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June 21, 2005

flags, markets, and the commerce clause: a small, true fable

Don Herzog, The Bartlett Files: June 21, 2005

Rummaging around for new materials for my first amendment course, I stumbled upon the Freedom to Display the American Flag Act of 2005.  The remarkable Mr. Bartlett introduced it in January.  Here's its operative language:

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

No, the fate of the republic doesn't ride on this one:  as I say, mine is a small, true fable.  The bill languished several months in the Committee on Financial Affairs, at which point they lurched awake and referred it to the Subcommittee on Housing and Community Opportunity.  There, I confidently predict, it will rot.  So I suppose all it will do is provide the representative some nice campaign fodder.  (Not that he needs it.  He enjoys the considerable advantages of incumbency, and he's the richest of Maryland's representatives.)  Still, the bill invites a few points.

One:  I think everyone should be free to display the flag.  And I don't myself have much of a taste for those condos and planned communities which tightly govern paint color, shrubbery height, and the like.  They look like upscale versions of those dreary endless blocks of dismal concrete apartments from East Germany or the Soviet Union.

Two:  But of course I'm free not to buy such a condo.  (So I don't.)  There's a housing market, after all, and if some people want to sign sales agreements that waive their control over the external appearance of their own units, what's it to Congress?

Three:  And constitutionally, what could it be to Congress?  You could argue that this is a valid exercise of the commerce clause.  But that's absurd after Lopez.  I'll spare you the soporific lecture, but no, Raich doesn't change that.  Briefly, the Gun-Free Schools Act was a pretextual use of the commerce clause:  it narrowly reached areas around schools.  Mr. Bartlett's bill is pretextual and narrow in just that way.  The feds' Controlled Substances Act, though, is fully general, and just happened to fall on medical marijuana users.  So Raich is properly controlled by this old chestnut.  (That means I'm with Orin Kerr over at Volokh on this one; you can read much more about the issues there.)  Somber warning:  people who hijack this thread to denounce Raich will promptly be flogged with a wet noodle.  Recidivists will find their hard drives melting.

Those of us who really do care about federalism — that includes me can't jump up and down indignantly about federalism when we disapprove of some Congressional act on policy grounds, but then look the other way when we approve.  (For the record, I think medical marijuana use just fine, and would rather the feds not run around regulating marijuana anyway.  But that doesn't bear on the constitutional question.)  So conservatives shouldn't have to figure out whether they care more for flag display or voluntary agreements in markets.  They should instead say to Rep. Bartlett, "please, sir, Congress has no right to do anything about this matter."

And all of us, left and right, should wish that our representatives would stop introducing grandstanding legislation that they know perfectly well is constitutionally hopeless.


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Posted by: D.A. Ridgely

The problem with arguments about what is pretextual and what isn’t is that legislative motivations, as opposed to intent, should be irrelevant in addressing whether an act is constitutional. Wickard v. Filburn (upon which Raich ultimately relies) isn’t at all pretextual but it’s terrible law, continuing a grotesque expansion of congressional power beyond any reasonable reading of the commerce clause. So let’s play the ‘fruit of the poisoned vine’ game and bash Wickard instead. (Being too lazy to make the case myself, I’ll offer up at least one view of the commerce clause and federalism, not all of which I entirely agree with, that makes some of the usual points on this subject.)

Posted by: D.A. Ridgely | Jun 21, 2005 8:12:09 AM

Posted by: Don Herzog

Um, Mr. Ridgely, that wouldn't be about Raich, now would it?

Look, the language of "intent" and "motivation" (and let's add "purpose") isn't all that clearly fixed, even in the law itself. But let's return to Washington v. Davis: the DC police department has a written test, and black applicants for jobs disproportionately flunk it. Not a problem, said the Court, unless it could be shown that the point of adopting the test was to exclude blacks.

I think that's precisely right. Do you?

Posted by: Don Herzog | Jun 21, 2005 8:18:11 AM

Posted by: D.A. Ridgely

Actually, no, Mr. Herzog, it wasn't. Aside from thinking it was a bad decision because it followed the logic and likes of Wickard, I don't much care one way or the other about Raich.

And yes, you are correct, the distinction among those various terms is not all that clear.

My point was this: you argue here and elsewhere "Look, this case did no more than apply the same standard that this earlier case and that even earlier case did." I say, fine, let's go on to question those cases, too.

