An Interesting Use of Foreign Law

(By Andrew MacKie-Mason)

In my reading of Arver v. U.S., I ran across an interesting use of foreign law by the U.S. Supreme Court:

And as further evidence that the conclusion we reach is but the inevitable consequence of the provisions of the Constitution as effect follows cause, we briefly recur to events in another environment. The seceding states wrote into the Constitution which was adopted to regulate the government which they sought to establish, in identical words the provisions of the Constitution of the United States which we here have under consideration. And when the right to enforce under that instrument a selective draft law which was enacted not differing in principle from the one here in question was challenged, its validity was upheld evidently after great consideration by the courts of Virginia, of Georgia, of Texas, of Alabama, of Mississippi and of North Carolina, the opinions in some of the cases copiously and critically reviewing the whole grounds which we have stated. Burroughs v. Peyton, 16 Grat. (Va.) 470; Jeffers v. Fair, 33 Ga. 347; Daly and Fitzgerald v. Harris, 33 Ga. Supp. 38, 54; Barber v. Irwin, 34 Ga. 27; Parker v. Kaughman, 34 Ga. 136; Ex parte Coupland, 26 Tex. 386; Ex parte Hill, 38 Ala. 429; In re Emerson, 39 Ala. 437; In re Pille, 39 Ala. 459; Simmons v. Miller, 40 Miss. 19; Gatlin v. Walton, 60 N. C. 333, 408.

Catholics: We're Not The Only Abusers!

(By Andrew MacKie-Mason)

Professor Araujo at Mirror of Justice has a post employing a tactic he's used many times before: whenever someone criticizes the Catholic Church for its complicity in the sexual abuse of children, he points out that Catholic clergy are not a large subset of all child molesters. Why, he laments, is the Catholic Church scapegoated for this, when everyone else does it too?

What this argument misses, as I've pointed out before, is that the Catholic Church has, for years, justified a lot based on its moral superiority. So, when the Church uses its institutional power to defend those who harm children, those actions are far more newsworthy and much more dangerous than lone, individual predators. People trust the Catholic Church with a lot of influence and authority, and so it's extremely important to expose its failings.

The Draft, The Thirteenth Amendment, and Arver

(By Andrew MacKie-Mason)

In the comments thread to a previous post, Emma responded to my claim that the Thirteenth Amendment prohibits military drafts by pointing me to Arver v. U.S., 245 U.S. 366 (1918), a World War I draft case that I was previously unaware of. It's an interesting case dealing with the constitutionality of the draft from various angles, and so I thought it deserved its own post.

1. Enumerated Powers

The first step when evaluating the constitutionality of a federal law is to determine whether or not it lies within one of the categories of authority granted to Congress. The Court in Arver found authority for the draft in the war and armies clauses of Article I. The argument goes that the power to conscript soldiers is a "necessary and proper" means of executing Congress' authority to "raise and support armies." It's a solid, compelling grant of power, though it's still subject to specific limitations found elsewhere in the Constitution.

2. General Liberty Claim

The petitioners apparently argued that "compelled military service is repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty." The Court countered by pointing to each citizen's duty to contribute to the protection of that liberty by engaging, when necessary, in the public defense. As far as general principles go, this argument also seems sound.

3. Federalism

The petitioners also made a weak federalism claim, that the draft authority somehow rested with the states rather than the federal government. If you're interested in this argument you can read about it in the opinion: in my opinion it's not strong enough to demand a detailed refutation. Basically, the states retain power over militias while the federal government has authority over armies.

4. Separation of Powers

The Court off-handedly dismissed, with numerous citations (which you can research if that's your thing) claims that the act is unconstitutional because it:

• delegated federal power to state officials;
• delegated legislative power to executive officials; and
• delegated judicial power to executive officials.

5. Establishment of Religion

There's a serious claim against the specific draft in question under the First Amendment, because the act establishing exempted officials of religious orders and members of certain religious sects from military duty. The Court unconvincingly dismissed these claims as "unsound" without the slightest argument or even a mere citation, in a thoroughly unconvincing manner. However, this claim is specific to that draft, not general to all drafts.

