Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

R.I.P., Antonin Scalia

How I will remember him

I don’t know if Justice Antonin Scalia, of the U.S. Supreme Court, read, or liked, Bulgakov’s The Master and Margarita ― it was, no doubt, much too unorthodox for him, although he would at least have agreed with its insistence that we at least believe that the devil exists. But as Bulgakov’s devil points out, “man is mortal, but that alone would only be half the trouble. What’s bad is that he sometimes is suddenly mortal, there’s the rub!” Justice Scalia himself has proved suddenly mortal, and it is quite a shock.

He was a larger-than-life figure, the sort of person who left no one indifferent, about whom everyone had an opinion ― not infrequently a very bad one. I wrote once that “Justice Scalia is often snarky, but he gets as good as he gives.” And no doubt there will be much criticism in the coming hours and days, as there will also be much praise. For my part, though I have criticized him in the past, I want now to offer praise, even if it is of an anecdotal sort.

Back in 2007, Justice Scalia came to Montreal, to debate his Canadian colleague, Justice Binnie, about the role of a judge in a democracy ― which they both took to mean constitutional interpretation. It was a remarkable debate, though sadly it seems not to be available online anymore (NB: see the update below). Bob Rae, who moderated, remembers it too, as do others who were there, and even some who were not. And, as Emmett Macfarlane has already mentioned, after the debate, Justice Scalia lingered in the room where food and drink were being served ― and spoke to students who quickly surrounded questioned him. I was there, and even got some questions in ― something about constitutional conventions. I was sure, and still am for that matter, that I was right and he was wrong, but he certainly taught me a good lesson that day about debating a judge without being in more-than-full command of all the facts. It’s not a good idea! I wasn’t the worst though. Almost all of the questions that were being asked in that scrum were quite hostile ― George W. Bush was still president, and many were determined to blame Justice Scalia personally for Bush v. Gore. And the thing is, he surely had to know that Canadian students would not take kindly to him ― yet not only did Justice Scalia not try to avoid talking to us, but he spent a good 40 minutes at it, and seemed to rather enjoy the whole business. I must confess, he won me over that evening ― as a person, if not as a jurist.

Of course, he was also often an abrasive man. He could be brutally unkind to his fellow human beings in his opinions, judicial and extra-judicial, as Eddie Clark points out. Still, the image I will retain of him is that of a man who was willing to talk to those who disagreed with him, debate them, and be generous to them. His friend and ideological opposite Justice Ruth Bader Ginsburg might agree with this. At a time when refusing to treat opponents with the least amount of class, and even to talk to them, are often seen as normal, I hope that this memory of Justice Scalia will prove more powerful than the bitterness and divisiveness for which he will also, and alas justly, be remembered.

UPDATE: Mark Mancini, who is manifestly much better than I at searching the CPAC archives, has found the video of the Binnie-Scalia debate. It is here, and you have to click on the right-most link below the box. It is, as he says, well worth watching.

FURTHER UPDATE: Many reactions to the news of Justice Scalia’s death have already been published. There is no point to cataloguing them all, but I will note those by Moin A. Yahya, Michael Dorf, Noah Feldman, and Cass Sunstein, because they all make the same point as I tried to about Antonin Scalia the human being ― that he was generous and happy to talk to people who disagreed with him, including people who were vastly junior to him in years and distinction. (Profs. Feldman and Sunstein also offer very insightful assessments of Justice Scalia the jurist.)

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

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The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

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A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

Show ‘Em

Earlier this week, an American court issued a decision on a topic that is all but certain to come up for discussion in the weeks after October 19: the ballot selfie, and the attempts ban it. Judge Barbadoro of the U.S. District Court in New Hampshire declared unconstitutional that state’s law that made it an offence to show one’s completed ballot to another person “with the intention of letting it be known how [one] is about to vote or … has voted,” including by means of “taking a digital image or photograph of [the] marked ballot and distributing or sharing the image via social media or by any other means.” Over at the Election Law Blog, Rick Hasen comments on the decision, hoping that it will be reversed on appeal.

For my part, as usual, I express no views on the propriety of this outcome under American law. However, because the issue has already come up in Canada (though without as yet resulting in a court judgment, so far as I can tell), and is very likely to come up again, I think it worthwhile to briefly summarize the court’s reasoning, and highlight a number of very interesting questions that it gives rise to.

