How American Democracy Works

P.S. Huff

(HT: Anthony Gregory.)

Was the Minnesota Recount Unconstitutional?

P.S. Huff

Writing in the Wall Street Journal, Professor Paulsen argues that under Bush v. Gore, 531 U.S. 98 (2000), the answer is yes:

Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of arbitrariness, lack of uniform standards, inconsistency in how local recounts were conducted and counted, and strange state court decisions.

Consider the inconsistencies: One county "found" 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted -- once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines' tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.

Then there's Minnesota's (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida's interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.

I take no position on the soundness of Paulsen's argument, but the piece is worth reading. (If anyone is aware of any inaccuracies in the op-ed, send me a link and I'll post the rebuttal for balance.)

Today at the Supreme Court, Jan. 14, 2009

P.S. Huff

Herring v. United States, Docket No. 07-513.
    Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.
    ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.

Oregon v. Ice, Docket No. 07-901.
    Held: In light of historical practice and the States' authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses.
    GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C.J., and SOUTER and THOMAS, JJ., joined.

An Interesting Bit of Anti-Federalist Wisdom

P.S. Huff

"Centinel," Anti-Federalist:

But who is so dull as not to comprehend, that the semblance and forms of an ancient establishment, may remain, after the reality is gone.—Augustus, by the aid of a great army, assumed despotic power, and notwithstanding this, we find even under Tiberius, Caligula and Nero, princes who disgraced human nature by their excesses, the shadows of the ancient constitution held up to amuse the people. The senate sat as formerly; consuls, tribunes of the people, censors and other officers were annually chosen as before, and the forms of republican government continued. Yet all this was in appearance only.—Every senatus consultum was dictated by him or his ministers, and every Roman found himself constrained to submit in all things to the despot.

"Centinel" II, in The Freeman's Journal, October 24, 1787.

United States v. Arzberger

P.S. Huff

Over at the Volokh Conspiracy, Eugene Volokh highlights what may be the first post-Heller invalidation of a federal gun-control law. (The DC handgun ban at issue in Heller was not "federal law" in the everyday sense, but it was nonetheless formally federal law.) Worth reading, at least if gun control is one of your hot-button issues.

Constitutional Federalism: A Life After Raich?

P.S. Huff

A unanimous Fourth Circuit panel today decided United States v. Comstock (HT: How Appealing). Its remarkable opinion relies on the unfashionable—but surprisingly resilient—enumerated-powers doctrine to invalidate recently-enacted 18 U.S.C. § 4248, which (in the panel's summary, p. 5) "authorizes the federal government to civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons—even after that person has completed his entire prison sentence." The upshot, p. 19:

The power claimed by § 4248—forcible, indefinite civil commitment—is among the most severe wielded by any government. The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers. "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Section 4248 thus cannot be sustained as an exercise of Congress's authority under the Commerce Clause or any other provision of the Constitution.

But is this conclusion consistent with Gonzales v. Raich, 545 U.S. 1 (2005)? I may have some thoughts on that in the coming days. For the panel's discussion, see n.6 of its opinion.

The million dollar question, as always, is this: Will four Supreme Court justices vote to take the case? If so, we may be looking at the Supreme Court's first major federalism decision since Raich. (The intervening four years seem like an eternity, don't they?)

Worth Thinking About

P.S. Huff

J.B. Say:

Nothing can be more idle than the opposition of theory to practice! What is theory, if it be not a knowledge of the laws which connect effects with their causes, or facts with facts? And who can be better acquainted with facts than the theorist who surveys them under all their aspects, and comprehends their relation to each other? And what is practice without theory, but the employment of means without knowing how or why they act?

Jean Baptiste Say, A Treatise on Political Economy xxi (Clement C. Biddle ed., 6th Am. ed. 1834) (5th French ed. 1826) (footnote omitted).

Should Argentina Embrace Private Coinage?

P.S. Huff

Writing in the Wall Street Journal, George Selgin offers a simple solution to Argentina's coin shortage: the government should sanction private coinage. As odd as this may sound, Selgin has history on his side:

Over two centuries ago, Great Britain faced a coin shortage more severe than Argentina's -- so severe that it threatened to stop British industrialization in its tracks. . . .

. . . . Fed up with the government's inaction, British firms started minting their own coins. Within a decade a score of private mints struck more coins than the Royal Mint had issued in half a century -- and better ones: heavier, more beautiful, and a lot harder to fake. Yet they were also less expensive, . . . . [and] when those who had accepted the private coins for payment went back to the issuer to redeem them, issuers offered to exchange their coins for central bank notes at no cost.

One of the virtues of studying history, is that it challenges your assumptions about the world. Things that you're certain would "never work" often have worked, at least in one form or another.

The question arises, however: Given the extent of the problem, why hasn't private coinage already begun to flourish in Argentina? Selgin argues, quite plausibly, that private firms assume the government wouldn't tolerate it. Thus:

If Argentina wants to end the shortage, it ought, not only to tolerate private coinage, but to sanction it. It can do so, while eliminating any risk that such coinage would be abused, through very simple legislation. It should allow any private firm to issue distinctly marked coins, perhaps subject to some minimal capital requirements, while making it clear that no one need ever accept any privately issued coins, even as change for purchases.

For the full article, click here.

Texas in Earlier Times

P.S. Huff

By chance, I came across this collection of historical "bird's-eye view" maps of various Texas cities. Pretty cool.

Update: The Library of Congress has its own online collection, which includes maps for locations in other states.

It's a Wonderful Life: "The Christmas Classic that Almost Wasn't"

P.S. Huff

Over at InsideCatholic.com, Ronald J. Rychlak tells the fascinating story of It's a Wonderful Life:

Starring Jimmy Stewart and Donna Reed, the movie [It's a Wonderful Life] has become a Christmas staple -- but it was not always that way, and how it attained its holiday status has as much to do with the intricacies of intellectual property law as it does with the storyline and the production values.

When it was released in 1946, It's a Wonderful Life was only a moderate success. . . . The movie was nominated for five Oscars, but it didn't win any, nor did not [sic] meet its financial break-even point. By the 1970s, the film was so largely forgotten that its owner (apparently inadvertently) let the copyright protection lapse.

But the expiration of the movie's copyright protection

meant that television stations could air it over and over without paying full royalties. (There were still some smaller, derivative royalties due on the storyline, but it is not clear that they were always paid.) For a period of time from the mid-1970s into the 1990s, It's a Wonderful Life seemed to be on several stations, several times each week during the Christmas season. . . .

These repeated showings, made possible by the termination of copyright protection, turned It's a Wonderful Life into the Christmas tradition that it is today.

But there's yet another twist: "The original copyright holders managed to reassert their rights, something that is virtually unheard of." For more on that, you'll have to read the whole piece.

(HT: Todd Zywicki.)

Medical Myths

P.S. Huff

BMJ.com has these two interesting pieces on medical myths: Part I, Part II. (HT: Ann Althouse.)

Some of them I already knew to be fictitious. But I confess to having believed the legend that "'40 to 45 percent of body heat' is lost through the head." (Well, some variant of it, anyway.) Learn something new everyday...

I suppose this is yet further confirmation (as if we needed it) of the wise adage that "What everyone knows is usually wrong." For whatever reason, myths seem remarkably difficult to dispel. How often do we hear, for example, that one shouldn't begin sentences with "And" or "But"? Or that Christopher Columbus discovered that the earth was spherical?

New Election Map

P.S. Huff

A map of the election results for the 1789 New York gubernatorial election can now be found here. The Federalist candidate was Robert Yates, and the Antifederalist candidate George Clinton.

Enjoy.