The “Citizens for Constitutional Freedom” Claim to Defend the Constitution. Here’s Why They’re Wrong.

Three days ago, a group of armed individuals took occupation of the United States Fish and Wildlife Service's Malheur National Wildlife Refuge, a federal building in remote Oregon. They did so on behalf of fellow ranchers who recently turned themselves in for setting fire to federal land. In both traditional and social media, a national debate has emerged as to how the government should address this situation, and whether those involved are protesters, occupiers, terrorists, insurgents, or a militia. While these are important discussions, at the heart of the matter is an invocation of the U.S. Constitution which has largely been overlooked.

Cliven Bundy, one of the individuals, has argued, “The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management.  These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power.” Thus, Bundy and the others view the federal government’s ownership of the land as unconstitutional. As such, they have now labeled themselves Citizens for Constitutional Freedom.

The relevant clause in Article IV of the Constitution that Bundy referenced reads, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” Bundy proffered no further explanation as to why the refuge does not fall under this language. Regardless, the acquisition of control of federal land within states has long been settled in Supreme Court cases such as Hutchings v. Low, 82 US 77 (1872) (affirming the constitutionality of Yosemite National Park) and Alabama v. Texas, 347 US 272 (1954) (“The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.”). Supreme Court decisions are law, which only can be overturned by later Supreme Court rulings or constitutional amendments, not by armed occupation.

As such, allow me to suggest an alternative label for the “Citizens for Constitutional Freedom”: criminals. Under 25 CFR 11.411 a person is liable for criminal trespass if he or she “knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure.” The refuge has now been closed, and they remain in the building. Further, they have the aggravating circumstance of possessing firearms within a federal building while committing a crime, as proscribed by 18 U.S.C. §930(b), which could land them up to five years in prison.

In the United States, processes and institutions exist for the redress of grievances. Government structures are of course not always well-functioning, and civil disobedience is a route other Americans have taken in order to initiate structural changes. However, civil disobedience does not come at the end of a gun barrel. It comes willing to accept the punishment and actions of the state as a means to show onlookers the injustice of the law. By being armed, and declaring a willingness “to kill and be killed”, these individuals present a threat to any federal authority who might arrive to lawfully remove the group from the premises.

Ensuring governmental authority remains limited is an important part of American citizenship, but the “Citizens for Constitutional Freedom” would gain more sympathy if they had a credible claim. They treat the Constitution as a legal code, expecting the document to anticipate all governmental actions in 4,543 words. However, John Marshall wrote in McCulloch v. Maryland 17 US 316 (1819) that a Constitution contains the “great outlines” of a legal system. So when we read the document looking for absolutist interpretations, “we must never forget that it is a Constitution we are expounding.”

The Constitution is not a static document, but comes to us through centuries of adjudication and interpretation. Ignoring the text and the path it has taken since 1787 renders one’s interpretation and analysis incomplete. Our political discourse would benefit greatly from more detailed and nuanced discussions around both the strengths and flaws of our foundational legal document. Committing armed trespass while making vague constitutional references injects no such detail or nuance, and only further obfuscates how the Constitution influences our interactions with each other and our government. 

Pillar of autocracy: Egypt’s presidential election law

This post was written for Middle East Eye and can be found here.

Earlier this year Egypt’s interim government promulgated a new law to govern the country’s presidential election. That law regulates the administration, adjudication, and validation of the campaign period and electoral process of this week’s vote. The law has created a legal structure which has buttressed the political context created by the interim government to guarantee an electoral result amicable to the state’s interests.

Like any law, the presidential election law contains many unremarkable articles. For example, the total number of required endorsements needed to collect from the Egyptian people decreased from 30,000 for the 2012 presidential election to 25,000 this year. Nonetheless, in 2012 there were 13 candidates for the presidency; this year there are only two: former Field Marshal Abdel Fattah el-Sisi and Hamdeen Sabbahi. This likely has more to do with the process being viewed as a sham than the legal requirements for candidacy. However, the most important feature of the law is the new Presidential Election Committee (PEC), which is composed of present judicial Egyptian authorities who will act as an electoral management body.

The PEC has a broad range of powers and discretion: it alone creates a timeline of the election, approves the candidates, creates voter lists, administers penalties for interfering with the election, decides on polling locations, and reviews challenges to any election-related governmental action or claims of election fraud. Under Article 6, the PEC has the power to ensure equal treatment of the presidential candidates in state-owned media. Generally, it has broad control over the media, candidate campaigning, and campaign finance during the electoral period, and has prohibited campaigning two days before voters go to the polls.

Under the 2014 Egyptian constitution, polling stations will be supervised by members of the judiciary appointed by the PEC. The presidential election law allows for each presidential candidate to have a representative at each polling station, as well. Interestingly, the International Foundation for Electoral Systems (IFES) has suggested that the PEC should require the polling station official to initial or sign ballot papers before distributing them to voters as a protection against ballot counterfeiting. It remains to be seen if this recommendation is incorporated this week. After the election is over vote-counting will occur at the polling stations in front of the authorized observers such as the PEC and candidates representatives, and approved external actors such as the EU, the African Union, and Democracy International.

