Earlier this month, a federal trial judge upheld Alabama’s voter ID law against constitutional and statutory challenge. The case is on appeal.
The 14th Amendment to the U.S. Constitution guarantees equal protection of the law. The 15th Amendment says the right to vote shall not be denied on account of race.
State voter ID laws have survived most such challenges since the Supreme Court upheld Indiana’s statute in 2008. [Crawford v. Marion County] There was no majority opinion in that case. Three Justices applied a balancing test, finding in Indiana’s case that any burden the ID requirement placed on the right to vote was outweighed by the state’s interest in preventing voter fraud. In dissent, Justice Souter said there was no evidence of voter fraud in the record that photo ID could have fixed.
Perhaps this is why the judge in the Alabama case this month went out of his way to list several types of voter fraud that had occurred in the state over time, even though the Supreme Court in 2008 did not require any evidence of fraud. [District Court opinion, p. 55] These include pressuring nursing home patients [more on that subject here] and the bulk mailing of hundreds of absentee ballots at a time. One of Alabama’s requirements is to include a copy of a photo ID with every absentee ballot cast.
The judge also emphasized how easy it is to get a photo ID. Almost everybody has one. Anybody can get one with little effort and no cost. There is no discrimination because everyone has the same opportunity to get an ID, the judge reasoned. Alabama even has a mobile ID unit that goes out to every county providing free IDs.
The NAACP and other plaintiffs argued that voter ID laws are discriminatory because they have a disparate impact on minority voters. Fewer such voters have IDs and it’s harder for them to get an ID. Thus, voter ID laws suppress the minority vote, the plaintiffs argued.
The case for voter suppression is pretty thin. While there are some studies that find minute differences for minority voters, the studies as a whole are inconclusive. Also, studies finding voter suppression have been criticized as biased and flawed. Moreover, minority turnout actually INCREASED in at least three states after voter ID laws were passed, including Wisconsin where the vote in heavily black Milwaukee nearly doubled.
There are voter ID laws in more than a dozen states, and most of them have been upheld. But not always. Change the facts and the case can go the other way, like in North Carolina where a court found evidence that the state legislature had intentionally discriminated against minorities, targeting black voters “with almost surgical precision,” in the court’s words.
The judge in the Alabama case cited precedent to the effect that disparate impact alone is not enough to find a statute unconstitutional. “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” [citing precedent at p. 40] That proof existed in North Carolina. There, the legislature asked for data on several voting practices by race, then crafted a law that, among other things, excluded many of the types of photo IDs typically used by black voters while retaining the types more commonly used by white voters. [opinion at pp. 56-58]
Barring that kind of proof, though, voter ID laws will generally be upheld. The whole voter suppression narrative is based on the racist premise that minorities are too stupid to figure all this out. Ami Horowitz posted a great video in 2016 where he asked blacks on the street in East Harlem if they had ID or would have any problem presenting ID to vote. Their reactions said it all, with many of the respondents expressing surprise anybody would even ask such questions. When I wrote about this at the time, a friend reported back to me that the video was shown to minorities waiting in line to vote in Colorado and they were offended, as well they should be, because now they know what Progressives really think of them.
At the end of the year, unless Congress intervenes, some copyrighted works will fall into the public domain for the first time since 1997. These works, created in 1923, include the song ‘Yes! We Have No Bananas’, a Charlie Chaplin movie, and Kahlil Gibran's The Prophet.
Article I, Section 8 of the U.S. Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To issue patents and copyrights, in other words.
This power was not granted in the preceding Articles of Confederation, although some states had their own laws. The Founders decided it didn’t make much sense to have patent and copyright protection stop at the state line, because people could profit elsewhere from stealing the invention or writing, thereby lessening the economic incentive to create such works. [remarks of Thomas McKean at the Pennsylvania ratifying convention] The Copyright and Patent Clause was adopted unanimously at the Constitutional Convention in Philadelphia without debate. Trademarks are protected separately, under the Commerce Clause.
The validity of both copyright and patent protection depends on originality. Copyright only applies to original works and a patent must also display originality, not just be an improvement on an existing item. The copyright office requires authors to be human. Sorry, elephant art need not apply. The question whether computer-generated computer code is copyrightable has not been litigated.
