Porter quotes Richard Hammond’s observations:

In a country where mistrust of government is rife, the temptation to substitute supposedly impersonal calculation for personal, responsible decisions … cannot but be exceedingly strong. (195)

Porter goes on to refer to Sheila Jasanoff‘s observation that “Americans fear expertise … yet insist that administrative decisions be depoliticized” and thus “oscillate ‘between deference and skepticism toward experts’” (195). The United States — which “continues to nourish a distinguished tradition of anti-intellectualism” — paradoxically seeks “experts who are not intellectuals or men of culture at all” (195). Porter writes:

Procedures have become as important as outcomes, and rules may be maintained even though they are unable to accomodate new kinds of relevant scientific information (197).

The Courts

American courts generally emphasize process, too, encouraging the application of rules by courtroom experts: “science should mean the straightforward application of general laws to particular circumstances” (195). Attorneys attack courtroom experts for having personal opinions and unique approaches to their studies. “General acceptability” was the core component of Frye, and the modern standard for acceptance of expert testimony (Daubert) emphasizes this factor too (though it expands beyond it).

The Supreme Court’s “hard look” doctrine emphasizes this, too. That doctrine requires judicial review of agency decisions are “arbitrary and capricious.” It requires administrative agencies to maintain a proper record of evidence and actions, adequately consider evidence and various analyses, and explain their reasoning. The doctrine is not intended to emphasize outcomes, but rather to encourage objective process. Even this doctrine, aimed as it is at process and not outcomes, has been attacked as too political (i.e., not objective enough):

Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration. Keller, Scott A., “Depoliticizing Judicial Review of Agency Rulemaking,” 2009.

United States vs. Europe

The American approach — the way agencies make decisions and the way courts review those decisions — is distinctly different from how it’s done in Europe. Although they vary in their details, in general, all European approaches “are capable in some measure of formulating policies and determining how to apply them through negotiation with the interested parties, behind closed doors” (197). For good or ill, European states tend to institutionally trust their elite experts and the agencies they staff — but American agencies today lack this kind of citizen trust:

American regulatory agencies are forced to seek refuge in ‘objectivity,’ adopting formal methodologies for rationalizing their every action (197).

It hasn’t always been this way in the United States. American administrative agencies really only grew as outgrowths of the New Deal’s attempt to rationalize, control, and improve the economy during the Great Depression. These agencies — and the few that preceded them — were staffed by experts, driven by numbers, and depended on expert judgment and expertise in ways that are quite similar to their modern European counterparts (198).

Citizen Standing and Openness

The 1960s brought a new focus on citizen involvement in agency decisions. “Openness” was the “antidote to self-interest and to corruption masquerading as expertise” (198). The 1966 case, Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994, exemplified this trend:

This was the case that began the process of opening the regulatory and judicial processes to everyday citizens by granting legal “standing” to citizens. The expansion of standing enabled regular citizens to be heard before regulatory agencies and to bring actions in court, amplifying the amounts and types of political issues taken up in the public arena. Horwitz, Robert, “Broadcast Reform Revisited: Reverend Everett C. Parker and the ‘Standing’ Case,” The Communication Review, Vol. 2, No. 3 (1997), pp. 311-348.

Problems and Contradictions

The attempt to bring openness and greater democracy to agency decision-making succeeded in bringing greater citizen scrutiny and input to the exercise of expertise. It came as a reaction to behind-the-scenes decisions that appeared to favor established interests. Thus, citizen-activists fought against agencies that appeared too close to the companies they regulated — and often succeeded in opening up their processes.

But this didn’t necessarily result in better decisions.

Agencies responded with a greater use of, in Porter’s terms, “mechanical objectivity” in place of expert judgment. Additionally, the critiques used to attack agency expertise began to be turned against scientific and medical expertise more generally. Thus, anti-vaccination campaigners accuse medical experts of profiting from vaccines and acting as “willing conspirators cashing in on the vaccine fraud’ or pawns of a shadowy vaccine combine.” What was once an attack on an FCC that consisted of former broadcast executives has become an attack on doctors who favor broad public-health mandates and on climate scientists who warn about the dangers of human-induced climate change.

What is a liberal democracy?

First, of course, it’s important to define what a “liberal democracy” is. The term liberal, unfortunately, has acquired a negative connotation for many today, especially amongst conservatives in the United States.

But “liberal” in this sense is not the opposite of “conservative”; liberal instead is aligned with governance through public decision-making and public discussion. “Liberal democracies” are thus democracies where the majority of people are eligible to vote and where, generally, the “rule of law” is established through some form of constitution.

It is, in Stephen Turner’s definition, “government by discussion.” There is one exception: religion, because of lessons learned after centuries of religious warfare, is generally removed from the discussion as being incompatible with civil debate. This has been done either through explicit state neutrality (the First Amendment) or through the establishment of a single, state religion along with tolerance for other faiths. The United States is a liberal democracy; Saudi Arabia is not.

An illiberal democracy might be a society in which citizens vote, but the terms of the debate are constrained through propaganda, censorship, or theology. Thus, many illiberal states, like North Korea, claim to be “democratic,” but most citizens of liberal democracies would disagree.

The problem of expertise

If free discussion and debate is core to liberalism — as Turner, backed by old-school liberal theorists like John Stuart Mill, argue — then anything that interferes with public debate and decision-making also moves a society away from liberalism (note, once again, that this is not the opposite of conservatism in the modern sense).

