The Supreme Court hears oral argument today in Pottawattamie County v McGee, wherein they will have to decide if prosecutors have immunity from lawsuits even if they frame someone for murder.

On one side of the case being argued are Iowa prosecutors who contend “there is no freestanding right not to be framed.” They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

[...]

The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.

Hard though it might be to believe, this is actually a difficult decision. The balance between protecting diligent prosecutors from suit and protecting defendants from the bad apples is not a simple thing. The good news is that a case like this is amenable to a bright-line rule against intentional misconduct. The bad news is, the Supreme Court has shown a consistent disdain for bright-line rules for some time.

Heretical Ideas previewed this case last month.

A rather bizarre case in Illinois — even by the standards of that state.

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves. The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

[...]

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case. “At the end of the day, all we’re seeking is the same thing these students are: justice and truth,” said Sally Daly, the spokeswoman. She said the prosecutors wished to see all statements the students received from witnesses, whether they supported or contradicted the notion of Mr. McKinney’s innocence. “We’re not trying to delve into areas of privacy or grades,” Ms. Daly said. “Our position is that they’ve engaged in an investigative process, and without any hostility, we’re seeking to get all of the information they’ve developed, just as detectives and investigators turn over.”

Well, no. Without probable cause to believe criminal action on part of the students, the state has no right to any of this material.  And why would it matter if the students thought they would get better grades for getting provocative statements?  Surely, people aren’t going to confess to crimes or commit otherwise commit perjury in order to help out some rich college students they don’t know.

On this matter, there seems to be wide consensus.

American University conlaw prof Darren Lenard Hutchinson:

The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney’s guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor’s course materials are possibly protected from disclosure by the concept of academic freedom — which the Supreme Court has construed as a value secured by the First Amendment.

[...]

Daly also likens the subpoena to the routine disclosure of information by “detectives.” Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system — not to service the prosecutor’s office or inmates.

[...]

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors’ behavior evinces a deep contempt for the law, which makes the students’ efforts to uncover wrongful convictions even more compelling.

Emptywheel’s bmaz:

The Cook County prosecutors cite no evidence to support a credible belief there is anything nefarious behind the student journalists’ work. The students work, conclusions and supporting materials are all part of their project report. The prosecutors already have access to all of said pertinent material, as well they should. But what they now want are “grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students”. Here is the actual subpoena. This is information that has nothing whatsoever to do with the students work on the project. “Fishing expedition” would be far too kind of a term.

The only visible purpose of the play by the prosecutors here is intimidation and instillation of a deep chill in the work of the Medill Innocence Project.

Retired federal judge H. Lee Sarokin:

I am always offended and annoyed with the labeling of some recent conduct or person with Nazism or Hitler or drawing analogies with the Holocaust and thereby belittling those horrific events in our history with some current less appalling and even minor occurrences. But I truly believe that the attempt of prosecutors to subpoena “the grades, grading criteria, class syllabus, expense reports and e-mail messages of their journalism students themselves” at Northwestern University warrants and deserves the Gestapo label.

It is a flagrant attempt to intimidate the Medill Innocence Project and other similar projects which have been so successful in overturning wrongful convictions. The alleged justification is that the prosecutors want to determine “whether students believed that they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.” So I take it that would mean that every time a detective obtained incriminating evidence, his entire background could be examined in order to determine his motives when interviewing a witness; whether he had received or expected a raise or a promotion; and if so whether he needed money; how much his debt was; what he was paying for rent and alimony, etc. In other words, the scope of the investigation would be extended to the motives of the investigator rather than the witness being investigated and interrogated.

Wisconsin lawprof Ann Althouse asks “what information about students and classes should it be able to look at?”  She does not attempt to answer the question.  Her commentators give it a shot.

Tennessee lawprof Glenn Reynolds, aka InstaPundit, snarks, “Hey, it’s the Chicago Way. But the parallel is pretty striking — if you don’t like what they’re reporting, why, then, they’re not really journalists!“

Olympia Snowe and other wayward Republicans will be subject to strong persuasion but no punishment from the caucus, Senate Republican leaders tell Politico.

Mitch McConnell and his deputies in the Senate Republican leadership are responding very cautiously to Olympia Snowe's decision to become the first GOP vote for a Democratic health care reform bill. Photo: AP

Mitch McConnell and his deputies in the Senate Republican leadership are responding very cautiously to Olympia Snowe’s decision to become the first GOP vote for a Democratic health care reform bill.

That’s about all they can do.

“My job as whip is not to twist her arm but to bring all the information that we can bring to bear on the issue and hope that people vote the way we would like to see them vote,” said McConnell’s No. 2, Senate Minority Whip Jon Kyl (R-Ariz.). Kyl said a heavy-handed approach “doesn’t work.”

And indeed, it could backfire — not just with Snowe but with other Republicans who’ve indicated that they could cross over to help Democrats pass some of President Barack Obama’s top domestic policy initiatives.

