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March 22, 2005

constitutional rights: two

Don Herzog, Herzog: Constitutional Rights: March 22, 2005

Boy, do I owe Lib an apology.  I thought my grungy libertarian pal had gone slinking off to get high.  In fact, that damned cop busted him while I wasn't looking.  Why?  Because he was in the public park, touting the merits of vending-machine heroin.  I called the station house, and they said he's been released Lib!  You okay?

Lib [growling]:  Sure.  Just great.  I take a routine job at a blog run by some nerdy professors, and next thing I know the cops are threatening to throw me in jail.

Sorry, Lib.  But I need you to get back to work.  You're going to help me demonstrate that left and right both twist their approach to constitutional rights to get the policy outcomes they like.

Lib [sneering]:  Say it ain't so, Joe.

I'd like to, Lib.  In fact I'd like to see if you libertarians have a consistent view, too.

Lib [proudly]:  You bet we do!  We're consistent in our devotion to individual liberty!

We'll see.  But shall we begin?  Lib, do you remember what you learned last time?

Lib:  You bet.  Tussling with the cops is great for learning:  you ought to make your students do it.  Anyway, the state can silence me and blatantly violate my right to free speech.  Or they can silence me without even implicating that right.  Everything depends on how and why they silence me:  on what rule they use and what justifies their action.  I love temp work!  To hell with health insurance:  I am now an expert on the first amendment!

Don't hang out your shingle just yet, Lib.  But you're right about the basic contrast.  The state may not aim at your speech.  So the cop may not tell you to clear out because he doesn't like what you say.  But the state may shut you up if it's not aiming at your speech.  So the cop may clear everyone out for insecticide spraying.  (The curious can compare these two approaches the law takes to deciding when the state is aiming at speech.)

I'll repeat an older formulation from the Supreme Court:  the state may not adopt measures "frankly aimed at the suppression of dangerous ideas."  But now I'll add that it's not as though measures covertly aiming at suppression are okay, either.  As Justice Marshall declared long ago, the courts must not let the government get away with "pretext."

Lib:  So my right of free speech blocks state action justified in some ways, but is powerless and irrelevant against other state action.


Lib:  You think this picture of the constitutional right generalizes to other constitutional rights?

Yes, I do.  Usually settled legal doctrine does, too.  Now let's move to equal protection of the laws, guaranteed by the fourteenth amendment — and, thanks to the miracle of reverse incorporation, by the fifth amendment, too.  Lib, what happens if the law says blacks can't work as policemen?

Lib:  That's got to be unconstitutional.  Whether you think equal protection is about color-blindness or antisubordination, here the state is picking out a racial minority and disadvantaging them.  And it's hard to imagine any nonracist justification for doing that.

Good call.  We wouldn't even let the state say, "hey, we're not racist; we're just trying to provide effective policing to our racist white communities."  That's just like the heckler's veto we examined last time:  the state can't evict you from the park because other private parties condemn your speech.  But now suppose the law requires applicants for government jobs to take a written test, and four times as many black applicants to the police force as white applicants fail the test.  What then?

Lib:  Hmm, that sounds tougher.  Any evidence that the law's purpose is to keep blacks out?


Lib:  Well, then it looks okay to me.  I guess the legislature could change it, if they didn't like the result.  But I don't see how a court could find any violation of equal protection.

Me neither.  That's the rule (and the factual setting) of Washington v. Davis.  The law's "disparate impact" on blacks triggers an enquiry into illegitimate state purposes.  But if the state isn't acting pretextually, the disparate impact or burden on blacks, standing alone, gets nowhere in court.

Lots of people on the left hate this view.  They think it guts equal protection or turns it into mindless formalism.  Lots of people on the right adore this view.  The prospect of courts meddling with legitimate laws to adjust the outcomes makes them shudder.  As long as the rules are fair, they say, let the chips fall where they may.  On this one, I'm with the right.

Lib:  So free speech and equal protection work the same way.  They don't protect against burdens as such; they only stop the state from acting for illegitimate reasons.

Yup.  But now let's see what happens when we turn to free exercise and establishment.

Lib:  Forget it, Don.  Central Casting says I'm entitled to a work break just about now.  And your posts are too damned long anyway.

All too true.  Okay, Lib, try not to get arrested this time, 'kay?

Cop [belligerently, from stage right]:  Like hell.  Lib, back in the patrol car.  Looks like you're the guy who used his car key to scrape the paint off the door.

Lib [plaintively]:  Well, sure, but it was political speech!  I wrote, VENDING MACHINE HEROIN NOW!  VOTE LIBERTARIAN!

Cop [proudly]:  Save it for the judge, Lib.  I'm not busting you for what you said.  I'm busting you for defacing public property.

Lib [appealing to me]:  Can he do that?

Sigh.  Yes, Lib, he sure can.

Lib [frantically, fearing conviction]:  Herzog, you know nothing about the constitution and free speech!  I'm going to the ACLU!  They'll know a first amendment violation when they see one!

The ACLU might think this latest prosecution invades a constitutional right.  Judge Dimwit, sitting in trial court at Sleepy Backwater, just might join them, too.  But they'd be wrong.  I won't be held accountable for the lunacies and confusions of the ACLU, either.


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Posted by: Stuart

Somewhere in the deep recesses of my memory I seem to remember a distinction between incidental effects and designed effects. Am I hallucinating, Don?

Posted by: Stuart | Mar 22, 2005 10:17:11 AM

Posted by: Don Herzog

That's not the language I'm familiar with, but it sounds like it tracks precisely the distinction I'm insisting on.

Posted by: Don Herzog | Mar 22, 2005 10:57:16 AM

Posted by: Aaron S.

I detect a hint of condescension in this format, no doubt it is warranted.

Posted by: Aaron S. | Mar 22, 2005 3:41:21 PM

Posted by: Marty

Hey Don,

Can congress pass a law that extends the statute of limitations on claims after the exisiting statute has expired?

Accept for the moment that the statue of limitations for bringing any Federal Claims on behalf of Terri Schiavo would have commenced on the day that Judge Greer first handed down his ruling that Terri Schiavo would have chosen to have the PEG tube removed, on February 11, 2000, and that was more than 5 years ago, and further accept that the statute of limitations for any Federal Claim that could have been brought is four years, can Congress constitutionally extend, alter or modify the statute of limitations so as to permit the Federal claims that were brought in the Federal Court yesterday to go forward?

Posted by: Marty | Mar 22, 2005 4:30:55 PM

Posted by: David Sobel

So I am wondering where pursuing your, to me plausible, claim would take us. Would you want to say, for example, that some uses of eminent domain are legit so long as they are not done for bad reasons? But surely there are some cases where we enjoy protection from certain burdens simpliciter, not merely from the state imposing those burdens for bad reasons (such as taking my liver against my will). How would we mark this divide between cases where we are protected from state imposed outcomes vs. cases where we are only protected from certain rationales for state imposed outcomes? Don't mean to suggest I have a good answer or that the very question puts pressure on your view.

Posted by: David Sobel | Mar 22, 2005 5:12:53 PM

Posted by: Untenured Republican

Mr. Sobel:

If memory serves, this purposeful discrimination idea turns up in Speech, Equal Protection and Religious Free Exercise contexts. But when it comes to a "fundamental liberty right" enshrined in the Fourteenth Amendment, *burdening* is the issue, not discrimination. It is interesting to note that at one time, this was the view on Religious Free Exercise as well, but it mutated into something more closely resembling these other things as a result of Smith v. Oregon. That should protect your liver for now. Takings are treated quite differently.

Posted by: Untenured Republican | Mar 23, 2005 9:10:42 PM

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