The most interesting constitutional question that’s come up in copyright is whether Congress violates the Constitution by repeatedly extending the term of copyrights so they don’t expire. The language in the Constitution only empowers Congress to grant copyrights for a “limited time”, not into perpetuity. The Supreme Court ruled in 2003 that Congress did not exceed its constitutional authority, or establish perpetual copyrights, by enacting what is derisively called ‘the Mickey Mouse Protection Act’ which continued a pattern of repeated, retroactive extensions [Eldred v. Ashcroft]. So Mickey’s still safe, for now.
Don’t overlook a couple of basic points in all of this. First, copyright and patent protections are engines of our prosperity. American books, songs, movies, and inventions have been preeminent around the world in no small part because their creators were assured by law of a return on their efforts here at home.
Second, these rights - granted by the government though they may be - are part of the fabric of our freedom. They are integral to our economic freedom, a Tea Party core value. We’re free to write and invent, and reap the rewards. Theoretically, the government could take away these rights. Remember, Article 1, Section 8 gives Congress the power to set up copyrights and patents, but does not require it to do so. But copyrights and patents were already in use on the continent by the time of the Founding. The Founders wisely provided for their more systematic protection on a national basis. Once again, the Founders got it right and we are more prosperous and more free as a result.
People don’t remember this but, in 1857, federal troops marched on Utah because that state wanted to chart its own course with respect to ‘plural marriage’ – otherwise known as polygamy - and preserving theocratic elements in its state government. The War of Utah ended after a few brief skirmishes when Brigham Young submitted to the authority of the federal government.
Today, we have 28 states and the District of Columbia trying to chart their own course on marijuana for medical or recreational use, even though marijuana is a controlled substance and illegal under federal law. But Attorney General Jeff Sessions at the beginning of the year rescinded the Obama administration’s hands-off marijuana enforcement policy. Under the Trump administration’s new policy, federal prosecutors across the country will decide whether and how to enforce federal laws against pot in states where it is legal.
You’d think the Supremacy Clause in the U.S. Constitution would make pot enforcement a slam dunk. Article VI, Clause 2 clearly says federal laws, treaties, and the U.S. Constitution are the supreme law of the land. But the U.S. Supreme Court turned away a Supremacy Clause challenge to Colorado’s marijuana laws in 2016. Ron Paul argues that the U.S. Constitution does not give the federal government the power to criminalize marijuana in the first place and, thus, that power is reserved to the states under the Tenth Amendment.
The nation has a long history of trotting out states’ rights arguments for all sorts of things, including the justification of slavery. As Tea Partiers know, Jefferson and Madison wrote in favor of allowing nullification of federal law, saying states have a duty to protect citizens from federal usurpations of power. More recently, former Attorney General Eric Holder said nullification has become an interesting question.
And so it has. The Left has used nullification arguments to advance liberal positions on sanctuary cities and states, indefinite military detention under the NDAA, and mass surveillance, as well as to legalize marijuana at the state level.
Small-government types, on the other hand, have used nullification arguments to try to get out from under federal laws regarding gun control, abortion, the environment, Agenda 21, Common Core, and Obamacare insurance mandates.
So nullification is neither good nor bad. Law is a weapon. Nullification and the Tenth Amendment are arrows in the quiver. Pull them out when they can help you get to where you want to go.
As for marijuana, Jeff Sessions won’t be sending federal troops to California any time soon. But we have an untenable situation. Twenty-eight states and the District of Columbia just say no to federal marijuana laws, but those laws remain on the books. This breeds disrespect for the Rule of Law and needs to be resolved, one way or another.
We didn’t have the federal right to gay marriage in this country until, one day, the Supreme Court said we did. And we didn’t have a federal individual right to bear arms, either, until one day the Supreme Court created one. How these rights came about says everything about how constitutional law is made in America today.
The ins and outs of constitutional campaigns are ably described in a recent book, Engines of Liberty – The Power of Citizen Activists to Make Constitutional Law, by the national director of the ACLU, David Cole. Written from a liberal perspective, this book does for constitutional campaigns what The Blueprint did for political campaigns. The Blueprint is the story of how the Democrats masterfully turned Colorado blue in 2008. Both books are essential reading for anyone who wants to know how these things are done, successfully.