6. Thirteenth Amendment

The last paragraph of Arver finally gets to the argument I'm interested in: that military drafts are forbidden by the Thirteenth Amendment's ban on involuntary servitude. Here's what the Court says, in full:

Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.

While the dismissive nature of this argument is representative of much of the text of Arver (after reading the opinion, Chief Justice Edward White seems an unimpressive jurist), there is one serious argument in the paragraph: that serving in a war approved by Congress cannot be involuntary servitude, since Congress represents the will of the people.

The problem with this argument is that it would therefore approve of any form of involuntary servitude imposed by Congress, that "great representative body of the people." That, clearly, is not in line with the prohibitions of the Thirteenth Amendment.

Further, any reading that supposes that the nature of service is relevant is inherently flawed: the Thirteenth Amendment has only three factors:

1. whether or not service is provided;
2. whether or not that service is voluntary; and
3. whether or not that service is required as punishment for a crime after due process of law.

The nature of the service, it being in "defense of the rights and honor of the nation," is not relevant to the Thirteenth Amendment analysis.

For this reason, I'm inclined to say that Arver incorrect on both First Amendment (in the specific case) and Thirteenth Amendment (in the general case) grounds. Drafts constitute involuntary servitude contrary to the rules of the Thirteenth Amendment, and excluding religious officials from the draft violates the establishment clause of the First Amendment.

By the way, the current male-only draft raises serious Fourteenth Amendment problems not adequately addressed in Rostker v. Goldberg...but more on that later.

Free Contraception?

(By Andrew MacKie-Mason)

In early February (I'm catching up on some old stories), the New York Times reported that the Obama Administration was considering mandating that health insurance providers give out free contraceptives to women as a type of preventative care. There are some decent economic arguments against this, but the idea garnered some irrational opposition from the Roman Catholic Church and other supposedly anti-abortion groups like the Family Research Council. Even though these groups pretend to want to decrease the number of abortions out of a concern for life, they oppose abortion-reducing measures (like free contraception) seemingly because they think that the government should help them impose their idea of sexual morality on its citizens. Of course, it may be too much to expect evenhanded application of Matthew 22:21, but cases like this are revelatory in other contexts, like the abortion debate. It seems clear that these religious groups' primary goal is not the protection of universal principles like life, but rather the imposition of a certain set of outmoded social rules through inappropriate application of the rule of law.

Chicago City Election

(By Andrew MacKie-Mason)

Remember to vote tomorrow (Tuesday) in the Chicago city elections if you're registered here. I recommend Gery J. Chico for Mayor: vote for him if you want an experienced, reasonable, and local administrator running the city. I also recommend voting for Susana A. Mendoza for City Clerk, as Patricia Horton simply has an unimpressive plan (both in substance and style).

As always, though, the important thing is to go out and vote, no matter whom you vote for.

Individual Mandate and the Draft

(By Andrew MacKie-Mason)

Earlier this month, Professor Hills had a post at PrawfsBlawg urging the libertarians attacking the individual mandate to man up and admit that their argument would also undermine Congress' authority to institute a military draft. It's an interesting argument, and one worth reading for its attacks on the anti-mandate movement, but I think it also raises important questions for those of us who support the mandate. Are we forced to acknowledge the constitutionality of the draft?

As a matter of Article I enumerated powers, I think we must. There are certainly times when a draft could conceivably be necessary to raise an army for the common defense. However, I still maintain my constitutional objections to the draft, based on the Thirteenth Amendment: if forced military service, when the government compels you to risk your life, is not "involuntary servitude," then I'm not sure what is.

Supporters of the mandate can rest assured that the individual mandate does not lead us down the intellectual path towards approving of selective service requirements. However, those who oppose the mandate on Article I grounds need to think long and hard about whether they're willing to give up the draft.

Individual Mandate and Individual Liberty

(By Andrew MacKie-Mason)

The reason why those without a vested political opposition to the Patient Protection and Affordable Care Act (PPACA) find the individual mandate litigation so clearly frivolous, and wonder why anyone could possibly agree with the arguments that the litigants are putting forward, is that those litigants are trying to sell two different stories.

