“Constitutional Protections Cannot Be Undone By Popular Vote”: Why The Constitution Trumps Any State’s Ban On Same-Sex Marriage
With the Supreme Court scheduled to hear oral argument next week in marriage equality cases, everyone is looking to the marriage cases the Court decided in 2013 in an attempt to predict what it’s likely to do this time around. But another recent case on a very different topic may actually have much more to say about marriage equality than one would think: last year’s case about warrantless searches of an arrestee’s cell phone. In that case, the Court held such searches unconstitutional and underscored a principle that bears on the marriage discussion—namely, that constitutional protections cannot be undone by popular vote.
The basic question in the marriage equality cases is simple. Does the Fourteenth Amendment—which prohibits states from denying any person “liberty… without due process of law” and “the equal protection of the laws”—bar state bans on same-sex marriage? The text and history of the U.S. Constitution, not to mention the Court’s own precedents, make clear that it does. Opponents of marriage equality thus are resorting to what is becoming a familiar argument, saying marriage equality should be decided not by the courts, but by the people. By that logic, citizens of individual states can trump the Constitution’s broad equality guarantee if they vote to do so.
One of the most significant statements of this view can be found in the lower court opinion the Court is reviewing. Last year, federal appeals court judge Jeffrey Sutton described the question in the marriage equality cases as a “debate about whether to allow the democratic processes begun in the States to continue… or to end them now by requiring all states in the Circuit to extend the definition of marriage to encompass gay couples.” He noted that “[i]n just eleven years, 19 states and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” He described that “timeline” as “difficult… to criticize as unworthy of further debate and voting.” Unsurprisingly, defenders of that opinion have continued this line of argument in the Supreme Court. One of the parties’ briefs argues that the Court should adopt a deferential standard in reviewing state marriage bans because that standard “defers to voters in order to protect the democratic process.” Another asserts that “[t]he Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates.”
These arguments about “democratic process” may seem more attractive than some of the other arguments made by opponents of marriage equality. For instance, leaders of the 2012 Republican National Convention Committee on the Platform filed a brief arguing that marriage bans are constitutional because, in part, men need “traditional marriage” so women can “‘transform [their] male lust into love.’”
But there’s a basic flaw in the “democratic process” arguments, as last year’s cell phone search decision confirms. They get the Constitution exactly backwards.
In Riley v. California, the Court considered whether the police may without a warrant search someone’s cell phone following an arrest. The Court held, in a unanimous opinion, that the answer is no; such searches are generally prohibited by the Fourth Amendment’s requirement that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… not be violated.” Recognizing that “unrestrained search[es] for evidence of criminal activity” was “one of the driving forces behind the [American] Revolution,” the Court concluded that warrantless cell phone searches permitted too great an intrusion on privacy and thus should not be allowed, absent exigent circumstances preventing the police from obtaining a warrant. As Chief Justice Roberts explained in the Court’s opinion, modern cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and they can contain a vast amount of “sensitive personal information.”
Justice Alito agreed with the rest of the Court that such searches were unconstitutional, but he wrote separately to make two points, one of which has bearing on the marriage equality cases. Alito wrote that he “would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.” Put differently, Alito would allow Congress and state legislatures to change the Court’s answer in Riley. Even though the Court had concluded that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” generally prevents the police from engaging in such searches, Alito would allow Congress and state legislatures to decide that “the legitimate needs of law enforcement” outweigh the “privacy interests of cell phone owners.”
Tellingly, no other Justice joined Alito’s opinion. Not one. And that tells us a great deal about the “democratic processes” position adopted by Judge Sutton and advanced by opponents of marriage equality. What the rest of the Court implicitly recognized in Riley was that Alito’s approach is fundamentally wrong. Congress and state legislatures may be able to supplement the Constitution’s protections—indeed, they may sometimes be well-suited to doing so, as Alito noted in a different Fourth Amendment case about GPS monitoring—but they cannot scrap them.
