“How Democratic is the American Constitution?”

February 6, 2014

Robert Dahl, professor of political science at Yale, has died at 98. He is the author, among many other books, of “How Democratic is the American Constitution?”, a slim, accessible volume of constitutional scholarship that I would recommend to anyone who is interested in clear thinking about the structure of our government, its responsiveness to contemporary needs, its resistance to change, and the issue of just how democratic it really is. Dahl asks, “Why should we feel bound today by a document produced more than two centuries ago by a group of fifty-five mortal men, actually signed by only thirty-nine, a fair number of whom were slaveholders, and adopted in only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten?” And this it seems to me, is the problem with originalist Constitutional interpretation — even if original intent is discernible at this late date, and even if any group of individuals, as opposed to a single individual, can really be said to intend any one thing, why would we submit our relations with one another to the dead hand of men who no longer bear the consequences of their preferences?


RIP, Mulgrew Miller

May 30, 2013

My favorite jazz musician, dead at 57.  His own albums are wonderful, but he was probably better known as a sideman.  Here is a link to Cassandra Wilson’s version of Polka Dots and Moonbeams from her Blue Skies album — enjoy her singing, and his playing.

I Stole This Cartoon

April 10, 2012

Stuart Carlson, please forgive me.

Carlson Cartoon


Florence v. Board of Chosen Freeholders of the County of Burlington was an issue of constitutional interpretation. Specifically:

Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.

By a 5-4 vote, the court decided that it does.

Oral Argument in Stolen Valor Act Case

February 22, 2012

The New York Times has the Reuters report on today’s Supreme Court Argument.

From the story:

Justice Ruth Bader Ginsburg questioned whether a law could be adopted covering other false statements, such as denying that the Nazi Holocaust ever occurred. [Solicitor general] Verrilli  [who argued for the government] answered that a law seeking to regulate that would have problems.

Of course, it is illegal in several European countries to deny the historical fact of the Holocaust.  I have always taken for granted that such a law would be unconstitutional here.   Verrilli agrees.  Because we value free speech so highly,  we (unlike the French or Germans, say) let people make all kinds of outrageous false claims about historical events without criminal liability attaching.  We also are much more friendly to defamation defendants than Europeans.  Criminalizing telling as specific category of lie is contrary to America’s tradition of vigorous protection of free speech.   Republican presidential candidates have been telling us that  the Obama administration, which defended this statute, is trying to turn the United States into Europe.  I don’t think that this is what they have in mind, however.

Prof. Jonathan Turley on the Stolen Valor Act

February 18, 2012

An Op-Ed in today’s Washington Post. Like me, he’s against it on First Amendment grounds.

Selected quotes:

If the government can criminalize lies about medals, it can criminalize lies about other subjects.

Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment.

After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government.

The First Amendment protects free speech, not just truthful speech. It exists to give a certain breathing room to citizens to avoid the chilling effect of the threat of prosecution. Free speech is its own disinfectant. It tends to expose lies and isolate liars. But it means that we often protect speech that has little value in its own right. We are really not protecting the right of Xavier Alvarez to tell lies. We are protecting the right of everyone to speak, even when they may be called liars.

This seems self-evident to me, but obviously not to everyone.  It’s interesting to see the comments on Prof. Turley’s article — supporting the statute is seen as conservative, and its opponents are seen as liberals (and as is usual on the internet, are called names).  Again, I thought that conservatives were supposed to favor reducing the amount of government intrusion in citizen’s lives.  The exception seems to be for criminal sanctions — the most severe form of government intrusion — there they tend to favor more regulation, not less.

“Let Them Eat Art”

December 13, 2011

A great column from Jeffrey Goldberg on a new museum of American art in Arkansas built with Walton family money.  You can now see the original of Norman Rockwell’s  Rosie the Riveter, a celebration of the emerging power of American women workers, in a museum built with money from Wal-Mart, which pays its 1.4 million workers an average of $8.81 an hour.

Supreme Court Takes Stolen Valor Act Case

November 21, 2011

Hi, LB!  Here’s an article I took from the ABA’s website.  It was written by Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California:

November 10, 2011

Supreme Court to Hear Military Honors Lying Case

Should lying about earning military honors be a federal crime, or does it simply amount to a white lie protected by the First Amendment? On October 17, 2011, the U.S. Supreme Court agreed to make that decision. United States v. Alvarez [PDF], 617 F.3d 1198 (9th Cir. 2010).

The case arose from a false statement made by Xavier Alvarez after he was elected to the Three Valley Water District Board of Directors in Southern California. At a July 23, 2007, public meeting, Alvarez introduced himself by saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Alvarez had never been awarded the Medal of Honor, nor had he even been a Marine.

