Tag: Constitution

9th Circuit Imitates Marcel Marceau

Last month, I warned that the 9th Circuit Court of Appeals would soon be handing the school choice movement a legal setback. Well, it’s here.

As expected, the 9th Circuit has reinstated a lower court challenge to Arizona’s scholarship donation tax credit program. The program allows taxpayers to contribute to non-profit Scholarship Tuition Organizations (STOs) that provide financial assistance to families choosing private schools. The taxpayers can then claim a dollar for dollar credit for their donation.

While this ruling leaves the program intact for the time being, it would almost surely require the tax credit program to be amended if it is allowed to stand. Fortunately, as I noted in my earlier post, the 9th Circuit is overturned as often as a caber at the Highland Games. Its ruling is unlikely to stand if appealed to the U.S. Supreme Court.

At issue is the fact that taxpayers are free to choose the STOs to which they donate their money, and private STOs are free to set criteria for the schools at which their scholarships can be redeemed. There are thus some STOs that offer scholarships only to religious schools. This is essentially the same situation that obtains when taxpayers claim deductions for contributions to non-profit charities. The charities can legally be religious or secular, and they can infuse the services they offer with religion, or not, as they choose. The whole thing is constitutional because it is the taxpayers, not the government, that decides which charity gets their funds. This is all settled law.

To get around the fact that the legal precedents were against it, the 9th Circuit decided to do a compelling impression of Marcel Marceau, pretending to hem itself into an invisible legal box. Specifically, the 9th Circuit decided to pretend that the constitutional restrictions limiting government expenditures (as in school voucher programs) also apply to the private funds at issue under tax credit programs.

That box, of course, does not exist. No government money is spent under the tax credit program, and the tax credits are themselves available on an entirely religiously neutral basis, in scrupulous conformance with the Establishment Clause of the First Amendment.

So here’s my next legal prediction: the constitutionality of the Arizona education tax credit program will ultimately be upheld by the U.S. Supreme Court, and opponents of educational freedom will have to resort to some new ploy in their efforts to herd American families back onto the public school plantation.

Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense.  Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country – most immediately the Seventh Circuit, based in Chicago – will have their chance to make the same interpretation in due course.

Just as interesting – and potentially equally significant – is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.

Is Rick Perry Really for Limited Government?

Conservative radio hosts are excited about a recent speech by Texas governor Rick Perry. Perry forcefully argued his theme of “unwavering support for efforts all across our country, but, most of all, here in Texas, to reaffirm the states’ rights affirmed through the Tenth Amendment to the U.S. Constitution.”

That sounds great, but does he really mean it?

In a study, I noted that Perry and the Texas state government are aggressive scavengers of federal grant dollars. The rise in federal granting is one of the central causes of the destruction of the Tenth Amendment in recent decades.

I noted that Perry’s official webpage is chock full of press releases touting his distribution of federal subsidies. These press releases are from a short time period in 2006:

  • “Perry: Texas Farmers and Ranchers to Share $780 Million in Drought Assistance.”
  • “Perry: FEMA Agrees to Reimburse Texas at Same Rate as Louisiana for Hurricanes.”
  • “Gov. Perry Announces $1.6 Million in Grants to Juvenile Offender Accountability Programs.”
  • “Perry: Homeland Security Grants to Focus on Technology Needs.”
  • “Gov. Perry: Presidential Disaster Declaration Approved for El Paso.”
  • “Gov. Perry Announces $38,098 in Victims of Crime Act Funds to El Paso County.”
  • “Gov. Perry Announces $3.6 Million in Grants to Local Law Enforcement.”

Notice how Perry takes credit for all the new spending? Politicians love spending, especially when they can foist the cost on taxpayers living in other states.

Look at these two press releases up on Perry’s website right now:

  • Apr. 9: “Gov. Perry Backs Resolution Affirming Texas’ Sovereignty Under 10th Amendment.”
  • Apr. 10: “Gov. Perry Calls on FEMA to Assist the State in Fighting Wildfires.”

Governor Perry: Do you want to revive the Tenth Amendment or do you want the FEMA money? You’re giving us whiplash out here!

I don’t think Perry’s tax policies have been particularly conservative either, as they have centralized fiscal power at the state level and thus reduced beneficial competition between local governments.

TLJ: Holder Advocates Some Constitutional Principles

I’m a long-time reader and fan of TechLawJournal. Dogged reporter David Carney produces an amazing amount of content about technology-related goings-on in Washington, D.C. and the courts. Subscription information is here.

I also appreciate his editorial style, which often betrays a dose of concern for civil liberties and healthy skepticism about power. A wonderful example follows, reprinted with permission:

Holder Advocates Some Constitutional Principles
Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in “our current struggle against international terrorism”.

It was a plea for adherence to Constitutional principles. However, it was as significant for what he said – about detention of people in places like Guantanamo Bay – as for what he did not say – about interception of communications and seizure of data.

He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.

But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.

Eric HolderHolder (at right) said, “And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes.”

He said that “we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger – it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”

This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.

He did make one statement that may pertain to electronic surveillance and data. He said that “many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars”.

He did not reference the state secrets privilege, or the government’s assertion of it in legal proceedings involving warrantless wiretaps.

On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA’s warrantless wiretap program.

The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.

The Electronic Freedom Foundation (EFF) stated in a release that “These are essentially the same arguments made by the Bush administration”.

This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder’s speech that “It’s disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like ‘1984’ than 2009.”

Black continued that “President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents.”

“The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured”, said Black. “But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights.”