30 March 2015

The Legal Academy Strikes Back

Orin S. Kerr, "The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria" (March 28, 2015)
In 2011, Chief Justice Roberts commented that if you "pick up a copy of any law review that you see," "the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.” No such article exists, of course -- until now. This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none. 
Number of Pages in PDF File: 3
In a wonderful act of straight man humor, Orin Kerr writes a real (if brief) law review article with the title that Justice Roberts made up, and decisively supports its conclusion on the topic with solid, footnoted evidence.

Via How Appealing.  The Legal Theory Blog also reports this preprint article like any other.

26 March 2015

Republican State Legislator In Colorado Still Crazy

An Evangelical Christian minister from Colorado Springs who was elected with overwhelming voter support to the Colorado State House after his crazy religious decrees were widely publicized has, unsurprisingly, continued to embarrass his follow Republicans.

Most recently, he has said that a nurse who lured a seven months pregnant woman in Longmont to her home and used a knife to rip the fetus from her body so she could have her own child, was carrying out God's will to punish us for legalizing abortion.

Everyone else in the world thinks that this interpretation of the crime is stark, raving crazy in multiple obvious ways too numerous to full expound upon in this post.

But, he is still apparently within the mainstream of the Republican party according to party leaders from Colorado Springs at the time he was running for office, something that his easy ride to victory in the general election affirmed.  Nice to know.


Yesterday, the U.S. Supreme Court in the case of Alabama Black Legislative Caucus v. Alabama, set forth detailed legal guidelines governing how special panels of three U.S. District Court judges that hear election law cases should analyze claims that a state legislative election districts fail to protect the rights of black voters in states that are subject to special scrutiny under the federal Voting Rights Act.  The same reasoning would apply, however, in the redistricting of any jurisdiction subject to the federal Voting Rights Act.

Background on Gerrymandering

Gerrymandering is an inherent risk of any system for electing multiple public officials, typically to Congress, the state legislature, or the governing board of a local government, from at set number of single member districts (typically three or more).

The requirement that these districts have equal population (a rule of thumb allows deviations in the population of each district based upon the most recent U.S. Census of not more than 1%), and that they be contiguous are well established and universally followed as basic rules of the redistricting game in essentially 100% of all cases.  They are followed in 100% of the cases largely because the ruled are perfectly clear and the remedies are obvious.

(Contiguous means geographically connected in a single unit, rather than two or more "islands" or territory, except (1) in cases of actual islands, in which case a geographical link over water is permitted and (2) in the case, for example, of county commissioner districts in counties that are not contiguous themselves.  For example, Arapahoe County in Colorado that has a non-contiguous lump called "Glendale" that is entirely surrounded by the City and County of Denver that could be included in an Arapahoe County Commissioners district together with additional non-contiguous territory that would have to be added to meet the equal population requirement.)

The tricky part is that there are a nearly infinite number of ways to draw more than two districts consistent with these two baseline rules of the game, and the outcome of the elections held using those districts will be very different from each other, even if every single voters vote is predetermined, depending upon which of the possible redistricting maps is adopted.

The mathematics involved in analyzing these situations is not very well developed, because they are quite complex.  You need to know more than just the proportion of the overall population that supports, for example, a particular political party, to know how much impact gerrymandering can have on an election.  You also need to know how "lumpy" the geographic distribution of supporters of each party is with considerable detail.

Suppose you have to draw a map with 100 contiguous, equal population districts in state with 3,000,000 people made up of 1,000,000 Democrats, 1,000,000 independents who are equally likely to vote for either party, and 1,000,000 Republicans.  The geographic distribution of supporters of each party greatly influences how much room there is to gerrymander the districts to favor one party over another.  If all the Democrats huddle together in one big blob, surrounded by all of the Republicans, and independents are distributed uniformly across the state, gerrymandering is limited to a few districts on the boundary between them.  If the Democrats are in half a dozen decent sized blobs, in contrast, there are far more potential gerrymandering strategies.

Gerrymandering also requires the person doing it to know not just the general partisan leanings of voters in a particular district, but how reliably loyal they are to a particular party or candidate.  If all voters have party affiliations and are perfectly loyal, a district with a 51%-49% split in favor of the paper you are trying to benefit is just as good as one with a 99%-1% split in favor of the party you are trying to benefit.

In practice, there is a trade off.  You can make more districts that lean in favor of the party you are trying to favor by getting closer to a 50%-50% split while giving the party you favor as many seats as possible, or you can reduce the number of districts that your party is likely to secure, but make the seats that it does win less competitive.

Generally speaking, the risk tolerance of people drawing a map to favor a particular party depends upon that party's overall strength.  The goal is usually to draw a map that leaves a majority of the seats plus some margin of error in the overall results from the map, with swing seats that are as safe as possible.

For example, if it was possible to draw a map that gave the party drawing it 55 of 100 districts in which that party had a 6 percentage point edge over the other party, or a map that gave that party 60 of 100 districts in which that party had a 2 percentage point edge over the other party, the first choice would be preferred to the second choice.

More generally, from a political party's perspective, the goal is usual to maximize the likelihood of securing a majority of the seats for your party, recognizing that the overall tide in favor of, or against, a political party, may shift during the course of the election campaign.

But, existing computer technology makes it possible to feed all available voter registration and census data into a model and optimize pretty much any objective that can be described with sheer brute force numerical methods (basically, drawing all plausible maps and comparing them, or starting with a plausible map and modifying it until it is optimized).

For example, one might want to draw a map that maximizes the number of seats held by Republicans in a manner that preserves seats for all incumbent Republicans with a realistic chance of being re-elected.  Someone else might want to draw a map that does the same thing for Democrats.

Usually, although not always, either the Democrats or the Republicans will control the process.  In situations where bipartisan support for a map is required, a failure to come up with a map at all, sending the matter to a court to draw a map is almost as common as a negotiated resolution.

The partisan outcomes aren't infinitely malleable.  For example, in a state like Colorado where the two political parties are roughly evenly matched in voter registration and each have regional strongholds, it is almost impossible to draw a map for its seven Congressional districts, 35 state senate districts, or 65 state house districts, that shuts out either party entirely.

But, it is frequently the case that it is possible for one map to leave one party with a strong likelihood of attaining a majority, and another map of the same districts at the same time to leave the other party with a strong likelihood of attaining a majority.

In general, the redistricting process tends to favor whichever party benefited most from the previous round of the redistricting process.

Intuitions about what maps are fair are mushy.

One set of intuitions is global.  If the map, taken as a whole, produces results with a partisan divide similar to those that would be achieved if a pure proportional representation system were used, the map is fair.  If the map deviates from that standard, it is unfair in the direction of whichever party benefits the most.

