32, we held that the Fourth Amendment could not condone suspicionlessvehicle checkpoints set up for the purpose of detecting illegal narcotics. Although we had previously approvedvehicle checkpoints set up for the purpose of keeping off the road unlicensed drivers, Delaware v. Prouse, 440 U. S. 648, 663 (1979), or alcohol-impaired drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990); and for the purpose of interdicting those who illegally cross the border, United States v. Martinez-Fuerte, 428 U. S. 543 (1976); we found the drug-detection purpose in Edmond invalidating because it was “ultimately indistinguishablefrom the general interest in crime control,” 531 U. S., at44.

In other words, deprivations of individual liberty merely on the grounds that there is a general possibility of reducing crime is insufficient. There must be something more–suspicion of actual wrongdoing.

In the Court of Appeals’ view, Edmond established that “‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d, at 968. That was mistaken. It was not the absence of probablecause that triggered the invalidating-purpose inquiry in Edmond. To the contrary, Edmond explicitly said that it would approve checkpoint stops for “general crime control purposes” that were based upon merely “some quantum of individualized suspicion.” 531 U. S., at 47. Purpose was relevant in Edmond because “programmatic purposes maybe relevant to the validity of Fourth Amendment intru-sions undertaken pursuant to a general scheme without individualized suspicion,” id., at 45–46 (emphasis added)

Scalia conceded that at the minimum there must be “some quantum of individualized suspicion.” In other words, some evidence of social cost. Scalia thus views knowledge of a crime, and fleeing before trial, a social cost that must be avoided. Ginsburg does not see it this way.

Now, the subtle turn is how Scalia defines suspicion.:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not onlyour special-needs and administrative-search cases, but of Edmond as well.

The individualized reasons provided in the affidavit did not show that al-Kidd by himself posed a threat to others, or exhibited social cost. No. rather, there was suspicion that he was a “material witness and that he would soon disappear.” This, is enough in Scalia’s mind to justify the warrant.

This finding is in some tension with Justice Kennedy’s concurring opinion, where he notes that the Material Witness Statute might be outside of the scope of the Fourth Amendment, as warrants are not issued based on probable cause someone committed a crime, but rather that someone knows something about a crime:

In considering these issues, it is important to bear in mind that the Material Witness Statute might not providefor the issuance of warrants within the meaning of theFourth Amendment’s Warrant Clause. The typical arrestwarrant is based on probable cause that the arrestee hascommitted a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probablecause for purposes of the Fourth Amendment’s WarrantClause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement forseizures of the person. See United States v. Watson, 423
U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness arrests might be consistent with statutory and constitutional requirements.

This is likely not the last case discussing this topic. With Justice Kagan on board, Justice Scalia’s position may become a dissent in the near-future.

It is very interesting how the issue of social cost pops up in so many disparate constitutional contexts. I hope to explore this further in future works. Or, when you have a hammer everything looks like a nail. Not sure.

Danielle Citron, who graciously invited me to guest blog at ConcurringOpinions.com, posted my welcome post here. My first post should go up at 12:01 a.m. on June 1 (the first moment I think I’m allowed to blog).

I have a lot of topics I wish to blog about: The Constitutionality of Social Cost, FantasySCOTUS, my thoughts on the future of Legal Education. Plus, it’s June, so plenty of SCOTUS opinions to Live Blog! It should be fun.

I’ll probably cross blog anything I post there, on JoshBlackman.com. There will probably be a lot of stuff that I blog there that I have already blogged here, so I apologize for any duplication.

In Ashcroft v. al-Kidd, there is a stark disagreement between Justice Scalia’s majority opinion and Justice Ginsburg’s opinion concurring in judgment, focusing on what “individualized suspicion” refers to.

In a massive one-page long footnote, after including a parenthetical string of about a dozen cases, noting that the Court has “uniformly used the term ‘individualized suspicion’ to mean ‘individualized suspicion of wrongdoing,’” Ginsburg finds that the Court’s suggestion that the term “individualized suspicion” ismore commonly associated with “know[ing] something about [a] crime” . . . is hardly credible.”

The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.

Scalia reads the phrase “individualized suspicion” more broadly, though doesn’t really define it. Scalia basically notes that the the precedents support Justice Ginsburg’s position says nothing more than that the current case—where the suspicion is that someone knows something, and would not be present to testify at trial—is rather rare.

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

It seems Ginsburg has the better argument here. Scalia’s position seems to have 5 votes though.