In an op-ed in The New York Times over the weekend, Sen. Lindsey Graham (R-S.C.) suggested that he’s open to supporting a Democratic climate change bill. And in an interview published this week in POLITICO, Sen. Richard Shelby (R-Ala.) said he was willing to try to find common ground with Sen. Chris Dodd (D-Conn.) on rewriting the rules for Wall Street.

Republican leaders know that if they crack down hard on Snowe, they risk pushing her and other wavering Republicans into the arms of the Democrats. So, instead, they’ll lobby their own intensely in order to keep the GOP united and force the Democrats to find 60 votes by themselves.

Shelby has assured Republicans that he won’t cross over on his own. He told POLITICO on Wednesday that he would “never support something as the lone Republican.”

But the same can’t be said of Snowe or Graham. Snowe was the only Republican on the Senate Finance Committee to vote for the Democrats’ health care bill Tuesday. And over the summer, Graham was the only Republican on the Judiciary Committee to vote in favor of Sonia Sotomayor’s nomination to the Supreme Court.

Shelby was twice elected to the Senate as a Democrat, switching parties when the GOP won the majority in 1994.  Still, he and Graham aren’t going anywhere unless pushed very, very hard.  But Northeastern Republicans like Snowe and Susan Collins would likely improve their positions by becoming Democrats, so treading lightly is McConnell’s only sane choice.

Lamar Alexander, who is in charge of the Senate GOP’s message, said that “our conference does not dictate policy to individual senators” and that opinion among Republican senators is “rarely unanimous.”

On Wednesday, Snowe said she’s not worried about being on the receiving end of any backlash within her caucus. And she dismissed reports that supporting a Democratic health care reform bill could cost her a chance at moving up to the top GOP slot on the Commerce, Science and Transportation Committee. “I have no reason to believe that,” she said.

Back when Arlen Specter was a nominal Republican instead of the nominal Democrat he recently became, I opposed having him chair the Judiciary Committee.   That wasn’t as punishment –I ‘d have given him another powerful chairmanship — but rather because confirming judges is one of a small handful of issues where party unity truly matters.   Surely, Science, Transportation, and Commerce shouldn’t be divided along party lines on most issues.

We’re a continental country with extraordinary diversity.  Senators from Maine are not going to see eye-to-eye on most issues with their counterparts in Kentucky.  Insisting otherwise is a surefire recipe for minority status.

A recent survey of Oklahoma public high school students found that the overwhelming majority can’t answer even simple questions about U.S. government and history.

A thousand students were given 10 questions drawn from the U.S. Citizenship and Immigration Services item bank. Candidates for U.S. citizenship must answer six questions correctly in order to become citizens. About 92 percent of the people who take the citizenship test pass on their first try, according to immigration service data. However, Oklahoma students did not fare as well. Only about 3 percent of the students surveyed would have passed the citizenship test.

Below are the questions and results:

Question		% of Students Who Answered Correctly
What is the supreme law of the land?		28
What do we call the first ten amendments to the Constitution?		26
What are the two parts of the U.S. Congress?		27
How many justices are there on the Supreme Court?		10
Who wrote the Declaration of Independence?		14
What ocean is on the east coast of the United States?		61
What are the two major political parties in the United States?		43
We elect a U.S. senator for how many years?		11
Who was the first President of the United States?		23
Who is in charge of the executive branch?		29

Shocking, no?

This meme is spreading through the blogosphere with the consensus being that our education system is failing and our students are dumber than a bag of hammers.

But here’s the thing:  I simply don’t believe these results are accurate.   I taught Politics 101 to college freshmen for a decade, so I’m under no illusion that our kids have a strong working knowledge of how our system works.  (Indeed, having administered basic geography tests as part of my World Politics course, I’m shocked that 61% not only know the Atlantic Ocean but that they know east from west.)  I could see students not knowing the answers to several of the questions above, especially framed as they are.  But, seriously, your average 6-year-old knows who George Washington is.  They couldn’t tell you anything about his administration, of course, but they know:  wooden teeth, chopped down cherry tree, couldn’t tell a lie, Martha, and 1st president.  It’s, frankly, trivia.  (And hagiography in the case of the cherry tree fable.)  But they know it nonetheless.

Tom Maguire took the time to click the link to the actual survey results. He observes, “in defense of the Oklahomans, a ten question test was administered by telephone to one thousand high school students. That has to be an unfamiliar format for the respondents, and probably not all of them gave it their best shot. Still, this is pretty grim.”

Actually, it’s worse than that.  The exam was commissioned by a conservative activist organization whose mission is to show how lousy public schools are so as to advocate for home schooling and private, religious schools.  Read the long diatribe that serves as the press release for the survey’s results.

Here’s how they describe the methodology:

In Oklahoma, the telephone surveyors called a sample of 1,000 public high-school students and read the following statement: “On the next 10 questions, I will be asking you questions about American government and history. Give me your best answer, and it is permissible to respond ‘I don’t know.’”

Guess what the most popular answer was on just about every question was.  Yes sir: “I don’t know.”  It was the majority response on the two parts of the Congress (58%) and who’s in charge of the executive branch (51%) question and was in the 40’s on three others.  It was the number one answer on eight of ten questions.

