Freespace

My silence on the explosives

I’ve become tired of the rampant speculation on the “missing explosives” story, none of which is backed up with anything more than some Michigan businessman’s ability to do a Google search. Nevertheless, I see there’s some more speculation regarding the video of the explosives. I have no way of knowing what any of it means. I just know that it is too early to assume that George Bush is somehow personally responsible for 300 tons of missing explosives. Or is it 3 tons now? It is wrong to speculate when we can’t even get that straight.

Update: The blindspot continues. Meanwhile, Brayon skips town. Aha! Proof that he is an incompetent sham of a blogger who ought to be impeached!

Does Prop. 64 harm the environment?

There have been several commercials of late (now joined by UCL Practitioner) which claim that Prop. 64 would harm the environment. The connection is that it would bar interest groups from enforcing environmental laws. According to Attorney General Lockyer, “Prop. 64 strips citizens of their right to effectively fight pollution and law-breaking businesses. It endangers our privacy and threatens our air, water, forests, wildlife and the health and safety of our children.” This is, to say the least, an extremely misleading overstatement.

Under current California law, anyone may sue anyone else for an “unfair business practice,” (which sometimes would mean, violations of environmental protections) even if that unfair practice doesn’t cause you any harm. In most areas of the law, you are only allowed to sue someone if you have been harmed. But the unfair competition law allows you to sue for any unfair practice, regardless of this standing rule.

Many federal environmental laws are written so that they can only be enforced by the federal government. You cannot sue a company for violating such-and-such federal environmental law. Instead, it’s up to the government to enforce these laws. The reason for this is to make sure that businesses aren’t subjected to constant, abusive, expensive lawsuits that drive everyone’s prices up and hurts the business climate. But in California, people can get around this rule because they can go to state court. In one recent case, for example, an environmentalist group sued the people running those wind-power generators, because they said these wind-power generators were killing birds, in violation of federal law. In other states, they would not have been able to sue, because this federal law can only be enforced by the federal government. But in California, they could sue to shut down this clean source of energy.

Prop.64 would only require a plaintiff to show he has been harmed. That is all that it does. Environmental groups could still sue for violations of environmental laws; privacy groups could still sue for violations of property rules. They would just have to find a plaintiff who had been harmed. As a public interest lawyer myself, let me tell you that for all but the most frivolous case, this is not a hard thing to do. Prop. 64 simply cuts off the most extreme abuses of the courts. It does not “endanger our privacy,” it does not “threaten our air.” What it threatens is the income of people like the Trevor Law Group, and environmental pressure groups that like to exploit the courts in contravention to federal policy, harming businesses, retarding progress, deterring job creation, and increasing costs to California consumers.

Update: UCL Practitioner says that I think “that no meritorious UCL case is ever filed.” When have I ever said this? Of course meritorious UCL cases are filed. My point is that Prop. 64 would not threaten meritorious cases. In fact, it wouldn’t threaten that many frivolous cases. But it’s a first step, and worthwhile. UCL Practitioner’s misrepresentation of my position is unfortunately characteristic of the opponents of this proposition, who don’t have a real argument, so they have to misrepresent what the proposition would really do. Sad, I think.

Update 2:

Recently, legal experts, including Bion Gregory, who served as California’s Legislative Counsel for 25 years, conducted a thorough review of the environmental and public health lawsuits that included the Unfair Competition Law. In no case was this law an original cause of action. It was an add-on to lawsuits filed under other laws that would not be affected by Proposition 64.”

More here.

He’s so stupid! (Oh, wait...)

The desire to see the worst possible about George Bush reaches a newly ridiculous low. (Not the last one, I would imagine.)