Judge Barbadoro’s decision begins with a review of the history of the secret ballot ― or, as he calls it, the “Australian” ballot ― in the United States. As in the United Kingdom (about which I blogged here) and in Canada, elections prior to the introduction of the secret ballot were a brutal business. Corruption and intimidation, even violence, were commonplace. The use of the secret ballot, as well as legislation targeting such manipulation of the voters more directly, helped mostly (although not entirely, the judge says) eradicate it. Indeed, there is no evidence of voters being threatened or bought in New Hampshire recently, and the supporters of the ballot selfie prohibition did not cite any such cases, beyond one dubious anecdote, in defending the law.

Applying the analytical framework developed by the U.S. Supreme Court for freedom of expression cases, Judge Barbadoro then asks whether the prohibition is a “content-based” restriction on speech and, having concluded that it is, whether it is “narrowly tailored” to serve a “compelling government interest.” The judge concludes that the law meets neither of these conditions. While preventing corruption at the ballot box is a compelling interest in theory, the government must also “demonstrate” that it is invoking it to address an actual problem. Since there is no evidence of corruption or intimidation actually going on, the government has failed to do so:

even though small cameras capable of taking photographic images of ballots have been available for decades and cell phones equipped with digital cameras have been in use for nearly 15 years, the [State] has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion. (32)

Judge Barbadoro adds that even if he had found the government’s interests compelling, he would still have held that the prohibition on ballot selfies is not “narrowly tailored.” Instead of banning people from sharing images of their ballots regardless of their motivations for doing so, it should focus on the use of such pictures to enable corruption and intimidation. In any case, “[t]he few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved.” (38)

The most important question judge Barbadoro’s conclusion elicits concerns the role of the courts in cases where they are dealing with prophylactic legislation, which aims not to address existing problems but to prevent problems from happening in the first place. By their nature, such laws are harder to justify by reference to evidence. And it stands to reason that that could open to the door to governmental abuse. Restricting constitutional rights “just in case” is a disturbing idea. Yet must the government wait for problems to arise before it can do anything about them? Especially when the problems at issue are not something inherently vague and uncertain, like the unfairness of the electoral process purportedly caused by the absence of campaign spending restrictions, but actual criminality, like bribery and intimidation. And all the more so when there is a history, albeit a somewhat remote history, of such problems actually happening.

The interpretation of this history is another big issue raised by Judge Barbadoro’s decision. What are we to make of the decline and virtual disappearance of voter bribery and intimidation in the wake of the adoption of the secret ballot and the enactment of the laws against such practices? How do we disentangle the effects of these laws from those of the secret ballot itself? Is the very success of these techniques a reason for letting ballot secrecy fall by the technological wayside? And then, there are questions about much more recent history ― specifically that of the ballot selfie and the innovations that enable it. Judge Barbadoro asserts that cellphone cameras have been around for 15 years, but how widespread were they then? The Oxford English Dictionary’s lexicographers have tracked down an example of the word “selfie” being used back in 2002, but the explosive spread of the phenomenon is surely more recent, and the idea of the “ballot selfie” might be more recent still. Is it, then, really the case that any problems that this phenomenon might generate ought to have become manifest, as Judge Barbadoro suggests? (Incidentally, while his opinion provides a wealth of citations to materials on the history of the ballot, this technological history is merely asserted.)

Finally, I think it is worth asking whether outright corruption or threats are the only reasons to worry about ballot selfies. In fairness to Judge Barbadoro, they were the only reasons asserted by the New Hampshire prohibition’s defenders. And the judge is probably right that people involved in corruption or subject to intimidation are unlikely to post their ballot selfies on social media. They’ll just show them to the persons paying or threatening them, and go undetected. But should we not also be concerned about the more diffused social pressure that can be brought to bear on people who let ― or those who fail to let ― others know how they voted? Should we not worry about people being pressured to vote, or to vote in a particular way, and to prove that they have done so, not by a specific manipulator, but by their online peers? People involved in “shaming” a person who didn’t vote to their satisfaction might not be committing an offence, and the line between legitimate and immoral behaviour in this realm is probably too blurry to lend itself to legal implementation. In this respect, the prophylactic prohibition on ballot selfies might actually be necessary.

