I can fix the federal judiciary – a little

by Marc J. Randazza

I hate that the Supreme Court often comes down to a political battle. I’d like to see it more insulated from the politics of the day. To that end, stare decisis, is a wonderful thing. But, at the same time, if we elevate stare decisis to too exalted of a place, we are saying “once we make a mistake, we can’t fix it.” I’d also like who is on the Court to matter less. If it all comes down to just nine personalities, that’s a helluva way to run a legal system. Hell, the entire federal legal system is messed up… I’m going to try and clean that mess up for you.

There has to be a better way to fill this place

Take the Focus off of the Court in Elections – Every Presidential Term Gets at Least One Justice

This is not 100% an original idea, but I can’t find where I first saw it. Each President gets one justice per term. Therefore, the court can at times have more than 9 justices on it. Let’s say that Biden gets re-elected, and Clarence Thomas says “I’m not going anywhere til I’m 100 years old.” Biden gets to name a new justice. Now there are 10. Every case randomly excludes a justice. Then, Thomas sadly passes away. Biden does not get to name a replacement unless someone else dies or retires. This should lower the stakes for the Court in each election.

An Oldie But a Goodie – Supermajorities

We have to return to the norm that at least 60 Senators must agree on every judge – not just SCOTUS. We need consensus. In fact, I’d raise that to 66 Senators. This 51-50 shit is stupid. It is a lifetime appointment to the most powerful court in the country. There is a reason that historically, SCOTUS confirmations were overwhelming — because presidents necessarily had to choose someone they knew would slide with the minority party. Now, they can pick someone who doesn’t even know what a woman is. Or they can pick Kavanaugh. Even if you think Christine Blassey Ford was a reality TV clown show produced by clowns for clowns (as I do) you have to admit that Kavanaugh was a polarizing-for-no-good-reason pick. A Supreme Court without either Justice Jackson or Justice Kavanaugh is a better Court. With only a simple majority, Court picks stray from finding judicial stability and judicial talent and it turns into each party simply picking who their best middle finger to the other side can be.

The Circuits and the States

I don’t like that the President can pick anyone they want. Remember when George W. Bush picked Harriet Miers? What was that? Personally, I think it was because he really wanted Alito, and he figured he could have the Democrats blow all their wind on mocking Miers. If so, it worked – and he got confirmed 58-42.

I think, instead, the President should either be constrained to choosing someone who has already served on a Court of Appeal or a State Supreme Court, or there should be a pool of candidates that those Courts themselves nominate. So if Justice Sotomayor retires, then each of the Courts of Appeal, (the 11 geographic districts, the DC Circuit, and the Federal Circuit) and each State Supreme Court can vote amongst themselves to choose who to put into the pool. I guess I would even permit each of these constituencies to select someone from one of their subordinate courts, if they felt that was best. So, if Florida preferred to send a great judge from its 5th DCA, or the 9th Circuit said “you know, Judge Boulware is a great judge, and we would rather see him than any of us on SCOTUS” then fine. Hell, I’d go so far as to say that if a state or a Circuit wanted to pick anyone outside their ranks, that would be fine. The point is that the pool for every SCOTUS pick will be 63 people – and those 63 will be pre-vetted by a state supreme court or a federal Court of Appeals.

En Banc and Stare Decisis
When you shift your car into reverse, there’s always some extra step. You either have to push the gear shift down, or pull up a plunger of some kind to get it into reverse. The Court needs an extra step too. If you don’t know what I am talking about, then go learn how to drive a real car.

In the Courts of Appeal, all cases are assigned to random three judge panels. If there is a prior decision in that Court of Appeal, then the three judge panel is bound by that decision. However, if you want to challenge that decision, you can do so if you are able to convince the Court to hear the case en banc. For you non-lawyers, that means that all the judges in the Circuit re-hear the case. In the 9th Circuit, since there are so many judges, you just pull a random 10 judges plus the Chief – with the theoretical “super en banc” (all 29 judges) still permissible, but I think it has never happened.