In a classic liberal democracy, public opinion — influenced through civil discourse and debate — is the basis of political action. But how can one have an effective political discourse when only experts understand the terms of the debate? We can all understand and participate in — at least in Turner’s view — debates over, for example, the extent of the voting franchise (“votes for women!”), but how can the lay public effectively decide if tobacco ought to be classified as a drug? Or if the MMR vaccine causes autism or not? Or whether global climate change is real?

These kinds of questions require scientific evidence to fully answer, but that evidence is difficult for non-experts to fully assess. Without the subject-area knowledge, lay participants frequently over- or under-value key evidence, confuse correlation with causation, or simply fail to follow the science.

However, turning such decisions over to experts in the subject conflicts with a core ideal of a liberal democracy: that a public debate ought to determine public policy.

Trust

If we simply trusted experts, then practically, at least, this conflict would largely disappear. We could simply establish commissions or groups of experts to evaluate problems and then provide solutions — much as the European Union does it (though not without criticism).

But a number of factors have combined to create a sense of distrust of experts by the American public. DDT, Three Mile Island, and Bhopal damaged the trust in science of progressives; a rise in religiosity, growing dislike of government regulation, and an increasing perception that scientists are “liberal” (in the contemporary sense) correspondingly degraded conservatives’ trust in science.

As a result, it has become untenable to leave decisions on issues like global climate change in the hands of experts — but as a result, rational, logic-based discussion and debate by educated and informed participants — another core value of a liberal democracy — has become rare.

Solutions

Turner suggests that creating pseudo-juridical, adversarial debates by experts might increase trust in the results. After all, we trust a similar approach to administer the death penalty — but we certainly don’t trust the lawyers who control the process! It’s an interesting, if impractical, concept, partly implemented already through the tort system, but unlikely to be extended elsewhere.

Alternatively, Turner suggests we adopt European-style commissions, but that we make them accountable to the public for their decisions in some fashion. This is effectively the path that has been adopted domestically and internationally, although it is not without its controversies — and does little to resolve the tension inherent in experts making decisions instead of the lay public.

To re-include the public in expert decision-making — or at least to create a public capable of effectively reviewing and scrutinizing expert commissions — the only real solution I see is education. While this may be inadequate to turn average citizen into domain experts, it would at least help make citizens capable of evaluating and assessing experts themselves, along with the logical reasoning of their decisions, more effectively.

Conclusions

Although it feels like this conflict is new the tension between experts and public decision-makers is not unique to today’s liberal democracies. But I think Turner might be correct that the incredible complexity of today’s science and evidence has compounded the tension into a crisis.

Additionally, the long-standing exclusion of religion from anything but moral decision-making — or, alternatively, the extension of science into the realm of theology — has created a new level of crisis. Free discussion in the Millean mode is simply impossible when faith and theology fully determine the outcome for a sizable percentage of participants.

There is no simple solution for any of this. Education is helpful, but not decisive; transparent mechanisms of science and government also help, but are not determinative; and letters to the editor from distinguished scientists can only go so far in re-establishing scientific authority.

"Cornwall School House Nº 3 (1830)" by Flickr user Don Shall. CC BY-NC-ND 2.0.

In the twentieth century, the general move in regards to Fourth Amendment jurisprudence — one prong of privacy — has been away from a focus on property, and towards a view that focuses on people instead. (See, e.g., The Fourth Amendment: from property to people.) This move gave us warrant requirements for wiretaps even when a physical trespass had not occurred, for example, because it protected people’s “reasonable expectations of privacy.” But as I noted in a previous article, an alternative approach to creating an entirely new right would be to extend property rights to cover information or personal data, rather as copyright, patents, trademarks, and other forms of intellectual property extended physical rules into the realm of the intangible.

While there are undoubtedly benefits to this, there are limitations as well. Pamela Samuelson, in “Privacy As Intellectual Property,” discusses several of them:

First, the infrastructure necessary for enabling a privacy market to flourish is not insubstantial, and would likely require government oversight anyway, especially given the disparity between individuals and data companies (1136-37).

Second is the problem Samuelson characterizes as “free alienability”: normally, once sold, the buyer can resell a product to a third party. But this is likely to be a problem with privacy, since individuals may well be comfortable selling to one company but not to another. Limiting alienability undermines a core part of a property system. (1137-38, 1145)

Third, it is unclear if a property market is really the most efficient way to allocate resources: “What is scarce is information privacy, not personal data,” but Samuelson argues that it is personal data that is being bought and sold. The goal of the market, then, unlike most others, is to limit availability, not increase it. (1138-39) One might counter by re-conceive of the market as one where privacy is what is bought and sold, but I’m not sure this fixes the market issue.

Fourth, but relatedly, the market for intellectual property exists because of a bargain: the law grants temporary monopoly rights (patents, copyrights) to encourage creation and to benefit the public as a result. Everyone benefits from the system. Without it, creators may not have sufficient incentive to invest in, for example, research and development in the face of potential free riders who might undercut them without investing themselves. In the case of privacy rights, though, there is no similar incentive: “Property rights are not needed to bring them [personal data] into being, nor to achieve widespread distribution of them.” In short, what incentives does creating property rights in personal data create? (1140-41)

"Michigan House of Representatives Floor" by Flickr user "lincolnblues." CC BY-NC-ND 2.0.