In their rhetoric and in the press, the opponents of the mandate are employing the language of individual liberty. We need to strike down the mandate, they argue, because if we don't then Congress can dictate our entire lives. But in the courts, they take a very different approach. We need to strike down the mandate, their legal arguments say, because Congress is encroaching on state sovereignty.

The (lack of) merits of the federalism argument aside (for now), the individual liberty argument, while an important one, is so badly fitted to Commerce Clause litigation so as to make the entire exercise almost ludicrous. What these people should be doing, if we demand intellectual honesty (and can we demand that honesty from "academics" who won't even call the bill by it's real name?) is making a Fifth Amendment liberty and due process claim.

The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The honest legal argument behind the "an individual mandate threatens our liberties!" argument would claim that the imposition of a mandate takes away our liberty without due process of law.

And indeed, many mandates would run afoul of the Fifth Amendment. A mandate to eat broccoli, for instance, would violate our fundamental liberty right to control what goes into our bodies. A mandate requiring people to run on a treadmill every day would require them to devote a certain amount of time to a specified activity, taking away their liberty of action. And if, as some people hypothesize, there were enough mandates to control our actions every moment of the day, we would surely have no liberty left.

In other words, the Fifth Amendment forbids all of those scary mandates: the ones that would make living in the country be like living in prison, because they would control your daily actions.

But does the liberty claim work against the health insurance mandate? Not really. The mandate compels only one, quick, incidental action (the actual purchase). And it doesn't even compel that, because it leaves the payment of a fee or tax as an option instead. Unlike mandates aimed at action, the individual mandate compels only economic loss (like taxes), not loss of liberty (like imprisonment). Money and property are (rightly) protected much less than liberty in the constitution. Failing to recognize that is the primary failing among those who try to use liberty claims to undermine economic mandates.

Prosecution: It's All A Game

(By Andrew MacKie-Mason)

Texas criminal defense lawyer Mark Bennett has an email that he claims he received from an anonymous source in the Harris County Prosecutor's Office. The email, allegedly from one of the supervisors in that office, lays out a series of "Trial Competitions" offering various prizes to prosecutors who obtain certain results. You should look at his blog for the full text of the email to get a real idea for how depraved this situation is, but in short the "competitions" are:

1. The first ADA to try 10 DWI (driving while intoxicated) jury trials will get to sit second chair on a vehicular manslaughter or murder case.
2. The first ADA to try 12 jury trials with at least a 50% win record will get to sit second chair on a murder case.
3. Any "court" (group of prosecutors who are responsible for a certain courtroom) to complete three jury trials in a single week gets to leave work early the next Friday.

None of these competitions encourage the goal that prosecutors are supposed to be aiming at: justice. Instead, they just encourage prosecutors to bring cases to jury trials. Often, however, jury trials aren't the correct disposition for a case. Plea bargains, outright dismissals, and bench trials are approaches that are often justly taken in lieu of a jury trial.

Here's to hoping that the staff of the Harris County Prosecutor's Office is more professional and ethical than their bosses.

Bad Science Reporting

(By Andrew MacKie-Mason)

Bad reporting is a problem that plagues science, whether it's by the media or scientists themselves. Sometimes, bad reporting goes all the way back to misinterpretation of the data, when scientists collect accurate data but then make claims that the data doesn't support.

Here are two examples, one from the New York Times and one from the Maroon, UChicago's student paper.

Few Students Show Proficiency in Science, Tests Show (NY Times)

On the most recent nationwide science test, about a third of fourth graders and a fifth of high school seniors scored at or above the proficiency level, according to results released Tuesday.

But if you continue reading, it quickly becomes clear that the headline is complete rubbish.

Because the Education Department changed the test since it was last administered in 2005, the latest results cannot be used to determine whether science achievement has risen or declined in recent years.

But the results showed that a smaller proportion of 12th graders demonstrated proficiency in science than in any other subject that the government has tested since 2005 — except history.

Twenty-one percent of the nation’s 12th graders scored at or above the proficient level in science on the 2009 tests, compared with 42 percent who demonstrated proficiency on the most recent economics exam, and 38 percent and 26 percent, respectively, on the most recent nationwide reading and math tests.

In other words, less students reached an arbitrary "proficiency" level in one subject than reached a different arbitrary "proficiency" level in another subject. So...what, exactly?

