Constitution « LexDigerati

A Penny Saved

With calls for elimination of the U.S. penny going back decades, we are now on the verge of an inflection point for commercial payments. Between debit cards and emerging mobile payment systems, it seems innovation can disrupt even established roles of government that date to the U.S. Constitution (1789) and centuries beforehand.

Cash moved one small step nearer to its deathbed with the announcement on Wednesday that Square, the mobile payments start-up, would partner with Starbucks Coffee Company, reports Claire Cain Miller on Wednesday in The New York Times.

Daily Report: A Step Forward for the Mobile Wallet.

Social security checks are today almost completely a thing of the past. How many more years or decades before currency itself becomes extinct? And will this sea of change also disintermediate banks? Wait and see, but likely not for long.

Note: Originally prepared for and reposted with permission of the Disruptive Competition Project.

The Future of Red Lion

This is the brief I just prepared for the Consumer Federation of America to the U.S. Supreme Court on the issue of whether the so-called Red Lion doctrine of First Amendment regulation of broadcasters should be re-examined. My favorite passage is:

[T]he presumption of invalidity inherent in petitioners’ argument is flawed. Broadcasters do not remain “singularly constrained,” Pet. at 16, on the ground that there were few speakers 45 years ago. When Red Lion was decided there were hundreds more newspapers in America, half a dozen or more in major cities like New York, national, weekly news and cultural magazines (Life, Look, etc.) and many other sources of information and entertainment that are no longer available in today’s marketplace. Therefore, the “undeniably large increase in the number of broadcast stations and other media outlets” on which the D.C. Circuit and petitioners rely, id. at 18, is immaterial to the economic regulation of broadcast licensees unless — as petitioners dare not suggest, because it is untrue — the increase has lessened the technical need for governmental entry and interference regulation.

Whether there are three or six or ten television stations in a local market, however, does not at all mean there is enough spectrum to accommodate everyone who would like to use the airwaves. What some judges have called “the indefensible notion of spectrum scarcity,” Action For Children?’s Television v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (Edwards, J., dissenting), is therefore totally true and completely defensible.

[slideshare id=11925599&doc=11-696cfaopp-brief-120308132113-phpapp02&type=d]

Constitutional Protection for Animals?

More from the silly lawsuit department.

A federal court is being asked to grant constitutional rights to five killer whales that perform at marine parks — an unprecedented and quixotic legal action that is nonetheless “likely to stoke an ongoing, intense debate at America’s law schools over expansion of animal rights,” according to the Associated Press.

People for the Ethical Treatment of Animals (PETA) is accusing the SeaWorld marine parks of keeping five star-performer whales in conditions that violate the 13th Amendment’a ban on “slavery” and “involuntary servitude.” PETA relishes engaging in the court of public opinion, as evidenced by its provocative anti-fur and pro-vegan campaigns. Real courts are different, though.

Harvard Law School constitutional scholar Larry Tribe, while a supporter of animal rights, notes that “some Americans might find it bizarre or insulting to equate treatment of animals to the sufferings of human slavery.” SeaWorld Accused of Enslaving Killer Whales. Duh!

The original complaint, filed last October, alleged that

Section One of the Thirteenth Amendment prohibits the conditions of slavery and involuntary servitude without regard to the identity of the victim and without reference to “persons.” Although enacted in the historical context of African slavery, the Supreme Court has repeatedly declared that the Thirteenth Amendment is not so limited. Because the Amendment forbids any form of slavery, it embodies a principle that can be (and over the years has been) defined and expanded by common law to address morally unjust conditions of bondage and forced service existing anywhere in the United States.

“Slavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race or religion,” says general counsel to PETA, Jeffrey Kerr. Yet this overlooks the obvious issue that animals of all sorts, whether domesticated (like cattle and sheep), pets (dogs and cats) or zoological (lions, tigers and bears, oh my!) have since the founding of the United States been treated legally as property, i.e., “chattels.” And if unborn children in the womb have no independent legal existence — with which no one can argue, regardless of the legality of abortion — and minor children can be forced to work for their parents at home without pay, how in the world could the U.S. Constitution treat zoo specimens the same as black folks? Humans are different; that’s why we have laws, politics and a Constitution in the first place.

One does not have to be a PETA-basher to recognize that the “humane” treatment of animals is not at all the same as treating animals as humans.

P.S. SeaWorld filed a motion to dismiss on December 19, which is due to be heard by the federal court in San Diego on Feb, 12, 2012.

Why the Constitution Cares About Religion, Twice

Yesterday a federal district judge ruled the “National Day of Prayer” unconstitutional. But observing such a commemorative occasion involved no compulsion, discrimination or penalty on or against any observer of any religious doctrine. So what’s the rub?

Lots of Americans realize the First Amendment protects freedom of religion. It actually has two parts. The 1st guarantees the “free exercise” of religious beliefs. The 2nd prohibits any “establishment of religion” by the government. It’s the second clause — known unoriginally as the “establishment clause” — that is in play when debating invocations at public events, schools and the like.

“A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant, or undeserving of dissemination,” she said. “Rather it is part of the effort to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”

Personally I think there’s a difference between making all elementary school students recite the Lord’s Prayer and ordaining a national day, really just an honorific, to recognize the role of prayer in American society. The former was declared unconstitutional in the early 1960s and few citizens today would object to that significant step toward religious tolerance and diversity. But as a constitutional matter, it is simply not the case that the US Constitution’s protections for religious freedom mean the government can support or promote either specific denominations (e.g., Anglicans over Baptists) or movements (e.g., Christianity over all the rest). At the margin, things like a National Prayer Day have little relevance except to those who stand on principle and refuse to compromise, which in US constitutional jurisprudence has always been a discrete and insular minority.

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