Indeed, that is a point so fundamental to our constitutional order that the Supreme Court has made it repeatedly in various contexts, noting that fundamental constitutional protections “depend on the outcome of no elections,” and “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” As recently as 2011, in a campaign finance case, Roberts explained that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” The Constitution, not voters, has the ultimate legal authority. In the past, the Court hasn’t treated the Fourteenth Amendment any differently than the First and the Fourth. In 1996, for example, it struck down a state constitutional amendment adopted by state voters because it violated the Fourteenth Amendment.
When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases. If it does, there’s no question what the result should be: a resounding victory for marriage equality.
By: Brianne J. Gorod, Appellate Counsel at The Constitutional Accountability Center; The New Republic, April 23, 2015
“Ted Cruz Is So Done With The Senate”: Legislating Never Really Was His First Priority To Begin With
Ted Cruz was the only senator to miss the vote on Loretta Lynch’s confirmation as attorney general, despite his vociferous objections to her nomination, because he was on his way to a fundraiser—a circumstance that generated some predictable mockery. Yet as Philip Bump tells us, Cruz has actually missed lots of votes—70 percent of them this month, more than any other senator. Bet let me defend the gentleman from Texas.
Obviously, we want our senators to vote on bills and nominations. That’s a big part of what we send them to Washington to do. At the same time, there are very few votes where one senator’s vote makes the difference, and the outcome of this particular conflict was clear to all. Cruz’s opposition to Lynch would have been made no more emphatic had he actually been there to offer his official thumbs-down.
The fact that Cruz has missed more votes than anyone else isn’t too shocking either, not only because he’s running for president—an enterprise that takes up a lot of one’s time—but also because legislating never really was his first priority to begin with. He’s a show horse, not a work horse, and he sees his job not as passing legislation but as using his position as a platform to advocate the things he believes in. He’s certainly not alone in that.
And at a time when Congress accomplishes very little, there aren’t that many votes of consequence to begin with. Lynch’s confirmation may have been one of them, but as a general matter, not much depends on whether Ted Cruz is there to vote or not.
So go ahead, Senator—skip it. We don’t need to pretend that you’re really trying to legislate. That’s not your thing, and that’s OK. Of course, your constituents might not feel exactly the same way I do.
By: Paul Waldman, Senior Writer, The American Prospect, April 24, 2015
“They Should Stop And Take A Second Look”: Ending Forced Arbitration Is A No-Brainer For Conservatives
The Obama administration is preparing to issue consumer protection regulations that will force Republicans to choose between their Wall Street allies and the Seventh Amendment right to a jury trial in civil cases. Republicans will be tempted to denounce the new rules as yet another example of this president’s customary imperial overreach, but on this issue, they should stop and take a second look.
The problem is called forced arbitration, and if you’ve ever taken the time to read a consumer service contract or end-user license agreement before signing it (which makes you an admirable human being, and very rare), you’ll almost certainly have seen a clause that revokes your right to go to court in case of a breach of the agreement by the corporation.
Such clauses are found everywhere, from credit cards and checking accounts to cable TV and car rentals. When you sign, you agree to accept the decision of a private, for-hire arbitrator. Unfortunately, the arbitrator is usually hired by the same company that breached the agreement and is not legally required to follow statutory or common law precedents. Its decisions are almost impossible to appeal. Most consumers have no idea that’s what they’re agreeing to.
Enter the Consumer Financial Protection Bureau, which has been authorized by Congress to step in to study this problem and, based on its findings, restore Americans’ ability to hold financial institutions accountable. Under the Dodd-Frank Act of 2010, the bureau is authorized to issue regulations that limit or ban the use of forced arbitration in consumer financial services and products. Regulations to do just that are expected to be promulgated sometime this year.
The regulations may turn out to be poorly framed or excessive – we’re talking about the same administration that gave us Lois Lerner and executive amnesty, after all – but the problem Congress wanted the agency to address is real.