How many of those were actually non-responses?  Given the purpose of the exam, I wouldn’t be at all shocked if the survey firm wasn’t instructed to code non-responses as “I don’t know” rather than going on to a student who would take the time to give thoughtful responses.  (The only thing holding back my confidence in this regard is that the Atlantic Ocean question is listed 6th and got a very high right answer rate.)

Interestingly, too, the right answer was the plurality actual response answer on almost every question.   And the runner-up answers were, for the most part, non-idiotic.  So, 17% thought the Declaration of Independence was the supreme law of the land, compared to 28% correctly identifying the Constitution and 41% “I don’t know.”  Abraham Lincoln, Thomas Jefferson, Franklin Roosevelt, and John Adams were the most popular wrong answers on 1st president.

The chief “wrong” answer on the “Who is in Charge of the Executive Branch” question was “the Governor,” which garnered 10%.  That’s actually right, since the question doesn’t specify federal or state.  Similarly, shouldn’t the 11% who answered that the two parties are Communist and Republican be scored correctly?  (I jest, of course.)

Again, I’m not Pollyannish on how much our kids know.  In 2001, Steven Taylor had a bonus question on a multiple-choice test he administered to 101 students at the university where we both taught at the time asking who the vice president was.  A woefully small number got it right.  (In fairness, Dick Cheney was  new in office and much less controversial than he’d be later.  Also, Steve’s eldest son, then perhaps 6, knew the answer.)   But a telephone survey of 17-year-olds who have no incentive whatsoever to take it seriously administered by a group that wants to prove how lousy our schools are is simply unfair.

UPDATE:  Kevin Drum emails to point out something I totally missed:  “not one single student got even 8 answers right.”

Kevin says, “That’s just not credible.”

No, it isn’t.   Indeed, few people got more than 4 right!  My strong guess is that:  1) they rotated the questions, rather than asking them in the order above and 2) the vast majority of students hung up after no more than three or four questions.

It appears that Sonia Sotomayor will be an activist judge after all.

During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled. But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have. Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

[...]

“Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions,” said Douglas Kendall, president of the liberal Constitutional Accountability Center. “I don’t want to draw too much from one comment,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out. “A corporation is an artificial being, invisible, intangible,” Chief Justice John Marshall wrote in an 1819 case. “It possesses only those properties which the charter of its creation confers upon it.”

But as the Industrial Revolution took hold, corporations proliferated and views of their functions began to evolve. In an 1886 tax dispute between the Southern Pacific Railroad and the state of California, the court reporter quoted Chief Justice Morrison Waite telling attorneys to skip arguments over whether the 14th Amendment’s equal-protection clause applied to corporations, because “we are all of opinion that it does.”

[...]

Subsequent opinions expanded corporate rights. In 1928, the court struck down a Pennsylvania tax on transportation corporations because individual taxicab drivers were exempt. Corporations get “the same protection of equal laws that natural persons” have, Justice Pierce Butler wrote.

From the mid-20th century, though, the court has vacillated on how far corporate rights extend. In a 1973 case before a more liberal court, Justice William O. Douglas rejected the Butler opinion as “a relic” that overstepped “the narrow confines of judicial review” by second-guessing the legislature’s decision to tax corporations differently than individuals. Today, it’s “just complete confusion” over which rights corporations can claim, says Prof. William Simon of Columbia Law School.

Rather clearly, the Court will not have 5 votes to overturn nearly two centuries of precedent.  By contrast, the conservatives on the Court may well have the votes to overturn decades of precedent in campaign finance law, finally deciding that the 1st Amendment fully applies to corporations and that money is speech.

Both of these directions are arguably activist; they’re certainly a violation of the stare decisis tradition.  But corporate personhood is a bedrock principle of American corporate law; the only question is how far it extends.  While being gradually limited in scope in recent years, the premise has never been seriously questioned by the Supreme Court.  Campaign finance law, conversely, has always been a balancing test, with the Court both recognizing that donating to candidates and political advertising have qualities of speech and yet deferring to the public policy interest in reigning in the appearance of undue influence.

Tomorrow, the Supreme Court is hearing a case that could overturn two recent precedents allowing the restriction of political speech by corporations for the purpose of curbing the appearance of undue influence.  There’s an excellent chance they will do so.

Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. have backed challenges to campaign finance laws. (By Lucian Perkins -- The Washington Post)

That raises ageless questions about the role of stare decisis — the court’s custom of standing by its previous decisions. But it also raises new ones about the boldness of a court that has moved to the right with the addition of Roberts and Justice Samuel A. Alito Jr.  “Everyone knows this is a case about the chief and Justice Alito,” said Richard J. Lazarus, co-director of the Supreme Court Institute at the Georgetown University Law Center. “And the real question here is whether the chief is ready to pull the trigger” on declaring the restrictions unconstitutional.

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

[...]