An MSNBC report by liberal journalist Rachel Maddow strongly condemned the current Republican leadership in Michigan for not following the state constitution. Instead, Republicans have passed bills subject to “immediate effect” without the required constitutionally required two-thirds majority vote in both houses of the legislature.

After more than a year of this, House Democrats have filed for a preliminary injunction and a writ of mandamus in state court, demanding that House Republicans actually count votes (that would be a mandamus order) and demanding an injunction against laws passed for “immediate effect” without the required two-third majority vote. They won. (Remember, this is just preliminary, and the Republicans have already appealed even this. Also note that I am not licensed to practice law in Michigan. Finally, one of the laws at immediate issue deals with graduate students unions — and I am an uneasy member of the graduate student union here in San Diego.)

Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?

The Role of the Courts in the Legislative Process

The extensive Republican appeal (filed by the State Attorney General’s Office, an interesting intervention of the executive branch in the matter) argues that state courts have no business interfering with the legislature at all: “The circuit court’s enjoining of the immediate effect given Public Acts 45 and 53 of 2012 is unprecedented, and was an unprincipled decision barred by separation of powers principles and court precedents.”

Although I am not a Michigan lawyer, I find it hard to believe that the separation of powers principle in Michigan truly prohibits a court from ruling on legislative actions. In fact, in less than five minutes of searching, I found court precedent in favor of my belief — on the Michigan Legislature’s own website, in their own description of Article IV § 27, in case called Frey v. Department of Management and Budget.

First, what does Article IV § 27 of the Michigan Constitution say?

No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.

Frey v. Department of Management and Budget

In 1987, the Supreme Court of Michigan ruled that two-thirds rule of Article IV § 27 must be followed, and then proceeded to delay a law until ninety days had passed (note that this dealt with an initiative combined with legislative action, which is arguably different):

We hold that art 4, § 27, does apply to initiated laws enacted by the Legislature. Therefore, since the initiative was not given immediate effect by a two-thirds vote of each house of the Legislature, 1987 PA 59 may not go into effect until ninety days after the end of the session at which it was enacted. We affirm the decision of the Court of Appeals. Frey v. Department of Management and Budget, 429 Mich 315; 414 NW2d 873 (1987).

The Republican appeal dismisses all of Frey as essentially meaningless to the current fact pattern, focusing on its relevance only to the issue of referendums, and ignoring entirely the core argument above (presumably deciding the referendum language was binding, but the immediate effect language was merely dicta).

I find it difficult to ignore the language in Frey that a “two-thirds vote of each house” is required. Frey assumes the power of the Michigan courts to rule on legislative issues like two-third majorities, and Frey affirms the power of the courts to say when a law goes into effect. The Republican appeal fails to deal effectively with Frey.

Other Cases

Whatever the detailed reasoning of other cases cited by the Democratic response to the Republican appeal, it is at least clear that the circuit judge’s order is not “unprecedented.”

Thus, for example, Michigan Taxpayers United, Inc. v. Governor, 600 NW2d 401 (1999), where the Court of Appeals of Michigan upheld as “proper” the state legislature’s granting “immediate effect” the law in that case — but affirmed the right of the courts to rule on the properness of legislative process:

Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo. (403)

The Role of the Courts and the Rule of Law

Marbury v. Madison, 5 U.S. 137 (1803) succinctly stated the role of the judiciary in the American system: “It is emphatically the province and duty of the judicial department to say what the law is.”

Without the check of the judiciary, there would be no true rule of law. The judicial branch exists because the legislative and executive branches — regardless of their own agreement, and regardless of the size of their majorities — must be checked. The solution to a court ruling on the constitutionality of an act is to change the constitution (but it’s hard to do that, unless you’re running an initiative in California).

Arguing the merits of their process before the courts is proper. Telling the courts to “leave us alone,” and accusing a judge of acting “improperly” for interfering with the legislative process — that’s not the rule of law. Violating your own state constitution just because you’re the Republican majority is also not the “republican form of government” guaranteed under Article IV of the United States Constitution, either.

The Elephant in the Room: The Federal Guarantee Clause, Due Process, and Equal Protection

“The United States shall guarantee to every state in this union a republican form of government,” reads Article IV, Section Four. The Supreme Court has held that this guarantee is given to the United States Congress, who affirms a state’s “republican form of government” every time it seats new members from that state. (Note that a “republican form of government” means a representative democracy, not rule by the Republican Party.)

More powerful in practice than Article IV, the Fourteenth Amendment prohibits the denial of individual rights by state governments. If the federal government were to be involved in the Michigan situation, it would likely involve arguments that House Republicans have denied “due process” and “equal protection” of the law to the citizens of Michigan.

Additionally, the Voting Rights Act of 1965 — which considers parts of Michigan to be subject to extra scrutiny due to a history of civil rights violations — would give additional weight to federal intervention in Michigan.

The Justice Department has the power to investigate under the Voting Rights Act. Citizens may also sue in federal court to enforce the Act. So far, this issue seems confined to Michigan state courts — but it may not stay that way.

Conclusions

The Republican appeal — written by the state’s Attorney General — argues that the court’s preliminary injunction ought to be reversed as an “unreasonable and unprincipled decision barred by separation of powers principles and court precedents.”

