Re: Government Speech and Special Assessments
John Nagle wrote: I am curious about Howard's proposed distinction. Candidate elections are about "the public policy that will prevail in the community," too. And the dangers of elected officials using public funds to entrench their position could easily be matched by non-elected officials doing the same thing. "Government" (loosely understood as a singular entity acting through established policymaking processes controlled by popularly elected or appointed officials) speaks and acts as an entity with regard to the enactment and execution of policy proposals. Government is required to speak out in those ordinary policymaking procedures--to explain its policy and enforcement choices and decisions (why this tax cut? why this tax increase? why this military action), to rally support, to persuade the public as to why certain policies are (and should be) enacted and enforced. And the content of that speech will be focused (presumably) on the public good, on why society benefits from that policy. Issue elections simply are an alternative procedure for establishing that public policy. And government, being responsible for carrying out the ultimate policy, still should have a voice in what is going to be enacted and that government will have to enforce. By contrast, the purpose of candidate elections is to determine the prior and initial question of who government is. That is, who will possess and wield the power to speak or act as government on matters of policy. Government (as an entity) does not and should not speak in the elections at which its very identity will be established. And the content of candidate-election speech will be less focused on the public interest as on the narrower interests of the candidate and her desire to be elected. The danger of elected officials entrenching themselves in power arises primarily (only?) in candidate elections, at which we determine who will assume/retain the power to act as government. The danger is that current office holders will wield the power (and money) to speak/act as government in order to maintain that very power to speak/act as government. The danger also is that public officials will use the power of "government speech" to further their own narrow self-interests in being elected. To the extent public officials (speaking/acting as "government") may seek to entrench their positions through their position on an issue election, those officials still should be subject to the popular check of the candidate election, at which voters decide who government is. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? This is another version of the example I gave in my earlier post--an assessment on the Klan to fund a government educational campaign against racial hatred, discrimination, and violence. I concur with Marty Lederman's explanation for why the movie studio assessment (like the Klan assessment) would be unconstitutional as a tax on speech or on point of view. Howard Wasserman Florida International University College of Law
Gay Lifestyle, Rational Basis SDP analysis
Dear colleagues Please pardon me for asking a couple of questions so late, but I was extremely busy when you were engaged in the email discussions of Lawrence v. Texas. I have been reviewing all of the email sent to the listserve on Lawrence, and I have been given much valuable information and food for thought by your discussion. I may have missed a couple of things, however. If so, please forgive me for raising them again. First, you engaged in an intense discussion of the gay agenda, but I missed it if there was a separate discussion as to what people mean when they speak of the gay lifestyle. I was prompted to make this inquiry after witnessing the Congressman from Oklahoma's First Congressional District make an impassioned attack on the gay lifestyle at his recent townhall meeting. Like many people who use this term, he never defined what it meant to him. In fact, he refused to elaborate on the term despite being asked to do so. My guess is that the term is code for the stereotype of gay and lesbian persons routinely engaging in bath house orgies. Often, people bandying about the term gay lifestyle are those who have not spoken out against the sexually libertine philosophy offered up in such publications as Playboy or Penthouse, such movies as Fast Times at Ridgemont High, and such TV programs as Sex in the City. For me, this raises the issue of whether fornication laws and other laws designed to punish promiscuity are still constitutional, given that they are rarely enforced and that the predominant media portrayal of sexual mores in America is that of promiscuity. It also raises the question of why promiscuity seems to be more objectionable if gays engage in it than if it involves heterosexual participants. Isn't it ironic that the prospect of gay marriage, which might be a moderating influence on sexual promiscuity, has become more controversial constitutionally and legally than has sexual promiscuity? I also have a question about the so-called rational basis analysis used in J. Kennedy's opinion in Lawrence. It is premised on J. Kennedy's belief that sodomy laws do not further any legitimate government interest because they do