In the Supreme Court, I would say that consistency matters – a lot. But, reversing mistakes matters too. For example, I think Bowers v. Hardwick was wrongly decided, and in Lawrence v. Texas the Court agreed — a mere 17 years later. I also think that Roe v. Wade was wrongly decided (although, as a matter of individual liberty, I begrudgingly hold my nose and support the right to an abortion while abhorring the practice personally). I also find Justice Thomas’ view on New York Times v. Sullivan to be persuasive, and while I wouldn’t throw it out completely, I do think the Court’s decisions expanding the “public official” doctrine to mere public figures are worth reconsideration. St. Amant v. Thompson essentially says that the Press has no responsibility to even try and get the story right.

Justice Thomas deciding a future case challenging New York Times v. Sullivan

But, reversing Roe, Sullivan, or even St. Amant, at this point, will change a lot — overnight. Yes, the Supreme Court has always had the ability to play Cho Chabudai Gaeshi! with nearly anything at any time. But, maybe it shouldn’t be able to simply do a u-turn any time 5 out of 9 people think it sounds like a good idea.

So why not have a SCOTUS en banc? An even larger Court, which is required if you’re going to reverse a prior decision of the regular Supreme Court.

Couple it with the idea above, and that might work – but then you’re stuck if you only have nine justices. If you have ten, that’s hardly a “banc” to change things. Sure, there could be a tie, but you could have a “ties lose” rule.

That’s when you go to each Circuit and grab the Chief Judge of that Circuit, and they sit on SCOTUS, by designation, any time there is an en banc case to be decided. This would make for a pretty large deliberative body — the nine justices (or even a few more at times) plus the 13 Courts of Appeal. But, I think overturning settled law should be harder than establishing precedent in the first place.

While We’re At It – District Court Judges

Here’s how it happens now: You go to law school. Then, you do something but in the meantime, you either donate a lot of money to one political party or the other, or in some other way demonstrate your loyalty to a particular political party’s views. Then, if you gave enough money or enough people who did happen to think you’ll grind the gears in their direction, your name winds up on some Senator’s desk. That Senator lobbies for you to be picked, you are, then 50 Senators say “yeah, screw it, put her on the bench.”

Sometimes, that accidentally results in good judges. Or bad ones who learn how to be good. Or just

Article III means never having to do a good job

terrible judges who are there to promote their agenda or to settle perceived or actual scores. There’s no real “vetting” of these people for skills or qualifications – it is entirely political. Yeah, the ABA claims to vet them – and will sometimes even say that they’re “unqualified.” That never matters. Nobody cares what the ABA thinks except the law schools (that’s a rant for another day). These un-vetted usually (more so nowadays than in the past) political hacks who need only appeal to 50 senators, then are appointed for the rest of their lives or until they figure out they can draw a pension and then go do private arbitrations for $900 per hour, where they have even less accountability.

On the other hand, federal magistrates apply for the job, are vetted and hired by committees, and in general are fantastic. I am not blowing smoke up the magistrate’s asses here when I say that I have never been before a magistrate who didn’t work hard, do their best to come up with the right decision, and who didn’t practice their craft with 100% integrity. I can say that about many federal judges, too. But I’d be struck by lightning for being a liar if I told you it was all of them. I would be gambling with my life if I told you it was even 51%. Don’t believe me? Ask any federal litigator about a case, and the first question they will ask is “who is your judge?” If they don’t know anything about the judge, personally, their next question will be “who appointed them?”

That’s a sign that the system is sick.

So here’s my wild idea — make judging a separate profession from being a lawyer.

You want to be a federal judge? Then you need a degree in … whatever, let’s call it “judgery” until someone comes up with a better name. To get that degree, you need either law school or at least half of it, plus a two year clerkship with a sitting federal judge or magistrate.

Carabinieri Insignia

After that, you are in the “judge corps.” Yeah, like the military. Well, more like the Italian Carabinieri. The Carabinieri are a federal military police. If you join the Carabinieri, your first tour of duty must be somewhere that you are not from. Why? Obviously, because you’re more likely to be clean if you are from Palermo, but you wind up serving in Bologna. You won’t have so many local prejudices, local connections, and local corruptions. Your second tour of duty, you can go back home, if you want.

Once you get your judge license, you’re off to your first deployment — wherever the judge corps needs you. No local senator diddling around with this. No local law firms getting an edge because you used to work there. No petty scores to settle from high school. You know nobody, and you judge accordingly.