A right to gay marriage was ‘found’ by the Supreme Court in Obergefell v. Hodges in 2015. But it didn’t happen overnight. The campaign for it began in the 1980s, starting incrementally with smaller issues like adoption, inheritance, and domestic partnerships in key states. Advocates picked their battles carefully – sometimes suing in court, other times lobbying for legislation or pushing for referendums. For example, they sued in states where they expected to win in court and the law made it difficult to overturn a court victory by getting an amendment to the state constitution.
There was plenty of opposition at the beginning. By 2006, 27 states had constitutional amendments banning same-sex marriage. But advocates worked on shifting public opinion, eventually switching their messaging from gay equality to love and commitment, and using straight people with appealing stories to deliver it. Gone was confrontational language about gay rights. The new messengers could easily have been your neighbors, ordinary folks that people could identify with. They told stories about how they overcame their doubts on the issue. By the time Obergefell was decided, polls showed a majority of Americans favored recognition of same-sex marriage and more than 60 lower courts had upheld the right. Advocates didn’t go to the Supreme Court until a tipping point had been reached, and it could be said that the Court would not be leading social change, but merely reflecting it.
Many of the same ingredients were present in the run-up to the gun case District of Columbia v. Heller, which was decided in 2008. Prior to Heller, it was thought that the right to bear arms was only about protecting a state’s right to maintain a militia. Gun rights advocates, led by the NRA, first worked to effect change at the state level. By the time Heller declared a federal constitutional right, all but six state constitutions recognized a right to bear arms and most of those protected an individual right to have guns for self-defense and other personal purposes.
The campaign hinged on new scholarship – law review articles paid for by advocates - showing an individual right to bear arms in the historical record, starting in 17th-century England. That scholarship “won the case,” the federal government’s lawyer would later say. Other key techniques included drawing on the NRA’s huge passionate national membership for lobbying purposes, getting state laws preempting the use of local gun control ordinances, supporting – and punishing - politicians, and influencing the nomination of Supreme Court justices. The NRA even endorsed the socialist Bernie Sanders for the U.S. House in 1990 because his opponent had supported an assault weapons ban. The NRA would go on to get Congress to expressly recognize an individual right to bear arms in the preamble to a 2005 piece of legislation. As with gay marriage, it was a matter of mapping out incremental steps and deciding how best to sequence them. The Heller case was filed against the wishes of the NRA which felt the time was not yet right, but the time had indeed come.
There’s a bonus section in the book on changes to constitutional law and civil liberties that came about after 9/11 as a result of activists using many of the same techniques previously discussed – effective messaging, rallying public opinion, etc. Prior to that campaign, it was thought hopeless to expect courts to grant writs of habeas corpus to Guantanamo prisoners and other detainees in the war on terror, but advocates managed to completely change constitutional law in that regard. They even got Fred Korematsu to write an amicus brief in the Guantanamo case urging the Supreme Court not to repeat the mistake it had made in the notorious 1944 decision that bears his name upholding the internment of Japanese-Americans in World War II. Advocates also succeeded in getting the Bush administration to change many of its practices in the war on terror, short of constitutional change.
To wrap up, suppose you think, as I do, that something’s out of whack when the Supreme Court can make up new fundamental rights out of thin air when what we should really be doing, instead, is getting back to using the amendment process. The current practice is still marginally better than what the Supreme Court did in Brown v. Board of Education. In that case, the Court was way out ahead of the country with regard to school desegregation. The Brown decision never really took hold. It was ten years before the Supreme Court dared say another word about school desegregation. There were massive fights and upheaval about school busing in the ‘60s and ‘70s and there’s still resistance to school desegregation to this day. Today, things are actually going backwards. Segregation in schools is getting worse, not better, despite the Supreme Court’s edict in Brown. The Supreme Court’s social experiment in school desegregation is a complete failure.
Compare that to what happened after Obergefell. Hardly a peep out of anybody about gay marriage. Heller is a bit different – the Left has never let up on its gun-grabbing efforts. But, still, the ongoing gun control fight is nothing like what happened after Brown. It seems the Supreme Court took a lesson from Brown not to get out too far ahead of public opinion, but hasn’t learned yet that top-down social engineering by nine unelected lawyers without any basis whatsoever in the Constitution is completely unacceptable, regardless of how many people agree with them.
There’s an app for that, but we’ll leave that to another day.