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FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. Akhil Amar

Professor Akhil Reed Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?’”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site Read More

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The Rise of the Bill of Rights

Before I return to research mode on this subject, I want to make two other points about why the first set of textual amendments became identified as a “bill of rights” around the beginning of the 20th century.

One hypothesis I am testing is whether state bills of rights drafted after 1791 looked like the first set of amendments.  State constitutions sometimes influence the Federal Constitution, and this may be a prime example.  Let’s say Indiana or California or Colorado wrote a self-styled Bill of Rights that looked a lot like the 1791 amendments.  It would be natural, I think, for people in those states to then see those amendments as a “Bill of Rights” in a way that was not true for the Framers, largely because the first set of amendments did NOT look like the state bills of rights in place at that time (say, in Virginia).

A second thought is that when the United States acquired Puerto Rico and the Philippines from Spain in 1898, Congress passed statutes organizing the governments for both colonies that included a truncated “Bill of Rights” for each.  This was the first time that a major federal statute used that phrase, which then led to many cases construing those provisions as increasing the usage of “bill of rights” to refer to the first set of amendments.  Why did Congress call what was given to these territories a bill of rights?  Probably it was a way of placating critics of imperialism (most notably William Jennings Bryan) and reassuring them that our rule in these places would be just.  (It didn’t work out that way in the Philippines, but that’s another story.)  It would be poetic if foreign conquests ending up strengthening the Bill of Rights at home.

Back to Magna Carta and other topics tomorrow

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Canons as Sayings

My summer-reading highlight for 2014 was Surfaces and Essences, by Douglas Hofstadter and Emmanuel Sander.  The book is primarily concerned with the relationship between analogies and human thought, but it also offers some fun and interesting insights about language along the way.  My favorite such insight had to do with “mutually contradictory proverbs,” i.e., pairs of sayings/idioms that reflect starkly conflicting pieces of advice.  Hofstadter and Sander have collected several of these competing pearls of wisdom, including, for example:

  • Strike while the iron’s hot . . . but then again,  Look before you leap.
  • Two’s company, three’s a crowd . . .  but then again,  The more, the merrier.
  • Opposites attract . . . but then again, Birds of a feather flock together.
  • The pen is mightier than the sword . . . but then again,  Actions speak louder than words.

And if I may add just a few more of my own (I’ve been alertly on the lookout all summer):

  • Be yourself! . . . but then again, When in Rome, do as the Romans do.
  • You never get a second chance to make a first impression . . . but then again, Today is the first day of the rest of your life.
  • #YOLO . . . but then again, #YOLO.

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University of Toronto Law Journal – Volume 64, Number 3, Summer 2014

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University of Toronto Law Journal – Volume 64, Number 3 Summer 2014

How to redistribute? A critical examination of mechanisms to promote global wealth redistribution
Ilan Benshalom

Republicanism and the division of powers in Canada
Hoi L. Kong

Private ownership and the standing to say so
Avihay Dorfman

REVIEW ARTICLES
Normative jurisprudence and legal realism
Hanoch Dagan

Proportionality and justification
Moshe Cohen-Eliya, Iddo Porat

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

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The Tomtit Theory of Consideration

I’ve been teaching contracts for a decade, and I thought I’d heard of everything.  Then I came across this squib from Corbin on the adequacy of consideration:

“The rule that market equivalence of consideration is . . . to be left solely to the free bargaining process of the parties, leads in extreme cases to seeming absurdities. When consideration is only a “peppercorn” or a “tomtit” or a worthless piece of paper, the requirement of a consideration appeared to Holmes to be as much of a mere formality as a seal…”

A peppercorn or a tomtit?  I know what the peppercorn theory of consideration is. Basically, consideration can be something of trivial value, so long as that value isn’t easily reducible to a certain sum, giving rise to the problem of inadequacy of exchange.  Some years I’ve brought in a peppercorn, suggesting that it could – in some law school hypothetical universe – have subjective value to a particular student.  (Perhaps a deity’s face is carved  on it?  Really.) Most law students have their semesters spiced up by reading about peppercorns in contracts.  It’s like the Erie doctrine: apparently iconic, mysterious, deeply bizarre law.

But has anyone else ever taught that consideration can be a tomtit?  A tomtit!  In case you were wondering, a tomtit is a small New Zealand bird. Where did Corbin come to rely on this small bird to illustrate the point?  An older (still) English case, Couldery v. Bartrum, 19 Ch. D. 394, 399 (1881), held that a creditor could take “a horse or a canary or a tomtit.”  Couldery was in turn cited and popularized by Ames in his 1899 HLR article, “Two Theories of Consideration.” But, excepting a few stray references in the law reviews in the last two generations, no one refers to tomtits anymore.  Peppercorns have replaced them in law school classrooms, though they are demonstrably less visually interesting, and wouldn’t give rise to the opportunity for a double lesson in tomtit gender identification.It’s time to bring tomtits back.