The most troubling characteristic of the presidential election law is that all decisions of the PEC are only reviewable by the PEC itself. No decisions can be appealed to an external judicial or government entity. Especially interesting, under Article 228 of the 2014 Egyptian constitution, this will be the only election managed by the PEC; future presidential elections will be managed by the national election commission (NEC), which will be in charge of Egypt’s legislative elections later this summer. The decisions of the NEC are in fact appealable. So why did the military-backed interim government create a body of named members of the maligned judiciary to have un-reviewable authority over only one election in which former Field Marshal Abdel Fattah el-Sisi has been heavily favored for some time? As the interim government could have easily allowed for appeals to the Supreme Constitutional Court, the answer can only be political in nature: the assurance of a state-desired result.

Beyond the law itself, there will be no surprise on 5 June if the results are heavily in favour of Sisi. Religiously-based parties, the Muslim Brotherhood, and April 6 have been banned and dissenters have been jailed, leading Marc Lynch, Director of George Washington University’s Institute for Middle East Studies, to write that the election is occurring “amidst a massively repressive atmosphere of intimidation, arrest, and institutional bias.” A free election cannot occur in the context of violence and fear which the interim government has created, as the opposition has no reasonable measure of confidence that free expression will not be met with imprisonment. Just last week hundreds more suspected Muslim Brotherhood members were thrown in jail.

Sisi does not support reconciliation with the Muslim Brotherhood (though the Brotherhood has expressed no interest in serious negotiation and will boycott the election), suggesting ongoing tensions in the immediate future. Sisi also supports the protest law which has been used continuously to arrest human rights advocates and regime opponents. The former field marshal also views the legitimate security threats to the state stemming from Sinai, Libya, and Syria as part of a war against terrorism. This ‘war on terror’ rhetoric of the interim government and Sisi alike may explain the apparent need felt for armored vehicles from the UAE in order to maintain order during this election.

The presidential election law has not itself created a fraudulent election. However, the legal infirmaries of the law, combined with an electoral context of fear and oppression, will insure that this week’s vote will not be free and fair: many regime opponents are in jail or banned from the political process, dissent has been criminalised by the protest law, and there exists no recourse for electoral decisions made by the PEC. Elections are necessary, but not sufficient for a democratic state: the people must be free to express their opinions and openly hear the opinions of their compatriots in order to make an informed electoral decision. That has not occurred over the past seven months and will not occur this week, either. 

Presidential Election Law Raises Serious Concerns

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.

This weekend, the Egyptian government released a presidential election law to govern the upcoming elections for a new Egyptian head of state. Aside from having certain required provisions, the law may allow for the violation of civil and political rights in Egypt largely due to the finality of the decisions of the Presidential Election Committee and the various provisions enshrining the role of that body in the campaign media landscape of Egypt.

The law calls for a nationwide majoritarian election, which can take place over one or more days. In several areas, the law allows for a second round of elections, but it does not provide the criterion for when such a round would be appropriate or required until Article 39. Under this article, a candidate must win at least 50%-plus-one votes. If this number is not met, the top two vote-getters will run in a run-off election. Aside from the unusually late appearance of such a fundamental aspect of electoral design, many other concerns exist with the law. Below are more detailed notes and some concerns about specific provisions of the law.

Eligibility

The eligibility criteria for running for the presidency laid out in Article 1 of the presidential election law comports with the same requirements for presidential eligibility found in Article 141 of the current constitution. Similarly, the endorsement requirements found in Article 2 comport with those found in Article 142 of the constitution. However, because the interim government has ordered the presidential election first, the eligibility path involving the House of Representatives specified in Article 142 is not functional. As such, candidates cannot gain eligibility from the endorsement of members of the House of Representatives. In addition, write-in candidates are not eligible to be elected, as they would not have met the signature requirements specified in both the constitution and the electoral law. This eligibility system means that for this election, an individual who is unable to collect thousands of citizens’ signatures spread across the country (as specified in the alternative eligibility method) will be unable to run.

Under Article 36, a candidate running unopposed can be elected if at least 5% of the registered voters cast ballots for him. If this does not occur, the election is run again. It is unusual for an election law to prepare for the possibility of a presidential candidate to run unopposed, especially considering that two candidates have already declared intentions to run. While this could be simply a sign of the law accounting for all possible circumstances, this could also be interpreted as a signal that the government may disqualify all but one preferred candidate.

Lastly, Article 12(9) states that a candidate must affirm that he has not been convicted of any crime of untrustworthiness.

Administration

Article 3 of the law empanels a Presidential Elections Committee (PEC) comprising the head of the Constitutional Court, the President of the Cairo Court of Appeal, the Senior Vice-President of the Supreme Constitutional Court, the Senior Vice-President of the Court of Cassation, and the Senior Vice-President of the State Council. Under Article 6, this body has the sole jurisdiction over, inter alia, announcing the opening of presidential candidacy, devising and overseeing the implementation of the necessary procedures to establish candidacy for the presidency (according to the eligibility requirements elsewhere specified), verifying the application and enforcement of the rules governing the election campaign provided in the law, and taking proper actions against violations.