After your first 5 year term, attorneys in your district vote on whether to retain you or send you somewhere else.

If you’re sent somewhere else, your second term has the same retention or transfer vote.

At any time during your tenure, in any district, there can be an action brought to transfer you to another district. If it is filed, then there will be a vote within 60 days by all attorneys in the district. if 3/4 of the attorneys vote to yank your judge license, you lose it. If 2/3, then you’re involuntarily transferred.

Federal rules should be amended to give any party a right to a peremptory challenge of the judge assigned to their case with no questions asked, but you can file this only prior to any rulings by the judge. The judge with the most peremptory challenges in a district every year is reassigned to another district, involuntarily.

If you have three involuntary transfers, either due to vote or due to being the most peremptoried judge in the district, you’re done judging.

After any successful appeal, the case must be remanded to a new judge. The most reversed judge in the district is also involuntarily transferred.

Conclusion

To do all this would be largely impossible without a Constitutional amendment or without some major consensus on new non-binding norms. I’m not stupid. I get that. But, this is not legislation, this is aspirational. But, I think this plan addresses what is wrong with our courts — at least our federal courts. So, get to work.

Can we prohibit drag shows for kids? No.

by Marc J. Randazza

Drag shows for kids.

I feel like Jake Blues when he says “Illinois Nazis” in the Blues Brothers. For “Pride Month,” a gay club in Dallas had an event called “Drag The Kids to Pride” in which drag queens performed sexualized dances for kids … not just teenagers, actual kids. This seems to be something widespread, nationwide.

If you bring your kids to one of these, you and I have no common ground when it comes to parenting.  Why would you would bring your kids to a sexualized performance of any kind?  That isn’t “pride.”  That is what the Conservative kids call “grooming.”  I’d feel the same way if you brought your kids to a strip club, even if the dancers remained fully clothed, but performed the same routines on stage. It’s not the sexual orientation of the shows that troubles me. This just isn’t something appropriate for kids.

Florida State Rep. Anthony Sabatini tweeted that he was considering legislation to make it a felony to bring your kid to such a show. I like Sabatini. I like where his heart is at here. But, I can’t agree with his idea.

Sabatini is not alone. Politicians across the country are capitalizing on this skirmish in the culture wars to propose or suggest state action to curb this trend.

Now for the hard part — so far, every limitation I have seen suggested will violate the First Amendment.  

The facts

The facts, as I understand them (and upon which my analysis is premised) are:  

1. Drag queens danced for parents and their kids. 

2. Kids got up on stage and danced, too. 

3. The dances were “sexualized” in nature.  

4. Kids were stuffing dollar bills into garter belts, and audience members were throwing dollar bills to the kids who danced.  

If I have any facts wrong, then my analysis might change.  

An important note here — I have heard no reports that any of these involved actual nudity nor actual sexually explicit conduct.  “Sexualized behavior” is different from sexually explicit conduct.  The government can regulate nude performances and sexually explicit conduct.  The government can not regulate “sexualized” expression that is merely in tremendously bad taste.     

Another thing to note: It seems irrelevant that these are “drag queens.” If the kids can’t see the performer’s genitals, I think it makes no difference what is under their g-string, or if their tits are real, enhanced, or just stuffed bras.

Fully clothed. Nevertheless, I think if you would put your kid in that seat, you’re fucked in the head.

Analysis – Definitional Problems 

The first problem I would have with trying to ban drag shows for kids is even defining “drag show” in a legally clear manner.  Set aside the constitutionality of the ban until later in this post.  Just try to define this.  

If you asked me to come up with a regulation that simply defined the problem and prohibited it — even in the absence of the First Amendment — I couldn’t do it.  Could you?  

Sure, we all “know it when we see it.”  I know exactly what you mean when you say “those drag shows with kids.”  The sight of a performer writhing on the ground with dollar bills being thrown into their crotch, twerking in a kid’s face, yeah … I can picture it. But can I actually define it in a way that wouldn’t eat up a lot of other expression?  Can we define it so that it wouldn’t be a tool in the hands of someone who would censor dance / performances that we like?  