Now, in the case of the state intending to discriminate against blacks, we have a fairly clear argument that such is in direct violation of the civil war amendments. That's fine: change the constitution and you change the way cases raising constitutional issues will be decided. Wherein lies the same logic for the post-depression expansive reading of the commerce clause?

Posted by: D.A. Ridgely | Jun 21, 2005 8:36:21 AM

Posted by: Don Herzog

Sorry if I misunderstood you. Wickard clearly bears on Raich, but I don't see how it could bear on Mr. Bartlett's flag act. Do you agree that that act is just a bit of nonsense?

Anyway, I don't want to dodge your question. Farmer Filburn found himself caught by a Congressional Act that reached as far as a farmer's production and consumption of wheat by himself, on his own farm. (If I recall the case correctly, the record was unclear as to what Filburn intended to do with the wheat he grew that exceeded his allotted quota.) And that can't be interstate commerce, can it? The question then of course is, may Congress reach this sort of thing as part of the necessary and proper implementation of its undoubted commerce clause powers?

Two thoughts. One: on the merits, I'm inclined to think the answer is yes. Take the variants on Raich. (How dare I violate my own ban?!) "We don't buy and sell marijuana, we barter it." "We don't barter it, we have complicated gift exchange networks." "We don't give it or receive it as gifts; we grow it ourselves." If Congress can pass a Controlled Substances Act to reach the buying and selling of marijuana, I think it can reach all these things, too.

Two: I may well be as a general matter more respectful of well-entrenched precedent than you are. (The litigating posture in Raich was to say to the Court, we don't think you have to overrule Wickard to rule for us, but if you think you would, we urge you to overrule it.) The clash of considerations -- we need notice, we need stability; yes, but we don't need to live with bad law -- is straightforward enough; the balancing of it isn't. And the connect-the-dots-and-fit-the-precedents game has its pull, for law professors and I suppose for practicing lawyers, too. Maybe too much of a pull? so I'll think more about that.

Posted by: Don Herzog | Jun 21, 2005 9:50:51 AM

Posted by: Stuart

Well, yeah, it's a stupid law, but I can construct an argument for why it's constitutional that doesn't depend on the commerce clause. How about free speech? First Amendment applies to the states through the 14th amendment, Congress has the power to "enforce" the 14th in section 5 of the 14th...... and voila! It's enforcing condo owners' free speech rights.

Of course that raises more questions, like content neutrality, but that's a subject for another day.

Posted by: Stuart | Jun 21, 2005 10:03:49 AM

Posted by: Don Herzog

But where's the state action when a condo does this? I can't imagine analogizing a condominium to the company town in Marsh. And it can't be the thought that the contract might have to be enforced in court, because that's the notorious argument that turns all of private law into public law.

Posted by: Don Herzog | Jun 21, 2005 10:09:11 AM

Posted by: D.A. Ridgely

Hmmm, do I think the flag business is nonsense? Not sure. Entirely private association restrictions, guy buys a unit. Then he gets married. His spouse is an ardent patriot who is determined to make a political statement in the wake of 9/11 and some pusillanimous nonsense she hears all around the community pool so she displays the flag as symbolic speech. Can the pre-existing contractual commitment of the husband, governed exclusively by state law, pre-empt or thwart her speech rights? Dunno.

By the way, the Controlled Substances Act is itself problematic. Clearly, Congress didn’t think it had the constitutional authority to outright ban substances per se until well into the 20th century, hence the need to make prohibition a constitutional amendment and the earlier use of tax authority to attempt to control narcotics. As for deference to well-entrenched precedent, I admit that stability and predictability are legal virtues, but if we are going to take federalism seriously I think we have to examine some pretty long-standing ways in which, in my opinion at least, federalism has been undermined by Court decisions.

Posted by: D.A. Ridgely | Jun 21, 2005 10:24:13 AM

Posted by: D.A. Ridgely

[I]t can't be the thought that the contract might have to be enforced in court, because that's the notorious argument that turns all of private law into public law.

Not necessarily, though your point on Bartlett is good. (What would you do without him? Oh yeah, I forgot -- Congress is filled with his likes.) But we could easily imagine a federal court ruling, as with other restrictive covenants violative of civil rights and liberties, that the provision in question is unenforceable insofar as it infringes speech rights. If so, why couldn't Congress do the same?