Recently, while traveling to Topeka on business, I needed to rent a car. I stopped at the Thrifty counter at the Kansas City airport. While filling out the usual paperwork, I asked the gentleman behind the counter, “What happens if I don’t check this box that says I waive my right to sue?” He blinked at me uncomprehendingly for a moment and then replied, “Um, it means you don’t get the car.” I checked the box, disgusted. My destination was 80 miles away, I was in a hurry, and I didn’t have time to haggle or shop around with Thrifty’s competitors, all of whom undoubtedly have the same policy.
Today, a big company like Thrifty can effectively insist that we waive our Seventh Amendment rights on a “take it or leave it” basis; and market forces are not sufficient to police the problem. We’re stuck. And it isn’t just car rentals. When you buy a hair dryer or click “I agree” to a software download, you’re probably forfeiting your right to go to court.
Statistics show that, more often than not, the arbitrator hired by the company you’re disputing with will rule in the company’s favor, likely because he’s eager to be hired again by that company in the future.
Even consumers who think they understand what they’re signing usually have no clear idea of how arbitration really works. They mistakenly equate it with mediation or some other court-like procedure. In reality, forced arbitration is conducted in secret and lacks the procedural safeguards that allow consumers to prove their case. Arbitrators typically keep their reasoning private, making it hard for the losing party to know why he lost, and results are rarely published, making it difficult for similarly situated parties to know they’re entitled to relief.
To be sure, arbitration can be a great option when it’s voluntarily agreed to by both parties after a dispute has arisen, but to be truly voluntary, all parties need to be free to say no. In the case of consumer financial services and products (the kinds of agreements the Consumer Financial Protection Bureau is authorized to regulate), most individual consumers have no bargaining power, as anyone who’s tried to negotiate with his credit card company can attest.
Voluntary arbitration agreements have always been lawful, but up until the 1920s pre-dispute arbitration clauses like the one I had to sign at Thrifty were rarely enforced by American courts. Americans have long cherished the common-law right to a jury trial in civil cases. Indeed, preserving that right was one of the top demands of the Antifederalist skeptics of the proposed Constitution, and the Seventh Amendment was ratified precisely to preserve that ancient right in the courts of the newly constituted federal government.
In 1925, Congress enacted the Federal Arbitration Act to make arbitration a viable alternative for resolving contractual disputes between corporations. That strikes me as constitutionally tolerable, so long as agreements are voluntary and the parties are of roughly equal bargaining power, and if recourse to the courts is still possible if the arbitration process itself is disputed. But recent interpretations of that act by the U.S. Supreme Court have expanded its reach to cover all kinds of contracts, including consumer and employment contracts, and have even overridden state-level laws permitting class actions. (One of the reasons most corporations favor arbitration is that it forces each claimant to pursue his claim individually.)
So in disputes between individual Americans and big companies, the Seventh Amendment has become Swiss cheese, and with more holes than cheese. Many genuinely aggrieved consumers are being denied access to the civil justice system.
How can we fix this? The Supreme Court should reverse its errors, and Congress should amend the Federal Arbitration Act to ensure agreements are truly voluntary. (A bill to do that, dubbed the Arbitration Fairness Act, has been introduced in recent Congresses, but has gone nowhere, thanks to fierce opposition by the U.S. Chamber of Commerce.) Realistically, in the near term, the Consumer Financial Protection Bureau’s forthcoming Dodd-Frank regulations are the best hope consumers have for relief. But that only applies to consumer financial services and products. So there’s no avoiding a legislative remedy.
This issue should be a no-brainer for conservatives. Ending the un-American practice of forced arbitration should be on the agenda, not just of traditional consumer advocates, but of everyone who loves liberty and the Bill of Rights. As a freedom issue, it’s right up there with things like repealing health care mandates, allowing cell-phone unlocking, ending corporate subsidies and eliminating cronyist tax breaks.