I argue, instead, that there is nothing “unreasonable” or “unprincipled” in the lower court’s decision, even if a more complete analysis of the law supports the actions of House Republicans.

Each branch of government has its purpose in the American system, and it is, as Marbury stated so long ago, the purpose of the judiciary to rule on law. Thus, a judge doing so is necessary to maintain the rule of law and a republican form of government — it is certainly not “unprincipled.”

Legislatures should not be — even if they sometimes are — insulated from judicial scrutiny. Ignoring one’s own constitution is illegal and morally wrong. A judge ordering a preliminary injunction while a trial investigates that possibility is both reasonable and principled. And an order of mandamus essentially requiring legislators to follow their own constitution does not appear to be much of a burden — unless that isn’t already happening.

More Resources

Some important primary source documents:

• The Democratic request for an injunction and writ
• The preliminary court order
• The Republican appeal
• The Democratic response

Breaking the Vicious Cycle, Stephen Breyer

In Breaking the Vicious Circle, Justice Stephen Breyer tackles the problem of regulation and risk in the American context:

Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a “vicious circle” that increasingly undermines the legitimacy of the regulatory process.  —  Eric J. Gouvin, A Square Peg In A Vicious Circle: Stephen Breyer’s Optimistic Prescription For The Regulatory Mess

Breyer complains that the current approach to risk regulation is irrational. Because the perception of risk drives voters, and therefore public officials, to focus on specific potential harms, there is little appropriate “risk-benefit” assessment employed.

For example, regulators may seek to clean up every aspect of a potential agent — like asbestos — while neglecting to consider whether the benefit of complete cleanup is worth the risk, either monetary or physical:

For example, “cleaning up” asbestos in public buildings causes asbestos fibers that would have remained harmlessly in place to become airborne, increasing significantly the chance of those fibers lodging in workers’ lungs and creating medical problems. (Gouvin, n. 11, 475)

Breyer puts together a table showing that some regulations with costs of $10 million to $5.7 trillion per life saved. In short, the “marginal cost of extra health may daunt all but the most zealous” (Stephen F. Williams, “Risk Regulations and its Hazards,” 1499).

1995′s approach is also uncoordinated. Breyer points out that regulations on space heaters cost $100,000 per life saved, while bans on DES in cattle feed cost roughly $125 million “per statistical life” (22). Stephen Williams explains that Breyer sees this as a “wasteful allocation of resources” that over invests in certain areas and neglects others (1498). In other words, with limited resources available, such uncoordinated and disconnected spending fails to save the maximum number of possible lives per available dollar — and little has changed in 2012.

Regulations also overlap in unanticipated (but likely not unanticipatable) ways:

Proposed rules concerning disposal of sewer sludge, designed to save one statistical life every five years, would encourage waste incineration likely to cause two statistical deaths annually (22).

In other words, disparate agencies assessing and regulating risk tend to focus on their own peculiar zones of risk, and fail to appreciate the big picture of interacting regulations.

In summary, Breyer categorizes the various regulatory failures like those described above as (1) tunnel vision, (2) random agenda selection, and (3) inconsistency.

The Source of the Problem

Irrational regulations emerge from a triumvirate of sources: (1) inaccurate public perceptions; (2) congressional action and reaction, instead of planning; and (3) uncertainties in the regulatory process.

First, even if lay people do think rationally about possible risks — and Breyer thinks they tend to — they “are unlikely to acquire a full grasp of the relevant facts” (Williams, 1500). The lay public typically gets its information from press sources, and the press focuses on the dramatic. A focus on toxic-waste dumps, for example, along with a presentation of higher-than-average cancer rates in nearby areas, may conflate causation with correlation and lead to an irrational (if viewed from a societal perspective, anyway) demand to regulate toxic-waste dumps to reduce the incidence of cancer.

Second, Congress tends to be reactive to what they perceive as voter’s current demands — since these demands are what get them re-elected. (The House, which its short, 2-year election cycle, is even more prone to this than the Senate, which grants 6 years between elections). And with changing Congressional representation, agencies may receive vastly different, and potentially incompatible, regulatory missions.

Third, the regulatory process itself is uncertain, because the science of risk is uncertain. It is essentially impossible to set up a double-blind, controlled study of the effects of small amounts of benzene on humans over a 60-year period. Instead, researchers use short-term, high-dose animal studies and then extrapolate to the long-term effects on humans.

But rats are not humans, and high-doses of chemicals do not necessarily cause the same effects as low-doses. As Breyer observes, there is “no consistent scientific rational for assuming a linear relation between dose and response” (44).

Statistical and epidemiological studies can get around these particular problems, but introduce their own potential issues — especially around the problems of distinguishing between causation and correlation. Also — impossible to isolate all variable. Variables are never truly independent. Best to look for lots of study — meta-studies — an rather inductive science.

Breyer’s Solution

Breyer has no real solution to the technical problems of the science, other than to let technically trained people — those who understand the problems with the science — make the decisions. He does have many suggestions about how to structure a bureaucracy/technocracy that can better weigh, assess, and decide on policies based on the data that can be generated with today’s science.