It is unclear, however, how this body interacts with the National Elections Commission (NEC) established by the constitution. Under Article 209 of Egypt’s new constitution, that body is “administered by a board made up of 10 members selected equally from among the vice-presidents of the Court of Cassation, the presidents of the Courts of Appeal, the vice-president of the State Council, the State Affairs and Administrative Prosecution.” Moreover, under Article 208, the NEC is “exclusively responsible for managing referenda and presidential, parliamentary and local elections.” The jurisdictions of both bodies are incredibly similar, though both are given exclusive authority over their competencies. There is no apparent benefit to having two separate committees, the memberships of which arise from similar judicial bodies, that both have exclusive jurisdiction over largely similar functions of electoral administration. Indeed, they are both structured as electoral management bodies (EMBs).

Regarding the setting of dates for the election, Article 16 states that the PEC must announce a final list of eligible candidates “at least 20 days before elections.” Article 18 sets the campaign period from the day the candidates are announced until two days before the election. Campaigning can only occur during this time. Generally, the PEC has a wide range of discretion with respect to setting timetables with respect to administering the presidential elections.

Media and Campaigning

The PEC has broad discretion over much of the administration of this election, and the area of media and campaigning is no exception. First, Article 19(2) prohibits the “threatening of national unity and using religious slogans to divide the public or to discriminate among citizens.” Similar language has been used to suppress individuals campaigning for a “no” vote during the recent constitutional referendum as well as to marginalize Islamist parties.

Article 20 requires state-owned media to be committed to give equal coverage of candidates, and Article 21 lists requirements for publishing polls. Although these requirements have the potential to translate into incursions on freedom of speech, they can be reasonable and legitimate limitations in the volatile setting of transitional elections if administered sparingly and in an unbiased manner. Similarly, Article 22 sets a maximum for campaign spending (EGP 20 million), and Article 23 limits campaign contributions to 2% of that maximum. Article 24 prohibits campaign contributions from non-natural (juridical) or foreign persons. Article 43 specifies a fine for those who are registered to vote but do not do so without an excuse. This clause, though not regularly enforced, is common in Egyptian election law. Throughout the document, the PEC is given the discretion to determine violations and appropriate remedies.

Under Article 6(11), the PEC notably has the competency to “[establish] guidelines for the participation of the media and Egyptian and foreign civil society organizations in following the election process.” This gives the PEC the authority to regulate election-observers and media coverage during the election and (presumably) during the campaign period as well. Article 6(10) allows for the PEC to “[invite] voters to participate in the election,” and Article 8 allows the body to “educate citizens about the importance of the presidential election.” In the context of previous elections and referenda in Egypt, this may allow for the PEC to continue the state-run propaganda similar to the government’s urging of Egyptians to vote for the current constitution which was experienced earlier this year.

Appeals

A previous version of Article 7 of this law allowed for the appeal of a decision of the PEC to the Supreme Administrative Court within one week after a decision is announced. This was similar to language found in Article 210 the constitution, which allows for the appeal of decisions of the NEC to the same body. However, the final version of Article 7 allows for no appeals of the decisions of the PEC to any higher authority, making the body the first and final word on electoral disputes within its listed competencies.  Later in the law, Articles 13-15 outline the procedures for appealing the original decisions of the PEC, but these appeals are reviewed by the PEC itself, not by any external actor. Lastly, Article 27 allows the PEC to set up regional subcommittees, and Article 28 both allows those subcommittees to count votes and allows approved media and observer groups to attend the vote-counting. Again, challenges to the decisions of the subcommittees of the PEC are only heard by the PEC, not by any other authority.

Largely because of the inability to appeal the decisions of the PEC described above, several individuals and groups have expressed concern with the law, such as the Nour Party, Tayar al-Sha’aby, the Egyptian Organization for Human Rights, Dostour Party, Mohamed Abdel Abdul Aziz (Tamrod), Mohamed Kamal (April 6th Movement), Mohamed Fasil (Kefaya Movement), Khalid Ali, and Nour Farahat. These detractors have generally argued that this law violates Article 97 of the constitution, which states, inter alia, “The State shall guarantee the accessibility of judicature for litigants and rapid adjudication on cases. It is prohibited to immunize any administrative act or decision from judicial review.” This point is debatable, however, as the PEC is composed entirely of members of the judiciary, and as such, it could structurally be considered a judicial body (not an administrative one). That interpretation would mean that the internal challenges of the PEC’s decisions do legally constitute judicial review within the meaning of Article 97. However, as the similarly structured (and similarly functioning) National Elections Commission created in the constitution allows for appeals to the Supreme Administrative Court, one could argue that the constitution would envision any Egyptian EMB to also issue decisions appealable to the Supreme Administrative Court.

Overall Impressions

This election law creates some of the necessary guidelines required for the administration of an election, including many provisions regarding out-of-country voting, equal-time media provisions, and electoral fraud protection. However, Article 47 prohibits insulting members of the PEC, Article 48 prohibits the use of intimidation or terror during the election, and Article 52(1) prohibits the threatening or use of force to prevent others from voting. These articles present a potentially dangerous mix of protecting the electorate and inhibiting the free political expression of Egyptians. Along with the points noted above, and considered in its entirety, this law may lead to violations of the political and free expression rights of Egyptian citizens.