The trouble with a proportional representation standard is that it ignores a bias that is inherent in all single member district election systems.  Single member district election systems are inherently biased against evenly distributed populations that are a minority where they are found.  For example, if 15% of the population supports the Libertarian party, and that 15% is extremely homogeneous across the state, and the rest of the population is split in varying percentages between the Democratic Party and the Republican Party, then no Libertarian party members will be elected no matter how the map is drawn in any district where both a Democrat and a Republican run for office, even though they would get 15 seats out of 100 in a pure proportional representation system.

Another set of intuitions is aesthetic.  If the map generally follows existing county lines and municipal boundaries and tends to keep like-minded people in the same district, it is fair.  In contrast, if the map produces erratic and unnatural boundaries that are not obviously related to any pre-existing jurisdictional lines, have funny shapes that contort to achieve political objectives, and tends to split geographically contiguous groups of like-minded people into multiple districts, it is unfair, with the people who are split into multiple districts as the main victims of gerrymandering.

One way to conceptualize the issue is to imagine a state as made up of a lot of census blocks, each of which favor a candidate.  If you can corral enough blocks supporting a given candidate that are close to each other into boundaries equal to the predetermined per district population quota, then that candidate will be elected.  But, if those blocks are dispersed into multiple districts where other candidates have majority support, then that candidate will lose.

But, while districts that split communities of interest are unfair from one perspective, a map that creates lots of competitive districts is often viewed as more fair than a map that creates few competitive districts and preserves more communities of interest.

The Holding

The former Confederate states, including Alabama, have a history of racial discrimination against blacks that including Jim Crow laws and racially biased election laws through the 1960s.

As a result of that history, the Congress passed the Voting Rights Act with a provision that mandated in states that had this history of discrimination, not race neutral election laws and procedures, and instead required that changes in election laws and procedures not make black voters worse off.

This is conceptualized by prohibiting changes in electoral district that make it more likely that a geographically concentrated group of black voters will not be able to elect a candidate of their choice.

In practice, Southern whites now vote so reliably in favor of Republicans or conservative white Democrats, and Southern blacks now vote so reliably in favor of liberal black Democrats, that predicting the outcome of an election based upon how the districts are drawn is particularly easy.

The main holdings are that:

1.  A standing challenge to the organization bringing the suit probably lacked merit and was sprung on the organization inappropriately at the last minute without any party requesting it, or an opportunity to address to standing concerns.

2.  Gerrymandering in this context is to be addressed in light of individual districts that have been inappropriately gerrymandered and not the map as a whole.  Thus, even if race was a minor factor in drawing the map as a whole, it may have been a major factor in how a particular district was drawn.

3.  The baseline of equal population and contiguity are factors that don't count for or against a particular gerrymander's validity.  Permissible factors other than equal population and contiguity that were involved in drawing the district, however, may be considered.

4.  The question is whether a predominant purpose of the change as a whole in the district is to makes it harder for a group (blacks in this case) to elect a candidate of their choice, not, for example, whether the percentage of black voters has changed in the district.

These factors at least bring some measure of definition and applicability to a very slippery concept in a way that provides more clarity for voting gerrymandering cases.  It may be less than ideal and even conceptually problematic, but under the prior vague standards that were in place, it was almost impossible to challenge racial gerrymandering, whereas now that may be possible to do, and the threat of suit may also influence redistricting behavior more broadly.

The changes, in particular, may help blacks interested in having black Congressmen and state legislators represent them, at the expense of helping Democrats more broadly win majorities in Congress and the state legislature that would advance a legislative agenda favorable to blacks.  This is because the approach favors concentrating black votes in one district, rather than spreading them out where they might tip the balance in other contested races.  But, this concern is weaker in the South where the Voting Rights Act has special applicability than in other places, because race and partisan affiliation are so rigidly tied there.

Professional Publications Pending

My two part article with the working title "Judgments, Liens, Encumbrances and Garnishments in Probate" will be published in the May and June issues of the Colorado Lawyer, the principal monthly publication of the Colorado Bar Association.

The title is fairly self-explanatory, although the article will also discuss the intersection of probate law and bankruptcy law. Another topic with which I have handled a number of cases, for another day, is the intersection of probate and family law.

Admittedly, this is not the world's most glamorous legal topic.  It ranks right up there with depreciation schedules and dentistry.  But, it covers issues of importance to an important set of technical issues for practicing members of the bar who do probate work or represent creditors.  The article also points out some ambiguities and contradictions in Colorado's probate laws.

My last article in the Colorado Lawyer was in September of 1998 regarding an estate tax credit for family owned businesses that no longer exists, so it was time to write a new one.  I have also written two papers presented at academic conferences, and taught numerous continuing legal education courses since 2002 (mostly through the National Business Institute).

I was previously a full time Associate Professor of Estate Planning in the graduate program of the College For Financial Planning in Greenwood Village, Colorado, a "for profit" sister college of the University of Phoenix.  But, I was laid off using last hired, first fired logic, due to budget cuts because the College had not met profit growth goals, so I returned to private practice in November of 2005.  This wasn't the best paid employment that I've ever had.  But, I loved teaching and still do. And, this was the only job I've ever had where I didn't have to keep track of how I spent every tenth of an hour of my billable time.  It was also the last job I ever had where I was a W-2 employee and received a salary like clockwork twice a month without even having to send in an invoice requesting payment. Those are experiences that I now remember nostalgically as a self-employed lawyer.

24 March 2015

Cops and Mentally Ill People Are A Volatile Combination

About half of the people shot and killed by police, about 350 per year, are mentally ill.  Many are unarmed or armed only with knives, and would have been a threat to no one but themselves if police had not intervened.  But, often police respond with overkill, like when a bipolar naked black man rushed towards a policeman in Atlanta, and he was shot and killed.

It may not be easy to learn better ways to respond to these incidents, but it is necessary.  A large share of all people involved in the criminal justice system have some sort of mental illness.  Almost every law enforcement officer will encounter many mentally ill people acting oddly in the course of a career.  Learning tactics to avoid making situations that they become involved in worse is a critical skill that somebody needs an incentive, by some means, to develop.

Ten Proposed Reforms Of Colorado and Federal Civil Procedure

There are some circumstances where a few bold but simple procedural rules could materially improve civil procedure.  Here are ten of my favorites:

Hearsay Evidence:

The following should be adopted for civil cases (where constitutional confrontation clause issues are absent) in addition to all other hearsay exceptions in case where a witness is available:
Evidence of a hearsay declaration is admissible if the judge finds that the declarant:
(a) is unavailable as a witness, or
(b) is present and subject to cross-examination.
This text with additional limitations that I would omit, was proposed as part of the Model Code of Evidence of the American Law Institute.