Posted by: D.A. Ridgely | Jun 21, 2005 10:31:40 AM

Posted by: Mona

If Congress can pass a Controlled Substances Act to reach the buying and selling of marijuana, I think it can reach all these things, too.

That Act should not have been found constitutional; unless anyone can show me an enumerated power that vests in Congress such authority?

And Raich, like Wickard, is an abomination. But it did demonstrate that Clarence Thomas does not carry water for Scalia. (If Don can violate has ban, then I will dare to do so as well.)

Posted by: Mona | Jun 21, 2005 10:44:13 AM

Posted by: noah

Next thing we know Don will be endorsing Bush's judicial nominees wholesale.

Posted by: noah | Jun 21, 2005 12:23:06 PM

Posted by: Seamus

Mr. Herzog believes that the decision in Raich is consistent with both Wickard and Lopez, and I would agree that that's what the Court said. I also note, however, that the majority in Raich includes four justices (Stevens, Souter, Ginsberg, and Breyer) who dissented in Lopez. I would be shocked if these four considered Lopez to be settled law, and if they were not chomping at the bit for the opportunity to pick up one more vote and overturn that decision. The decision in Raich has moved the football just a little bit closer toward that goal; a different outcome would have pushed the football considerably farther back, because it would have sent that message that the Court really believes what it says about the constitution being a limited grant of power to the feds, and that the Court is willing to draw the federalism line even when the interests of those core constituencies of the Republican party, gun nuts (U.S. v. Lopez) and rapists (U.S. v. Morrison), aren't at stake. (No, I don't really believe that rapists are a core constituency of the Republican party, but opposition to the Violence Against Women Act is considered more of a Republican cause than a Democratic one.)

But to move to Congressman Bartlett's bill, it is amazing how he manages to trample on both conservative principles of limited federal government *and* private property rights/freedom of contract. But being surprised to find Republican Congressman betraying their core values is like being shocked to find there is gambling going on at Rick's Place. I am reminded of how, ten years ago, then-Representative Tom Coburn (R-Okla.) co-sponsored federal legislation that would have made it mandatory for all newborn babies in the United States to be tested for HIV. Leaving aside the fact that Coburn didn't even pretend to find a nexus with interstate commerce that would have authorized such legislation, and leaving aside the fact that this would have constituted an unfunded mandate of the kind that the Republicans had ridden to power by denouncing in the 1994 elections, the bill would have directly contradicted *another* piece of legislation that Coburn was co-sponsoring, the Parental Rights and Responsibilities Act of 1995, which basically would have required government to keep their hands off of how parents raised their children, with certain exceptions not applicable here (e.g., danger of death or serious injury to the child).

I wrote to Rep. Coburn pointing out the inconsistency, and all I got was some form letter about what a serious problem AIDS was, and how if we routinely tested newborns for hepatitis and syphillis, so it was crazy not to treat HIV the same way. I wrote back to him pointing out that he was right, that the cases ought to be treated the same way, and that my wife and I should not be required to pay to test our children for hepatitis, syphillis, *or* AIDS, since we showed exactly none of the risk factors for those diseases. For some reason, Rep. (now Sen.) Coburn never responded to my second letter.

Posted by: Seamus | Jun 21, 2005 1:30:11 PM

Posted by: Don Herzog

noah writes,

Next thing we know Don will be endorsing Bush's judicial nominees wholesale.

I don't know enough about their work to have a view on the merits. I do know enough to think the blather about strict construction is just that, blather. Nor, you will forgive me for saying, do I fully trust this administration. But since I've not sat down and read a fair sampling of the nominees' work, I haven't got a view.

Posted by: Don Herzog | Jun 21, 2005 8:45:49 PM

Posted by: noah

Thanks Don. I am certain that within the constaints of your worldview that they will recieve a fair hearing.


Please forgive me for asking for legal advice far from the subject of this thread. My question is fairly simple...can one be just be a citizen of the United States without being a citizen of any particular state? I ask because I am tempted to be a rootless wandering citizen, free of State taxes etc, seeking good weather, alas free of internet connections.