His overall solution is quintessentially technocratic, and very much reminiscent of a more European model of regulatory authority. He wants, in the words of Todd Zubler, “an elite and insulated cadre of civil servants” (244) — experts in both science and government — to “unite[] political power with wisdom.” (Breyer, x) This Socratic unity, as opposed to the voting booth, is what creates trust; it “must be central in any effort to create the politics of trust” (81).

More specifically, Zubler says,

Breyer wants to establish a new and prestigious career path by which civil servants could develop regulatory expertise across a number of different governmental agencies. These experienced bureaucrats could then form a small, centralized administrative group that could coordinate and rationalize the nation’s regulatory agenda. Such an organization, according to Breyer, would combine the expertise, broad vision, political insulation, and interagency jurisdiction which are all so lacking in the current system. (244)

Issues

Zubler worries that Breyer’s new centralized bureaucracy goes too far. Other forces can also protect people from risk, including the market and the judicial system:

But … regulation is only needed when market and common law mechanisms fail. To push bureaucratic regulation beyond those situations threatens individual liberty and freedom. (247)

Put differently, Breyer’s European-style, top-down, technocratic system brings efficiency and rationality to bear of the problem of risk. But — interestingly for a lawyer and judge — it neglects the bottom-up tools that are core to the American approach, such as tort law and free-market competition. He proposes a grand, top-down restructuring that does nothing to adjust and improve an individual’s ability to assess and manage risk, such as improved labeling and consumer information and better access to the courts.

The Judiciary

What would be the role of the judiciary in an America where technocratic elites are making regulatory decisions?

Medical device manufacturers have already argued — and won — the case that FDA-approval of medical devices preempts tort lawsuits (Riegel v. Medtronic, 552 U.S. 312 (2008)). On the other hand, drug manufacturers lost their bid for preemption in Wyeth v. Levine, 555 U.S. 555 (2009).

Would — or should — Breyer’s approach preempt lawsuits? For maximum efficiency, it should — but the American system is not about efficiency at all. It’s about checking the power of any one part of government. The judiciary’s role since Marbury v. Madison, at least, is to check the rest of government. But while eliminating this check would fundamentally alter the balance of power, not doing so would severely undermine many gains in efficiency.

Interestingly, Breyer’s unelected, technocratic elite are reminiscent of the federal judiciary itself. It too consists of specialists (in law) who are unelected (they appointed by the President) and unaccountable (except via impeachment, federal judges serve for life). But the judiciary is considered the third branch of American government, and these special attributes serve as its means of checking and balancing the executive and legislative branches. Extending these attributes to Breyer’s new cadre might well create the equivalent of a fourth branch — and would anything less prove effective enough to be worth the effort?

Liberal or Conservative?

Finally, I wonder how to characterize Breyer’s proposal: is it liberal, conservative, or something else? In many respects, his solution is extremely conservative: it presumes a distrust of the public that is reminiscent of conservative distrust of poor voters, for example. But it invokes a liberal (in the modern sense), governmental solution to the problem, one that is opposed to contemporary Republican views that government is the problem, not the solution. On the other hand, a more efficient regulatory system could eliminate government waste, reform tort law, and free business from burdensome, pointless regulations. A more efficient government is a cheaper government that would require fewer taxes — a popular conservative goal.

Depending on the details, then, Breyer’s reforms could appeal to both Democrats and Republicans — but certainly not to modern libertarians, or to anyone opposed to government on principle. It is, in a sense, anti-individualist, and deeply dismissive of old liberal notions of market-based corrections and individual responsibility.

Conclusions

Still, gains in efficiency and effectiveness would not require such radical changes. Improved cross-agency coordination and more inclusion of scientific experts — perhaps with a more limited version of Breyer’s technocratic bureau — might provide major gains without requiring fundamental readjustments of the American system.

My short opinion? Breyer effectively identified major systemic problems with the American regulatory system, but his full proposed solution is simply impractical in the United States (perhaps especially in 2012) — but more limited versions would still provide useful reforms. But any of this would require greater trust and respect in science — and a philosophical uniting of virtue and wisdom by scientists is not enough to overcome the current anti-intellectual and anti-science beliefs prevalent today in the American Right:

“The dangers of carbon dioxide? Tell that to a plant, how dangerous carbon dioxide is.”  —  2012 GOP presidential candidate Rick Santorum.

The Master Switch by Tim Wu

Peter Decherney, Nathan Ensmenger, and Christopher S. Yoo recently published an article, Are Those Who Ignore History Doomed to Repeat it?, on Tim Wu‘s book, The Master Switch: The Rise and Fall of Information Empires. Wu argues that communications technologies follow “the Cycle,” beginning as open systems, only to be closed by corporate moguls — and then re-opening again as the Cycle starts anew after a new innovation emerges. Decherney, Ensmenger, and Yoo do not completely reject Wu’s thesis, but they do argue that Wu’s focus on individual actors neglects the complexities of other market players (advertisers, for example), government agencies, and other supply- and demand-side actors.

Wu’s thesis rests on the powerful idea that we can improve our future by learning from the past, an approach that is core to my own historical focus on the telegraph in the nineteenth century — and the lessons that it can teach us about current and future technologies like the Internet.

Wu’s vision of influential corporate moguls whose visionary approaches unify and then close communications networks is seductive in the same way that our vision of a Romantic author is (Americans especially seem to cling to this idealistic notion). For example, it’s tempting, but equally misleading, to view Star Wars as the work of George Lucas, forgetting — or eliding — the number of other figures who played major or minor roles in its creation and production. The same is true of any technological development.