As I said that in the post linked to above, I believe that the secret ballot “was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.” And I am inclined to further believe that even coercive enforcement of ballot secrecy is justified. My hunch is that Canadian courts would agree, though I haven’t thought the matter through in detail. (I’ll try to do that before October 19.) In the state whose motto is “live free or die,” however, you’re now entitled not just to tell people how you voted, but to show them, too.

UPDATE: Prof. Hasen now has an op-ed for Reuters, further explaining his views. His most compelling argument, in my view, is the following:

the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.

Entrenching and Expanding Rights

In an interesting post over at Concurring Opinions, Renee Lerner discusses the history of the constitutional protection for trial by jury, including in civil cases, in the United States, and suggests that this history holds a cautionary lesson. Prof. Lerner highlights the importance which the common law heritage and the purported “immemorial” “rights of Englishmen” associated with it had for the Americans of the Revolutionary period. These rights were thought to have been codified in the Magna Carta ― and “[t]he right Americans most often invoked in connection with the Great Charter was the right to trial by jury.” This, as prof. Lerner explains, was in no small part a myth: “The barons at Runnymede,” when they forced the Magna Carta on King John,

certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries.

But no matter. In the 17th century, Lord Coke and others fabricated the “myth” of an ancient right to trial by jury, and their ideas were immensely influential in America. Partly for this reason, and because “Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws,” they entrenched it in many State constitutions and, eventually, in the Federal one.

For prof. Lerner, this was a very unfortunate mistake, for “the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful.” Trial by jury, she writes, “chang[ed] from a prized right of the people to a nuisance.” And in her view, this history demonstrates the superiority of the flexible British constitution, which lacks entrenched rights. When a right becomes a nuisance, it can simply be got rid of.

Now to me this seems, to be sure, to point to a cost of rights-entrenchment ― but this cost is very much a feature, not a bug. Indeed, it might be the most important feature of them all. A major part of why Americans and, increasingly, other nations (including, of course, Canada) chose to entrench rights is precisely so that they cannot be discarded whenever a majority thinks that they have become a nuisance. (I don’t know whether most Americans actually think that jury trials are a nuisance. But let’s assume that they are.) It’s not just trial by jury ― the same goes for every right entrenched in every constitution in the world. We should be aware of the perils of inflexibility, but I don’t think that they are enough to make the case against entrenching rights. And it is worth noting that they can be addressed by somewhat more flexible constitutional amendment procedures than that of Article V of the U.S. Constitution or Part V of the Constitution Act, 1982 (though its inflexibility is as much a product of politics as of the rules it contains), without abandoning entrenchment altogether.

What I think is a more interesting aspect in prof. Lerner’s story is one that she does not dwell on ― the expansion of the right to a trial by one’s peers from the nobility to the entire citizenry. In a way, this story is unremarkable. As Jeremy Waldron persuasively argues, it is the story of the idea of dignity ― an exalted status once reserved to kings and noblemen, but now attributed to all human beings. It is also the story of the right to religious liberty, which was at first only afforded to Protestants in England, and then expanded to embrace other familiar religious groups (such as Catholics and Jews), and later still the less familiar ones (such as Jehovah’s Witnesses) and the unbelievers. It is the story of the franchise, first the preserve of propertied men, and then expanded to the middle and working classes, to women and, in Canada at least, to prisoners and other groups that it traditionally excluded. We usually see these and other expansions of rights as unequivocally good. They have obvious upsides for the people who benefit from them and arguably for society as a whole, and ― so our conventional thinking goes ― no obvious downsides. Some people would beg to differ, but we tend to regard them as retrograde and bigoted. It is here that the story of the right to a jury trial might serve as an interesting cautionary tale.

If jury trials involved, both as parties and as jurors, only a narrow class of wealthy and, for the most part, not very busy people, they would not be the “nuisance” prof. Lerner describes. For one thing, the barons who demanded and obtained the right to be tried by their peers knew enough about each other’s affairs (if not specifically, then at least about the sort of life people of their social class led) to serve as reasonably effective triers of facts. They did not have, over the course of a trial, to understand the complexities of a line of business (or even, for that matter, of the functioning of a criminal gang,) For another, underpaying them for their work, or indeed not paying them at all, wasn’t the problem it is for jurors today (not only in the United States, of course). As much as the advent of the “representative republics” and the “commercial society,”  the expansion of the right to a jury trial, and the concomitant right and duty to serve on juries, to all citizens is the reason this right might be problematic today. (Incidentally, I should make clear that I do not express a definitive opinion on whether it is; at least in criminal matters, I’m tentatively inclined to think it is a useful safeguard.)

