Re: self-rule and liberty
I certainly agree with Tim's general sentiments, but current accepted doctrine simply does not follow this concept. The Federalist Papers (among many other sources) said that the main institutional constraint that prevented rulers from self-dealing was the rule of law because any statute passed would also curtail the legislators. However, Congress routinely passes statutes limiting e.g. job discrimination that do not cover Congress' own hiring practices. The Court usually (not always, remember the burning cross case) allows Congress to legislate for part of a problem. Furthermore, last time I looked (about a year ago) no Supreme Court case had ever relied on the Preamble (has been mentioned a few times) as a separate limit on federal government power. So theory is nice, but how should/would/could this 18th century concept of self-rule be enforced? Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] - Original Message - From: msellers [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Sunday, July 27, 2003 8:41 PM Subject: Re: self-rule and liberty Defining constitutional terms can be very helpful in working out which values are more fundamental, and therefore underly others in constitutional discourse. Self-rule is an important idea, that deserves careful examination. The preamble to the U.S. Constitution lists securing the blessings of liberty as one fundamental purpose of the United States. This strikes me as a better way of expressing the values hinted at by self-rule. Liberty signified (for the framers) the absence of arbitrary rule. Free citizens are ruled by law, not by other persons. But neither are they ruled entirely by themselves. Self-rule implies an absence of constraint -- much like the license of the framers -- the ability to do what one wants, without external limitations. Liberty, by contrast, requires setting the right limits on all citizens, to prevent the exploitation of some by others. Popular sovereignty is necessary, because it prevents domination. Self-rule, inotherwords, in the form of representative democracy, is justified by its utility in preventing exploitation, by setting the right limits on what some citizens may do to others, or on the power of public officials. It is of great importance in the service of liberty, but as a secondary value. Outvoted minorities can still be free, despite the limits set on their self-rule, provided they are overruled for the common good, to prevent injustices to others. Tim Sellers = Original Message From Discussion list for con law professors [EMAIL PROTECTED] = The question of explaining the sense in which overridden minorities still enjoy freedom is endemic to any theory of democracy/republicanism/liberty or even the absence of internal domination. Whenever less than a unanimous vote is concerned, how can the losers be described as engaging in self-rule, as being free, or as living in the absence of internal domination? And, of course, consent theory generally addresses this question. John Locke raised this issue without ever mentioning self-rule, I think. The problem of explaining the role of political minorities in either democracies or republics is fundamental, but it is hardly a problem only for those of us who embrace self-rule as the concept underlying democracy and republicanism. Incidentally, Habermas, Michelman, and Tushnet (Tushnet most recently in a symposium on democracy and judicial review in Law and Philosophy) among others have raised the question of minority status in democracies. Tim is right in emphasizing its critical importance to any theory of self-rule (whoops, there I go again). Bobby Lipkin Widener University School of Law Delaware
Re: Government Speech and Special Assessments
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. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote: Scarberry, Mark wrote: Government's ability to speak in the public debate must be limited to some extent when campaigns are involved. As I noted once before on this list, at one time the state of California was running ads suggesting that tobacco companies would lie to the voters who were being asked to decide referenda on various smoking related issues. I don't know where the funds for the ads came from, but this was very troubling to me. In the analogous context of a political campaign for public offices, there must be limits on the government's ability to campaign. Otherwise a party in power could perpetuate itself by voting to spend as much as was needed to defeat all opposition.I would agree as to candidate elections (in which the current officeholders could be using the government entity itself, and government moneys, to perpetuate thier positions of power), but not as to referena. If the question before the electorate is the public policy that will prevail in the community, then the government (which we ordinarily entrust to make policy decisions and which always will be responsible for carrying out those decisions) should be involved in that conversation to the same degree (and with the same amounts of money) as everyone else. I would not have been troubled by the California ads, although I would take momentary pause if (as in the recent California case) they were funded by assessments on the tobacco companies themselves. Howard Wasserman Florida International University College of Law John Copeland Nagle Professor of Law Notre Dame Law School Notre Dame, IN 46556 (574) 631-9407 (574) 631-8078 (fax)
Re: Government Speech and Special Assessments