Decheney, et al. also make the convincing argument that, even if we focus only on larger-than-life individuals (Alexander Graham Bell, former AT&T President Theodore Vail, financier J.P. Morgan, and so on), we have to take account of visionary individuals who have pushed for openness instead: in the Internet age, that includes Richard Stallman and Vint Cert. They write:

Clearly, bold leadership was not the exclusive province of the established corporate interests.

Many other have tried for unified historical approaches, and visionary works like Wu’s are powerful and useful for understanding the past. However, write Decheney, et al.:

History is notoriously untidy, and all too often real-world facts stubbornly refuse to conform to what would otherwise be a terrific story.

Large, sweeping accounts of historical development give a readily graspable broad picture, and (hopefully) provide useful guidance, at least on large-scale decision-making. But this broad guidance can be misleading, if seductive to policmakers seeking “simple policy inferences” that can be readily employed and discussed without needing a strong understanding of the underlying concepts and factors. But these “sweeping and categorical” understandings can produce distored perspectives by politicos — think of former Alaskan Senator Ted Stevens statement:

The internet is not a big truck. It’s a series of tubes,

Adding complexity can make decisionmaking more, well, complex, but it can also “provide a better foundation for sound public policy.” That, hopefully, is what I will be producing with my work on privacy and the telegraph in the nineteenth century.

Let’s begin with Epperly’s argument that, because Obama is “mulatto,” the 1857 case of Dred Scott means — assuming the Fourteenth Amendment never passed — he cannot be president because he cannot be a citizen:

As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

There are many problems with this claim. First, and most obviously, Dred Scott, by its own admission, does not apply to the case of Barack Obama:

And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves. Dred Scott v. Sandford, 60 US 393, 403 (1857).

Since Barack Obama is not the descendant of an African imported to the United States to be sold as a slave — his father was a Kenyan who went to Hawaii to study at the university, not to be a slave — Dred Scott itself says it is inapplicable.

Dred Scott, via Wikipedia

If we go ahead and ignore the Fourteenth Amendment, and look at early 19th-century law to see if Obama could have run for president, we are also forced to conclude that, at least theoretically, he could have done so. Before that amendment, states determined who was a citizen, not the federal government, though the Constitution then makes rules about who can become president:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

When admitted to the Union in 1818, Illinois did not exclude either “Negroes” nor “mulattos” from citizenship nor from voting, although its 1848 constitution restricted voting to only “white males.” Thus, in Illinois after 1848, Barack Obama may have been a citizen, but neither he nor his mother (born in Kansas) could have voted. It is unlikely he could have been elected, but not explicitly forbidden. (Perhaps this is the state of society Epperly would like to return to?)  The modern Illinois constitution has no such restriction, of course.

Generally, in most states, all men — white or otherwise — who owned property could vote in early America. Later on, in the 1820s – 1840s, property restrictions were lifted, and new limitations on race were instituted instead. Thus, Obama — a property owner — could have voted in many or most states until at least the 1820s, despite being part African. (Later, of course, he would have been excluded under many state constitutions, even as a property owner.)

The Naturalization Law of March 26, 1790 (1 Stat. 103) — and subsequent naturalization laws before the Civil War — only allowed “free white men” to become citizens through naturalization. But that would only restrict Obama’s father, since Obama himself was born in the United States (although not until 1961, two years after Hawaii became a state). He had no need to be “naturalized.”

The Supreme Court has never ruled on the meaning of “natural-born citizen,” but even commentators in the nineteenth century assumed that anyone born in the United States was a “citizen,” whatever their color — and whether they could vote or not. As early as 1829, William Rawle agreed with this, as did Attorney General Edward Bates in 1862. The 1898 case of United States v. Wong Kim Ark, 169 US 649 cites an earlier (1844), antebellum New York case to establish that those born in the country are citizens, regardless of race:

Witnesses verify statement of Wong Kim Ark, via Wikipedia

That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke, (1844) 1 Sandf. Ch. 583.

Epperly attempts to argue that this part of Wong Kim Ark is mere dicta, and therefore not binding, but that does not change its persuasive authority, nor does negating its binding authority mean that its opposite is therefore true. He attempts to argue that two other cases are instead controlling (although his quotations are at least as much obiter dicta as are those of Wong Kim Ark).

The first, Minor v. Happersett, 88 U.S. 162 (1874), says that those born of two citizen-parents are definitely citizens. It says that “doubts have been raised” about children not born of citizen-parents — but then goes on to say, “For the purposes of this case it is not necessary to solve these doubts,” Id. at 168. In other words, Minor says nothing at all about Obama’s situation, and in fact disclaims any attempt to say that it does. (Interestingly, I’d say the case actually strengthens the arguments against Epperly in some sense, because it makes it clear that women have always been citizens, even when they couldn’t vote — so even if “mulattos” couldn’t vote, they could be citizens, just like women.)

