Bill Moyers today posted a list of “ten lies that made American history.” Some people enjoy emphasizing the “lies” of American history—and of course it is important to keep the dark side of our past in mind, and to remember how crucial skepticism is in a democracy. On the other hand, reverence is important, too, and an overemphasis on “the lies” can mislead, and can feed an ugly character trait: the self-flattering notion that you’re far too smart to fall for idealism.
Of course, our history and culture have also been profoundly shaped by great truths—and telling those truths often took far more courage than the opposite. At this time of year, especially, it’s worth pausing to think about ten great truths that changed, and continue to change, the United States.
On p. 8, she writes (citations and quotation marks omitted; italics added):
As a preliminary matter, we note [that the plaintiffs] lodged both a facial and as-applied challenge... To succeed in a typical facial attack, [they] must establish that no set of circumstances exists under which [the challenged regulations] would be valid.... In the First Amendment context, the Supreme Court recognizes a second type of facial challenge, under which a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional.... In neither case, however, must [the plaintiffs] show injury to themselves.
This last sentence is completely false. Article III standing requires that every plaintiff show injury in order to be in the courtroom at all. In no case—First Amendment or otherwise—may a plaintiff sue in federal court without showing some injury to himself.
This imprecision has two sources. First, Judge Brown is confusing how an overbreadth argument works with the concept of “injury”: a plaintiff in an overbreadth challenge is arguing that even if his injury was constitutional, someone else is injured in an unconstitutional way—and that last bit doesn’t apply to him. But it’s not correct to say that he’s uninjured; it just means his injury was legal, but that someone else’s injury isn’t.
But more importantly, judges and lawyers often operate under the misimpression that First Amendment Land is some magical fantasyland full of unicorns and marshmallows, where normal rules of procedure don’t apply. I document another example of this in my article The Timing of Facial Challenges—in which some courts have wrongly said that First Amendment cases aren’t subject to any statute of limitations! That is also false.
It is true that there are some special rules in First Amendment Land. Overbreadth, which Judge Brown mentions, is one of them. But as she indicates, a facial challenge can often seem very like an overbreadth challenge. They are not the same thing, however, and this may be another imprecision in the quote above: overbreadth challenges are not a species of facial challenge. (More on this below.) Another special rule in First Amendment Land is taxpayer standing. But here, too, it’s not so simple as that. Taxpayer standing in Establishment Clause cases is not actually a theory of standing at all—it’s a merits theory that says that if the Establishment Clause is going to be violated, it’s going to be violated by the illegal expenditure of tax-collected funds, so that the normal federal prohibition on taxpayer standing is relaxed. In other words, taxpayers are always injured, by being taxed; Mellon itself admitted that. It’s just that federal courts won’t listen to those injuries. (State courts often will.) But in Establishment Clause injuries, because of something special about the Establishment Clause itself, the Court will not abide by that prohibition. Flast v. Cohenis like an “inhibitor blocker” against the Mellon inhibitor. (Mellon, by the way, is just wrong and should be overruled—but that’s an argument for another day.)
Why is overbreadth not a species of facial challenge? A facial challenge simply says that the law is inherently unconstitutional in all its applications. An as-applied challenge says that in some cases it might be unconstitutional, but in my case it’s not. An overbreadth challenge says that in my case it is constitutional, but in other people’s cases it’s not. So it’s not really a species of facial challenge because it’s conceding that there are at least some cases in which the law would be constitutional. (Namely, my own.)
Overbreadth has also been called a species of third party standing, but this, too, is misleading—and that might be the source of Judge Brown’s incorrect statement about the party not having to show injury to himself in an overbreadth challenge or a facial challenge. The reason this is wrong is because you must be injured in some way to bring suit. As the Sixth Circuit has explained,
[O]verbreadth creates an exception only to the prudential standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims under the First Amendment. [Virginia v.] Am. Booksellers Ass’n, 484 U.S. [383,] 392-93 [(1987)] (holding that “[t]o bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum an injury in fact; that is, there must be some threatened or actual injury resulting from the putatively illegal action.”); see also Sec’y of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984) (“The crucial issues [for overbreadth standing] are whether [the plaintiff] satisfies the requirement of injury-in-fact, and whether [the plaintiff] can be expected satisfactorily to frame the issues in the case.”). Even though [the plaintiff] advances an overbreadth challenge, it is thus still required to show an injury in fact to challenge the provisions of the ordinance that are yet to be litigated.
Today’s decision is a great victory for economic freedom and the First Amendment, and sets very important precedent—and this one sentence in the opinion will do little harm. For one thing, the parties obviously had standing, and were obviously harmed by the challenged law. But precision on these procedural matters is important for future cases, and the mistake about First Amendment Land is so common and so frustrating that I thought it important to mention.
If you plan to relax by the barbeque or on the beach this July 4, and want to take some time with a good book about the Revolution, the Constitution, and so forth, you might consider a few of these:
Patriots by A.J. Langguth—this is my favorite historical overview of the Revolution. Wonderfully written, with the precision of great journalism, and the drama of a great novel, it tells the story from the 1760s to the victory at Yorktown. Langguth’s account of the Boston Massacre is particularly fine. I was a little put off by his depiction of Jefferson, but even that is very brief. Definitely a top-notch book.