John Nagle asks: "[I]f the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment?" Perhaps not,but only because that would be a tax on speech itself -- i.e., on the practice of making movies -- and presumably the tax would be justifiedon the ground that the speech (violent films) causes harm. The FirstAmendment doesn't permit that. But the tobacco tax is a different story altogether. Growing tobacco, and making tobacco products, is not constitutionally protected activity. And a tax on tobacco products obviously does not violate the Constitution, without more. So what's the constitutional concern with using the tobacco tax revenues for a goernment-run anti-tobaccocampaign?Or, more to the point, why would this possibly raise a First Amendment concern? I assume all would agree that the government can run the anti-cigarette campaign using general tax revenues, and that the First Amendment would not in that case require any sort of refund to those who disagree with the campaign, those injured by the campaign, those who think the campaign is a waste of tax dollars, etc. So why is there any more of a Free Speech concern when the campaign is (nominally) paid for by a special assessment on the tobacco industry? (I say "nominally" because although the revenues for the campaign come from an "earmarked" bookkeeping account, nevertheless money is fungible, and therefore one can plausibly argue that the campaign is largely subsidized by all tax revenues, including, e.g., general income and sales taxes.) Even assuming, as PGE suggests,that corporations have a Barnette-like right not to speak, they're not being required to speak here.Norare they being required to "host" government speech on their personal property, as in Wooley. There is not any risk of misattribution: No one would think that the campaign expresses the views of the tobacco industry. And there's no general First Amendmentright nottohave the government spend specialassessments in a manner that the taxed entity disapproves -- Phillip Morris surely could not complain if the government used the special assessment to, e.g., develop a good-tasting no-nicotine cigarette. So what, exactly, is the constitutional problem? Marty Lederman - Original Message - From: John Nagle To: [EMAIL PROTECTED] Sent: Monday, July 28, 2003 6:40 PM Subject: Re: Government Speech and Special Assessments 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. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment?At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote: Scarberry, Mark wrote: Government's ability to speak in the public debate must be limited to some extent when campaigns are involved. As I noted once before on this list, at one time the state of California was running ads suggesting that tobacco companies would lie to the voters who were being asked to decide referenda on various smoking related issues. I don't know where the funds for the ads came from, but this was very troubling to me. In the analogous context of a political campaign for public offices, there must be limits on the government's ability to campaign. Otherwise a party in power could perpetuate itself by voting to spend as much as was needed to defeat all opposition.I would agree as to candidate elections (in which the current officeholders could be using the government entity itself, and government moneys, to perpetuate thier positions of power), but not as to referena. If the question before the electorate is the public policy that will prevail in the community, then the government (which we ordinarily entrust to make policy decisions and which always will be responsible for carrying out those decisions) should be involved in that conversation to the same degree (and with the same amounts of money) as everyone else. I would not have been troubled by the California ads, although I would take momentary pause if (as in the recent California case) they were funded by assessments on the tobacco companies themselves.Howard WassermanFlorida International University College of Law John Copeland NagleProfessor of LawNotre Dame Law SchoolNotre Dame, IN 46556(574) 631-9407(574) 631-8078 (fax)
Re: Government Speech and Special Assessments
Just to clarify the point of my earlier post: My concern is not with the source of the funds, but rather with the government using public funds to engage in campaigning, so as to influence voters. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Monday, July 28, 2003 4:11 PM To: [EMAIL PROTECTED] Subject: Re: Government Speech and Special Assessments John Nagle asks: [I]f the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? Perhaps not,but only because that would be a tax on speech itself -- i.e., on the practice of making movies -- and presumably the tax would be justifiedon the ground that the speech (violent films) causes harm. The FirstAmendment doesn't permit that. But the tobacco tax is a different story altogether. Growing tobacco, and making tobacco products, is not constitutionally protected activity. And a tax on tobacco products obviously does not violate the Constitution, without more. So what's the constitutional concern with using the tobacco tax revenues for a goernment-run anti-tobaccocampaign?Or, more to the point, why would this possibly raise a First Amendment concern? I assume all would agree that the government can run the anti-cigarette campaign using general tax revenues, and that the First Amendment would not in that case require any sort of refund to those who disagree with the campaign, those injured by the campaign, those who think the campaign is a waste of tax dollars, etc. So why is there any more of a Free Speech concern when the campaign is (nominally) paid for by a special assessment on the tobacco industry? (I say nominally because although the revenues for the campaign come from an earmarked bookkeeping account, nevertheless money is fungible, and therefore one can plausibly argue that the campaign is largely subsidized by all tax revenues, including, e.g., general income and sales taxes.) Even assuming, as PGE suggests,that corporations have a Barnette-like right not to speak, they're not being required to speak here.Norare they being required to host government speech on their personal property, as in Wooley. There is not any risk of misattribution: No one would think that the campaign expresses the views of the tobacco industry. And there's no general First Amendmentright nottohave the government spend specialassessments in a manner that the taxed entity disapproves -- Phillip Morris surely could not complain if the government used the special assessment to, e.g., develop a good-tasting no-nicotine cigarette. So what, exactly, is the constitutional problem? Marty Lederman - Original Message - From: John Nagle To: [EMAIL PROTECTED] Sent: Monday, July 28, 2003 6:40 PM Subject: Re: Government Speech and Special Assessments 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. