First Amendment means nothing?

I'm fascinated at how little the First Amendment means to so many people in the United States (check some of the comments on this Orange Punch blog post). Obama specifically criticized the Supremes for their Citizens United decision with a wildly inaccurate characterization of it and Sam Alito gets criticized for being seen to silently mouth the words "not true." All right, it was a minor breach of protocol. Obama's characterization was a major breach of SOTU precedent -- no president has used it to make such a direct criticism -- and a major breach of the truth. In the fuss, we forget about the First Amendment.

The McCain-Feingold law included a novel restriction on advocacy organizations, a rule that they couldn't air any ads or other kinds of modes of persuasion in a way that the FEC could interpret as electioneering just before -- 60 days before -- an election, when election-related speech should be at its most robust and political speech most carefully protected. The campaign restrictionist crowd didn't like it, and the Supremes could have issued a narrower decision, but the First Amendment ("Congress shall make no law," remember?) was clearly violated. It was correct to strike the clearly unconstitutional law down. That's the Supreme Court's job, arguably its only important job. But the restrictionists reverse the logic of democracy. Elections are supposed to be how the people control the government, but if the government controls the electoral process, declaring who can participate and how, the permanent government cannot be really held accountable. That's what campaign finance "reform" is really all about, giving government more control over the process that is supposed to control it.

Are the Supremes ready to rock'n'roll?

What a number of observers have noted about the Citizens United or Hillary the Movie case is true. The Supremes went out of their way to make it a constitutional case when they clearly had other options. They could have ruled narrowly without getting to the constitutional issue that e.g., the McCain-Feingold law didn't really cover movies distributed through On Demand. But they wanted to invalidate the law that prohibited corporations (profit and non-profit, including advocacy groups like NRA and ACLU) from saying anything that even smelled like electioneering 30 (primary) or 60 (general) days before an election. It was a healthy impulse. If the First Amendment means anything, it's protection of the freedom of political speech, no matter who says it or (considering technology) how, especially in the time around an election. McCain-Feingold is profoundly subversive of basic liberties. Theoretically elections are how we control the government, but if the government controls elections with minute rules, they (the permanent government) end up with zero accountability -- not that it has much in the best of circumstances, but as long as there's a shred of a constitution there's a ghost of a chance..

The fact that the Supremes stretched to reach this result -- generally uncharacteristic, they usually try to avoid constitutional issues unless absolutely necessary -- raises the question of whether they're moving into a more aggressive mode. As a barely conservative court with a clearly liberal administration, it's possible. As this Register editorial notes, the McDonald v. Chicago case, which tests whether the Second Amendment applies to state and local governments, will give us a pretty good hint.

Handicapping the Supreme nomination

Here's a link to the piece I did for the Register's Sunday Commentary section on the (likely) frontrunners to be appointed by Obama to the Supreme Court. From what I was able to determine I wouykld be amazed if the new appointee isn't a woman. My top picks (as of now) are Diane Woods of the 7th Circuit (Chicago), Sonia Sotomayor of the 2nd Circuit (New York) and Solicitor General Elena Kagan, formely dean of Harvard Law. If Obama surprises us it won't bother me much, however.

San Diego County keeps wasting taxpayer money

Here's a link to the Register's editorial on San Diego County's decision to continue its court case against California's medical marijuana law all the way to the U.S. Syupreme Court, after being denied in district court, in the California appellate court, and having review denied by the California Supreme Court. It's hard to imagine the county, which doesn't want to implement the legislation requiring counties to do the screening for a voluntary ID card for patrients, will meet with better success there. There's no conflict among federal circuits for the high court to resolve and so little compelling reason to take the case.

I was in the Supreme Court chambers when the court heard the original medical marijuana case, the request by the Oakland Cannabis Buyers Club to have a "necessity" defense recognized for certain medical marijuana users under federal law. The court denied that, but during the course of oral argument Justice Ginsberg asked the government attorney why the government wasn't invoking the "supremacy clause" to invalidate California's medical marijuana law. The government attorney replied that this was simply one of those instances where, given the federalist nature of our constitutional structure, some states would simply have different laws regarding the medical use of cannabis than federal law, and it would be up to federal agents to enforce federal law and state agents to enforce state law. That was a welcome recognition of federalism by the Bush Justice Dept., which hardly did so consistently. The likelihood that the government would try to invoke the supremeacy clause now, after all these years, seems low.

Jerry Browns medical marijuana guidelines not bad

When I saw the first headlines regarding the guidelines Calif. Attorney General Jerry Brown issued this week on medical marijuana I was dismayed. The AP story emphasized the idea that a lot of dispensaries would be open to law enforcement raids under them, and that he had declared any profit-making entity likely illegal. Then I talked to the good folks at Americans for Safe Access, who were fairly pleased and actually read the guidelines in toto, and decided they're not so bad. The bit about profit-making dispensaries will probably be challenged in court on the grounds that the original law, 1996's Prop.215, didn't stipulate no profit, and laws passed by initiative can only be changed by a new vote of the people. Appellate courts have already invalidated possession limits on the same grounds, but Jerry's appealed that to the Calif. Supremes. I think he'll lose, but predicting how courts will decide is a fool's game.

Anyway, here's the Register's editorial. The rest of the guidelines take recent court decisions into account and set up fairly reasonable standards that most dispensaries are likely to meet. That might not keep the feds away, as Jerry said he wanted to do, but it's not a bad start.

Register approves gay marriage decision

Here's a link to the Register's editorial on the California Supreme Court's decision that a law restricting marriage to man-woman couples was invalid under the California constitution. This should be a "teaching moment," reminding people that a written constitution, and especially one that includes a bill of rights or sets forward a set of protected individual rights, exists partly to limit government power, as a protection against government, by whatever majority, violating those rights. Thus a supreme court using a constitution to invalidate a law is not being "activist," but doing its job. Courts have been known to go over the line and invent "rights," but having read the decision, I don't think that's the case here.

California Supremes validate gay marriage

The California Supreme Court handed down its decision today on the subject og gay marriage -- or perhaps more precisely, whether California's constitution allows the government, whether through initiative or legislative action, to forbid same-sex marriage or refuse to grant it equal standing. The court (4-3) concluded that it could not. I think it was a good decision.

I haven't read the full 172-page decision yet, but I read enough of it to get the gist. The court (Chief Justice Ron George wrote it), after disposing of some procedural and standing matters, noted that the constitution contains an equal-protection-of-the-laws provision, and the court in previous decisions had affirmed that various constitutional provisions recognize the right to marry as a fundamental individual right of such importance to society and of such value to individual people that government cannot restrict it. To deny it to a class of people because of their sexual orientation is discrimination of a kind that demands "strict scrutiny" (the highest standard of review) of laws that deny or restrict it. The state could show neither "compelling" nor "necessary reasons to deny it, therefore the laws that did so could not stand.

I found it pretty persuasive, and the Register's editorial tomorrow approves it. We'll hear a lot about activist judges inserting themselves into a policy decision that is rightly the province of the legislature and the people. After all, an initiative declaring that only marriage between a man and a woman may be valid or recognized in California passed by a healthy margin in 2000, and the Supremes just invalidated it. But in this case that argument doesn't hold. One of the purposes of a constitution -- the most signal simple example is the Bill of Rights of the national constitution -- is to declare which rights of citizens are so fundamental that the government may not violate them. If the legislative power enacts a law that does so it is the court's duty -- its most important duty -- to invalidate it and uphold the integrity of the constitution. That's what the court did here.