Bunker Hill by Nathaniel Philbrick—the title is a little misleading; this book is about the whole war, not just about Bunker Hill. But it focuses on the war in Massachusetts, and on men like Adams, Hancock, and particularly Dr. Joseph Warren, the patriot leader who died at that battle. Philbrick makes a somewhat controversial argument that Warren was having an affair, but that part of the book paled in comparison to the description of the bravery and devotion with which all the patriots worked to organize the war effort early on. That part was really amazing.
Private Yankee Doodle by Joseph Plumb Martin (also sold under other titles)—Martin was a Revolutionary veteran who wrote his memoirs in the 1830s. He was present at most of the major battles of the war, and he writes very well, with a lot of wry humor, telling the story from the perspective of an ordinary private. It’s very easy to read, and very fun. No highfalutin’ rhetoric here—just a patriotic boy trying to get through the war scavenging for food, wrapping his feet with cloth when his shoes had worn away, and trying to survive the godawful heat in his wool uniform at Cowpens. Everyone should read this book.
My Brother Sam Is Dead by Collier & Collier—this is a book for teens and pre-teens, but I think adults could enjoy it, too. What a great, great novel. The main character, Tim Meeker, is too young to serve in the revolution, but his brother Sam runs away to join Washington’s army when their father, a Tory, says no. The book is passionate, beautiful, frightening, and bold—and might be a little intense for some kids. It’s a war novel, after all, and based on a true story. But lord how I loved this book when I was 13. The Colliers also wrote several other historical novels, including The Winter Hero—about the Whiskey Rebellion—which I also loved.
James Madison: A Life Reconsidered by Lynne Cheney—I’m in the middle of this now, and enjoying it a lot. I try to make it a rule to read every book on Madison that I can, and although Cheney’s book doesn’t have much that’s new (the epilepsy stuff is not new), it’s certainly a serious, in-depth biography such as has not been written since Ralph Ketcham’s masterpiece. If you really want to study Madison seriously, I’d recommend Ketcham. If you want a brief introduction to his life, I recommend Richard Brookheiser. But if you want a thorough, but not too scholarly, book, Cheney’s does the trick.
Plain, Honest Men by Richard Beeman—this is the book on the Constitutional Convention. It used to be Catherine Drinker Bowen’s Miracle at Philadelphia, which is still very good, but Beeman’s book brings much more detail and research, and talks about the ratification conventions afterwards in a way that has previously been left out. Love this one. By the way, the ratification conventions are covered brilliantly in the late Pauline Maier’s very fine book, Ratification. But that one’s for in-depth Constitution junkies. If you want good beach reading, I recommend Beeman or Bowen.
Life on The Mississippi or Huckleberry Finn by Mark Twain—I’m amazed by how often I meet people who have never read Huck Finn, which is The Essential American Novel. It’s not hard reading. It’s very fun, often hilarious, and always interesting. Most of all, it evokes the American soul—romantic, while somehow simultaneously skeptical—more powerfully than just about any book. And if you just don’t want to read a novel, then read Life on The Mississippi, which is a great memoir of Twain’s time working on the river. It’s also hilarious and fascinating—although it does include a number of boring sections. Read both! Or get them on audio and listen to them!
Narrative of the Life of Frederick Douglass, an American Slave—another of the great masterpieces of American literature. Easy to read. Short. Incredibly powerful. You can read it over the weekend—and you should. Douglass was one of the great intellectuals in American history, and it’s a shame that he’s often considered only as an abolitionist. In fact, he was a great writer and thinker—and he published three versions of his autobiography. This was the first; then he revised it into My Bondage And My Freedom. Late in life, he revised it again into The Life And Times of Frederick Douglass. But the third is a bit long, so if you want the quick version, get the first. If, like me, you resisted being forced to read stuff in high school, and skipped this and Huck Finn for that reason, then now is the time to go back and read them. They really are great.
The Wars of Reconstruction by Douglas Egerton—a marvelous reevaluation of this crucial period of American history. And a period that’s often treated only superficially. Egerton describes the experiences of the brave people who tried to bring about the revolution in race relations that ended up only happening a century later. Civil rights lawyers, protestors, and activists for racial equality—who were shamefully betrayed by a federal government that had sworn to defend them. Egerton explains why the traditional assumption that Reconstruction ended in 1876 is really not true: in some ways, it was abandoned far sooner than that, but in other ways, Reconstruction was highly successful. This is a period that deserves a lot more study, and Egerton’s book is a fine place to start.
Update: I should have added a little poetry to this list. People today turn their noses up at poetry or say they don’t get it. But between 1620 and about 1965, poetry was a major part of every American’s literary diet. It was comprehensible, memorable, and meaningful. Every American knew poems like Whittier’s “Barbara Frietchie,” or Longfellow’s Song of Hiawatha. Poets were major celebrities and their works were published in daily newspapers. And their works still infuse our culture, though we’ve largely forgotten the fact. But as John Adams’s father told him, you’re never alone with a poet in your pocket, and carrying a good anthology of American poetry with you to the park while you wait for the fireworks is a great idea. The Library of America anthologies are particularly good—especially this volume, which contains the great 19th Century writers like Longfellow and Whitman. But they also publish a lot of nice small anthologies like this one of Civil War poetry. And check out Dana Gioia’s excellent books Disappearing Ink and Can Poetry Matter? which are not only excellent discussions of our poetic culture and why it’s gone wrong, but also really good introductions to American poets you’ve never heard of, and some you only think you already know.