There are two precedents at stake in Wednesday’s rehearing of Citizens United v. Federal Election Commission. One is the court’s 1990 decision in Austin v. Michigan Chamber of Commerce, in which it upheld a state law that said corporations could be barred from spending their profits to urge a candidate’s election or defeat.

The second is part of the 2003 decision upholding Congress’s Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold campaign finance law. The court ruled 5 to 4 that Congress may curtail corporate spending on advertising that mentions a candidate shortly before an election, even if it does not explicitly support or oppose that person.

Three current justices — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — have said Austin should be overturned, and all three said in McConnell v. FEC that McCain-Feingold violates the Constitution’s guarantee of free speech. Those who favor the restrictions said a recognition that government may treat corporations and individuals differently when it comes to political spending dates back more than 100 years.

I’m agnostic on the question of corporate personhood, both seeing firms as simply individuals bound together by contract and yet not necessarily entitled to every protection owed a  citizen.  On the specific matter of campaign finance law, however, it strikes me as obviously unconstitutional to restrict political speech.

Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like.

It led him to Michael Dorf’s FindLaw essay “Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed?”

“What,” you may be asking yourself, “such a right doesn’t exist already?! They find stuff emanating from penumbras and they haven’t found this one yet?!”

Nope:

In 1993, in Herrera v. Collins, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. Acknowledging an “elemental appeal” to the claim that the Constitution forbids executing the innocent, the Court nonetheless left open the question whether, “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Even if such a demonstration would indeed render an execution constitutionally forbidden, moreover, the late Chief Justice Rehnquist said for the Court, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Finding that Herrera’s proffered evidence did not satisfy this standard, the Court denied relief in that case.

But, in a case decided August 17 involving a man on death row for murdering a cop, convicted on evidence that has since been recanted and with substantial new evidence pointing to the state’s star witness as being the actual killer,

Yet despite national and international attention–including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict–neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.

Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis's] innocence.”

A key excerpt from the dissent:

This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitutionally cognizable.

Now, as a practical matter, there is no such thing as innocence in the eyes of the law.  A person is either found guilty or acquitted.  And we obviously don’t want to routinely retry cases on the basis of the convict’s assertions of innocence.  After all, if the population at Shawshank is any indication, they’re all innocent.  Once convicted, the burden of proof for presenting new evidence of innocence ought reasonably be high.

But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

Apropos my previous post about the Chicago public employee furlough, Aaron Brazell tweets about a Maryland judge ruling that state furloughs violate the U.S. Constitution.   He links to a WaPo recap:

A federal judge ruled Tuesday that Prince George’s County violated the U.S. Constitution when it furloughed 5,900 workers in the last fiscal year, a decision that could force the county to repay millions in wages in the midst of a crippling economic downturn.

The ruling, which the county plans to appeal, has the potential to upend a key Prince George’s strategy for combating deficits. A county spokesman said in a statement that the decision would result in “massive layoffs” if it stands.

“As a result of this [economic] crisis, the county made a difficult decision to furlough its employees for 10 days, saving $17 million,” James P. Keary, spokesman for County Executive Jack B. Johnson (D), said in the statement. “The court has substituted its judgment without acknowledging the economic challenges facing the country. . . . In order to protect their jobs and the lives of employees and their families we will be filing an appeal to remedy this irresponsible decision.”

But U.S. District Judge Alexander Williams Jr. wrote that although he is mindful that local governments are facing financial challenges “in the midst of a global recession,” officials could have turned to other “more moderate alternatives” to trim the budget.

“Although the County suggests to the Court that it faced dire circumstances and had no other reasonable alternatives, the record suggests otherwise and the County’s actions resemble trappings of doing that which was politically expedient,” Williams wrote in his 43-page opinion.

After reading the piece, I had a Whiskey Tango Foxtrot moment.  The Constitution is pretty short and I’ve not only read it and studied it, I’ve taught courses about it.  I couldn’t recall anything in the document that seemed remotely related to furloughs.

One has to read far down into the piece to get this:

In his opinion, Williams sided with the unions on one of three counts, finding that the county violated the contract clause of the U.S. Constitution, which bars states from passing laws “impairing the obligation of contracts.”

The furloughs reduced employees’ “salaries/wages and hours,” which were guaranteed under contracts “not subject to unilateral adjustment by the County,” Williams wrote. “To find otherwise would render the contracts virtually meaningless.”

Ah.  That actually makes some sense.    The Contracts Clause (Article I, Section 10, Clause 1) says:

No State shall … pass any … Law impairing the Obligation of Contracts.

That’s the entirety of the section. As always, FindLaw’s Annotated Constitution is the go-to resource for a quick synopsis of the judicial findings related to the provision.  The murkiness of the law here shows it to be perhaps the most poorly crafted bit of the Constitution.  Very quickly, the Supreme Court ruled that “No law” does not in fact mean no law.  (My undergraduate ConLaw prof, Dr. Hope Davis, suggested that the Framers should have written “No law, damn it” to be more clear.)