Moreover, the PEC has broad discretion over the administration of the election, and its decisions are not appealable to an external body. The PEC is also composed entirely of presently-empaneled members of the judiciary. This creates a potential for discrimination against candidates who are out of favor with the judiciary by the possible use of the various not-externally-appealable powers of the PEC to disqualify potential candidates.

While laws themselves do not render an election free and fair or illegitimate, this law allows the government, and specifically the PEC, broad discretion to make policies and take actions that could call into question the legitimacy and reliability of the results of the election. Given the actions of the interim government so far, from passing an anti-protest law to the propaganda campaign and opposition crackdown leading up to the recent constitutional referendum, this law offers little in the way of signs that the interim government intends to change course during the upcoming presidential campaign and electoral periods.

Human Rights Treaties in Egypt: as Good as the Government that Upholds Them

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.

Egypt’s constitution has recently garnered praise for its “commitment to abide by international human rights treaties signed by Egypt.” Yet a close analysis shows that such praise may yet be premature; the commitment can be easily circumvented by Egypt’s soon-to-be elected House of Representatives.

The relevant section of the new constitution, Article 93, states in full:

“The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”

Plainly, ratified human rights treaties are now considered Egyptian domestic law. Nathan J. Brown and Michele Dunne call this article “a potentially major innovation,” but note that it is only as good as the courts which interpret it. Heba Morayef of Human Rights Watch noted that the article offers Egyptians stronger human rights protections than the 2012 constitution.

This constitutional article incorporates international treaties as part of Egyptian domestic law without the requirement of enabling legislation, exhibiting the characteristics of legal monism. In a monist legal system, the judiciary can generally interpret and apply international law as it would domestic law. Like other legal monist countries, Article 151 requires the legislature to approve treaties in order for them to be ratified.¹ This approval is taken as the requisite sovereign action of affirming the role of a treaty as law within the state.

The key issue here, then, is how a treaty functions as a statute within a domestic legal system. The Egyptian constitution is unusually lucid on this point: treaties have the force of law. (That is, international treaties are to be treated the same as legislation.) As such, these treaties enter Egyptian law as statutory law; they are subject to the legal concept of leges posteriores priores contrarias abrogant, which holds that if two laws are passed which are prima facie contradictory, the law passed most recently is enforced.

Of course, in most legal systems a more recent statute is often interpreted in an attempt to avoid the implicit repeal of a previous statute. Moreover, the rebuttable presumption of conformity² assumes that domestic legislation is intended to comport with the treaty obligations of the state. What is clear, however, is that the Egyptian legislature can nullify the force of previously ratified human rights treaties by passing legislation which explicitly contradicts them.

Brown and Dunne are certainly correct in pointing out the importance of the judiciary in enforcing the statutory role of international human rights treaties within Egyptian domestic law. However, perhaps just as important will be the role of the House of Representatives. While any political discussion must wait until the body is actually elected, the House has the effective ability to negate the legal effects of a ratified treaty by a simple majority vote.³

It is possible, however, that such a statute would be considered complementary legislation under Article 121, as it may be construed to “organize the rights stipulated in the constitution.” In this case, such a statute would require a two-thirds majority approval in the House. Nonetheless, this is still quite different from a formal amendment process to change the constitution, which is found in Article 226. That article states that a constitutional amendment must be approved by two-thirds of the House and pass a public referendum.⁴ While it is unclear how exactly legal challenges of this nature would play out, it is clear that Article 93 can be effectively appealed without consulting the Egyptian people, in contrast with any other constitutional article. As Article 93 has been widely considered a high point in the constitution, this subtle fact of the Egyptian constitution is important to note.

This analysis thus far has ignored the Article 2 requirement that legislation is to be crafted with sharia as a source of inspiration. While this language has evaded precise definition during its decades of presence in various Egyptian constitutional documents, its place in the constitution undoubtedly holds it superior to the statute-equivalent ratified human rights treaties. That is to say that international human rights conventions are held inferior to Egypt’s Supreme Constitutional Court’s interpretation of Article 2.⁵

While this is important to note when considering legal challenges in Egyptian courts, the Supreme Constitutional Court generally does not strike down legislation for violation of Article 2. Additionally, as the Article 93 text specifically mentions treaties, it is silent regarding customary international law. This means that enabling legislation in the House is possibly required to bring in customary international law in as part of Egyptian law. As such, international norms not codified in treaties ratified by Egypt have no domestic legal effect.

What does this all mean for the average Egyptian? Right now the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (with important reservations) are all a part of Egyptian law. But Egyptians will want to be careful about those for whom they vote over the next few months—they will be empowered with the ability to negate these documents.

Equal and Inalienable: Natural Human Rights and the ICCPR

This paper about a possible scientific basis for natural human rights can be found here.