Strange Republican Guarantee case

The California Court of Appeal has issued a decision on the rarely-discussed Republican Guarantee Clause of the Constitution (subject of my forthcoming Texas Review of Law And Politics article). In Fair Political Practices Comm’n v. Santa Rosa Indian Community of The Santa Rosa Rancheria, 2004 WL 2397204 (2004), the Third District Court of Appeal held that an Indian tribe could be sued to enforce compliance with California’s election laws. Justice Sims writing for the court held that the doctrine of tribal immunity from lawsuit doesn’t apply, and that

the State has a constitutional right, under article IV, section 4 and the Tenth Amendment to the United States Constitution, to maintain a republican form of government. That form of government entails government by representatives elected by the People. The right to sue to enforce the [campaign finance laws] is necessary to preserve a republican form of government free of corruption and therefore has constitutional stature. The constitutional right of the State to sue to preserve its republican form of government trumps the common law doctrine of tribal immunity. The FPPC can therefore sue the Tribe.

Id. at *1.

This is interesting because I don’t know that I’ve ever seen a case discussing a federally guaranteed authority on the part of the state to maintain a republican form of government. Article IV sec. 4 provides that the federal government will guarantee a republican form of government, but it does not say that states have some sort of federally-conveyed authority to maintain a republican form of government.

What’s the difference? Well, the clause was primarily intended to protect against insurrections or massive domestic corruption within a state. The Court finds that “the clause confers...judicially enforceable rights upon states as states,” id. at *6 (quoting 1 Tribe, American Constitutional Law 910-11 (3rd ed.2000)). This is important because it allows the court to trump the common law principle of tribal immunity:

[D]oes this federal constitutional right of the state to maintain the integrity of its republican form of government entail the right to bring suit to enforce the right? Our Supreme Court has recognized that rules or procedures necessary to secure a constitutional right may themselves be given constitutional stature.... [T]he state’s resort to the judicial process is a procedure essential to enforce its reserved right and duty to maintain a republican form of government. What else is it to do, call out its “well regulated militia”? We daresay no one would sanction such a remedy. We conclude that, without a right to bring suit, the state's constitutional right to preserve its republican form of government would be “ephemeral.”

Id. at **7- 8.

In dissent, Justice Robie writes

The [Guarantee] clause does not grant any right or power to the states.... Whatever power the state has to sue an Indian tribe for campaign contribution disclosure violations is an inherent power that derives from the state’s sovereignty. As the Tenth Amendment makes clear, however, the state retains that sovereign power only to the extent the exercise of that power is not...inconsistent with the federal government's exercise of powers delegated to it by the Constitution.

Id. at *12. Justice Robie would hold that the Supreme Court, by declaring an Indian tribe to be immune, has “exercise[d] a power granted to it by the federal Constitution,” and that once the federal government has legitimately acted on a federal power like this, “the state has no reserved sovereign power to act contrary to the Supreme Court's declaration.” Id. at *13. I’m afraid that, much as I relish the Guarantee Clause, I think Justice Robie is right. The Clause, rightly understood (and contrary to established precedent) conveys an individual right to all Americans to be protected against revolutions in their state governments. It conveys no power at all upon states. It cannot therefore grant states a power that trumps a legitimate immunity. Tribal immunity might be illegitimate on other grounds, but there’s no federal protection of a state’s authority to deprive a tribe of that immunity.

Congratulations

To my secretary, Barbara Seibert, who not only celebrates her birthday this week, but whose friends saw fit to announce as much in the Sacramento Bee!

More on substantive due process

Reacting to my explanation of substantive due process, Jonathan Rowe makes the point that the primary substantive protections in the Fourteenth Amendment were supposed to be in the privileges or immunities clause, not the due process clause, and that it was only the evisceration of the privileges or immunities clause in Slaughterhouse that led to the concept of substantive due process.

This is, in large part, correct. But the concept of substantive due process, as I explained, predates even the ratification of the Fourteenth Amendment. The fact is that the ideas of “procedure” and “substance” are not as distinct as it seems at first. The concept of substantive due process reflects the fact that you cannot assess a law’s legitimacy on the procedural aspects alone. As Justice Field—one of the greatest of substantive due process theorists—put it,

The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866).