not advance any government interest in promoting the health and safety of the people as opposed to the moral sentiments of the majority. My understanding of the rational basis test is that any purpose that could be rationally viewed as related to protecting someone from a potential health or safety problem is a legitimate government purpose, and any law that could rationally be viewed as providing some health or safety benefit meets the rational basis SDP analysis test. It is also my understanding that the mechanics of sexual activity defined as sodomy subject persons who regularly engage in sodomy to potential health risks. I failed to find any discussion of this in any of the opinions in Lawrence, but maybe I missed it somehow. Again, sorry to bring up an old subject about which you have provided a comprehensive discussion. But, I would greatly appreciate some feed back on these matters. Gary D. Allison -- Gary D. Allison Professor of Law University of Tulsa College of Law 3120 E. 4th Place Tulsa, Ok 74104 (918) 631-3052 (O); (918) 631-2194 (F) [EMAIL PROTECTED]
Re: Gay Lifestyle, Rational Basis SDP analysis
In response to the question by Gary Allison about what people mean when they refer to the gay lifestyle: I do not believe gay lifestyle is code for promiscuity. I think it is a sloppy synonym for the circumstance of being gay. The word does a lot of work for the speaker. It has installed in its inner workings the feature of expressing vague but elusive ideas about choice, deviation from a norm, inappropriate bodily response to stimuli, disapproval by the speaker of the circumstance of being gay, and the power of the speaker to preempt more descriptive words that describe and disclose factual variety. Its vagueness is part of its power, because its function is to carry a series of assumptions that cannot be debated or refuted. Thus, it only makes sense that the Congressman would decline to define it, which is at best an invitation to sap its strength. It is a tribute to courts and their capacity to elevate discourse that gay lifestyle, used pejoratively, is not a term that commonly appears in court opinions. I did a quick search to see how lifestyle is used by the Supreme Court. I found 32 documents with the term lifestyle. The term is simply descriptive in all but 2 documents, i.e., in Lawrence v. Texas--1) in Scalia's dissent and, in a borderline use by Kennedy and 2) in Michael H. v. Gerald D., in Scalia's reference to the itinerant lifestyle of the mother. Among the contexts for lifestyles, which the Justices have briefly referenced in mostly fact passages: nudist lifestyles, cigar lifestyle magazines, contracts containing clauses allowing for termination for lifestyles contrary to the teachings of the Catholic Church, the lifestyles of grandparents that might have an adverse impact (using a verbatim quote from the record), people who share a common religious belief or lifestyle, changing lifestyles that! might reduce newspaper readership, the parent's interest in shaping a child's values and lifestyle, a mother's itinerant lifestyle (per Scalia), the Indian lifestyle involving the individual's relationship with the natural world in comparison with the way that the Amish's faith dictates their lifestyle, the history or lifestyle of the Pueblos in comparison with other tribes, lifestyles associated with recreational vehicles and mobile living quarters, the feelings of individual users for their land and their lifestyle, possible discrimination against persons with alternative lifestyles, and the transition from the nomadic life of the hunt to the agrarian lifestyle. I conclude that the Court, as the rest of us, mostly uses the term as an occasional catch all to refer to something that is, variously, a way of life inherited and maintained by a group of people, casual consumer choices, groups bonded by a calling and common means of earning a living, general habits in a fami! ly that are impossible to describe except by saying they exist and sur e children, and rebellious alternatives to middle class existence. (Within the ambit of speech by gay people, the term might well be deployed to refer to strongly affiliated groups who define themselves through particular expressive attachments to consumer items, religious belief, etc.) I believe I am correct, and not being unfair, to say that only Justice Scalia uses the term lifestyle in connection with pejorative characterizations. In Lawrence, he says: Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, etcThey view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. By comparison, Kennedy says: The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Kennedy was falling, albeit awkwardly, into the catch all tradition of the term lifestyle--his sentence had to end somewhere, and he was using it as the type of descriptor that it is in the various other contexts listed above. It also served to reinforce the connection between conduct and status that infuenced his conclusion that punishment of the act is a penalty for status. In some writing, I have talked about the function courts serve to bring into the official domain an expansive vocabulary that unearths emerging terms people are using to describe their lives and the needs they have for disputes to be resolved and rights fixed. That writing has suggested that, in this respect, courts serve a democracy-enhancing function of dispersing the power to shape the official vocabulary. Thus, they serve a populist function by giving a degree of editorial help to those whose speech is not otherwise being heard by official bodies or by the culture. The example of gay lifestyle points the other way. Courts retain some power of editorial discretion to avoid using words created for a rhetorical purpose (rather than for a utilitarian
