Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.
B8 and other exclusive-private-enforcement (or “vigilante federalism”) draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to “act at their peril” as a condition of litigating their rights. And they force rights-holders to litigate in state court.
The second objection arises from two limits on federal jurisdiction–the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder’s federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing “any person” to sue cannot be in federal court even absent the WPC, because a random “any person” plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).
Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.
This does not address the first objection–rights-holders should not be forced into defensive litigation. But the question is what is the real objection?
Posted by Howard Wasserman on April 30, 2023 at 11:09 AM
In the early 1960s, Tom Paxton was one of the young folk musicians hanging out in Greenwich Village; a group that included Bob Dylan, Joan Baez, Phil Ochs, Janis Ian, and others. According to Dave Van Ronk, who was in a position to know, Paxton was the first of the group to perform mostly his own material, at a time when even Dylan was still singing traditional folk songs. They were sometimes called topical or “protest singers” for their songs about the civil rights and peace movements. Unlike Dylan, Paxton actually went south to register voters in the Mississippi Summer. (Dylan performed at the March on Washington, but he was not otherwise a movement activist). It’s hard to recall the time when Tom Paxton was mentioned along with Bob Dylan. Nobody would ever suggest Paxton for a Nobel Prize, but he did write some beautiful songs, including “Bottle of Wine,” “Ramblin’ Boy,” and “The Marvelous Toy,” which were recorded by Pete Seeger, Joan Baez, the Chad Mitchell Trio (for which Paxton unsuccessfully auditioned), Harry Belafonte, Willie Nelson, Glen Campbell, and Peter, Paul, and Mary, among many others.
Paxton wrote and recorded “The Last Thing on My Mind” in 1964. I saw Paxton perform live several times, but my tastes were so parochial back then, I am embarrassed to admit, that I was unaware of the uptempo cover by Dolly Parton and Porter Wagoner, which was their first big hit in 1967.
In discussing Section Three of the Fourteenth Amendment, I sometimes get this question: “Why not just let the voters decide if someone should hold office?” I have a draft paper that discusses this issue in some detail, but let me make some brief points here.
Voters decide among eligible candidates. They don’t decide who is an eligible candidate.
A Section Three violation (if there is one) is not technical or de minimus. For example, suppose a candidate needs to submit a certain number of signatures to get on the ballot. She falls two or three short or there are a couple that were filled out incorrectly. An election official could well say that this relatively minor error should not prevent the voters from having another choice. But that argument does not work for Section Three.
Congress is free to grant Section Three amnesty to a candidate to let the voters decide. Neither election officials nor the courts have that power.
The point of Section Three is that certain people cannot hold office even if voters choose them. Thus, “let the voters decide” is tantamount to nullifying Section Three. People could not vote for Jefferson Davis after 1868 no matter how much they wanted him.
In a separate post, I’ll take up the argument that disqualifying Donald Trump from the presidential ballot would be “bad for America.”
Posted by Gerard Magliocca on April 28, 2023 at 11:12 AM
Building on Gerard’s post, I wrote this in 2016 and this in 2014 about limitations on write-in voting under Florida law (the later post has some useful reader comments addressing Gerard’s question). F0rmer Florida Rep. Ileana Ros-Lehtinen wanted to write-in Jeb Bush for president in 2016; I wanted to avoid voting for Ros-Lehtinen in 2014. Florida law requires “write-in candidates” to qualify in advance (so they are not really write-in candidates in the sense Gerard describes). Florida excludes uncontested elections from the ballot because the voter has no choice but the unopposed candidate. Both reflect a prohibition on “let me write in a random name on election day.”
Posted by Howard Wasserman on April 27, 2023 at 02:06 PM
Primary elections are underway, which got me to thinking about the following problem. Suppose I want to vote for my neighbor, who is eligible to serve in the office for which I am voting. But my neighbor is not a candidate. So I march down to the polling place and ask to write in her name. The poll worker responds “That’s not allowed under state law.” I respond “But I have a constitutional right to vote for whomever I want who is eligible!”
Turns out, though, that you don’t. Some states do not permit write-in votes, in toto or for certain elections. Most states do in some form, which raises the question of whether such a right should be recognized. (Granted, if I can write-in someone I can also say “Mickey Mouse” or “Abe Lincoln,” but let’s stick to living, eligible people for the moment.) There is good sense in saying that voting rights should not be restricted by the ballot. U.S. Term Limits v. Thornton did talk about write-in candidates, but I’m not sure what other cases have.