Posted by: noah | Jun 21, 2005 9:33:43 PM

Posted by: D.A. Ridgely

noah, if I were qualified to give legal advice over the internet, I'd be qualified enough to know better than to give legal advice over the internet. Sorry.

Posted by: D.A. Ridgely | Jun 21, 2005 10:10:19 PM

Posted by: noah

DAR, no problem.


Amazed to find that Haagen-Dazs has a vanilla subset "Vanilla Bean". Whoo Hoo!

Posted by: noah | Jun 21, 2005 10:17:23 PM

Posted by: Bret

Don Herzog, in a reply to a comment I made in response to another post, wrote: "I'm baffled that you've been reading this blog as long as you have, and if you think that really what I'm about, or we're about, is doing our damnedest for the Democrats."

Well, I can't help noticing that you only ever pick on the foibles of Republicans, and in this case, over an admittedly non-earth shaking issue. Surely there are more important problems than the output of your buddy Mr. Bartlett? Surely the Democrats must of done something since this blog started that you disapprove of (possible hint: Senator Durbin's recent statements)?

I just quickly scanned every post Don Herzog has written since Left2Right started and I couldn't one explicit criticism of Democrats, but many criticisms of Republicans (several of Bartlett alone). I could easily have missed a couple of criticisms of Democrats, but I think it's pretty clear which side Don Herzog is rooting against, and therefore which side he's rooting for. There's nothing wrong with that, but I don't see why Don insists that he's not partisan.

Paul Krugman also claims to be non-partisan, but when zero out of 243 straight columns criticize Democrats and 90% of the rest of the columns criticize Republicans, one has to wonder whether or not he's really partisan, his claim of non-partisanship notwithstanding.

Maybe I'll do a similar analysis of Don Herzog's posts on the one year anniversary of Left2Right and see how he's doing. Will he catch Krugman?

Posted by: Bret | Jun 21, 2005 11:42:01 PM

Posted by: Bret

I'd like to add to my comment above that what's most surprising to me about Don Herzog's constant negative focus on the Republicans' actions is that ideologically he seems very moderate (I've described him as a milquetoast moderate and I've said that he's to the Right of me on several issues).

Posted by: Bret | Jun 22, 2005 12:54:25 AM

Posted by: le sequoit


One can be totally aghast at the entire left/right machine, but still it seems that Repulicans are infinitely more assailable.

They invite this themselves, setting themselves up as the anti-intellectual heroes of the common man, taking up arms with the smart-ass elitists of the academic and media spheres.

I'm not talking about conservatives here per se, this is about those Ronnie Reagan gonna buckle on the chaps and ride this horse a grinnin' and a spittin' right to the bank Republicans.

Their complaints about the disparagement offered by unimpressed sorts are, of course, coming out the other side of their mouths.

Posted by: le sequoit | Jun 22, 2005 7:46:21 AM

Posted by: Thomas

Uhm, if one waives one's right to wave the flag in a sales agreement, isn't that in commerce?

Are there sales agreements that aren't commerce?

I seem to recall a federal law passed a few years back giving condo owners the right to use satellite dishes. How is this different?

Posted by: Thomas | Jun 22, 2005 4:24:26 PM

Posted by: Angus

The question here isn't the problem with the need of a law that instructs an HOA as the limits of its powers, but the problem is that HOAs violate all laws against the establishment of private governments. HOAs collect taxes, levy fines and punishments, assess liens, garnish wages, and regulate (and suppress) property rights.

http://www.ccfj.net/flyoldgloryV4.html (follow-up to above)
http://www.hasner.org/adamlegislation.html (second article)
http://www.ccfj.net/HOAFLtruth.html (quote: "In a recent vote, the Florida House voted 99 to 11 in favor of a measure that allows homeowner associations to force you to sell your home to collect fines for violations of use restrictions." Asset forfeiture, anyone?)

Until the issue of HOAs being an illegal, and inherently unjust, form of private government is addressed, you're only going to be treating symptoms rather than the disease.

Posted by: Angus | Jun 22, 2005 7:49:39 PM

Posted by: Don Herzog

No, that's absurd. The Court affirmed that Congress has the constitutional right to extend its Controlled Substances Act to medical marijuana even in the face of opposing state law. The Court did not outlaw anything at all. And last I checked, Congress was elected by popular vote too.

Posted by: Don Herzog | Jun 23, 2005 1:23:49 PM

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