This would still preclude trial by affidavit in cases where witnesses are available, but would allow in lots of reliable information that is now excluded from evidence.  It would also greatly simplify an unnecessarily complex area of law that has been abandoned by our fellow common law legal system jurisdictions by statute.

Appellate Law:
In any case that is reversed on appeal for an abuse of discretion by the trial judge, on remand, the case shall be heard before a different judge.
This is the law in civil law practice, but the opposite of this rule is the current general rule in American practice and it is grossly unfair.

Federal Court Jurisdiction:
Repeal Sections 1331 and 1332(a)(1) of Title 28 of the United States Code.
Section 1331 gives U.S. District Courts jurisdiction over cases where the Complaint in the action arises under federal law and no other specific statute confers jurisdiction over the federal question involved.  Historically, this section has had a minimum monetary threshold for amount in controversy, but the current version of the statute does not.  Note that civil rights cases and intellectual property cases have an additional statutory basis for U.S. District Court jurisdiction in addition to Section 1331.

Section 1332(a)(1) gives U.S. District Courts jurisdiction over cases arising under state law where there is diversity of citizenship involving citizens of two different U.S. states and the amount in controversy exceeds $75,000.  Existing law would remain in place for diversity suits involving non-U.S. persons, and for large class action cases.

This would substantially reduce the role of the federal courts in ordinary civil litigation between private parties, in circumstances where the state courts have completely overlapping jurisdiction with the federal courts.

Limited Liability Company and Limited Partnership Domicile:
Apply the domicile rules for corporations to limited liability companies and other limited liability entities.  In cases of limited partnerships that are not limited liability limited partnership with both limited and general partners, the limited partnership should be treated as domiciled in its state of formation, the state where its principal offices are located, and in any state where a general partner is domiciled.
Existing law treats limited liability companies and other limited liability entities as general partnerships for domicile purposes, which means that they are deemed to be domiciled in every state where an owner resides.  In contrast, corporations are generally deemed to reside in their state of incorporation and the state in which their principal offices are located, subject to certain ad hoc exceptions for special kinds of corporations.  See 28 USC Section 1332(b).

Now that limited liability companies and other kinds of purely limited liability entities have become widespread, it has become clear that there is no good reason to distinguish them from corporations in the context of domicile for civil procedure purposes.

Existing law favors corporations over limited liability companies for no legitimate purpose related to civil procedure, and it makes domicile, venue and jurisdiction questions hinge on proprietary information that is not available to anyone other than members and managers of closely held limited liability companies.  The existing law is also very unfair to publicly held or widely held limited liability companies and limited partnership.

In contrast, in general partnerships or limited partnerships that are not limited liability limited partnerships that have general partners , treating the partnership as domiciled in every state where a general partner resides makes sense, however, because the partner is subject to personal liability in every partnership debt.

Personal Jurisdiction in Federal Court:
Evaluate whether a U.S. District Court has personal jurisdiction over a defendant based upon his contacts with the United States of America.
The current law is that the personal jurisdiction of a U.S. District Court has personal jurisdiction over a defendant based solely upon his contacts with the U.S. state in which the U.S. District Court is located.  A corresponding new rule would have to be adopted similar to Colorado Rule of Civil Procedure 98 governing venue in federal court which is now deemed to be proper in any state where a U.S. District Court has personal jurisdiction over a defendant.

Simply put, federal courts should have personal jurisdiction that is as great as the U.S. Constitution permits it to have, and there is no serious doubt that the proposal I suggest would be constitutional.

Declarations In State Court:
Allow Declarations made under penalty of perjury that are not notarized to be used with the same effect as an affidavit in state courts in Colorado to the same extent as they are allowed in federal court under Section 1746 of Title 28 of the United States Code.
Requiring court filings regarding statements of fact in federal court to be notarized in archaic, creates a trap for the unwary, and is unnecessary as shown by the success of this reform in the federal courts (since 1976 when it was adopted) and in many state court systems, such as the state courts of Utah since 2007.

The ongoing active involvement of litigants and lawyers in lawsuits make the protections offered by affidavits largely superfluous in court proceedings (unlike real estate matters and wills where notarization is also used).  The requirement of notarization more often does injustice by excluding valuable evidence for logistical reasons, than it does justice by excluding unreliable testimony.  The threat of prosecution for perjury remains in both circumstances.

Motions to Dismiss For Failure To State A Claim in Civil Actions:
Repeal Federal Rule of Civil Procedure 12(b)(6) and Colorado Rule of Civil Procedure 12(b)(5).
These rules authorize motions to dismiss for failure to state a claim upon which relief can be granted on the case of a complaint or counterclaim or cross-claim in a civil lawsuit, without consideration of any evidence.

In layman's terms, this is a "so what?" motion, that states that even if everything said in the complaint is true, you lose.

Historically, filing one of these motions would delay the time period in which a person would be required to file a substantive response in the form of an "Answer" or "Reply" to a claim, although Colorado is on the verge of eliminating that requirement, because it unnecessarily adds delay to a case.

In federal court, a motion to dismiss delays the deadline for filing an Answer or Reply, but does not delay the pre-trial discovery process absent exceptional circumstances that could also be invoked if an early Motion for Summary Judgment is filed (in Colorado's federal practice these motions are call "String Cheese Motions" after the case that sets forth the relevant legal standard).

The legal doctrines involved in evaluating these motions is quite obscure and elaborate, and nothing in the existing rules of civil procedure prevent someone from instead filing a Motion for Summary Judgment, possibly supported by affidavits and documents, to dismiss a case at the same early stage of the proceeding, but without delaying the time frame for filing an Answer or participating in discovery regarding the evidence in a case.

The main reason that we have both Federal Rule of Civil Procedure 12(b)(6) (motions to dismiss for failure to state a claim) and Federal Rule of Civil Procedure 56 (motions for summary judgment), boils down to historical accident.  Federal Rule of Civil Procedure 12(b)(6) is a residual remnant of what was called "Code Pleading" which was in effect before the Federal Rules of Civil Procedure were adopted in 1938.  Apart from this residual feature and a couple of other minor anomalies, the Federal Rules of Civil Procedure operate on a different legal theory known as "Notice Pleading".

There are some circumstances where a motion to dismiss would result in someone losing a case where a motion for summary judgment would not, primarily involving cases where incriminating evidence is in the sole possession of the person being sued or a third party, and can only be obtained via court ordered discovery.  But, those cases largely argue in favor of reform, rather than against it.

This would also alter a fee shifting rule in certain Colorado cases, but there are other ways to amend that shifting rule to accomplish the same purpose, and perhaps do a better job of screening frivolous lawsuits that should be sanctioned from potentially meritorious ones.