Re: Lopez and as applied considerations of congressional power
According to the SG's brief,Lopez was a twelfth-grade student who was apprehended at schoolcarrying an unloaded .38-caliber revolver andfive cartridges. Lopez purportedly told local and federal agents that he had received the revolver from another person to hold during the school day for delivery to a third person after school,for use in a gang war. I assume Professor Lipkin's implicit question is why the Court did not discuss whether the Gun Free School Zones Act was constitutional as applied to Lopez himself. The simple -- perhaps too simple -- answer is that the statute itself was indifferent to whether the possession was with intent to sell, whether the defendant had an intent to transfer or to facilitate a gang war, whether the gun had travelled in interstate commerce, whether the crime affected interstate commerce, etc.: The law permitted conviction based on evidence (beyond a reasonable doubt) of possession near a school, without more. And presumably that's what the indictment in Lopez charged, and what the trial court found. (Lopez waived his right to a jury trial.) Therefore, there simply wasno factual finding, beyond a reasonable doubt or otherwise, regarding the purpose of Lopez's possession (or from where the gun had traveled, what it was to be used for, etc.). In that circumstance, it would be strange for an appellate court, reviewing the conviction,to hold that the statute was constitutional as applied. Strange, but not unheard of: That's exactlywhat the (unanimous) Supreme Court did in Salinas v. United States, 522 US 52 (1997). In that case the Courtavoided deciding whether the federal bribery statute, 18 U.S.C. 666 -- whichdoes not require the Government to prove the bribe in question had a demonstrated effect upon federal funds -- is beyond Congress's Spending Clause power. The Court instead affirmed the conviction in Salinas "as applied," id. at 60-61: "[T]here is no serious doubt about the constitutionality of section 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jailmanaged pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about [the law's]application in other cases, the application of [section 666] to Salinas did not extend federal power beyond its proper bounds." What's really remarkable about Salinas is that there was nofinding of fact in the trial court, nor any instruction to the jury that it had tofind, that "[t]he preferential treatment accorded to [Beltran] was a threat to the integrity and proper operation of the federal program." That's precisely what section 666 didnotrequire the government to prove -- which waswhy there was a constitutional challenge in the firstplace (or, more precisely,why there was an argument that the Constitution compelled a narrowing statutory construction that the Court rejected). Why didn't the Court in Lopez similarly hold something like the following?: "[T]here is no serious doubt about the constitutionality of [the GFSZA] as applied to the facts of this case. Lopez without question possessed the gun with the intent to distribute it for purposes of a gang war. Whatever might be said about [the law's]application in other cases, the application of [the Act] to Lopez did not extend federal power beyond its proper bounds." Perhaps because the Government in Lopez did not ask the Courtfor such an "as applied" holding; nor did the Government even ask the Courtto remand the case for retrial on the questions of, e.g., the purposes of Lopez's possession, whether the gun had crossed state lines, etc. The short answer,from a practical perspective, is that the Court will analyze the statute "as applied,"and will avoid the "facial" question of Congress's power, if and when it wants to do so. (There is virtually no discussion in the Court's cases concerning whether and under what circumstances the Court should consider questions of congressional authority "as applied.")Compare, e.g.,Florida Prepaid, in which the Court majority in effect ignored Justice Stevens's argument, 527 U.S. at 654,that the federal patent statute was constitutional as applied to willful (and thus unconstitutional) state infringements, as alleged in the particular case, withU.S. v. Raines, 362 U.S. 17, 24-25 (1960) (Civil Rights Act of 1957 was proper Fifteenth Amendment enforcement legislation as applied to state official, even though statute on its face did not distinguish between public and private defendants). - Original Message - From: Robert Justin Lipkin To: [EMAIL PROTECTED] Sent: Tuesday, July 29, 2003 7:57 PM Subject: Lopez's Fateful Day at School I seem to remember reading recently that respondent Lopez carried the gun to school that fateful day in order