I don’t have any specific knowledge of the contract between Maryland/PG County and its workers and presume that Judge Williams’ ruling is correct.  (Note: In the eyes of the law, cities and counties are mere instruments of the states and their actions are considered that of their state government for the purposes of Constitutional interpretation.)   To show how hard his job was, consider just this snippet of summary from FindLaw:

Also, an express contract between the State and an individual for the performance of specific services falls within the protection of the Constitution. Thus, a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of the State, for which a definite sum had been authorized, was held to have been impaired by repeal of the statute. But a resolution of a local board of education reducing teachers’ salaries for the school year 1933-1934, pursuant to an act of the legislature authorizing such action, was held not to impair the contract of a teacher who, having served three years, was by earlier legislation exempt from having his salary reduced except for inefficiency or misconduct. Similarly, it was held that an Illinois statute that reduced the annuity payable to retired teachers under an earlier act did not violate the contracts clause, since it had not been the intention of the earlier act to propose a contract but only to put into effect a general policy. On the other hand, the right of one, who had become a ‘permanent teacher” under the Indiana Teachers Tenure Act of 1927, to continued employment was held to be contractual and to have been impaired by the repeal in 1933 of the earlier act. 

Sheesh.

UPDATE: I should note that, for the purposes of political science courses (vice law schools) the focus on the Contracts Clause is on government’s power.   Mostly, then, we looked at a handful of cases that looked at the ability of a state to take action that had the effect of abrogating a private contract.  That states can’t “impair” contracts, apparently even implied contracts, they make with individuals is an interesting side story.

Bob Dylan was on the pavement, thinking about the government. And they arrested him.

Rock legend Bob Dylan was treated like a complete unknown by police in a New Jersey shore community when a resident called to report someone wandering around the neighborhood.

Dylan was in Long Branch, about a two-hour drive south of New York City, on July 23 as part of a tour with Willie Nelson and John Mellencamp that was to play at a baseball stadium in nearby Lakewood.

A 24-year-old police officer apparently was unaware of who Dylan is and asked him for identification, Long Branch business administrator Howard Woolley said Friday. “I don’t think she was familiar with his entire body of work,” Woolley said.

The incident began at 5 p.m. when a resident said a man was wandering around a low-income, predominantly minority neighborhood several blocks from the oceanfront looking at houses. The police officer drove up to Dylan, who was wearing a blue jacket, and asked him his name. According to Woolley, the following exchange ensued:

“What is your name, sir?” the officer asked.

“Bob Dylan,” Dylan said.

“OK, what are you doing here?” the officer asked.

“I’m on tour,” the singer replied.

A second officer, also in his 20s, responded to assist the first officer. He, too, apparently was unfamiliar with Dylan, Woolley said.

The officers asked Dylan for identification. The singer of such classics as “Like a Rolling Stone” and “Blowin’ in the Wind” said that he didn’t have any ID with him, that he was just walking around looking at houses to pass some time before that night’s show.

The officers asked Dylan, 68, to accompany them back to the Ocean Place Resort and Spa, where the performers were staying. Once there, tour staff vouched for Dylan.

The officers thanked him for his cooperation. “He couldn’t have been any nicer to them,” Woolley added.

Alex Knapp is less than pleased:

That’s just utterly disgusting to me. A 68 year old man out for a walk shouldn’t have to offer his ID to the police. Was he committing a crime? No. Was he suspected of committing a crime? No. Were there any indications that a crime was going to be committed? No. He was just “suspiciously” enjoying public rights-of-way.

Look, someone calls in suspicious behavior and I understand the need to check it out. But an old man walking down the street isn’t “suspicious.” And there’s no law that says that a person has to have ID with them at all times, so I fail to see what justified the need to have two police officers detain somebody until someone could vouch for their identity.

I concur completely.  If it were, say, 2 a.m., Dylan’s actions might have been a bit more suspicious.  But late afternoon in broad daylight?

The Supreme Court has been very deferential to police on these matters.  In the landmark 1968 case Terry v. Ohio, the court held that “Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.” The so-called Terry Stop doctrine has expanded over the years to the point where, arguably, Americans have little in the way of 4th Amendment rights outside their homes because policemen simply claim that they feared for their safety and judges are, not surprisingly, loathe to overrule them.

The most recent case of which I’m aware that applies here is Hiibel v. 6th Judicial Circuit of Nevada (2004), in which the Supremes upheld the arrest of a man for “refusing to identify himself to a police officer during an investigative stop involving a reported assault” in violation of Nevada’s “stop and identify” statute.   The Court did not rule on whether an ID requirement would be unreasonable; Justice Kennedy’s majority opinion did, however, note that “the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.”

UPDATE: Several other accounts of the story make it clear that Dylan’s activities were indeed more suspicious than taking a walk in the broad daylight.   It was pouring rain and he had no umbrella or raincoat.  And he had wandered off of the sidewalks and was peering into the windows of a house that was for sale.  ABC’s Chris Francescani speculates that Dylan may have been looking for the house where Bruce Springsteen wrote “Born to Run;” it was only two blocks away.