Simplified Procedure For Civil Actions:
Repeal Colorado Rule of Civil Procedure 16.1
One of the problems with existing civil procedure rules is that they do a poor job of meeting the needs of people with medium sized cases with amounts in controversy between about $15,000 and $100,000 or simply title disputes.

Colorado Rule of Civil Procedure 16.1 entitled "Simplified Procedure For Civil Actions" was adopted as a reform to address this need by replacing discovery with pre-trial disclosure of what amount to scripts of what witnesses are expected to say at trial that limits witness testimony to what is disclosed prior to trial.  It also allows certain kinds of testimony to be received in the form of preservation depositions rather than live trial testimony.

For a variety of reasons, Colorado Rule of Civil Procedure 16.1 has been a flop.  For example, it is very unfriendly to parties to lawsuits who don't have lawyers (which parties in small cases in general jurisdiction district courts often don't).  It is highly prone to manipulation by lawyers who want to play hardball.  And, judges have been reluctant to exclude testimony for non-disclosure because the rules are unclear regarding the amount of detail that must be contained in pretrial disclosures.

Colorado Rule of Civil Procedure also greatly complicates law office management because it creates a class of civil lawsuits that don't follow the ordinary sets of deadlines used in other civil cases.

Overall, this deserves to be repealed.

Jury Trials In State Court Civil Actions:
Eliminate the right to a trial by jury in civil actions except in cases where (1) non-economic damages are available, (2) exemplary (i.e. punitive) damages are available, (3) money damages are sought by some party from or by a governmental entity or officer or agent, (4) there are allegations of intentional fraud, whether or not punitive damages are sought, or (5) a written contract expressly preserves a right to a trial by jury.
In Colorado, there is no right to a jury trial in a civil case under the United States Constitution, the Colorado Constitution, or any statute.  The right to a jury trial in civil cases in Colorado arises solely under the Colorado Rules of Civil Procedure which basically incorporate by reference the standard for entitlement to a civil jury trial under the 7th Amendment to the United States Constitution (which relies on a historical distinction between law and equity prior to the merger of the two court systems in the late 19th century and early 20th century) as a matter of court rule, for no really compelling reason.

Most written leases and contracts expressly waive the right to a jury trial.  About 75% of jury trials involve cases for personal injury or defamation, where non-economic damages are available.  Most of the rest involve some sort of intentional conduct or fraud, eminent domain cases, or governmental liability, all of which retain the right to a jury trial under this reform.

Basically, we have civil juries to ascertain damages in situations where a judge has little guidance or an appearance of a conflict of interest (because he is a governmental employee), or where the collective judgment of a jury is deemed a better way to determine credibility than a judge's determination where credibility is always a core issue (in fraud cases).

Jury trial are generally slower and more costly than non-jury trials, which is why they are overwhelmingly opted out of in lawyer drafted contracts.  This makes the most commonly adopted provision the default rule, rather than the exception.

Certificates of Service:
Eliminate the requirement of a certificate of service on any pleading that is electronically filed and served where all parties who are entitled to service have an e-filing account.
There is no reason that pleadings should contain a certificate of service when there is a third party electronic record of the same thing.

The Balance of Power In Modern American History

As a prelude to future posts on the state of the American political system, I'd like to start with a history lesson on the partisan and ideological balance of power in American politics.

Divided Government

Americans have gotten used to divided political control in recent years.

Seventeen of the twenty-four elections held from 1968 to 2014 have produced divided governments.

We have had (or will have) divided government for 44 years since the end of World War II.

Six of eight years under President Obama (January 2011-January 2017)
Two of eight years under George W. Bush (January 2007-January 2009)
Six of eight years under President Clinton (January 1995-January 2001)
All four year under President George H.W. Bush (January 1989-January 1993)
All eight years under President Reagan (January 1981-January 1989)
All eight years under President's Nixon and Ford (January 1969-January 1977)
All eight years under President Eisenhower (January 1953-January 1961)
Two years under President Truman (January 1947-January 1949)

Republican Control

Republicans controlled the Presidency and both houses of Congress for the first six years of George W. Bush's eight year Presidency (from January 2001 to January 2007).  The Republicans didn't have a filibuster-proof majority in the U.S. Senate in any of those six years.  But, the U.S. Supreme Court was moderately conservative during those six years as well.

Prior to George W. Bush, the last time that Republicans controlled the Presidency and both houses of Congress was in March of 1933 under Herbert Hoover.

Democratic Control

Democrats controlled the Presidency and both houses of Congress:
* For the first two years of President Obama's eight year term (from January 2009 to January 2011), with 59 seats in the U.S. Senate, one vote shy of a filibuster-proof majority.
* For the first two years of President Clinton's eight year term (from January 1993 to January 1995),
with 57 seats in the U.S. Senate, two votes shy of a filibuster-proof majority.
* During President Carter's four year term (from January 1977 to January 1981), with 61 seats in the Senate for the first two years and 58 seats in the Senate for the second two years.
* During the administrations of Presidents Kennedy and Johnson (from January 1961 to January 1969) with 64 seats in the Senate for four of those years, with 66 seats in the Senate for two of those years, and with 68 seats in the Senate for two of those years.
* During the administration of President Truman from April 1945-January 1947 and from January 1949-January 1953).
* During FDR's Presidency from March 1933 to April 1945.

Democrats held substantial and often filibuster-proof majorities during the administrations of Presidents Truman and FDR.

A Caveat on Realignment

This raw data, however, is somewhat misleading.  The Democratic party had deep internal divisions between conservative Southern Democrats and liberal Northern Democrats for most of the period from Truman's administration through the Reagan administration.  The practical effect of this divide was that there were basically three political parties in Congress during this time period, none of which commanded a majority.

There were still significant numbers of conservative Democrats from the George H.W. Bush administration through the end of the Clinton Administration, although there are almost none today in Congress (the Democratic party today still has a somewhat broader ideological spectrum than the Republican party does, however).

There were still many liberal leaning Republicans in the Eisenhower, Nixon and Ford administrations.  Liberal leaning Republicans had become politically irrelevant in the U.S. House by the Reagan administration, but a few moderate Republicans had lingered in the U.S. Senate until the 2014 election.

There are now basically no conservative Democrats and no liberal leaning or moderate Republicans in Congress, although there are some moderate Democrats in Congress.  The majority of Democrats in Congress are solidly liberal.  The majority of Republicans in Congress are very conservative.

There are currently 52 Republican U.S. Senators, one more than a majority in the U.S. Senate, and 244 Republicans in the U.S. House, 27 more than the 217 members needed for a majority in the U.S. House.

Incidentally, of the 50 state governors in the United States, 31 are currently Republicans.

A Caveat on the Filibuster

The right to debate was unlimited and not subject to a cloture vote in the U.S. Senate until 1917, and this right was used to "talk bills to death" starting around 1841.