The second, Perkins v. Elg, 307 US 325  (1939) is of limited relevance for similar reasons, since its holding involves a child of two United States citizens, not a child of a citizen and non-citizen. This is the exact point Epperly emphasizes — but fails to realize that Perkin’s holding says little or nothing about Obama. If Elg is a citizen because both her parents were citizens, it is a logical fallacy to say that Obama is not a citizen because one of his parents was not a citizen. Put another way, simply because it is sufficient to have two parents who are citizens does not mean it is necessary. Proving sufficiency does not prove necessity, in law or in life.

Official portrait of Barack Obama, via Wikipedia

In short, Obama was born in the United States. Regardless of the citizenship status of his parents, that would make him a citizen according to standards of the nineteenth century and today — even without the Fourteenth Amendment.

As a side note, I tried to figure out his differentiation between “political rights” and “civil rights,” but I couldn’t follow his (non-)logic. The best approximation I could find came from Epperly’s site, in an article he wrote on citizenship, which claims that the 14th Amendment granted “civil rights” and the 15th (for African-Americans) and 19th (for women) granted “political rights,” but neither granted the “natural rights” required to hold office. In other words, neither women nor African-Americans should be able to hold elected office. I could find no independent support for this in the law. 

Related articles

• Lawsuit claims Obama can’t be president because he’s ‘mulatto’ (thegrio.com)
• Ron Paul Versus The Fourteenth Amendment (outsidethebeltway.com)

Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).

Southern planters generally favored state government power, as they were afraid that the foundation of their raw-material economy would be undermined if the federal government — especially a federal government led by Northern manufacturing interests — gained the power to abolish slavery in the South. Their interests were directly represented in the Constitution itself in several places: Article 1, Section 9 forbid banning the slave trade until at least 1808, the “Enumeration Clause” counted slaves as 3/5ths of a person for the purposes of the census (though they could not vote, of course), and the “Fugitive Slave Clause” required escaped slaves to be returned ”on Claim of the Party.”

Despite these protections, Southern slaveholders grew increasingly nervous that their economic system — which they increasingly argued was not just a “necessary evil,” but rather constituted a “positive good” — would either be directly challenged by the North, or would die out if it could not expand westward.

In the face of growing Northern power, arguments for state’s rights grew in the South — after all, if state government was at least equal to the federal government in power, then it would be difficult for the federal government (even if eventually dominated by the North) to restrict or eliminate slavery.

But despite these growing states’ rights arguments — including Georgia and President Andrew Jackson’s refusal to follow the Supreme Court ruling that federal treaties trumped state action in the Cherokee cases — Southerns appeared to embrace a different view of the balance between federal and state power in 1850.

Before 1850, Northern states had become increasingly reluctant to return runaway slaves to the South, denying planters their property without recompense. Laws to add more legal protections before alleged escapees would be returned meant that the burden on Southerns seeking the return of their property grew. One reaction was vigilante-style kidnapping of blacks in the North, some of whom turned out to be free blacks, not escaped slaves. Northern laws punished kidnappers, and Southerners were unhappy.

The Fugitive Slave Act of 1850 was designed to allay the anger of the South. It created a new federal agency and new federal commissioners who acted much as had U.S. Marshalls previously. These new commissioners could deputize and track escaped slaves, and were paid by the federal government and also for each slave returned. Soon, this new agency became the largest federal employer, exceeding the number of postal employees soon after it was passed.

The Fugitive Slave Act was anything but pro-state’s rights. To assist commissioners in apprehending slaves, troops were even sent into Boston to quell dissent and escort a captured slave from the city. Northern state laws on due process were ignored, and alleged escapees received no jury trial, no were they able to testify on their own behalf — despite Northern laws. In other words, the South embraced the law and the exercise of federal power.

But this new balance only postponed the battle between North and South for eleven more years. Western states were increasingly adopting anti-slavery positions (although they also sometimes banned African-Americans from moving there), and the South felt increasing pressure. Even the 1857 Dred Scott decision by the Supreme Court, led by the Southern Chief Justice Roger B. Taney, and intended to settle the slave question “once and for all” only delayed the Civil War by another few years.

By 1861, with the election of Abraham Lincoln on a platform that opposed the expansion of slavery westward (though not the abolition of slavery in the South — that came later, during the war), the South had decided that secession was the only option to protect their economic and political system.

1. that English common law was in force in the colonies from the time of the first English settlement;
2. that, quoting Paul S. Reinsch, the colonies “underwent ‘a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of English common law’”;
3. or instead, citing Julius Goebel, that the colonists instead adopted the “customary law of the local courts the colonists had known in England” and not the common law “of the king’s courts at Westminster.”

Before discussing the historical record, Stoebeck first bookends the problem by noting that, first, “there was no common law in America on 12 May 1607″ and, second, there are case reports and so on available post-Revolution that provide solid insight on where “common-law reception … must have stood on Independence Day” (395-96).

A lack of lawyers

In the 17th century, there was a paucity of lawyers in the colonies. There were very few English-trained lawyers in Massachussetts, only three were known to be in Connecticut, one in Maine, thirty-some-odd in Virginia, two in Maryland, and none anywhere else (405). With no law schools, no real bar, and no real apprenticeship possibilities, there were likely few, if any, American-trained colonial lawyers either. Kermit Hall’s 1989 book reinforces this:

Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutionsof the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. (Hall 21-22)

As a result of the limited availability of trained lawyers, Stoebeck suggests that it’s unlikely that the colonists would have adopted or used the complex English common-law system in anything other than a limited manner.

What law?