By: Dean Clancy, Thomas Jefferson Street Blog, U. S. News and World Report, April 17, 2015
“Peace Rather Than War”: If Chuck Schumer Kills The Iran Nuclear Deal, He Should Not Be Senate Minority Leader
The framework for the Iranian nuclear deal is about as good as anyone could reasonably expect. If it were solely up to the negotiators, it would likely be finalized in June. But they are not the only players, and it’s become clear that the biggest danger to the deal are hawks in Iran and the U.S.
New York Sen. Chuck Schumer (D) is threatening action that may destroy the bargain, while Iranian Supreme Leader Ali Khamenei is doing the same. Iran is out of the U.S.’s control — but Democrats can hold Schumer to account. If he destroys the Iran deal, he must not be allowed to become Senate minority leader, a position that was basically bequeathed to him by outgoing Minority Leader Harry Reid.
On the Iranian side, Khamenei said out of the blue this week that any deal must include the immediate lifting of all sanctions and prevent foreign inspectors from visiting military sites, two demands that could blow up the tentative framework negotiated in Lausanne, Switzerland. However, there’s good reason to believe Khamenei is positioning for domestic hardliners. The Lausanne framework provides for the lifting of a big chunk of current sanctions, while keeping others related to Iran’s support for Hezbollah. Khamenei, in other words, could squirrel out of his seemingly tough demands if he wanted.
At any rate, if Khamenei really does want to blow up the deal, there’s no stopping him. Iran will either accept the deal or it won’t. If not, it’s really Khamenei’s loss.
That brings us to Schumer. He has announced his support for a Senate bill sponsored by Republican Bob Corker of Tennessee that would require congressional approval for any final deal with Iran. Since a veto by President Obama is certain, Republicans will need Democratic support to override it. Schumer, as the Senate minority leader heir-apparent, is sending a clear signal to Democrats that betraying the president is fine, while undermining arguments that the Corker bill is a mere exercise in partisanship.
The fact that Schumer is even daring to try this is surely evidence of the continuing weakness of the Democratic Party’s anti-war faction. Even Elizabeth Warren isn’t particularly anti-war.
However, pro-war Democrats have consistently underestimated the long-term political danger behind such casual aggressiveness. Just like Cory Booker, Schumer appears to have forgotten that voting for the Iraq War is the reason Hillary Clinton is not president today.
Many good old liberals were absolutely furious with the whole Democratic establishment for voting for Bush’s war of aggression and getting something like half a million people killed for no reason. They’re not so agitated at the moment, but if Schumer shanks what may be the last best hope at a deal before President Bush III takes the nation on another jolly Middle East crusade, then he will face an enormous backlash. And it should cost him the job he covets so badly.
According to Matt Yglesias, a former Schumer intern, the senator is a “really sincere and committed Israel hawk,” and sees himself as dedicated to protecting Israel’s security. If that is his motivation, it might be possible to convince Schumer that this Iran bargain is actually in Israel’s long-term interests. Israeli Prime Minister Benjamin Netanyahu thought the Iraq War would be a swell development for Israel, and it turned out to be an epic strategic disaster instead. Chances are that he’s wrong about this one, too, like he is about everything else.
But if Schumer can’t see reason, then someone else should be Senate minority leader — preferably someone who is more interested in peace than war.
By: Ryan Cooper, The Week, April 10, 2015
“A Nuclear Deal With Iran Isn’t Just About Bombs”: An Opportunity For Iran To End Its Chapter In Extremism
To prove that Americans can be every bit as crazy as Iranians, I took my daughter along on my last trip to Iran, in 2012, for a road trip across the country.
Iranians were stunned to see a 14-year-old Yankee teeny-bopper in their midst. In Mashhad, a conservative Islamic city that might seem wary of Americans, three Iranian women in black chadors accosted my daughter — and then invited her to a cafe where they plied her with ice cream, marveling at her and kissing her on the cheek as she ate.
They weren’t political, but they yearned for Iran to be a normal country again.