From 1917 to 1975, a cloture vote took a two-thirds majority, but the tactic of talking a bill to death that became known as the filibuster was rare and used mostly by Southern Democrats to fight civil rights bills.

The vote required was reduced to 60 votes in the Senate in 1975, but this change also strengthened the filibuster by effectively requiring a 60% vote to bring any bill or nomination other than budget bills to the floor.

Post-reform the filibuster was also mostly rarely and mostly in relation to civil rights bills.  But, Republicans dramatically increased their use of the filibuster and other Senate privileges of minorities in the last few years to the point where they became routine.

There was doubt for an extended period of time over the question of whether a majority of the U.S. Senate could change the filibuster rule since it operates in continuous session (unlike the U.S. House which reorganizes each year).  But, that question was resolved on November 21, 2013 when the U.S. Senate voted 52-48 to exercise the "nuclear option" and eliminate the filibuster in certain circumstances (bringing Presidential nominations other than U.S. Supreme Court nominations to the floor).  Other measures can still be filibustered, but this power is muted by the acknowledgement that the majority can change the rules at any time.

A Note on the Veto Power

It takes a two-thirds majority of both the U.S. Senate and the U.S. House to override a Presidential veto of a bill passed by Congress.  There have been just 62 veto overrides from FDR to the present.  There has never been a time in U.S. history where the President has belonged to one party, and another political party has had a veto-proof majority in both the U.S. House and the U.S. Senate.  No President has had more than a quarter of his vetoes overriden by Congress.  The mere threat of a veto, because it is so hard to override is the President is supported by members of his own party, is a potent political threat.

The Supreme Court

Federal judges serve for life, are constitutionally forbidden from receiving pay cuts, and have immense power.

The U.S. Supreme Court was a decidedly conservative force during the Lochner era from roughly 1897 (the case of Allgeyer v. Louisiana (1897)) to 1937, which is named after the case Lochner v. New York (1905), although Plessy v. Ferguson (1896), which provided a legal foundation for Jim Crow era apartheid laws, is arguably a better landmark.

From roughly 1937 to 1953 (the later part of the Hughes Court, and all of the Stone Court and the Vinson Court), the U.S. Supreme Court was deferential to Congress and the President, not striking down liberal legislation as the U.S. Supreme Court did during the Lochner era, but not protecting individual liberties in the way that the U.S. Supreme Court has since the Warren Court era even since its shift to a moderately conservative majority in 1991.  The Court's in this era established the enemy combatant doctrines during World War II that George W. Bush would use to fight the War on Terrorism and legally authorized Japanese internment during World War II.  On balance, this too was a moderately conservative court.

The liberal Warren Court (1953-1969) produced Brown v. Board of Education, and most of the precedents that gave effect to federal constitutional protections for criminal defendants.  The Burger Court (1969-1986) most notably produced Roe v. Wade, but gradually took a more moderately liberal position that continued into the first few years of the mostly moderately conservative Rehnquist Court (1986-2005).  The Roberts Court (2005-Present) has also been moderately conservative.

The U.S. Supreme Court has had a moderately conservative majority since 1991 when Justice Thomas was appointed.  This checked Democratic power during the periods when Democrats were in control of the political branches during the administrations of Presidents Clinton and Obama.

Also, the modern Supreme Court, while its median vote is moderately conservative, has gained several members who are extremely conservative relative to the legal profession and other judges (i.e. Justices Scalia, Thomas and Alito).  The current conservative-liberal balance of the U.S. Supreme Court is 5-4, which very moderately conservative Justice Kennedy as the swing vote.  So, a single liberal U.S. Supreme Court appointment could shift the U.S. Supreme Court to a liberal one, while a single conservative U.S. Supreme Court appointment could shift the U.S. Supreme Court from being moderately conservative to very conservative.

The unquestioned legitimacy of the Supreme Court's decision in the Bush v. Gore case, that resolved a Presidential election in 2000 on a 5-4 vote, illustrates just how secure the Supreme Court's status as final arbiter of constitutional and political disputes in the United States is today.

The Lower Federal Courts

There are other countries that have courts or quasi-judicial bodies comparable in clout to the U.S. Supreme Court in their political systems.  France has the Council of State.  Many countries have "constitutional courts."  But, no other country in the world has a large corps of judges with power comparable to those of U.S. federal court judges and state court judges in general jurisdiction trial courts.  In civil law countries, ordinary judges lack the authority to declare statutes unconstitutional or to handle cases involving governmental entities (a field of law called "public law" in those countries).  In other countries in the Anglo-American common law traditional, judges also lack broad public law authority.

Moreover, the U.S. system of selecting judges, for all its flaws, puts successful, talented and politically connected people who have proven themselves in previous legal careers in judicial office, while civil law countries and most countries in the Anglo-American tradition as well, tend to attract less esteemed, more politically timid career bureaucrat types to their judiciaries (although "investigating judges" in some civil law countries, particularly in Spanish, Italian and Latin American courts can sometimes be an exception to this rule, serving roles more like an attorney-general in the U.S. political system).

The result has been a virtuous circle.  Talented people on the bench skillfully exercise their power in part in ways that expand their authority, and the track record of the courts of making better decisions than the political branches on many issues encourages lawmakers to trust judges with ever greater responsibility.

Often, these lower federal court judges resolve sensitive political issues in ways that will never receive U.S. Supreme Court review.  There is only so much that the U.S. Supreme Court, can do to supervise the fifty state supreme courts and more than a dozen federal appellate courts (including territorial supreme courts) from which appeals can be lodged with it.  About five or six hundred judges in the United States sit on courts from which the only remaining appeal is to the U.S. Supreme Court.  The U.S. Supreme Court considers only about 2% of the cases appealed to it on the merits.  It has only a limited capacity to reign in liberal or conservative tendencies in the lower federal courts with its precedents.

As one former Colorado Supreme Court justice explained:
While an appellate court may have the opportunity to reverse any individual trial judge every few years, I know that trial judges, in their numerous workday rulings, reverse appellate courts every day.
In the federal courts, lower federal judges are appointed by the President, with input from affected Senators, and while the U.S. Senate often whines about the President's choices, it very rarely fails to confirm his nominees in the end.  Also, driven by the prospect of handsome pension plans, federal judges below the U.S. Supreme Court tend to retire at a reasonable age, rather than literally serving "for life."  So, the federal judiciary tends to get gradually more liberal during Democratic presidencies, and to get gradually more conservative during Republican presidencies, in a fairly orderly and regular fashion.

Currently, a majority of judges sitting on many important federal courts have been appointed by Democrats.