How could you come up with a regulation that wouldn’t ban say, dressing up to go watch the Rocky Horror Picture Show?  Would the regulation sweep up even Halloween costumes?  How could you write it so that it did not?  Would the difference be whether there was dancing or not?  If so, would you be able to write a regulation tailored sufficiently that it only swept up the dance moves you’re worried about?  Would this just be an “anti-twerking law?”    Would it be limited to men dressed as women?  What about women dressed as men?  Or what about just women in bikinis dancing?  

Do you trust the government to make this decision? I do not.

In Cohen v. California, Justice Harlan wrote “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. 15, 25 (1970).  

I do not trust the government to make this decision.  I trust the government even less if a government I trust today gets a tool of censorship in its hands, and then the regime changes.  Be careful. If you release poisonous snakes into your neighbor’s yard, they’re eventually going to slither into your yard.

Analysis – First Amendment

Dancing is First Amendment protected expression.  Even nude dancing is.  Judge Posner wrote that to say the contrary is “indefensible and a threat to artistic freedom.”  See Miller v. City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (concurring).  Most certainly, fully clothed (even if scantily clad) drag shows are dance protected.    

I think a reasonable person could call these performances “indecent.”  I call them that, but that’s just like my opinion, man.  Whether it is indecent or not, “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications v. FCC, 492 U.S. 115 (1989). See also Smith v. California, 361 U.S. 147, 150 (1959) (bookstores selling indecent materials); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Indecent, but non obscene theater performances); Young v. Mini Theatres, Inc., 427 U.S. 50 (1976) (indecent motion pictures in a theater); Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude dancing).

But What About The Children?

The analysis does change a bit because kids are involved, but not enough to move the needle.  

The Supreme Court has held that “obscene” material is not protected by the First Amendment.  To be obscene, material must meet the Miller Test.  That test says we look at material in three parts:

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; 

2.  whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I can not imagine a principled judge not throwing out a regulation or a prosecution over a fully-clothed drag show.  Is merely twerking “patently offensive?”  Is it different because it is a man dressed as a woman?  It shouldn’t be.  To say these performances lack serious artistic or political value is to devalue those terms to being nearly worthless.  Most certainly they have “political value.”  That “political value” is the parents virtue signaling at how liberal they are.  It is absolutely an act of political speech and political expression.  Not expression I may approve of, but no parent brings their kid to this because they merely think the kid will have fun.  If that were the case, they’d park them in front of a guy with one of those great big bubble makers and throw ten bucks at him to entertain the kids.  These shows, and participating in them, is an act of political expression.  It is about as tasteful as a Pol Pot fan club meeting, but no honest person could say that these lack artistic or political value.  

When it comes to kids though, the standard can shift a little bit.  In Ginsberg v. New York, 390 U.S. 629 (1968) the Supreme Court upheld a variable standard when it comes to obscenity and kids.  In that case, the court upheld a New York law that prohibited providing materials containing nudity or sexual content to minors if there was monetary consideration. 

Aha! Have we found a way to prohibit this thing we dislike?  

Probably not.  

Ginsberg v. New York establishes that we can have a sliding scale of what is obscene.  Therefore, something that might not be “obscene” when sold to an adult can become obscene when sold to a minor.  (Ginsberg was decided before Miller, so I question even whether Ginsberg is still good law, but for the sake of this post, presume it is).  But, even in Ginsberg, the court recognized “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”  

The rationale underlying Ginsberg is that parents get to raise their kids as they see fit.  “[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg also cited to Prince v. Massachusetts.  “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  321 U.S. 158, 166 (1944).  

The philosophy here is that parents get to educate their kids on sexual issues as they see fit (short of molesting them, of course).  The logic reversed the polarity here — in Ginsberg, the issue was that no bookstore should be making the decision as to whether a 16 year old kid can have a pornographic magazine — but a parent could still make that decision for their kid.  You want your kid to have a copy of Hustler?  Have at it.  But, the local convenience store can be prohibited from selling it directly to him.  

Could Ginsberg be used to create another stratification in obscenity law?  

Maybe, but I think such a decision could be fraught with constitutional danger.  Let’s say a

Not Sexy Enough For You?

court said that since Ginsberg lets us create an “obscene as to minors” standard, we can create more layers in that standard.  Could we have an “obscene as to toddlers” standard?  At what age would we draw the line?  How would we draw it in such a way that it prohibited what we wanted to prohibit, yet left other speech unscathed?  Would it be “harmful to minors” to let kids watch Monty Python?  Why not?  Because when the Monty Python guys are dressed as women, they’re not sexy enough?   Is the standard “I’d hit that if it had a vagina?”  If so, aren’t we using the “prurient interest” as to adults in order to decide what kids can see?  