Even when charters of the new colonies referenced the laws of England, Stoebeck points out, there is an additional problem: which laws of England? According to Edward Coke, a 17th-century jurist, lists fourteen types of law in England: “the law of the crown, law of parliament, law of nature, statute law, customs, ecclesiastical law, etc., of which the ‘common law of England’ was only one” (397).

Even contemporary discussions of the “common law” in the 17th century often did not clearly distinguish what was meant. Colonists, for example, would clamor for the protections of the “common law of England” when resisting unpopular or autocratic actions by English or colonial governments. They were not, however, advocating for the “king’s law,” nor for the common-law writ system, but rather for what we might consider today to be Constitutional protections, like a right to a trial by jury (410).

Every colony is different

Stoebeck explores the complexities of the various colonies, each of which has a different foundation story and a different relationship with England. Virginia, for example, was founded by an English corporation and intended to benefit investors back in England, while Massachusetts was founded by religious dissidents who often preferred Biblical precedent. As a result, it’s hard to speak of a single “reception” in America.

1700 is a turning point

Nonetheless, Stoebeck suggests that the turn of the eighteenth century marked a turning point for all the colonies (407, 410). The 1696 Navigation Act, for example, imposed much more clearly English legal control over admiralty jurisdiction in the colonies (408). The Privy Council began examining court procedures and the Council of Trade and Plantations began to exert pressure to codify colonial laws (409). (I should note, too, that the first Virginia Slave Code dates from 1705, and other slave codes were enacted from the 1660s into the early 1700s.)

Conclusions

Stoebeck clearly rejects the first theory of common-law adoption (that it was applied from the moment of settlement), since most of his historical discussions involve the complex ways in which English common law was not in use in the colonies before the Revolution. But beyond that, his account explores a variety of paths that each different colony took. Some more quickly adopted English practices than others, and all began to do so more at the turn of the 18th century, but none fully adopted English practice until late in the century (if they even did then). Some did apply more local custom and practice as used at home in England, others used indigenous procedures and approaches, and all codified distinct statutory laws.

But whatever their path, by the end of the 18th century the colonies–now the United States–explicitly adopted English common law (even if what that was, exactly, wasn’t always clear) through statute or in their Constitutions, and jurists used English precedent into the 19th century (and occasionally today, too).

Stoebeck ends his account by saying,

The reception process had been very much an indigenous affair, for the English home government had acted only haltingly to impose adoption of the common law.

And, finally, he says,

The post-Revolutionary evidence makes it nigh conclusive that Chief Justice Daniel Horsmanden spoke not only  for New York but of colonial America when he said in 1765 that the court applied the common law ‘in the main.’”

Thus, the end of the reception story is “secure,” even if the story of the process “has some missing planks.”

By Karsten Schmidt

In “Thinking about privacy and the First Amendment,” I discussed Eugene Volokh‘s critique of privacy laws in relation to  Samuel D. Warren and Louis D. Brandeis’s 1890 law review arti­cle, “The Right to Privacy.” In “Cyberspace and Privacy: A New Legal Paradigm?,” Volokh argues that “the right to information privacy — my right to control your communication of personally identifiable information about me — is a right to have the government stop you from speaking about me.”

In ”Reconciling Data Privacy and the First Amendment,” Neil Richards takes issue with Volokh’s arguments. Richards instead argues that, most importantly, privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”

Scope

Richards advocates that courts should first consider whether a privacy rule even regulates what falls within the scope of the First Amendment. To explain “scope,” Richards points out that many normal criminal laws punish “speech,” but fall outside the scope of the First Amendment: fraud, criminal threats, conspiracies, and solicitation of criminal acts, for example. Additional non-criminal laws constrain speech “in the context of securities, antitrust, labor organizing, copyrights, trademarks, sexual harassment … and vast amounts of evidence and tort law.” These too are considered outside the scope of the First Amendment. Why should privacy laws be any different?

Richards proposes an approach to treating scope that draws on concepts used in other Constitutional jurisprudence. He suggests using “rational basis” review for legal rules involving the commercial trade in customer data, but using higher levels of scrutiny for “privacy rules that restrict speech.” Disclosure of “newsworthy facts” would warrant strict scrutiny, while lesser-protected speech (telemarketing, photography) would receive “intermediate scrutiny under the commercial speech doctrine.”

Categories of Information Processing

To better analyze and target rules for different parts of information processing in the context of potentially private data, Richards proposes four different stages, only two of which potentially fall within the scope of the First Amendment at all:

1. rules governing the collection of information,
2. rules governing the use of such information,
3. rules governing the disclosure of information,
4. regulation of direct marketing.

Stages 1 and 2 can be safely regulated without bringing the rules within the scope of the First Amendment, while stage 3 can be regulated under commercial speech rules. Stage 4 clearly falls within the First Amendment, but current doctrine already permits extensive regulation of such speech.

Conclusion

In the end, then, Richards argues that “when we subject both data privacy regulations and the First Amendment to careful scrutiny, they can be reconciled without sacrificing either.” Although Volokh’s critique of privacy laws as violations of the First Amendment is rhetorically powerful, I find Richards’ arguments more compelling, as well as more reconcilable with positive societal goals. This last point is perhaps not enough on which to base a legal argument, but I appreciate legal arguments that support such ends in a rational and articulate manner.