The Military

In many countries of the world, the military is an important military power broker and "guardian of the constitution," a role that often leads to coups when civilian governments grow hopelessly tangled.  But, the U.S. military has never had this role.

The American political culture, a clearly understanding that the President is the undisputed commander-in-chief of the armed forces, and statutes barring military involvement in law enforcement, have successfully kept the U.S. military almost completely out of politics, despite the fact that when surveyed, more Americans almost always trust the U.S. military more than the President, Congress, or the Supreme Court.

This isn't to say that military leaders don't have political opinions.  Indeed, since the U.S. military has become an all volunteer force, it has become much more polarized.  Currently, about 90% of military officers identify as Republicans (enlisted soldiers are more evenly divided).  Among white military officers, the percentage who identify as Republicans is even greater.

But, American military officers have historically been content to seek to participate in politics (other than those directly pertinent to the Department of Defense and foreign affairs) after they retire, rather than while serving on active duty.  Soldiers who attempt to do otherwise are routinely disciplined in the military justice system.

The sheer size of the U.S. military is also relevant to its potential political role. Contrary to one's ordinary intuition, the smaller a national military force is, the more likely it is to carry out a coup.  It boils down to a question of collective action.  It is harder to organize hundreds of senior military officers spread across the globe than it is to organize a handful of senior military officers who are all based in their home country.

Federalism and the Bureaucracy

Very roughly, about a million federal civilian employees work in military or national security posts, about one and a half million are active duty military personnel, about three-quarters of a million federal employees work for the U.S. Postal service, and about a million other civilians work for the federal government.  Thus, about 2.5 million of the 5.25 million people who work for the federal government have military or national security jobs.

The Postal Service and many civilian government federal employees, moreover, work in independent agencies that have substantial autonomy from the current Presidential administration and sometimes even have their own funding sources granting them a measure of fiscal autonomy from the Congressional budget process as well.

In contrast, about 16 million people work for state and local governments, a large share of which work in public school districts and public colleges and universities.  This employment is also highly decentralized with local governments employing many more people than state governments, particularly outside colleges and universities.

Law enforcement, in particular, is very bottom heavy.  The vast majority of law enforcement officers work for local governments.  The number who work for state governments or the federal government is much smaller.  Moreover, local law enforcement is almost always accountable to local elected officials, with only very loose supervision from and coordination with state and federal law enforcement officials.  There is probably no other developed country in the world with such a decentralized law enforcement system bar none (even notoriously decentralized Switzerland).

Civil service systems in governmental entities insulate the vast majority of federal and state government civilian employees, and a significant number of local government employees from politically motivated action that could impact their employment.  Government hiring below the policy making level is largely merit based to the extent it is reasonably feasible to do so, and firing government employees of almost any kind is, as a rule, very difficult.

Public employees are also much more heavily unionized than any other part of the United States economy.  Public sector unionization is growing, while private sector unionization is at levels lower than before there were any federal laws protecting union activity back in the 1920s and teens.

This isn't to say that the federal government isn't important.  But, a lot of what the federal government does is write checks in programs that don't involve many federal government employees.  The federal government also sets lots of key policies that influence all levels of government and the private sector.  But, with some notable exceptions, like the Veteran's Administration hospital system, the federal government doesn't carry out its programs directly with large numbers of its own employees.

But, the decentralization of American government means that even a total deadlock at the federal government level does not bring the operation of many key functions of government, or even significant policy making innovation, to a total stop.

Indeed, the fact that the consequences of a government shutdown or policy deadlock at the federal level can often be modest, is one of the reasons that political leaders allow these things to happen.

23 March 2015

Nepotism, Merit, And The Perils Of Underpaying People In Important Jobs

I estimate that the son of an N.B.A. player has about a one in 45 chance of becoming an N.B.A. player. Since there are far more N.B.A. slots than Senate slots, this is only about an 800-fold edge. . . . 
An American male is 4,582 times more likely to become an Army general if his father was one; 1,895 times more likely to become a famous C.E.O.; 1,639 times more likely to win a Pulitzer Prize; 1,497 times more likely to win a Grammy; and 1,361 times more likely to win an Academy Award. Those are pretty decent odds, but they do not come close to the 8,500 times more likely a senator’s son is to find himself chatting with John McCain or Dianne Feinstein in the Senate cloakroom.
From the New York Times Op-Ed page via Marginal Revolution.

The ratio for Presidents is 1.4 million times greater, and for Governors is about 6,000 times greater, although both involve very small base numbers.  There was one father-son set of Nobel Prize winners.

It is fundamental and natural that children share many of their parents strengths and weaknesses due to genetics and their upbringing.  As a first order approximation, the assumption that a son will be as successful in life as his father is a more accurate mirror of the world than the assumption that a son's success is completely uncorrelated to his father's success.*

We would like to think that our society is highly meritocratic.  And, for most of human history, society was less meritocratic than it is today.  But, parents continue to have a significant impact on a son's socioeconomic success that is not merely attributable to merit or luck.

The examples of athletes and musicians above both involve narrow, highly hereditary traits in fields of endeavor known for being quite meritocratic.  So, they represent something close to an upper limit on the extent to which merit can help you achieve, although even in those fields, outright nepotism and other advantages a parent in a particular field can confer on a child (like mentoring and advice and networking) probably confer some benefits beyond mere personal merit.

Nepotistic advantage in the economic world should hardly surprise us.  Children generally inherit their parent's wealth when their parents die, and receive substantial economic support from their parents during their lives.  Mainstream economic theory assumes that one of the main reasons that people who aren't going to spend the money they've already earned in their lives still work is to pass wealth on to their children.  And, people wouldn't provide their children with economic support and inheritances if they didn't genuinely believe that their children are better off as a result.

But, the extreme edge a parent can confer on a son in the military, which is often perceived as a particularly meritocratic institution, is more notable.  We expect politics to be rather corrupt.  We are surprised, in contrast, to see nepotism play such a powerful role in the military.

Then again, historically, all political leaders were also warriors, a circumstance that continued, at least, into the late middle ages in most of Europe, and remains part of the tradition of, for example, the British monarchy.  And, during the era when all political leaders were warriors, the extent to which the hereditary principle governed political succession was much greater than it is in modern democracies run by people who are, at least currently, civilians.

It isn't obvious how this plays out in the modern bureaucratized military, although one can guess at how this comes to be.

One important factor comes from varying personal assessments of the desirability of being a top military officer among people who are qualified to do the job.  Top military officers are paid profoundly less than civilian top managers in the private sector with comparable authority.  People motivated by money who have the talent to be generals in the military leave to become business chiefs instead.  Only people who value the prestige of a high military office more than money stick it out to become generals, and family influences drive that motivation.