Conclusion

I have no issue with drag queens in general.  I think it is great that they exist.  I will have words with anyone who wants to bully someone else because they are an adult choosing to be a drag queen, or transsexual, or attend a drag queen show, or whatever.  Your life, live it the way you like.  It doesn’t hurt me, nor bother me, in the least.  (In fact, my firm proudly handles transsexual discrimination cases that even the big trans-advocacy organizations turn down).  I have no problem with “Drag Queen Story Hour” where drag queens simply show up and read books to kids.  (Although this one should be criminally charged).

How about now? Sexy enough to ban?

But this is not that.  Rousseau wrote “Childhood has its own ways of seeing, of thinking, of feeling; nothing is more absurd than wanting to replace them with our own.”

This absurdity is at a level that I think nobody could ever have predicted.  We have elementary school teachers seeking validation for their life choices and sexuality from their students.  We have woke-scolds trying to reinvent our language, and other peoples’ languages as well.   And now in what seems like an outright declaration of war on normality, sick people bringing their kids to watch and participate in sexualized drag shows.  

But that’s what liberty is.  You get to raise your kids the way you want, with the values you want.  

Restrictions on that are limited, as they should be.  Do I want people to bring their kids to these shows?  I would rather they not.  If my kid’s mom brought them to one, we’d be in custody court before she got home.  (Not that she would, but just sayin’).  If my kids had friends whose mom (it is always the moms) brought them to one, I’d seriously consider whether my kid should even associate with that kid in any way.  I wouldn’t have any problem with completely socially ostracizing any drag queen who performs like this for kids, nor with doing the same for anyone who runs a business that tolerates it.  

But I do not want the government involved.  The government that has the power to tell you that you can’t bring your kids to a non-nude, non-obscene, drag show can also tell you that you can’t bring your kid to see a performance that you like.  In fact, it isn’t a far slide down the slope to limitations on what you can teach your kids in church.  

Liberty isn’t easy.  It isn’t supposed to be easy. It isn’t supposed to be comfortable. Liberty means your fellow citizens get to enjoy performances and child-rearing ideas that make your skin crawl, sometimes. Liberty is supposed to be standing up for expression that you would convince every person to reject – while protecting their right to make that choice for themselves.

I find these shows to be troubling.   But, “if there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989).

Yeah, Illinois Nazis, Texas Drag Queens, pornographers, Satanists, and even people who advocate putting pineapple on pizza have First Amendment rights. And even if you hate their use of those rights, to diminish theirs is to diminish your own.

The First Amendment Protects Angeli Gomez’ Right to Speak About Her Experience

The Mama Bear
Heroine of Uvalde

by Marc J. Randazza

Angeli Gomez probably would find the title “the heroine of Uvalde” to be embarrassing.  Therefore, if she reads this, I must apologize for calling her that.  But, Ms. Gomez demonstrated character and conduct that makes “heroine” a proper term for her.  Her statement “I’m going in there” should be enshrined on a monument somewhere, with nearly as much honor as the words “lets roll.” 

The Uvalde police?  Just the opposite.  Everyone knows their ineptitude and cowardice — waiting an hour while a loser shot kids inside the school.  Ms. Gomez, frustrated with government flunkies, tried to go in and save her kids.  Apparently a U.S. Marshal put her in handcuffs for “intervening in an active investigation.” (source)  “Right away, as I parked, a US Marshal started coming toward my car, saying that I wasn’t allowed to be parked there,” she recalled. “And he said, Well, we’re gonna have to arrest you because you’re being very uncooperative.” (source)  (second source) 

Local cops freed her, and she ran off, over the fence, into the school, grabbed her two kids and ran out.  

Again, the words “Uvalde Police Department” should be, from this day forward, synonymous with “incompetence” and “cowardice” and “ineptitude.”  That police department is 40% of the town’s budget.  They have a SWAT team, and yet a middle aged field-worker-mom showed more competence and heroism than this entire paramilitary over-funded group of preening tax-fattened losers?  