Two other points.  Several commenters object to my use of the term “arrested” since Dylan apparently was not slapped in irons.  But when the police detain you and you are not free to leave, you are under arrest.  The Supreme Court says so.

That said, Tom Maguire makes a fair point:

Finally, who says that the police are only responsible for possible criminal activity?  Dylan may have been a confused old man who was having a mild stroke, or had slipped in the rain and hit his head, or was a hit-and-run victim – the non-criminal possibilities are endless.

But a brief conversation should have been able to ascertain that Dylan was not a danger to himself or others. Once that’s established, the police have done their jobs and should go.  It really doesn’t matter whether he’s really Bob Dylan at that point.

ss

How far does the 1st Amendment go?  Hal Turner is about to find out.

Hal Turner, an Internet radio host and blogger, posted photos of the three judges who displeased him and a map of the courthouse where they work. (By Jessica Hill -- Associated Press)

Internet radio host Hal Turner disliked how three federal judges rejected the National Rifle Association’s attempt to overturn a pair of handgun bans.

“Let me be the first to say this plainly: These Judges deserve to be killed,” Turner wrote on his blog on June 2, according to the FBI. “Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.”

The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of “anti-truck bomb barriers.” When an FBI agent appeared at the door of his New Jersey home, Turner said he meant no harm.

He is now behind bars awaiting trial, accused of threatening the judges and deemed by a U.S. magistrate as too dangerous to be free.

[...]

Turner’s attorney said the prosecutors overreacted.  “He gave an opinion. He did not say go out and kill,” defense attorney Michael Orozco said last week after unsuccessfully seeking bail. “This is political hyperbole, nothing more. He’s a shock jock.”

That is not how U.S. Attorney Patrick J. Fitzgerald and his prosecutors see the case. They charged Turner, a blogger admired by white supremacists, with threatening the lives of three judges on the U.S. Court of Appeals for the 7th Circuit: Frank Easterbrook, Richard Posner and William Bauer.

[...]

Turner, 47, was first charged in June by Connecticut’s Capitol Police with inciting injury after he urged residents to “take up arms” against two state legislators and an ethics official when the lawmakers introduced a bill to give lay members of Roman Catholic churches more control over their parishes’ finances.  Later that month, federal authorities filed charges in the Chicago case.

[...]

First Amendment scholar Martin H. Redish said much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse. “I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range,” said Redish, a professor at Northwestern University Law School. “I just don’t see him being protected.”

In a 1918 case called Schenck v US, the Supreme Court articulated the “Clear and Present Danger” doctrine, in which Justice Oliver Wendell Holmes, Jr. famously noted that “shouting fire in a crowded theater” is not protected speech.  This turned out to be impossible to nail down and was ultimately replaced with something called the “Direct Incitement Test” in Brandenburg v. Ohio in 1969.  It ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”

Proclamations that people “deserve to be killed,” while loathsome, are unquestionably protected speech.  When someone has a large following and urges the audience to take criminal action, it gets dicier.  Going further and providing maps and advice for circumventing protective barriers may well cross the line.

A superb essay at FindLaw concludes:

Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard. For certain forms of expression for which protection is claimed, the Court engages in ”definitional balancing” to determine that those forms are outside the range of protection. 164 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. 165 Utilization of vagueness, overbreadth and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, 166 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that ”mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success. 167 In Brandenburg, however, the Court reformulated these and other rulings to mean ”that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 168 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.

Ultimately, then, what we have is an ad hoc system, much as we do in obscenity cases.  Of the latter, Justice Potter Stewart famously admitted that, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

We’re essentially in the same boat with incitement to violence. There are no bright lines, so we’re left up to the discretion of individual prosecutors and judges.  That is, to say the least, less than ideal.  But it’s likely as impossible to articulate an a priori definition here as it is for obscenity.

While I share Michael Tomasky’s disdain for people carrying signs about “the blood of tyrants” while protesting democratically elected leaders, he goes too far here:

There was an election. One guy one, another guy lost. It wasn’t disputed. It wasn’t decided by an ideologically divided Supreme Court, which gave the win to the guy who won fewer votes. This election wasn’t even particularly close. It means that the side that won is entitled to try to pass its agenda. But the protesters don’t respect the result of the election.

To be sure, there are people, like the Birther conspiracists, who don’t in fact respect the result of the election.  But so what?  So long as they don’t actually engage in criminal conduct to express that disrespect, they’re entitled to be sore losers.

But winning an election doesn’t mean you get to do whatever you want for the term of your office.  Not in America’s system with it’s complicated checks and balances and divided government.  No, winning merely means you have better leverage on the wheels of power, not complete control.

George W. Bush was re-elected in 2004 by a comfortable margin and his party had control of both Houses of Congress.  Rather quickly, with the Katrina debacle and the emergence of a full-blown insurgency in Iraq, his administration got stuck in the mire.  His vaunted “political capital” was gone and he was unable to enact such things as the massive Social Security reforms on which he campaigned.