As the Iranian nuclear talks creep on into double overtime, let’s remember that this isn’t just about centrifuges but also about creating some chance over time of realigning the Middle East and bringing Iran out of the cold. It’s a long shot, yes, but it’s one reason Saudi Arabia is alarmed, along with Iranian hard-liners themselves. Those hard-liners survive on a narrative of conflict with the West, and depriving them of that narrative undermines them.
It’s odd to be debating a deal that hasn’t been reached, but, frankly, critics are mostly right in their specific objections to a deal, and in their aspirations for it.
“A better deal would significantly roll back Iran’s nuclear infrastructure,” noted Prime Minister Benjamin Netanyahu of Israel. “A better deal would link the eventual lifting of the restrictions on Iran’s nuclear program to a change in Iran’s behavior.”
All true. Of course, a better deal would also involve gifts of delicious Persian baklava for every American. And a pony.
Netanyahu also suggests that a deal would give “Iran’s murderous regime a clear path to the bomb.” That’s a fallacy.
Iran is already on a path to nuclear capability. Netanyahu should know, because he’s been pointing that out for more than two decades. Beginning in 1992, he asserted that Iran was three to five years from a nuclear capability. Over time, that dropped to “a year or two,” and then to “months.”
But even if Netanyahu’s warnings have been alarmist, he has a point: Iran is getting closer. The problem is that fulminations don’t constitute a policy.
The West essentially has three options:
■ We can try to obtain a deal to block all avenues to a bomb, uranium, plutonium and purchase of a weapon. This would allow Iran to remain on the nuclear path but would essentially freeze its progress — if it doesn’t cheat. To prevent cheating, we need the toughest inspections regime in history.
■ We can continue the sanctions, cyberwarfare and sabotage to slow Iran’s progress. This has worked better than expected, but it’s not clear that we have a new Stuxnet worm to release. And, partly because of congressional meddling, international support for sanctions may unravel.
■ We can launch military strikes on Natanz, Isfahan, Arak, Fordow and, possibly, Tehran. This would be a major operation lasting weeks. Strikes would take place in the daytime to maximize the number of nuclear scientists killed. All this would probably delay a weapon by one to three years — but it could send oil prices soaring, lead to retaliatory strikes and provoke a nationalistic backlash in support of the government.
Imagine if we had launched a military strike against Chinese nuclear sites in the 1960s. In that case, Beijing might still be ruled by Maoists.
On balance, with either the military option or the sanctions option, Iran probably ends up with a nuclear capability within a decade. With a nuclear deal, it’s just possible that we could prevent that from happening. Perhaps no deal is achievable; the Iranian side has been recalcitrant lately. In that case, we continue with sanctions and hope that the economic pressure further delegitimizes the government and eventually forces Iran back to the table.
But, again, this isn’t just about uranium but also about undermining an odious regime and creating the conditions for Iran to become a normal country. I’ve rarely been to a more pro-American country, at the grass-roots, and there’s a pent-up anger at corruption and hypocrisy. That doesn’t mean that there’s going to be a revolution anytime soon. But it means that there’s a chance for movement after the death of the supreme leader, Ayatollah Ali Khamenei, who is 75 and underwent prostate surgery last year.
In the office of Grand Ayatollah Hossein Ali Montazeri, whom Khamenei edged out to be supreme leader, I was once jokingly introduced as coming from the “Great Satan.” An aide, referring to Iran’s own regime, immediately quipped: “America is only Baby Satan. We have Big Satan right here at home.”
So, sure, a nuclear deal carries risks and will be ugly and imperfect, but, on balance, it probably reduces the risk that Iran gets the bomb in the next 10 years. It may also, after Ayatollah Khamenei is gone, create an opportunity for Iran to end its chapter in extremism, so that the country is defined less by rapacious ayatollahs and more by those doting matrons in Mashhad.
By: Nicholas Kristof, Op-Ed Columnist, The New York Times, April 3, 2015
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