Thus, one of the main drivers of nepotism in the military, as in many circumstances where we encounter corruption, is that the purely economic compensation that a sufficiently talented person can obtain by performing the job is less than could be secured elsewhere.

This is also probably one of the drivers of nepotism in politics.  Elected officials are rarely paid well in comparison to the power the wield and the extent to which they are exceptional relative to members of the general public, particularly in the early phases of the pursuit of elected office that form the minor leagues from which most senior politicians emerge.  Working as a state legislator is a demanding full time job, requires you to raise far more money than you will make at the job to be hired, involve responsibility for sophisticated policy making decisions that entail oversight of billions of dollars, and often pays less than a junior level clerical position or entry level school teaching job.

Only those people who value power much more than personal economic wealth (at least as so wealthy that they need not concern themselves with making a living or have been raised to have very long time horizons for cashing in with personal economic wealth) become career elected officials.  The values that a child of a politician learns greatly influences how that child evaluates power relative to money as an objective in life.

The fits the observation that the single most powerful means of culling potential elected office holders is the decision of particular potential candidates to run for office or not.  More talented potential elected office holders drop out of contention at this stage than any other.

Of course, in the arena of politics, the way that voters evaluate candidates also plays a part.

Human nature has a strong monarchist predisposition that plays out in the tendency of voters to favor candidates who are part of political dynasties.  Electoral politics do not produce winners on a meritocratic basis.

In part, political dynasties can be rational for the voter in much the same way as political parties are rational for the voter.  Voters are in a poor position to evaluate a candidate's actual merit in politics (a concept that is nebulous anyway in this field of endeavor).  So, voting for someone closely related to someone who has already demonstrated political merit may be the most reliable available proxy for merit that is easily available to them.

It is also worth recalling one of the most notable observations of Milton Friedman in his economic writing aimed at the general public, like his book "Free to Choose": that while there is inequality in both economic power, and in political power, inequalities in political power are usually greater than those in economic power.  Our political theory says that politics should restrain economic inequality, but experience teaches us that politics is often even worse.

After all, in politics, there is a zero sum game and inequality is built into the structure of constitutional government.  Only a handful of people can lead the nation as elected officials.  In contrast, in the economic sphere, the success of one person does not nearly so inevitably have to come about by denying economic rewards to another.  In theory, in a world where many people are highly productive, many people can prosper.  There are about 5,000-10,000 professional elected officials in the United States.  There are far more people who are very wealthy.  There are 3 million people in the top 1%, and 30,000 people in the top 0.01%, an economic stratum limited to people who each have a net worth of dozens or hundreds of millions of dollars or more, making them serious contenders in terms of combined economic and political power with the lower echelons of professional elected officials in the United States, only a handful of whom make more than $250,000 a year.

When we pay public senior officials, elected or otherwise, less than they could make in comparable private sector positions, we do so at our own peril as a nation that would like to be free of corruption.

To conclude, lets circle back to athletes and entertainers.  While the top performers in these fields are well paid, life in the long tail is merger.  The average professional ballet dancer earns less than twice poverty line compensation.  Starving artists are a thing, not just a myth.  Only people who have been raised to truly value excellence in these fields and who have independent financial means are likely to be able to stick it out for the long years of demanding work for little pay that are necessary to eventually have a shot at rising to the top.  So, maybe the world of athletes and entertainers, while meritocratic at the top, isn't as fully meritocratic in the pipeline to those top positions as it might seem, which in turn can explain the extreme nepotism factors in those jobs.

* The gender distinction I make here and that the author makes in the quoted material below, reflect the fact that men and women's paths to socioeconomic success were almost completely different until sometime after 1980 when women who chose not to have children, at least, started to have similar economic prospects to men leaving only a single generation of precedent for them in a world where the rules of socioeconomic attainment for women is still in flux.  The analysis as applied to women is important, but far more complex.

22 March 2015

Comings and Goings

Every once and a while my primitive (by design) phone tells me that I need to delete some text messages because my text message box is full.  So, I obey.

What is striking about the process is what a large share of all messages involve picking people up, coordinating schedules and confirming that you've received information that has been texted to you.  Once those messages are cleared out, there is surprisingly little of substance.  Some phones (like my daughter's) apparently even have canned messages for this kind of thing.

This says something, no only about the medium, but about the content of ordinary conversation in the connected age.  We have become very reliant in an etiquette sense on keeping people apprised of our comings and goings.  Everyone must be coordinated with everyone else in real time.

We haven't gotten to the point where everyone in a family has GPS data all the time in real time about everyone else in the family as a matter of course for most people, but the capability is there and it is probably only a matter of time before the social obligation to let people know when you'll arrive, and the public safety harm of constant texting, will make that feature a standard option for most people.

Caveats and Related Points

Now, this may simply reflect the fact that I'm a member of Generation X and also don't have a large circle of social friends who like to communicate by text (an imperfectly correlated aspect of my generation).  Maybe other people say more in that matter.  I also don't have a Twitter account and have only the dimmest of basic ideas about how that medium that uses text message sized posts works, and I know that people sometimes engage in more substantial conversations via Twitter (even academic discussions), so your mileage may vary.

I do know, however, that I really dislike voice mail relative to e-mail and texts.  I've disabled it on my cell phone and almost completely replaced it with old school hand written messages at the office.  Voice mail is inconvenient for taking down people's phone numbers, doesn't prompt people to provide the information that you need, and takes a comparatively long time to listen to.  Not surprisingly, studies have shown that voice mail is reviewed much less frequently and after much longer delays than texts.

Also, while having your life wrapped up in one easily destroyed gadget has its drawbacks, to the extent that the information on it is backed up in the cloud and password (or perhaps biometric sensor or similar key) protected, there is something to it when that one gadget can be tracked with GPS.

If you, for example, lose your wallet on the bus, you are likely never to see it again, surely will lose any money on it and will have compromised the credit cards in short order, and may be a victim of identity theft.  Lose your trackable, content protected, cloud information stored phone, in contrast, and you are much more likely to get it back, it has much less value to a thief, and if it is destroyed, you lose only the hardware which is often insured anyway.

Increased security similar to ATM cards will be coming to credit cards in the next year or two.  Technologies that make concealed firearms work only in the presence of a ring worn by the authorized user are also reality, as are similar systems in which a car is keyless but requires a key to be located in the driver's seat area for the car to be started (a function that could easily be migrated to a particular telephone).

All of these technologies make it increasingly hard to be a petty thief and make a living at it these days.

14 March 2015

The Tagging Effort Continues

All posts in this blog from September 2006 or later have been assigned labels (aka tags) that help identify their subject matter, and a significant portion, although probably a minority, of earlier posts at this blog have been tagged.

The effort is an ongoing one that continues in fits and spurts.