When the government deprives a citizen of his liberty, in the pursuit of something it has no authority to do (i.e., by an enactment which is not legitimate law), then the government is necessarily depriving him of liberty without giving him due process of law. (This would, of course, overlap the privileges or immunities clause properly understood, and it might also overlap the equal protection clause. But that doesn’t mean that a proper understanding of the privileges or immunities clause would entire deflate the concept of substantive due process, which is a perfectly legitimate legal concept.) And to discover whether a law does something illegitimate in disguise, requires the court to look at the substance of the legislation. Otherwise a law which pretended to just be a health and safety law could, in reality be a disguised attempt to harm an unpopular minority.

Incidentally, I’m quite attracted to the theory (advanced, if I recall correctly, by Akhil Reed Amar, but I’m not sure) that the three clauses of the Fourteenth Amendment are aimed at the different branches of government: the privileges or immunities clause regulates the legislature, the due process clause regulates the judiciary, and the equal protection clause regulates the executive.

Oh look!

What a surprise, it turns out that Ed Brayton et al. may have jumped the gun on the missing-explosives story. Astonishing!

Yes, I know, the Times is an evil front company for George Bush. Note how Brayton’s latched on to the argument “well, yeah, the soldiers who were there first didn’t see any of these explosives, but they weren’t really looking very closely!” Yeah. Cause you gotta search real close to find hundreds of tons of explosives with big old U.N. seals on them.

Cool!

A fascinating new archaeological discovery.

Hospers on Bush

Tom Palmer has posted a letter from famous libertarian philosopher John Hospers, endorsing George Bush. I think it’s pretty solid.

Pay no attention to the statist behind the curtain!

Jason Kuznicki said that he believed it appropriate to shield his eyes from Kerry’s shortcomings, and then only after he becomes president, to start criticizing him; “[b]ut not a moment before.” Now he says I’m being unfair to consider this an extraordinarily irresponsible way of discussing politics, but he provides no explanation of why it’s unfair. Instead, he reiterates his criticisms of the Bush Administration. Fine. But that’s not the question. The question is whether it is reasonable for one to always (and frequently with a haste that ends up embarrassing one) see draw the worst possible conclusions from even the slightest suggestion of the Bush Administration’s shortcomings—and then remain silent in the face of indefensible flaws in Kerry and his supporters. The question is whether it is reasonable to refuse to criticize John Kerry until after he is in a position to undermine American success in the war.

Kuznicki then continues

John Kerry will no doubt bring to the executive branch a great many Clinton-era officeholders....I can expect from them a greater measure of respect for individual rights, particularly the rights of the accused.... I can expect from them at least a neutral attitude toward gays and lesbians, rather than the egregious bigotry of the present administration.... I can expect the creeping Christian theocracy to be halted in its tracks.

Here we see what happens when you refuse to scrutinize your own candidate. First of all, the Clinton Administration is not what one could fairly call a heyday for respect for individual rights. Nadine Strossen, president of the American Civil Liberties Union, has said that Clinton was “the worst president in American history with regard to civil liberties.” Elliot Mincberg, legal director of the People for the American Way said “Clinton is not a civil libertarian in the traditional sense.” The man vastly expanded the reach of government surveillance and enforcement. His administration supported everything from civil asset forfeiture to the (in my view unconstitutional) restrictions of habeas corpus in the Anti-terrorism And Effective Death Penalty Act. Laura Murphy of the Washington ACLU called the Clinton Administration “the most wiretap-friendly administration in history, both in the rate sought and in the use.” He signed the Communications Decency Act, with its sweeping violations of the First Amendment, as well as V-chip legislation. Did Clinton’s supporters respect the rights of the people in Waco? Did he respect Paula Jones’ individual right to a fair day in court? Or perhaps it was their profound concern for individual freedom that led Clinton’s supporters to return a fugitive slave child to his captors in Cuba. The Clinton record on individual rights, in everything from the right to property to the right not to be murdered by government agents was abysmal, and it escaped prosecution because of the profound corruption of his attorney general and her employees. But Kuznicki thinks it is just these cronies who need to be put back into office—to protect our individual rights.