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote: Scarberry, Mark wrote: Government's ability to speak in the public debate must be limited to some extent when campaigns are involved. As I noted once before on this list, at one time the state of California was running ads suggesting that tobacco companies would lie to the voters who were being asked to decide referenda on various smoking related issues. I don't know where the funds for the ads came from, but this was very troubling to me. In the analogous context of a political campaign for public offices, there must be limits on the government's ability to campaign. Otherwise a party in power could perpetuate itself by voting to spend as much as was needed to defeat all opposition. I would agree as to candidate elections (in which the current officeholders could be using the government entity itself, and government moneys, to perpetuate thier positions of power), but not as to referena. If the question before the electorate is the public policy that will prevail in the community, then the government (which we ordinarily entrust to make policy decisions and which always will be responsible for carrying out those decisions) should be involved in that conversation to the same degree (and with the same amounts of money) as everyone else. I would not have been troubled by the California ads, although I would take momentary pause if (as in the recent California case) they were funded by assessments on the tobacco companies themselves. Howard
self-rule and liberty as fundamental constitutional values
Bobby Lipkin has raised the question of precedence among underlying constitutional values and proposed self-rule as the most fundamental constitutional idea in our system, both as it is and as it ought to be. I responded by proposing liberty as a more fundamental (and substantively more important) value in American constitutional law. These questions of precedence are important, and worthy of discussion on this list, because they illuminate how the constitution ought to be interpreted. If current doctrine has strayed from the pursuit of liberty, as understood by the framers (including the authors of the Fourteenth Amendment), then it is in need of correction, and ought to be criticized by professors of law. Malla Pollack has objected that contemporary constitutional jurisprudence tolerates corruption in the form of special exceptions to general rules of law. The fact that the framers (quite rightly)understood liberty to require equal citizenship under law gives those who disapprove of such corruption a basis for objecting to discriminatory legislation (and for criticizing judges who tolerate it.) Tim Sellers = Original Message From Discussion list for con law professors [EMAIL PROTECTED] = I certainly agree with Tim's general sentiments, but current accepted doctrine simply does not follow this concept. The Federalist Papers (among many other sources) said that the main institutional constraint that prevented rulers from self-dealing was the rule of law because any statute passed would also curtail the legislators. However, Congress routinely passes statutes limiting e.g. job discrimination that do not cover Congress' own hiring practices. The Court usually (not always, remember the burning cross case) allows Congress to legislate for part of a problem. Furthermore, last time I looked (about a year ago) no Supreme Court case had ever relied on the Preamble (has been mentioned a few times) as a separate limit on federal government power. So theory is nice, but how should/would/could this 18th century concept of self-rule be enforced? Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] - Original Message - From: msellers [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Sunday, July 27, 2003 8:41 PM Subject: Re: self-rule and liberty Defining constitutional terms can be very helpful in working out which values are more fundamental, and therefore underly others in constitutional discourse. Self-rule is an important idea, that deserves careful examination. The preamble to the U.S. Constitution lists securing the blessings of liberty as one fundamental purpose of the United States. This strikes me as a better way of expressing the values hinted at by self-rule. Liberty signified (for the framers) the absence of arbitrary rule. Free citizens are ruled by law, not by other persons. But neither are they ruled entirely by themselves. Self-rule implies an absence of constraint -- much like the license of the framers -- the ability to do what one wants, without external limitations. Liberty, by contrast, requires setting the right limits on all citizens, to prevent the exploitation of some by others. Popular sovereignty is necessary, because it prevents domination. Self-rule, inotherwords, in the form of representative democracy, is justified by its utility in preventing exploitation, by setting the right limits on what some citizens may do to others, or on the power of public officials. It is of great importance in the service of liberty, but as a secondary value. Outvoted minorities can still be free, despite the limits set on their self-rule, provided they are overruled for the common good, to prevent injustices to others. Tim Sellers = Original Message From Discussion list for con law professors [EMAIL PROTECTED] = The question of explaining the sense in which overridden minorities still enjoy freedom is endemic to any theory of democracy/republicanism/liberty or even the absence of internal domination. Whenever less than a unanimous vote is concerned, how can the losers be described as engaging in self-rule, as being free, or as living in the absence of internal domination? And, of course, consent theory generally addresses this question. John Locke raised this issue without ever mentioning self-rule, I think. The problem of explaining the role of political minorities in either democracies or republics is fundamental, but it is hardly a problem only for those of us who embrace self-rule as the concept underlying democracy and republicanism. Incidentally, Habermas, Michelman, and Tushnet (Tushnet most recently in a symposium on democracy and judicial review in Law and Philosophy) among others have raised the question of minority status in democracies. Tim is right in emphasizing its critical importance to any theory of self-rule