Posted by Gerard Magliocca on April 27, 2023 at 09:42 AM
Digital and physical spaces increasingly coexist in today’s world, creating what some have called a cyber-physical systems (CPS) society. The role of cyberspace as both a source of value and a shaper of the “real” physical world is expanding, yet the social vision and governance model for such a society remains underdiscussed. Efficiency and manageability are hallmarks of highly digitalized CPS societies, but they can also be more humanistic if governed wisely. A well-run CPS society can handle complexity and respond to the diverse needs and values of its members, facilitating harmony and coexistence. The concept of the pluriverse encourages the development of a new, digital-age common sense – a shared vision that enables collaboration and agile governance suited to the needs of our emerging epoch. It is a worldview that includes radical difference and diversity, based not on a modern ontology that universalizes one type of rationality and separates humans and nature, but on a relational ontology in which all living beings and artifacts are interconnected and the principle of non-hierarchy is recognized.
Working with Japanese officials and academics on these questions has been particularly rewarding and illuminating for me — in my book The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I compare the attitudes of the Europeans and Americans to Japanese and Korean societies in the vision on how automation, AI and robotics can help [or harm] society. The taskforce has confirmed for me that Japan is forward-thinking on these issues compared to European counterparts that focus disproportionately on the risks and potential harms of AI. Of course both are needed – the critical and constructive.
Posted by Orly Lobel on April 27, 2023 at 04:17 AM
“… but on a relational ontology in which all living beings and artifacts are interconnected and the principle of non-hierarchy is recognized.”
First principles do matter in the hierarchy of being despite the fact that there are those who claim for example, p can, in essence, not be p, and still be, in essence p. I suppose that would be the relational ontology that is, in essence nonsense.
Posted by Steve Lubet on April 27, 2023 at 04:13 AM
Comments
“do you think other Western democracies regularly have entertainers testify before their national or federal legislatures?”
Glad the rest is cleared up.
As to this, yes, though I’m more familiar with various entertainers who joined the government. If entertainers worldwide could join the government, it would seem strange to me that they would not also testify.
Celebrities worldwide often are involved in causes and testify about them. It is not just something “Yanks” do any more than only Americans who once were entertainers are voted into office.
I think this thread has run its course. Thanks for leaving the comments open.
A remark was made about supporting a “cult of entertainers” by “you Yanks.”
(1) There is nothing unique about the U.S. having a “cult” of some sort regarding entertainers.
(2) Various entertainers regularly do other things, including serious causes such as advocating for victims of 9/11 and veterans who suffer from the effects of toxic chemicals. Two causes for which Jon Stewart has strongly advocated for and working closely with the people involved.
Jon Stewart’s work as a whole does lead people to respect him. He also directed material of a serious nature, including a film involving a victim of Iran’s tyranny. He is not just some trivial “entertainer.”
(3) I also don’t know what “propaganda” adds to the conversation. It is not assumed that the blogger here thinks he is some totally neutral reporter. Then again, any number of media sources are not totally neutral. They have a point of view. He’s promoting a cause. Not denied. What does that add? Does his claim of hypocrisy suddenly lose any force? Not seeing it.
Jesus Christ… although I suppose that makes sense in a context like this blog, given that around ninety percent of American legal academics aren’t even trained to be scholars.
You appreciate that, in every other Western country, Stewart’s work product is rightly called ‘propaganda’, yeah? That info-tainment programmes, like Stewart’s television show was, ARE propaganda.
Posted by: Anonymous Bosch | Apr 28, 2023 3:59:45 AM
Little clips can be somewhat misleading but one thing he did do is have the guts to actually be interviewed by Jon Stewart. Obviously, that guy is likely to have views Stewart doesn’t like. Stewart isn’t polite about such things.
On the specific issue, “drag show” has no magical quality that makes sense to ban children from going. And, if this guy is fine with children being near guns, can see it sort of like shooting fish in a barrel. Which I don’t literally support.
Kidding Yanks is fine but nothing special about “Yanks” here and it is not “celebrities,” full stop either. Jon Stewart has done serious stuff.
This issue — along with the very issue-framing — is clearly a form of distraction for the masses from America’s more pressing concerns. Still, an apples and apples comparison would have been more interesting, ie views on drag shows for kids and DEI statements for job applications.
Besides, given the current political climate and disturbing governmental developments, why would anyone on the right even dream of giving up their guns now? They need them more than ever.