Later, when a woman notified the Federal Bureau of Investigation (FBI) about Alvarez’s lies concerning military service, the agency obtained a recording of the meeting in which Alvarez lied about his background. Alvarez was ultimately indicted on two counts of violating the Stolen Valor Act, 18 U.S.C. § 704(b), (c), which makes it a crime for an individual to knowingly and falsely represent that he or she has received certain military honors, including the Congressional Medal of Honor.

The district court found that the First Amendment did not protect statements the speaker knows to be false and sentenced Alvarez to three years of probation, 416 hours of community service, a $5,000 fine, and a $100 special assessment. Alvarez appealed on First Amendment grounds.

On appeal, the Ninth Circuit Court of Appeals reversed and remanded. Finding that the Stolen Valor Act did not meet strict scrutiny because it was not narrowly tailored, the appeals court declined to “enlarge the scope of existing categorical exceptions to First Amendment protection.” The court found that the Stolen Valor Act regulated and imposed criminal penalties on pure speech without any “additional elements that serve to narrow what speech may be punished.” It reasoned that upholding the Stolen Valor Act as constitutional might lead to the criminalization of little white lies told about one’s personal appearance on online dating websites or fibbing to “one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on a freeway.”

After the Ninth Circuit denied en banc review, the U.S. Solicitor General filed a petition for writ of certiorari, arguing that the law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system.”

The Supreme Court is expected to hear arguments in the case early next year, with a ruling possible by the end of June.

Criminalizing Lying

March 28, 2011

Controlling Authority isn’t dead . . . well it is, but since I refuse to get a Facebook page, this is going to have to do for me. Remember the Stolen Valor Act? It’s the rather hysterically-named federal statute that makes it a crime to lie about receiving military honors. If you are brave enough to win the Medal of Honor, can anyone, especially some scumbag with the temerity to falsely claim to have won one too, really steal your valor? It seems to me that your valor is pretty much unassailable.

Those with long memories for utter trivia will remember that I have questioned both the constitutionality and the wisdom of this statute.
So I was glad to see that last week the Ninth Circuit refused to reconsider en banc a decision affirming a district court decision that voided a conviction under the SVA on the grounds that the statue violated the First Amendment’s protections for speech. Judge Kozinski’s concurrence is a great read.  Here’s the gravamen of it:

That the government can constitutionally regulate
some narrow categories of false speech—such as false advertising,
defamation and fraud—doesn’t mean that all such
speech falls outside the First Amendment’s bounds. As the
Supreme Court has cautioned, “In this field every person must
be his own watchman for the truth, because the forefathers did
not trust any government to separate the true from the false
for us.” Id. at 419-20 (internal quotation mark omitted);
Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring). Yet the regime the dissenters agitate for today—
one that criminalizes pure speech simply because it’s false—
leaves wide areas of public discourse to the mercies of the
truth police.

But what readers will  remember best about his opinion is his catalog of 29 reasons that the non-saints among us lie, and examples for each type of deliberate falsehood.  These range from the truly kind (“the doc says you’re getting better”) to the less admirable (“I’m allergic to latex”).

To recap — not all bad behavior can or should be criminalized.  Someone who lies about receiving a Medal of Honor will be scorned by all good people once his lie is discovered.  That should be punishment enough, and should provide enough deterrence.  And if it doesn’t, tolerating the occasional lying braggart is the price that a free nation must pay for the freedom to lie about being Jewish on JDate (to use one of Judge Kozinski’s examples).

I want comments from Paris!

More on Bernard Knox

September 7, 2010

Here’s a link to a fine appreciation from G.W. Bowersock in the New Republic.

A Life Well Lived

August 17, 2010

Here’s a link to the obituary of Bernard Knox, the great classics scholar. I have a copy of his Essays Ancient & Modern on my office bookcase. His introduction to Robert Fagles’s translation of the Iliad is brilliant. Here’s my favorite part of the obit, but read the whole thing.

The O.S.S. later sent him into northern Italy for an equally dangerous mission with the Italian underground, and it was there that he rekindled his passion for the classics. Holed up in an abandoned villa, he discovered a bound copy of Virgil and opened it to a section of the first Georgic that begins, “Here right and wrong are reversed; so many wars in the world, so many faces of evil.”

Professor Knox recalled, in “Essays Ancient and Modern,” “These lines, written some 30 years before the birth of Christ, expressed, more directly and passionately than any modern statement I knew of, the reality of the world I was living in: the shell-pocked, mine-infested fields, the shattered cities and the starving population of that Italy Virgil so loved, the misery of the whole world at war.”

He continued, “As we ran and crawled through the rubble I thought to myself: ‘If I ever get out of this, I’m going back to the classics and study them seriously.’ ”