Abstract:      

This paper first seeks to establish a scientific basis for the finding of natural human rights and how rights relate to morals, law, and culture. Next, the paper focuses on the derogation mechanism of article 4 of the ICCPR, compares derogable rights and non-derogable rights, and investigates the assumptions of derogation. Lastly, the paper finds an over-inclusive nature of the ICCPR, which results in the artificial imposition of extra-natural rights, leading to low levels of any compliance. Thus a lack of compliance to the ICCPR in whole violates the actual natural human rights which are enumerated. It suggests that an international human rights regime which is restricted to demonstrable natural human rights, without derogation, and including more forceful enforcement mechanisms would be a more effective tool of promoting human rights throughout the world.

Standards of Expression in Transitional Societies: Incitement in Kosovo

This paper on differing models of free expression and their relation to transitional and post-conflict societies can be found here.


Abstract:      

This paper argues that standards of incitement should adhere to a more restrictive model of free expression in transitional societies and a less restrictive model of free expression in mature societies. The several international agreements which involve standards of hate speech and incitement regulations envision a singular standard by which all societies should be held. The view which is dominant in international law will be referred to as the International Model; the alternative view, the Libertarian Model, advocates for greater individual freedom with respect to incitement, hate speech and governmental restrictions on speech. At present there exists an assumption that these views are wholly separate legal understandings and do not operate in concert.

Next, the paper selects a particular case, Kosovo, to elucidate the nature of free expression in transitional societies. The time immediately after the recent 1999 Kosovo War and Kosovo today will be discussed. Kosovo presents a case where the repressive pre-war Milosevic-controlled media environment has been succeeded by a restrictive media regime imposed by international organization in the name of peace and security.

The Social Contract Revisited

Hello! By using America’s services, protections and opportunities, you agree to the following rights and obligations, and any policies, laws or amendments thereto that may be agreed upon through explicit legal processes. Provisions are made for updates in the future, and you will be able to find the most current version of this agreement in state and federal law.

Do you remember seeing that language at birth? No? What about at 18 years old, the age of adulthood in the US? No? That’s odd…

What is a contract?

Contracts wasn’t my favorite class in law school, to be honest. I claim no authority in the field. But a contract is really just the creation of one or more legal obligations between parties.

A common mistake is to assume that contracts require explicit consent. All product ‘terms and conditions’ are forms of contracts, and simply by using the product are you considered to assent to such terms and conditions. We all probably make hundreds of contracts each day. For example, let’s say you sit down at a buffet, the waitress brings you water, and then you begin to fill you plate. A bloated hour later you are full. How would it go over if you simply strolled out of the establishment without paying? Probably not well. A contract was formed through your actions and the tacit understanding that an exchange would occur: food for cash. You didn’t sign anything and the waitress didn’t make sure you explicitly understood that monetary compensation would be expected when you finally tapped-out.

In theory, the law would step in and require you to pay for the buffet if such a suit were brought to court. Why? Because you gained a benefit, conferred by another, without offering compensation in a circumstance when compensation was reasonably expected. In a term of art, you were unjustly enriched.

What is a state?

A state is a legal structure which has a population and a monopoly on the legitimate use of force within its territory. Why would anyone cede the ability to unquestioningly use force to some legal structure? Let’s ask the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

So people would theoretically enter into a state to secure life and liberty. And the state claims only power which comes from the people within it. That’s fine and dandy, but if a body is given power, it would likely abuse it in some way, wouldn’t it? It might even go so far as to disregard its original purpose. What do we do when this happens?

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So when a government destroys liberty instead of securing it, the people have the right to change it or get rid of it all together. That unrelated concept of a contract is beginning to sounds familiar; rights, obligations, and remedies for breaches. But how do we know when a breach occurs, when to oust the state?

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

This is really just a recommendation and then a warning: Don't get rid of your government for stupid reasons, but to be honest people have a predisposition to tolerate a government that sucks rather than to get off the couch and change it.

OK, this state thing sounds like a contract, but I didn’t agree to it!

Oh, you did—you just don’t know it yet.

Just like at the buffet, a contract was formed through your actions and the tacit understanding that an exchange would occur. What actions? Voting, paying taxes, or benefitting from services paid for by taxes, etc. all indicate a use of the service provided for in the contract and tacit consent of the contract itself. By partaking in the state’s services, protections and opportunities you have been enriched at the cost of the other parties in the contract. It’s a quid pro quo, a reciprocating duty: you must uphold you end of the bargain. Elizabeth Warren put it nicely (paraphrased):

You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea? Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

If you don’t like this contract, there are of course ways out. Otherwise, it would be coercive! First, the Declaration of Independence notes, supra, when you have the right to destroy the whole contract. Second, the Constitution explains the processes for changing the specific terms while maintaining the contact generally. Third, you can stop benefitting from the contract, and thus your reciprocal obligations would no longer be required. Yes, I’m suggesting moving out of the country.

Note: The Westphalian state/social contract paradigm has shifted since the time of the Declaration of Independence due to the philosophy embodied in the Responsibility to Protect. Previously the contractual relationship was only the business of the state and the people within its territory. But now the UN has asserted the right to be involved in this relationship. This is quite new, but we have seen a growing trend of humanitarian and military interventions in situations which ordinarily would have been viewed as wholly domestic issues. 

