Category Archives: Law: Constitutional Law

The Corporation at Prayer (and Other Things)

Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.

It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,

Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.

Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?

I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.

(Article spotted via Larry Solum.)

Posted in Civil Liberties, Law: Constitutional Law | 8 Comments

The Fourth Amendment at Sea

Via PogoWasRight a link to Coast Guard Boardings and Your Fourth Amendment Rights, Part 1. According to the author, the 4th Amendment has no traction at sea: the Coast Guard can board US flag ships at will, whether on the seas, on rivers, or in port, without the least suspicion.

Sorry, but when it comes to Coast Guard boardings, you don’t have any rights.

I’m surprised how many boaters don’t know this. The US Coast Guard can board your boat any time they want, and look anywhere they want, without probable cause or a warrant. They can do this on the open sea, or while you’re asleep aboard in your marina at midnight. They can look through your bedsheets, in your lockers, in your bilges, in your jewelry box, or in your pockets. They can do it carrying just their sidearms, or they can do it carrying assault rifles. They can be polite about it or they can be rude, but mostly they’re polite.

The article does not say, but I presume this even applies to houseboats?

Posted in Civil Liberties, Law: Constitutional Law | 1 Comment

Free E-Book by Peter Shane

The University of Chicago Press is offering a free electronic version of Peter Shane’s 2009 book Madison’s Nightmare: How Executive Power Threatens American Democracy.

Shane is always worth a read. And it’s hard to argue with the premise.

Posted in Law: Constitutional Law | Leave a comment

When Is a Tax Not a Tax?

The Supreme Court has upheld the very large majority of the health care bill. In particular, it upheld the individual mandate 5-4 (with Roberts, without Kennedy) on the grounds that it is a tax — having rejected it as a valid application of the Commerce Clause.

But for purposes of the anti-Injunction Act (always my favorite grounds for decision, but pretty clearly not a winner after its reception below not to mention the oral argument and the Administration’s attempt to disclaim the argument), the individual mandate is not a tax.

That sounds odd. But the opinions are long, and I need to read them to see how that happened.

Update: The answer seems to be statutory interpretation — Congress gets to say when things (tax or not) are covered by the anti-injunction act, and the five Justices in the majority don’t see Congress as intending that result here given the choice of the word “penalty” for the mandate’s fines while “tax” was used elsewhere. The principle asserted is that for Constitutional purposes the Court must look through Congressional labels to see what things really are, but that for statutory interpretation involving the interplay of different statutes, in principle Congress gets to call things whatever it likes and here the Court is reading in the not-a-tax-for-anti-injunction-purposes meaning from the statutory word choices.

Posted in Law: Constitutional Law, Law: The Supremes | Leave a comment

Federal Court Enjoins Oppressive Florida Rule Designed to Make Voter Registration Difficult

Florida’s GOP war on (minority and Democratic) voters has two parts. First, there is the well-publicized effort to throw tens of thousands of legitimate voters off the rolls in ostensible pursuit of what may be only a handful of noncitizen voters at most.

The second, less-well-known effort, is a new set of Florida state rules that make it very difficult to register new voters, and create severe penalties for anyone who doesn’t precisely comply with them. These rules are so onerous that many groups that formerly routinely ran voter registration drives, like the League of Women Voters, stopped doing it because they found the new rules were impossible to comply with.

Now, thanks to a lawsuit by the League of Women Voters of Florida, Florida Public Interest Research Group Education Fund, and Rock the Vote, a federal judge in Tallahassee, no hotbed of liberalism, has issued a preliminary injunction halting enforcement of key parts of the voter-registration-suppression scheme:

The statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional even to the extent they do not violate the [National Voting Rights Act].

This is good news, and on a quick read I found the opinion very persuasive, so I have high hopes that it would survive an appeal (although voting law is not my area, so I welcome other views).

Posted in Florida, Law: Constitutional Law, Politics: The Party of Sleaze | 1 Comment

I Wish They Had Sought Recusal

Text of DOJ Letter to 5th Circuit Panel in Phvsician Hospitals of America v. Sebelius.

This letter is a temperate reply to the intemperate request by Judge Jerry E. Smith. I think Judge Smith’s impartiality could reasonably be questioned after his outburst. Cf. 28 USC § 144.

Update: Kevin Drum exposes the contempt of court hidden in plain sight in the DOJ letter. [link fixed, sorry]

Posted in Law: Constitutional Law | 1 Comment

Prof. Bolling Explains the New US Constitution

In easy-to-understand pictures.

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