The data shows us how many students reached the given arbitrary level. It doesn't show us how many are "proficient" in a meaningful sense of the word, and it certainly doesn't provide for accurate comparisons with other fields.

Study finds women politicians legislate better (Chicago Maroon)

First of all, I feel a bit sad about the grammar in that headline, but I guess we can let that slide.

What this article does is demonstrate the danger of making unsubstantiated normative claims. From the text:

The study examines two categories in federal spending: constituency services, which is generally quantified by how much money the congressperson is able to bring back to their district, and how many bills were sponsored by women versus men.

The study apparently finds that even when controlling for other factors, female politicians tend to bring more money home and sponsor more bills (which are better received by the public). But none of those things, even public reception of sponsored bills, is necessarily the mark of a "good" legislator.

There's another problem, one stated in the article without the author apparently realizing its full import: there are far fewer female legislators than male legislators currently in office. That suggests that those females who are holding office have to significantly outperform their male counterparts in order to overcome gender discrimination. In other words, the female legislators the study draws from are subject to a selection bias that prefers better women as compared to me. The study tells us nothing, then, about how relative legislative skill would compare between genders should we achieve gender-equality in politics.

At the end of the day, don't ever trust the media to report science accurately, especially in headlines. At the very least, read the rest of the story before you accept what the media is trying to sell you.

What The Far-Right Really Thinks About Bipartisanship

(By Andrew MacKie-Mason)

A few days ago I ran across what is perhaps one of the most disturbing pieces of political commentary I have ever read.

Here at RedState I always hesitate before I praise a proposal by a Democrat. This is a site committed to achieving conservative aims through the Republican party, and I agree with that commitment. But once in a while, on issues less politically charged, a Democrat will come up with something reasonable. This is one of those times.

A commentator added: "no, I say oppose it on principle". What principle, you ask? Apparently, the principle that "Democrats are never right." That's a solid founding principle for a political philosophy.

This attitude, also evident in Michelle Bachmann's "response" to the State of the Union (I use that word hesitatingly, since she didn't really respond to the speech) and to a lesser extent Paul Ryan's response, is what I predict will end up marginalizing those politicians who up till now have capitalized on the Tea Party momentum.

When the rhetoric fades away, certain Republicans are going to come to the table to work with the Democrats. They're going to try to fix health care rather than repealing it with nothing figured out to replace it. They're going to try to fix education, cut the military budget, raise taxes on some people and cut them on the middle class and small business. And that coalition will get things done.

Meanwhile, the Tea Partiers will be off, well...dumping tea in the harbor. They'll demand birth certificates, investigations, and basically forget to govern.

The real question is whether the American voters will be smart enough to see what's going on. I've got some faith left in our electorate, but it's a toss up. I guess we'll see in 2012 when the Tea Partiers have to go home and tell their constituents what, exactly, they've managed to actually accomplish.

Vinson's Health Care Ruling

(By Andrew MacKie-Mason)

Another federal judge just issued a flawed opinion striking down health care reform, except that this one struck down the entire law, not just the individual mandate. According to the New York Times, that puts the count at two judges opposing the law and two supporting it.

I'm going to have a more detailed response to the law later, but for now, here's a roundup of the commentary I've read so far, sorted by viewpoint.

Opposing Ruling (Supporting Reform)

Brian Galle (PrawfsBlawg): Quick Reax to the FL Dist. Ct. Health Care Ruling

Orin Kerr (Volokh Conspiracy): The Weak Link in Judge Vinson’s Opinion Striking Down the Mandate

Rick Hills (PrawfsBlawg): Judge Vinson's incoherent extension of Printz's anti-commandeering principle from states to private persons

David Gans (Balkinization): Giving Originalism a Bad Name

Orin Kerr (Volokh Conspiracy): A Comment on District Court Originalism

Supporting Ruling (Opposing Reform)

David Kopel (Volokh Conspiracy): Judge Vinson rules federal health control unconstitutional

Ilya Somin (Volokh Conspiracy): Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate

An interesting note from an admittedly small sample: both blog posts supporting the ruling employ a traditional trick: renaming something for rhetorical purposes ("health control," "Obamacare"). None of the blog posts opposing the ruling use a similar tactic.