 

 

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The Other Bills of Rights

Since most Americans did not call the first set of amendments the Bill of Rights until the 1890s, what did they call bill of rights up until that time? There were state bills of rights, of course, and the English Bill of Rights of 1689.  Other less obvious candidates included:

1.  Magna Carta–There are cases and commentaries that labeled this as “the great bill of rights.”

2.  The Declaration of Independence. Even John Bingham once referred to this as the bill of rights.

3.  The Civil Rights Act of 1866–I’ve found a case referring to this as “this famous bill of rights.”

4.  The Resolution of the Continental Congress in 1765. Chancellor Kent referred to this as a bill of rights in his Commentaries on American Law.

5.  Article One, Sections 9-10.  Each of these were called a bill of rights in Supreme Court cases prior to the 1890s.

More on this tomorrow, including a surprising turning point in the use of the Bill of Rights following the Spanish-American War.

 

 

 

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ROUNDUP: Law and Humanities 08.04.14

Debuting August 5 on Crackle, the streaming service, is the original half hour legal drama Sequestered, starring Jesse Bradford, Patrick Warburton and Summer Glau. It centers on the workings of a jury busy deliberating a defendant’s fate, while a young defense attorney works to find out the truth before it’s too late. One of the jurors (Glau) seems to be under some kind of threat from the outside  with regard to her verdict, a storyline that seems familiar (see, for example, The Juror (Demi Moore as the juror (1996)).

Like other legal dramas, the description for this series (all that is available at this writing) seems to suggest that what happens in the courtroom is not “truth,”  and that the jury may actually be operating as blindly as Lady Justice. I’ll be curious to see if the storyline develops in that way. Six half hour (actually 22 minute) episodes will initially be available for viewing, with an additional 6 to be released in two months. More here from the New York Times. Crackle also makes a number of other series available, including episodes of the wonderful legal series Damages starring Glenn Close and Rose Byrne, and the cult favorite The Prisoner with the incomparable Patrick McGoohan.

The Association for the Study of Law, Culture, and the Humanities will hold its Eighteenth Annual Meeting at the Georgetown University Law Center, March 6-7, 2015.  Panel and paper proposals are due Wednesday, October 15th, 2014.

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What is a Bill of Rights?

102px-James_Madison_engrvNow that I’ve finished drafting “The Anti-Partisan Principle,” I’ve returned to my project on the Bill of Rights.  In prior posts I’ve explained that the Supreme Court did not call the first set of constitutional amendments the Bill of Rights until 1893.  I’ve expanded my search to include all federal cases, and have found only two other clear judicial references to the Bill of Rights as we understand it prior to 1893.

The first came from Justice Story (riding circuit) in 1834, in which he said that “certain amendments of the constitution, in the nature of a bill of rights, have been adopted, that fortify and guard this inestimable right of trial by jury.” (United States v. Gibert).  (Justice Story also described the first set of amendments as being “in the nature of a bill of rights” in his constitutional law treatise.)  The other came from Justice Swayne (riding circuit) in 1866, when he stated:  “The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government.” (United States v. Rhodes).

The phrase “in the nature of a bill of rights” is interesting.  Why say that instead of saying that these amendments are a bill of rights?  As near as I can tell, the answer is that people in the eighteenth and nineteenth centuries believed that a bill of rights needed to articulate some general principles in a way that they thought ours did not.  When Madison introduced his first draft of the amendments in 1789, he told the House of Representatives that the only portion that constituted a bill of rights was the one that said:

“All power is originally vested in, and consequently derived from, the people.  Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.  The people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”

The first actual set of amendments, by contrast, are more specific.  At some point, though, people either thought of them as general (you can look at the First Amendment of the Due Process Clause that way, for instance), or decided that generality was not what made something a true bill of rights.

More on this tomorrow, as we look at what people thought the Bill of Rights was in this era.

 

 

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Privacy and Data Security Harms

Privacy Harm 01

I recently wrote a series of posts on LinkedIn exploring privacy and data security harms.  I thought I’d share them here, so I am re-posting all four of these posts together in one rather long post.

I. PRIVACY AND DATA SECURITY VIOLATIONS: WHAT’S THE HARM?

“It’s just a flesh wound.”

Monty Python and the Holy Grail

Suppose your personal data is lost, stolen, improperly disclosed, or improperly used. Are you harmed?

Suppose a company violates its privacy policy and improperly shares your data with another company. Does this cause a harm?

In most cases, courts say no. This is the case even when a company is acting negligently or recklessly. No harm, no foul.

Strong Arguments on Both Sides

Some argue that courts are ignoring serious harms caused when data is not properly protected and used.

Yet others view the harm as trivial or non-existent. For example, given the vast number of records compromised in data breaches, the odds that any one instance will result in identity theft or fraud are quite low.

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