UPDATE March 22, 2015: August 2006 done as well as July 2005.  Parts of twelve months to go.

Immigration Judges Are Still Assholes

Judge Posner, writing in the dissent of a 7th Circuit decision, rightfully explains at length how an unreasonable asshole of an immigration judge inappropriately ordered a man who had lived in the U.S. legally for twenty years should be deported on the basis of a sham marriage that was not, in fact, a sham.

The other two judges on the panel deferred to the arbitrary and unreasonable immigration judge, unfortunately, the norm in this area of law (see also here and here and here).

12 March 2015

Life Imitates Art Called Life

The NBC television series "Life" aired from 2007-2009 featured the plight of a wrongfully convicted cop in Southern California, after he was exonerated and placed back on the beat, and his side kick, a middle aged businessman who was convicted of white collar felonies who finds a position teaching business at a local college once he finishes his prison term.

For what it's worth, the series was excellent and has forever changed my outlook on eating fruit.

Well, it turns out that real life imitated art, and in particular, the television series "Life."

As a post from Professor Bainbridge entitled "UC Irvine Law said they'd debut in the top 20.  It didn't happen.  Good." explains in the pertinent part:
I lost whatever respect I might have had for their administration when they hired the felon Bill Lerach. To teach a course on the ethics of capitalism, no less!
Life continues to be full of surprises, including those predicted in Hollywood.

10 March 2015

Word of the Day: Festschrift

In academia, a Festschrift (German pronunciation: [ˈfɛstʃrɪft]; plural, Festschriften [ˈfɛstʃrɪftən]) is a book honoring a respected person, especially an academic, and presented during his or her lifetime. The term, borrowed from German, could be translated as celebration publication or celebratory (piece of) writing (literally 'feast-script'). A comparable book presented posthumously is called a Gedenkschrift (memorial publication). Sometimes, the Latin term “liber amicorum” (literally: “book of friends”) is used for a Festschrift. The German word Festschrift has been incorporated into the English language.
From Wikipedia.

Noted because it was used in an abstract of a paper at the Comparative Law Prof blog (despite the blog post's dreadful title).

09 March 2015

Traumatic Brain Injury Almost Universal In High Risk Jail Inmates

A recent study found that 96% of inmates in a high risk unit of the Denver jail have a history of traumatic brain injury. By comparison, 67%-80% of all jail and prison inmates, nationally, have a history of traumatic brain injury, and 6%-8.5% of the general population has suffered from a traumatic brain injury.  While an above average rate of traumatic brain injury had been expected, the near universal history of traumatic brain injury among high risk inmates was not.

In the Denver high risk jail unit, 100% had a prior criminal history, more than 90% had a history of mental illness and more than 90% had a history of substance abuse.  More than 77% of the inmates in the high risk unit had all four risk factors.

A comprehensive metaanalysis of TBI incidence from 2003 can be found here. This points to an important indirect source of the large male-female disparity in serious crime rates. "The high M/F ratio is mainly the result of interpersonal violence and motor vehicle collisions during adolescence and young adulthood. During these “testosterone years,” the M/F ratio can approach or exceed 3 to 4:1." This disparity in TBI incidence, in turn leads to a disparity in serious crime incidence in which TBI is a contributing factor (where the disparity is even more extreme). A study reviewing TBI incidence in Australian prisons from 2006 found an 82% TBI incidence rate. Another county jail study from 2003 found an 87% lifetime incidence of TBI. A 1995 study examined the way the substance abuse can exacerbate TBI issues.

Generally speaking, TBI cannot be "cured" although it is possible to teach people with TBI how to better deal with the symptoms and to provide more support for them.

UPDATE: March 22, 2015

Note directly related, but relevant is the data on PTSD on soldiers who have served in combat.  The recent U.S. wars have sent many soldiers who served in combat home with PTSD and has sent many home with TBI.  Both are invisible.  But, we've known about the risks associated with PTSD under different names since WWI at least (and probably sooner), and the risks associated with TBI since the case of Phineas Gage who died in 1860.  Our understanding of these conditions is more scientific and precise than it once was, but is hardly new.

06 March 2015

Birthright Citizenship Requires A Constitutional Amendment To Change

The United States and Canada are almost unique in having birth right citizenship provisions.  In the United States this right is enshrined in the United States Constitution and cannot be modified by statute, notwithstanding ill reasoned and ill supported arguments to the contrary.

Birthright citizenship flows directly from the first sentence of the first section of the 14th Amendment to the United States Constitution which states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
This dove tails with the first sentence of the second section of the 14th Amendment which provides that:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
The sole qualification to birthright citizenship, “and subject to the jurisdiction thereof” excludes children of foreign citizens with diplomatic immunity, and Indian tribes not subject to U.S. taxation (a class of persons which no longer exists as a result of The Revenue Act of 1924 (43 Stat. 253) (June 2, 1924), also known as the Mellon tax bill and the Indian Citizenship Act of 1924 (43 Stat. 253, Ch. 233 (1924) which subjected all Native Americans in the United States to federal income taxation and granted all Native Americans in the United States U.S. citizenship).

The definition of citizenship immediately prior to the adoption of the 14th Amendment in the United States was narrower and provided in 1866 that:
[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . . .
This definition was expanded by the 14th Amendment. Rogers v. Bellei, 401 U.S. 815, 829 (1971). The 14th Amendment constitutionalized birth right citizenship, with the express purpose of not allowing it to be modified by statute. Rogers v. Bellei, 401 U.S. at 829-830. The case law under the “subject to the jurisdiction thereof” clause has largely freed it of any ambiguity or wiggle room to remove citizenship for people born in the United States without a constitutional amendment.

The only way to deprive children born in the U.S. to non-citizen parents of U.S. citizenship without a U.S. Constitutional Amendment is to grant their parents diplomatic immunity, both civil and criminal. Few people concerned about illegal immigration would be willing to take that step to achieve that end.

As a practical reality, the super-majorities necessary to eliminate birth right citizenship for persons born in the United States by constitutional amendment pursuant to Article V do not exist and will not exist for the foreseeable future.

The United States citizenship laws allow some people to be citizens at birth even though they are not born in the United States (e.g. the “Superman” exception for children found wandering around without parents in the U.S. without known paternity as toddlers or younger who are U.S. citizens unless proved otherwise by the time that they attain the age of eighteen). Those provisions are subject to modification by statute and to the extent that they are ambiguous can be interpreted by federal regulation.

UPDATE: March 11, 2015.

A Congressional Research Service report from 2005 acknowledges the existence of the view that a statute could end birthright citizenship, notwithstanding the clear language of the 14th Amendment and multiple U.S. Supreme Court rulings to the contrary, but does not adopt, endorse, or credit that view which has no support from any actual court rulings.