The story of the right to a jury trial might thus show that expanding a right from some citizens to all can cause significant problems in at least some cases. Of course, even if we agree with this interpretation of the story prof. Lerner tells, we need not come to the same conclusion regarding any other right. Each case must be assessed on its own merits. But we probably should at least acknowledge the possibility.

What Does This Mean?

Those of you who have been following this blog for a while will recall that I take a lot of interest in oaths; especially, but not exclusively, citizenship oaths. A paper of mine arguing that the Canadian citizenship oath is unconstitutional as an unjustified infringement of the freedom of conscience came out in the last issue of the National Journal of Constitutional Law. The key move in my argument is to say that, since oaths generally implicate the conscience of the persons who take them, their subjective interpretations of the obligations oaths impose on them are determinative, in the same way as religious believers’ interpretations of the requirements of their faith are, and courts are not entitled to tell them that they simply mistaken about the duties they subscribe by swearing the oath. You will also recall that Canadian courts have not seen it fit to embrace that viewpoint. Both Ontario’s Superior Court and its Court of Appeal (as well as, once upon a time, the then-Appellate Division of the Federal Court) have found that the citizenship oath is constitutional, holding that the anti-monarchists who objected to taking it were wrong to understand it as preventing them from holding their beliefs or engaging in pro-republican activities.

So of course I found Orin Kerr’s recent post over at the Volokh Conspiracy about the meaning of an oath, required of U.S. federal employees, to “defend the Constitution of the United States against all enemies … and … bear true faith and allegiance” to it very interesting. Interesting, but also, to me, unsatisfying.

Prof. Kerr notes that

[o]n its face, it’s not totally clear what it means to “defend the Constitution” and “bear true faith” to it. For example, some people support a constitutional amendment to repeal Citizens United, which would cut back on First Amendment protections. If you took the oath, are you obligated to oppose that amendment in order to faithfully defend the Constitution? Or imagine you work in a federal building and there’s a Christmas display that you think violates the Establishment Clause. Does your oath obligate you to take steps to stop the violation, and if so, what steps?

The first of these questions, especially, mirrors the dilemma faced by republicans asked to swear allegiance to the “Queen of Canada,” who must ask themselves whether this allegiance prevents them from holding on to and working to promote their reformist views.

But prof. Kerr accepts, unquestioningly so far as I can tell, that there is a truth of the matter about these questions; and, further, that this truth can be established by reference to history. Now this history is very interesting. The current wording of the oath, prof. Kerr explains, goes back to the aftermath of the Civil War, when the oath in that form was only required of former Confederate soldiers. Others could swear a more general ― though no less vague ― oath to “support” the Constitution. This seems to provide evidence for Liav Orgad’s claim, made in his excellent paper on loyalty oaths, that “the history of the oath is a history of fear,” specifically a fear of disloyalty ― a claim that I endorse and develop in my article. Only later was the obligation to take the oath to defend the Constitution extended to other federal employees, though prof. Kerr does not explain why.

Prof. Kerr concludes that this “historical context suggests” that the oath does not require federal employees

to oppose constitutional amendments or to take down questionable Christmas displays … [It] is probably best understood in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.

This is more or less what the Canadian courts have concluded regarding the meaning of our citizenship oath. But, as I explain in greater detail in my other posts, and in my paper, this approach ignores the distinctive character of an oath. An oath is not a statutory command (though it is of course prescribed by statute). It is an imposition of vague obligations, whose precise significance the oath-taker has to work out for him- or herself, as a matter of conscience. Statutes can and must be authoritatively interpreted by courts, possibly with reference to the historical context in which they were enacted. But no court, in a free society, can tell a person what his or her conscientious duty is, for conscience is an internal tribunal, not answerable to any external one. If a person wants to look to history, or to law, or to anything else, in working out the meaning, to him or her of the oath ― that is to say, his or her conscientious duties ― good and well. But that’s his or her choice, and not, in Lord Acton’s words, the “sublime prerogative assigned to states, or nations, or majorities” ― or to judges.