Some problems with social contract theory

First, no person has a choice as to what political system into which that person is born. Individuals become beneficiaries (or victims) of state probably immediately. Thus affirmative action must be taken to change the terms or change contracts. But how would we remedy this? The choices are limited: anarchy, governance with no claims of the consent of the governed, or to create a stateless land of wild children, who upon a certain age would be required to choose a state to enter. Antarctica is a bit too cold this time of year for that, I think.

Second, there are opportunity costs to leaving a given territory. Even if someone studied all the social contracts out there, and picked their favorite one, there are costs and hurdles to getting there. This is especially true for the economically disadvantaged, who are more ‘stuck’ with a state in which they often have decreasing voice. But relocation is pretty common. If nothing else, history is the story of human migration. If you’re an American, unless you're full Native or fully descended from those brought here unwillingly, your ancestors made this exact choice.

Third, at times it is effectively contract of adhesion. There are so many parties to the contract that any change requires a large number of parties to agree or any change. Each individual is only 1 in over 300,000,000 parties, and like most contracts, you can’t unilaterally change its terms.

Fourth, one might argue that a contract without explicit consent is in itself presumptuous or immoral. There is some ground here, but that would solve nothing. For each contract we presently enter unknowingly, there are almost just as many that we simply click through or sign on because they are too long or we aren’t interested. The social contract is no different.

There are probably others, too…

Thoughts

Even if you view the social contract as a noble lie, it at least serves as a useful understanding of why it is deplorable for individuals to choose to ignore the opportunities and advantages that have been provided to them with taxpayer money and try at every corner to get out of any reciprocating obligation.

I understand, and am sympathetic to, disagreeing with almost everything that a government does and feeling that government has not upheld the values in the founding documents. I often admire movements like the Tea Party and Occupy because they are actively trying to change the contract for those very reasons. Alternatively, with the services and opportunities provided in other countries, I completely understand leaving the US for greener pastures.

But it is wholly unfair to continue to reap benefits provided through government services, then act as if you don’t—only to make yourself feel justified in trying to not pay your fair share back into the system. Don’t think what is presently asked is fair? You can work to change that, too—but keep in mind the costs of what you have gained a la the Warren quote above. While many states go so far as to require periods of national service, all I ask from Americans is to recognize benefits derived, to not be so bitter about reciprocating, and to please work to change the system for the better, should you choose to remain.

The current electoral and political system in the US is approaching, if not already in, a state of complete dysfunction. That is not to say it is irreparable, of course. But what we need, more than ever, is a citizenry who will roll up their sleeves and invest time and money into getting America back on course by either fixing our current institutions or abandoning them for wholly new ones. If you would rather leave, that’s fine. But we have neither the time nor the inclination to deal with individuals who wish to cheat the system by gaining from its outputs and yet have no desire or intent to pay back into the system their fair share.

Open Governance and Public Diplomacy

I wrote this blog for the Exchange website. You can find it here.

NYPD Surveillance of Northeastern US Muslims

UPDATE (12 March):

Today I received a letter in response to my FOIL request (below) send to the NYPD. It is dated 9 March and states, in part, “…a further review is necessary to assess the potential applicability of exemptions set forth in FOIL, and whether the records can be located. I estimate that this review will be completed, and a determination issued, within twenty business days of the date of this letter.” It was signed by Richard Mantellino.

 

So, hopefully before 6 April I will have a final determination on my FOIL request. Make sure to check back for updates!

ORIGINAL POST (2 March):
As my readers should know, the NYPD has a surveillance program which targets Islamic groups throughout the northeastern part of the United States. And they claim that it is legal. I’m skeptical.

Surely the 4th Amendment assurance against unreasonable searches is implicated here. The Supreme Court has recently held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” While the data collection of groups of individuals based on religion is greatly different than the case in US v. Jones, there are enough issues here to raise ‘red flags’ of possible unconstitutionality. Moreover, such targeting based solely on religion seems to run counter to the spirit of the 5th and 14th Amendment assurances of the equal protection under the law for all citizens.

I would like to quote Justice Murphy’s dissent from the famed Korematsu decision regarding the internment of Japanese-Americans during World War II:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

Korematsu v. U.S., 323 U.S. 214, 242 (1944). What we have with the actions of the NYPD certainly appear to be legalized discrimination against a religion.

However, this issue shouldn’t be thought of in a strict legal sense. To paraphrase Dennis Parker of the ACLU, 'What is at stake is the kind of country we choose to be. Any willingness to accept the abridgement of the rights of some in the name of national security erodes the very foundation of our nation. We must recognize that injustice anywhere and against anyone is injustice against us all.' The experience of humanity has shown that blanket group-based presumptions on the part of the government harm the innocent more than they deter the guilty.

In the end, I am not qualified to give a legal opinion on the issue; I can say that I find in contention with my notion of civil liberties and equal protection. Does the NYPD really have solid evidence to suspect each individual targeted—enough to warrant such surveillance? What is the full scope of such surveillance? There is a lot that the public doesn’t know.