I am not a “Defund the Police” Guy, but this is definitely a waste of money.

As if the Uvalde Police couldn’t be any worse, they decided to try and shut her up, the First Amendment be damned.   

Download

They then threatened Ms. Gomez for talking to the press about what cowardly clowns the Uvalde P.D. was, is, and shall forever be known.  She is on probation (I do not know why) for an event 10 years ago.  They’ve threatened her with a probation violation for “obstruction of justice” because she won’t stay silent. (source at 4:45) 

The First Amendment protects your right to speak your mind about how the government acts — not matter what, but especially if you’re a first-hand witness to (and participant in) a matter of public concern.  

The government does not get to threaten criminal prosecution for discussing a matter if public concern.  Even stolen top secret documents are lawful to publish. See New York Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665, 727 (1972) (“the right to publish is central to the First Amendment and basic to the existence of constitutional democracy.”). If one can publish The Pentagon Papers, Ms. Gomez can talk about her experience.  

This First Amendment violation was so grossly out of bounds, she should sue the living hell out of whichever agency threatened her.  This is a clear example of retaliation for the exercise of First Amendment protected conduct.  

To show First Amendment retaliation, a plaintiff must show: (1) that “he or she engaged in constitutionally protected conduct”; (2) that “he or she was subjected to an adverse action by the defendant”; and (3) that “the protected conduct was a substantial or motivating factor in the adverse action.” David B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). An adverse action is one that “viewed objectively … would have a chilling effect on [the plaintiff’s] exercise of First Amendment rights,” Barton v. Clancy, 632 F.3d 9, 29 & n.19 (1st Cir. 2011), or that “would deter a reasonably hardy person from exercising his or her constitutional rights.” D.B., 675 F.3d at 43 n.11.

“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions … for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972). The First Amendment retaliation doctrine addresses “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996). 

Ms. Gomez did, indeed stop talking to the press for a period of time — fearing the threats that law enforcement would consider this to be a probation violation.  Reportedly, a judge told her that her probation would actually be shortened, as a reward for her bravery.  (source)  I am not sure how that might have happened, and there are moving parts in this story that are unclear.  But still, I can think of few clearer First Amendment violations than this.

The deprivation of First Amendment rights, even for a short period of time, is intolerable — especially when the government is threatening criminal prosecution for the exercise of those rights.  And this is especially so when someone is a participant in a matter of public concern, discussing what she saw with her own eyes and ears.

Insert the sound of a screeching eagle, here.

Sen. Cruz is an Unnaturally Born Citizen

by Jay Marshall Wolman

Despair thy charm,

And let the angel whom thou still hast served

Tell thee, Macduff was from his mother’s womb

Untimely ripped.

-Macbeth, Act V, Scene 8

There’s been a lot of talk lately over whether Senator Cruz is eligible to the office of President.  The Constitution requires that the President be a “natural born” citizen.  Article II, Sec. 1, Cl. 5.  Folks have made a lot of originalist/textualist type arguments to help understand this clause.

I want to weigh in from a similar perspective, but one that I think can help frame the discussion.  Two former Solicitors General basically referred first to English statutes in effect at the time of the Revolution and then the Naturalization Act of 1790 to support their understanding that foreign born subjects of citizens are naturally born.  The problem, though, is that does not tell us what the term meant in 1787 under the common law.

If English statutes were imported, the Naturalization Act of 1790 would have been unnecessary.  Presumably, the Framers, the same folks who wrote the Constitution three years earlier, thought it necessary as those born abroad would not otherwise be citizens from birth. OK, so if Ted Cruz was born in Canada in 1788, he would not have been a citizen from birth.  Similarly, we can imagine a scenario where a xenophobic Congress never adopts any naturalization laws.  In that case, when Ted Cruz was born in 1970, there didn’t have to be laws on the books that would have made him a citizen, let alone from birth, and everyone would agree he would not be eligible to the office of President. [More realistically, immigration laws can contain sunset provisions, so we can imagine that citizenship to those born abroad could sunset the day before he was born and emergency legislation enacted the day after restoring the provision.  During that one sunsetted day, Mr. Cruz would not have been an American.]