Beyond the practicalities of enacting public policy, the very idea of a “mandate” is rather silly.  Yes, Barack Obama won and yes, he was and is quite popular.  Yes, he campaigned on fixing health care and yes, fixing health care is popular.  But those who voted for Obama did so for a wide variety of reasons.  Similarly, those who like Obama and who want to “fix” health care may nonetheless disagree, vehemently even, with the particular set of fixes that are being bandied about.  Surely, they’re entitled to let that be known?

Just as surely, those who lost the last election are entitled to try to rally the troops and persuade independents to give them another chance.  That’s the essence of free speech.

Bill Maher has a piece at HuffPo arguing that Americans are a bunch of idiots who should just shut up and let people who know what they’re talking about make decisions on tough issues like health care reform.

[T]ake the health care debate we’re presently having: members of Congress have recessed now so they can go home and “listen to their constituents.” An urge they should resist because their constituents don’t know anything. At a recent town-hall meeting in South Carolina, a man stood up and told his Congressman to “keep your government hands off my Medicare,” which is kind of like driving cross country to protest highways.

I’m the bad guy for saying it’s a stupid country, yet polls show that a majority of Americans cannot name a single branch of government, or explain what the Bill of Rights is. 24% could not name the country America fought in the Revolutionary War. More than two-thirds of Americans don’t know what’s in Roe v. Wade. Two-thirds don’t know what the Food and Drug Administration does. Some of this stuff you should be able to pick up simply by being alive. You know, like the way the Slumdog kid knew about cricket.

Not here. Nearly half of Americans don’t know that states have two senators and more than half can’t name their congressman. And among Republican governors, only 30% got their wife’s name right on the first try.

Sarah Palin says she would never apologize for America. Even though a Gallup poll says 18% of Americans think the sun revolves around the earth. No, they’re not stupid. They’re interplanetary mavericks. A third of Republicans believe Obama is not a citizen, and a third of Democrats believe that George Bush had prior knowledge of the 9/11 attacks, which is an absurd sentence because it contains the words “Bush” and “knowledge.”

People bitch and moan about taxes and spending, but they have no idea what their government spends money on. The average voter thinks foreign aid consumes 24% of our federal budget. It’s actually less than 1%. And don’t even ask about cabinet members: seven in ten think Napolitano is a kind of three-flavored ice cream. And last election, a full one-third of voters forgot why they were in the booth, handed out their pants, and asked, “Do you have these in a relaxed-fit?”

And I haven’t even brought up America’s religious beliefs. But here’s one fun fact you can take away: did you know only about half of Americans are aware that Judaism is an older religion than Christianity? That’s right, half of America looks at books called the Old Testament and the New Testament and cannot figure out which one came first.

And these are the idiots we want to weigh in on the minutia of health care policy? Please, this country is like a college chick after two Long Island Iced Teas: we can be talked into anything, like wars, and we can be talked out of anything, like health care. We should forget town halls, and replace them with study halls. There’s a lot of populist anger directed towards Washington, but you know who concerned citizens should be most angry at? Their fellow citizens. “Inside the beltway” thinking may be wrong, but at least it’s thinking, which is more than you can say for what’s going on outside the beltway.

And if you want to call me an elitist for this, I say thank you. Yes, I want decisions made by an elite group of people who know what they’re talking about. That means Obama budget director Peter Orszag, not Sarah Palin.

This rant is so powerful it’s united Dennis the Peasant (aka Kenton E. Kelly, CPA) and Roger L. Simon!

Kelly snarks, “Just ask any progressive. They love ‘the people’. They want to help ‘the people’. They want equality, fraternity, mutual respective and constructive dialog.”

And the meme’s spreading. Greg Sargent reports that Obama chief of staff Rahm Emanuel says Democrats attacking other Democrats are “f-king stupid.”  And president Obama wants people who disagree with him to shut up.

What’s interesting here is that Maher’s largely right on the facts.  We’ve known for decades that people are wildly ignorant about basic facts.  Some of it’s explainable by getting caught off guard or not quite understanding the question.  But anyone who has taught college freshmen knows that even fairly bright folks can be astonishingly ignorant.

It doesn’t follow, however, that people are too stupid to make judgments on issues. People may not be able to answer the question “Name the branches of the U.S. Government” but they probably know that we have a president, a Congress, and courts and have some vague sense that there are checks and balances.  They may not know how much of our budget is spent on foreign aid but they know that they’d rather spend their money at home.  They know that abortion is legal and controversial even if they don’t know the name of the case that made it so or even understand that the Supreme Court is responsible.

The nature of representative democracy is that the people make judgments on broad policy directions and elect people to govern them accordingly.  The details are left to the elected representatives and, increasingly, to unelected bureaucrats with actual subject matter expertise.

To the extent that the public’s misunderstanding of the issues makes it difficult to make changes that presidents and congressmen think are necessary, it is incumbent on these leaders to explain themselves better.  Obama is a fine orator and gets more television time that “Seinfeld” reruns.   If he can’t persuade people to buy what he’s selling, he might need a new product.