But the public must know. The public—as the ultimate sovereign—should know the legal and constitutional basis for the wholesale panopticon-esque, Big Brother-esque surveillance on a minority group. This again makes American appear reactionary and bigoted around the word. As such, in order to find out more, I have filed a FOIL request—that is, I have invoked the Freedom of Information Law as a citizen of the State of New York to compel the NYPD to provide any records they have on this program.

Unfortunately, there are several law enforcement exceptions to this law that the NYPD will likely claim, but I wish to at least indicate to them that the public needs to know more about what is going on with this program. So, while I don’t think I will be receiving any more documents like the AP has received from a source, I might get something to share here.

Keep Tuesday

A big question in American electoral administration is to what extent voter turnout is affected by the day of the week we vote; Tuesday. As the U.S. faces low voter turnout, any administrative barriers to voting should be reformed.

Yesterday the GAO released a report titled Views on Implementing Federal Elections on a Weekend. However, the first sentence of the concluding paragraph of that report begins with “Weekend elections have not been studied, but studies of other voting alternatives determined that voter turnout is not strongly affected by them.” So, apparently when the GAO discussed elections on the weekend, it doesn’t study weekend elections. Fabulous.

So why do we vote on Tuesday in the first place? I’ll let WhyTuesday? answer that one. But the important question remains: would voter turnout increase with a move on the calendar? I’m not so sure.

As the Washington Post reported, South Carolina has moved its attempt to vote on Saturdays out of respect for the Jewish community in that state. That makes sense; while overall turnout may possibly increase, alienating an entire religious group is generally not advisable for democratic governance. That takes Sunday and Friday out, as well. But the bigger point about the weekend is that Americans love their weekends. We work a lot, and perish the thought of adding duties to our weekends. We have children to spend time with, projects to continue, football to watch, and many other things. Using about as much empirical evidence as the GAO, I would not favor a move of Election Day to the weekend.

However, the huge problem with voting during the work week is that many people, uh, work. Many can’t afford to leave their jobs or children and go and vote. As such, whichever day we vote should be a federal holiday, with as many establishments open as would be on Thanksgiving. But even so, which day? The first logical answer may be Monday—presently we have several holidays observed on Mondays. The problem is that creates a three-day weekend. Who’d want to lose a three-day weekend by staying home and voting, when that’s the perfect opportunity to take a small vacation? That’s what Americans do: the only thing we love more than weekends are longer weekends!

I think you get the point. We’ve arrived where we started. While the reasons for voting on Tuesday are horribly anachronistic, the real evil for voter turnout is that Election Day is not a federal holiday with most public and private establishments (including schools) having the day off. While Wednesday and Thursday are both still on the table, I don’t see an advantage to those days over Tuesday.

Voter turnout should be primarily concerned with equally increasing the number of people willing and able to vote. I think the best way to do this is to in fact keep Tuesday, and make that day a less busy one, allowing working Americans across the board to commit to their civic duty.

Jury Nullification and Free Speech

            Last year Julian Heicklen was arrested under 18 USC 1504, which has been interpreted by prosecutors as criminalizing advocacy for jury nullification. After discussing the facts and the relevant law, I offer two arguments. First, I use Brandenburg v. Ohio to argue that the statute violates the First Amendment facially. Second, I use United States v. Stevens to argue that the statute is overbroad as written and as interpreted.

Facts

Julian Heicklen is a retired chemistry professor at the great Penn State University. Over the past few years, Heicklen has stood outside the United States District Court for the Southern District of New York holding a sign which reads ‘Jury Info’. He would also hand out brochures to passers by advocating that jurors may acquit those charged with breaking laws which the individual juror finds immoral or wrong. It is important to note that neither Heicklen nor the government has alleged that Heicklen had any knowledge if any passersby were jurors not that he targeted jurors in his advocacy in any way. He simply offered information for anyone who approached him.

In the federal system, jurors take an oath to decide the case in front of them “upon the law and the evidence”, which has been interpreted as constraining jurors from acting on disagreement with the underlying law itself. As such, taking the morality of the law itself into account when judging an accused’s guilt or innocence, it is argued, would be a violation of the juror oath, and thus a violation of federal law. So jury nullification has been a controversial issue in United States jurisprudence because it is seen by some as advocating jurors to violate the law. The federal prosecutors charged Heicklen with violating 18 USC 1504, which reads:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

In November 2010, under this premise, federal prosecutors charged Heicklen with attempting to influence jurors.

             It’s important to note, too, that the Supreme Court has regularly listed four reasons for protecting free speech. First, the truth will be found through a free marketplace of ideas. As such, like other markets, there should be a little regulation as necessary to let the truth rise. Second, democracy itself requires an informed citizenry. There must be free expression in order to discuss governance itself. Ultimately, this allows for the development of better citizens. This is exactly the role Heicklen was playing by advocating jury nullification. Third, free expression must be guaranteed because we as human being develop best as expressive individuals with liberty and autonomy. Lastly, the government itself is incapable of identifying truth, and as such has no place in the regulation of it. It is clear that Julian Heicklen’s actions are constitutional the proceeding jurisprudential reasons.

The statute, as applied, is a prima facie violation of the First Amendment.