By the by, are you Yanks still committed to utilising the cult of celebrity and treating entertainers as epistemic (let alone moral) authorities? Haven’t y’all seen through that yet?
The failure to adequately treat those who are suffering from emotional and mental health disorders has certainly contributed to the fact that both gun control and the accommodation and celebration of the sexual objectification of the human person are out of control, due to a deficiency of Love and the failure to respect the inherent Dignity of every beloved son or daughter from the moment of conception to natural death. Certainly guns can be used to protect us from harm, but shows that demean the essence of being, in essence, a beloved son or daughter only cause harm and have no redeeming value.
This does not change the fact that we must come up with gun laws that will protect us from those who desire to do us harm, while addressing the underlying issue of lack of respect for the inherent Dignity of the human person. One can only respect the inherent essence of the Dignity of the human person as a beloved son or daughter, from the moment of conception to natural death, by recognizing our inherent Unalienable Right to Life, to Liberty, And To The Pursuit Of Happiness Is Endowed to us from God, not Caesar, King John, or John Lock.
Posted by: N.D. | Apr 27, 2023 2:03:47 PM
Why shouldn’t kids be at drag shows?? Have you been to a drag show? What happened that children shouldn’t see? Does that happen at *all* drag shows?
Some drag shows are pretty raunchy–many people probably wouldn’t want their kids there. But some comedy shows are raunchy, too. The fact that you might not take a six-year-old to…I dunno…Andrew Dice Clay, doesn’t mean you won’t take her to see Jim Gaffigan. Heck, you might not want the kid to see any Seth Rogen movies at all, but he has standup for kids that’s just great. There’s nothing wrong with letting kids watch that.
The same goes for drag shows. Don’t bring your kids to the late night drag show at the gay bar. Simple enough. What does that have to do with a low-key charity drag fundraiser or with Drag Story Time at the public library????
The mere fact that men are wearing clothes normally worn by women is not REMOTELY inappropriate for kids. Hell, we grew up on Tootsie and Mrs. Doubtfire. Stop trying to make anything associated with queer people into perverted sex. They do other things, too, you know.
Posted by: Nuanced like a rock | Apr 27, 2023 11:11:41 AM
Is it acceptable for me to say it’s kinda weird to bring children to drag shows if I also believe that gun culture in the United States is out of control? I seriously feel like I’m taking crazy pills when I see this kind of discourse. Yes, mass gun ownership mixed with poor education, increasing economic hardship/frustration, lack of community, property obsession, fearmongering media, and laws that give people way too much leeway in practicing “self-defense” is terrible and should be fixed through policy. However…why is it wrong to acknowledge that kids probably shouldn’t go to drag shows? You can recognize both, even though the former issue is clearly far more important.
On a side note, I hate that TikTok has caused other platforms to push for more vertical-oriented videos.
Chief Justice Roberts “respectfully decline[d]” Sen. Durbin’s “invitation” to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing “separation of powers concerns and the importance of judicial independence,” Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on “mundane matters of judicial administration.” Imagine a student whose answer begins and ends with “this has not happened before on a matter this serious, therefore it cannot happen now.”
Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court’s shaky reputation. Roberts’ statement rests on a series of unspoken principles that capture the political and constitutional moment.
• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to “invite” Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.
• I do not know how the Court would react if Congress tried to bring back some control–for example, expanding the Court’s mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?
• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS’s special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts’ opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).
• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton’s assumed that Congress would destroy a Chief Justice and Court that rejected Congress’ constitutional role in this way–Congress acted as an institution to check other institutions. But the introduction of organized–and ideological–parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses’ actions as the problem to be investigated and checked; they see their Senate colleagues’ actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.
Posted by Howard Wasserman on April 26, 2023 at 10:46 AM
The Florida bill to overhaul defamation law, set up a challenge to New York Times, and allow public officials to sue critics into oblivion is dead, at least for now. (H/T: Volokh). A cynic (including my co-author) would say that some Republicans figured out that the changes were more likely to hurt conservative media. I think they could not get their shit together and it will return next year.
Posted by Howard Wasserman on April 26, 2023 at 09:50 AM
Tucker Carlson—the Fox News star whose brand of barely disguised racism, anti-immigrant nativism, Republican Party fealty, uninhibited disinformation, Trumpist election denial, and bizarre culture-war monologuing turned his show into the highest-rated cable news program in American history—was abruptly canned on Monday morning.
That is totally unfair. Tucker never, ever disguised his racism.
Posted by Steve Lubet on April 25, 2023 at 08:20 AM