Matt Yglesias cites a 15-year-old essay by Hendrick Hertzberg arguing that the filibuster is unconstitutional:

It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.

Matt tends to agree but 1) thinks it’s a good thing that the courts are reluctant to weigh in here; 2)the Senate could fix this if it’s Members wanted to; and 3) it’s members don’t want to because “most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.”

While I think the widespread use of the filibuster and other supermajority requirements like the Byrd Rule are extraconstitutional, they’re rather clearly not unconstitutional. Why?  Because Article I, Section 5, Clause 2 specifies that “Each House may determine the rules of its proceedings.”  So long as the rules don’t violate other provisions on the Constitution, then, the Senate can run itself however it damn well pleases.  And it does!

UPDATE: Commenter TG Chicago writes, “I’d also be interested to know what you think of the good of the filibuster rather than just the legality of it.”  I’ve written pretty extensively on the topic in the past but most people reading this post likely haven’t read those old posts.

Short answer: I think it’s a good thing if used for truly huge legislation that will have a major impact on the way we govern ourselves and a bad thing if it’s used routinely on even basic legislation.  So, for example, filibustering a total overhaul of the health care system or a $1.3 trillion bailout is fair game but filibustering, say, Cash for Clunkers is not.

Additionally, I disagree with the use of the filibuster on presidential prerogatives, such as judicial and cabinet appointments, where the Senate’s intended role is merely advisory.  With legislation, Congress is the lead actor with a presidential signature as an institutional check.  For appointments, the president is the lead actor with the Senate there to prevent clearly unqualified nominees from getting through.

Continuing a long-running theme at his blog, Matt Yglesias laments that Senators from small states wield so much power.  The latest fuel is a NYT feature on six moderates who are supposedly the linchpins to putting together a bipartisan health care deal and who routinely hash out the details of same over snacks.

[V]ast power is being wielded by people who, in a democratic system of government, would have almost no power. We’re talking, after all, about Max Baucus of Montana, Kent Conrad of North Dakota, Jeff Bingaman of New Mexico, Susan Collins of Maine, Mike Enzi of Wyoming, and Chuck Grassley of Iowa. Collectively those six states contain about 2.74 percent of the population, less than New Jersey, or about one fifth the population of California.

There’s no doubt that the small states have disproportionate power in a system wherein all states get equal voting power.  Then again, that was the whole point (see: Compromise, Great).

Would we design the system this way if we were starting from scratch?  Probably not.  But it made good sense at a time when the several states were sovereign entities banded together for national defense and international commerce.

Does this make our system undemocratic?  Not any moreso than, say, the fact that five unelected people on the Supreme Court (about 0.00 percent of the population!) can overrule an act of the legislature.  Or that it requires a supermajority to amend the Constitution or ratify a treaty.

Matt is also frustrated that the above-mentioned six come from predominately rural states and therefore ignore the interests of urbanites.  But that’s just a function of self-selection in a particular instance.  It’s certainly conceivable that a group of Senators from larger states who happen to be on the fence on some other issue could dine together regularly and use their informal gatherings to work out their policy positions.

Julian Sanchez argues that, while Sonia Sotomayor was given special consideration because she’s a Latina at various stages in her life, her case is “pretty close to the ideal of how affirmative action is supposed to work.”

From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass. It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.”

Sotomayor got into Princeton despite subpar SATs but excelled once she got there.  She was appointed to the federal bench by George H.W. Bush over more stellar candidates because he was looking for a Hispanic nominee and had a small pool to choose from but she was both demonstrably qualified for the job and performed it well.  Presumably, Bill Clinton wanted to make the appeals courts “look more like America” and tabbed  Sotomayor from, again, a very small pool of qualified Latinas.  Now Obama has done it again.

Sometimes, affirmative action picks are obviously stellar.  Thurgood Marshall had a spectacular resume and would previously have been denied consideration because he was black.

Would Sandra Day O’Connor have been on the short list for the Supreme Court were she Sam O’Connor?  No.  Frankly, there probably wasn’t a woman in the country — let alone a Republican woman — who was superbly qualified for the Supreme Court in 1981.  Most of the law schools had excluded women until not long before then.

Clarence Thomas, were he white?   No, again.  There just weren’t a whole lot of black Republicans to choose from and it would have been politically difficult to appoint a white justice to replace Marshall, thereby turning the court back into an all-white institution.

Both had the requisite skills to do the job and proved to be competent additions to the bunch.   But neither were Antonin Scalia or Louis Brandeis.

My preference would be for every president to swing for the fences with every Supreme Court pick, going for a spectacular legal mind who would have the potential for greatness on the bench.  But I’ve got no real heartburn with affirmative action picks, either, so long as they’re of the type Julian advocates.   All manner of considerations other than intellectual greatness are going to factor in:  party affiliation, ideology, personality, age, and, increasingly, confirmability come readily to mind.  While ensuring diversity of race, ethnicity, religion, and gender isn’t something I much care about (so long as they aren’t negative factors) there’s no reason they can’t be “tiebreakers” or of minor consideration along with the others.