The question then becomes, can Congress enact a law that makes someone Constitutionally eligible if they otherwise would not be?  Let’s look at the whole clause:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

Congress also has the power to “fix the standard of weights and measures”.  Art. I, Sec. 8, Cl. 4.  Can Congress redefine the word “year” (a measure of time) as something other than 365 (1/4) days to make it so, perhaps, you might not be eligible until the Earth goes around the sun 70 times rather than 35?  It can redefine the word for any purpose, except a Constitutional one.  That would require an Amendment as it would alter the meaning of the word “Year” from what it was in 1787.  So why is “natural born” any different?

If you believe Congress can pass a law that changes the meaning of the Constitution (without express authority to do so, such as the ability to add a state, thus altering the meaning of “within the United States”), then Sen. Cruz is eligible.  Otherwise, no.

The Seventh Amendment Calculator

by Jay Marshall Wolman

There is an interesting financial quirk in the Bill of Rights.  The Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

As some of you may know, the Bill of Rights does not automatically apply to the States; particular clauses are individually held to be incorporated into the Due Process Clause of the 14th Amendment.  This is why, until only recently, the 2nd Amendment was not deemed to restrict a State’s ability to regulate firearms.  See McDonald v. Chicago, 561 U.S. 742 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).  In fact, nearly 100 years ago, the 7th Amendment was held not to apply to the States.  See  Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916).  

This past August, the 1st Circuit Court of Appeals explicitly rejected a ruling by the U.S. District Court for the District of Puerto Rico incorporating the 7th Amendment.  See González-Oyarzun v. Caribbean City Builders, Inc., 798 F.3d 26 (1st Cir. 2015).   González-Oyarzun involved a claim under the Age Discrimination in Employment Act matter; suit was filed in Federal court, but the employer sought to enforce a forum selection clause requiring it be brought in Commonwealth courts.  However, Puerto Rican Commonwealth courts do not enjoy a right to a jury trial in civil disputes, causing the Federal Court to pass on the constitutionality.  The First Circuit disagreed with the District Court based largely on stare decisis and disagreed with the interpretation as to whether McDonald opened the door for the 7th Amendment.  Unfortunately, it does not appear that there was a petition for a writ of certiorari or request for en banc rehearing filed and the time for both has expired.

The District Court decision gave considerable discussion to the Twenty Dollar clause and its impact on small claims cases.  It was troubled by the fact that such a low threshold for a jury demand undermined the efficiency and policies behind a state small claims court.  [Federally, all claims under Federal law in excess of $20 are tried to a jury; claims in diversity are subject to a $75,000 jurisdictional requirement and are unaffected by the clause.]  However, I believe the clause has been misread.

Twenty dollars today is not the same as twenty dollars on Dec. 15, 1791, when the amendment was ratified.  The Coinage Act of 1792 memorialized the definition of the dollar as understood at the time and used since independence:

DOLLARS OR UNITS–each to be of the value of a Spanish milled dollar as the same is now current, and to contain three hundred and twenty-one grains and four sixteenth parts of a grain of pure, or four hundred and sixteen grains of standard silver.

Fiat money was not introduced until much later.  Thus, I would suggest that $20 in the 7th Amendment is not $20 today, nor is it what an inflation calculator might suggest (which, according to this site is about $275 in today’s money).  Instead, it should be equal to 20 * 321.25 grains of pure silver, which is 6,425 grains of pure silver.

As of the time of writing, the value of $20, being equal to 6,425 grains of pure silver, at the time of the 7th Amendment, would have a market value of $188.20 according to this site.  [Under the record high for silver, on Jan. 18, 1980, it would be $661.91.  More recently, on Sept. 2, 2011, it was $575.84.] In the last 12 months, it has hovered around $200.  Likely, then, a State could still approximate it at $200 and require non-jury small claims cases below that threshold.

Of course, then, this calls into question the filing fees for traditional jury claims, which typically well exceed $200.  But that barrier is for another day.

 

News Flash – California Supreme Court to Consider Constitutionality of Prop 8

Just over an hour ago, the California Supreme Court issued an order stating that it will hear the challenge to the consitutionality of Proposition 8, the ballot measure banning same-sex marriage in California which was approved by voters in this month’s election.

The issues to be heard by the Court are:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 14.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Briefs are set to be filed in January 2009.