The Democratic Party sure loves the votes of gays, but what do they get in return? The Clinton administration refused to file a brief in Romer v. Evans, which challenged Colorado’s Amendment 2. And although he promised to end the ban on gays in the military, he settled for “don’t ask, don’t tell.” And Clinton signed the Defense of Marriage Act, secretly, literally in the middle of the night. Asked why he signed it in the middle of the night, Mike McCurry told reporters “Given the motivation of the bill, it is appropriate to sign the bill in the middle of the night. The president believes the motives behind this bill are dubious, and the President believes that the sooner he gets this over with, the better.” Whoa! This sounds like a crowd that will stand up for you in the rough times, doesn’t it?

Perhaps Kerry will be more sensitive to the concerns of the gay community than the Clinton cronies that Kuznicki wants to restore to power? Yet Kerry supports state bans on gay marriage. His “nuances” on the issue include saying that he opposed gay marriage—while voting against DOMA—and refusing to comment on the Massachusetts Legislature’s consideration of a Constitutional ban on such marriages. Yeah, this is a guy who can be relied upon to stand up for gay rights.

And theocracy? John Kerry injects God into this campaign at every opportunity that will win him social conservative favor. “I will bring my faith with me to the White House and it will guide me,” he says. Now, this is probably just a lie, intended to lure religious folks into voting for him and ignoring the free-thinkers on the left, but that’s not certain, since the God-talk from Kerry is constant, and in any case, is this what we want? A man who pretends to be religious until he gets into the White House, and then ta-da! changes his word? Perhaps that’s what Kuznicki wants, since he has consciously decided to blind himself to any of Kerry’s faults until after Kerry sits behind that big desk.

The fact is that you cannot expect anything from John Kerry. Nothing that he promises can be expected. Just like Clinton and his supporters, Kerry says absolutely anything that he thinks will gain him votes at that particular moment. If that means betraying gay interests, so be it. If that means exploiting Mary Cheney and violating her privacy on national television, so be it. If that means remaining silent while the Massachusetts Legislature deprives homosexuals of their constitutionally protected right to marry, so be it. If, during the primary, it means insisting that Hussein was a threat, so be it. If, during the campaign, it means denying that Hussein was a threat, so be it. If, during the last week of the campaign, it means insisting that Hussein was a threat, and that Bush was incompetent for not securing his weaponry, so be it. If it means bringing his faith to the Oval Office, so be it. If it means talking about separation of church and state, so be it. If it means being a veteran, so be it. If it means being a peacenik, so be it. Anything short of a conscious refusal to employ skepticism would admit these facts.

Update: Jason Kuznicki says that Bush doesn’t understand this war because

If Bush understood the nature of this conflict, then he would have cooperated with the 9/11 commission from the outset. He would have seen that Abu Ghraib was a decisive turn for the worse, and one that called for swift and harsh reprisals. He would have made at least some greater effort to prevent the looting and disintegration of Iraqi society that followed the invasion. He would have understood that capturing or killing Osama bin Laden would have been a tremendous public relations victory—and that al Qaeda has little left to trade on besides its public image.

This is the sort of absurd overstatement that is becoming all too routine among this crowd. Abu Ghraib was a disaster, and Bush saw that immediately. He apologized repeatedly and profusely, including on Arabic television, and immediately began prosecution of the soldiers involved. Now, one may certainly say that this isn’t enough, and that higher-ups are probably responsible for what happened there, and that they ought to be punished also; that’s a reasonable argument, but that is a different issue than whether Bush “[saw] that Abu Ghraib was a decisive turn for the worse, and one that called for swift and harsh reprisals,” which any reasonable person would have to acknowledge that Bush did. Bush had legitimate reasons for hesitating to participate with the 9/11 commission, which repeatedly showed greater interest in politics than in truth-seeking. Refusing to seriously consider the Gorelick memo, for example. And the Administration did cooperate. Again, he did not do so perfectly—I think the issue of Dr. Rice’s testimony was very badly handled. She should have testified or not testified; saying no and then doing so anyway showed weakness of resolve. And what in the world makes Kuznicki think that Bush doesn’t realize that capturing or killing Osama would be a victory? This charge is so absurd I don’t know what to say about it. I think it shows how the anti-Bush crowd is guided more by their emotions than by their reason.