                        The First Amendment to the Constitution states, in relevant part, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...”

A test of this language came in 1969 when the U.S. Supreme Court was presented with an appeal by a KKK member who spoke at the group’s march. He stated, inter alia, “…it's possible that there might have to be some revengeance [sic] taken.” Brandenburg v. Ohio, 395 U.S. 444, 446 (U.S. 1969). He went on to vow that the organization will march on Congress and several cities in Florida and Mississippi. Brandenburg, 395 U.S. 444 at 446. Because of his speech, he was convicted of radical syndicalism under an Ohio statute. Id. The Court held that the state cannot proscribe mere “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Id. at 447. Finding that this statute proscribed mere advocacy of the use of force or of law violation, the Court overturned the conviction.

            While jurors do swear to decide the case "upon the law and the evidence", it remains unsettled whether jury nullification is a violation of the federal juror’s oath. Jury Handbook. If jury nullification is illegal this renders Heicklen an advocate of lawlessness. Even so, the statue in question, 18 USC 1504, makes no reference to imminency nor likelihood of the production of such action. The government makes no claim that Heicklen bases his appearances on the court’s docket and alleges no targeting of jurors when he avails literature. Moreover, the government makes no claim he advocates jurors decide a particular way in any specific case. Here, Heicklen merely provided literature for passersby, he did not attempt to produce imminent lawless action, nor is he likely to produce such an action. As such, Heicklen is directing his advocacy at the general attitude of possible law violation, as he aims at no particular issue or case.

            Under the test written in Brandenburg, it is clear that Heicklen engaged in mere advocacy of a political and legal issue. As this statute is presently construed to proscribe such action, it state no requirement that such advocacy produce imminent lawlessness nor have any likelihood to incite such action. As such, 18 USC 1504 is a clear prime facie violation of the First Amendment to the Constitution at interpreted in Brandenburg.

The statue is constitutionally overbroad.

            In First Amendment litigation, a statute must be narrowly tailored so as to not criminalize constitutionally protected speech. Specifically, a statute is overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). To discern whether a statute is overbroad, then, a court must determine the range of what is proscribed under it. United States v. Williams, 553 U.S. 285, 293, (2008).

            In U.S. v. Stevens, the Supreme Court was presented with a challenge to 18 USC 48, which criminalized the commercial creation, sale or possession of depictions of animal cruelty. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010). In that case, Stevens argued that the statute covered a depictions a large amount of legal activity, and as such was overbroad. Stevens, 130 S. Ct. 1577 at 1587. The Court agreed.

            In Julian Heicklen’s case, 18 USC 1504 reads, in part, “Whoever attempts to influence the action or decision of any… juror… upon any issue or matter pending before such juror… by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned...” Here, holding a sign and offering pamphlets is considered ‘sending written communication’. Moreover, the prosecutor’s office has stated, “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” Under the wording of 18 USC 1504 and the government’s construction of it, if any person hands out literature on any matter before any juror who may be passing by, that person is subject to criminal penalty. The statute does not require that the communication be knowingly or reasonably calculated to be received by a juror, nor does it require likelihood that such communication could influence a juror. Moreover, the government’s argument that Heicklen’s actions would be criminal “no matter where it occurred” is deeply troubling. This argument necessarily holds that no place in the United State is safe to publish or write about jury nullification, as it may be possible that a current juror could read it, and thus be influenced on a matter pertaining to his or her duty. An outright ban on the publication and distribution of points of view on important political and judicial matters is exactly the type  of government action the Constitutional Framers sought to prohibit when adding the First Amendment to the Constitution.

            As 18 USC 1504—under the government’s interpretation—criminalizes any written communication about jury nullification which may end up in the hands of a potential juror, it is clear it proscribes constitutionally protected speech. This is irrespective of the intent, reasonable expectations, or location of the writer. This statute and the conviction of Julian Heicklen under it are unconstitutional.

Conclusion

            The Founding Generation of the United States found itself in possession of the political unpopular viewpoint in favor of independence of the colonies from Britain. That is the context in which the First Amendment was born—a desire for freedom of political speech and expression. Indeed, in the marketplace of ideas, the ability to freely express one’s self is the first step toward discovering political truth. Indeed the Supreme Court has held that political expression holds a preferred position in First Amendment litigation due to this foundational American belief. Murdock v. Pennsylvania, 319 U.S. 105 (1943).

            Above it is argued that the 18 USC 1504, by proscribing mere advocacy, is a plain violation of the First Amendment and long-established precedent. Moreover, the government’s interpretation of the statute covers an overly broad range of constitutionally protected speech. Lastly, expression like Julian Heicklen’s is so constitutionally important that precedent has limited all three branches of government on proscribing it.

            In the final analysis, the prosecutor here is targeting Heicklen merely because the government disagrees with Heicklen’s position on the controversial issue of jury nullification. The government feels threatened by the idea itself, and as such wished to use Heicklen as an example. It is clear that such viewpoint discrimination is patently unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). As such, there are no grounds upon which Julian Heicklen’s conviction could be sustained. Both his arrest and 18 USC 1504, as interpreted, are unconstitutional.