Thursday, November 20, 2014
How the 24th Amendment is like a garlic press:
Professor Will Baude at Volokh compares unitasker cooking implements to legal doctrines,
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/20/how-is-a-garlic-press-like-a-legal-doctrine/
He was inspired by http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2527648,
On Doctrines That Do Many Things.
Some kitchen implements, like a cleaver, or string, are generally useful, while others have a specific task. While kitchen snobs tend to look down on unitaskers, some are useful and justify their space on the counter or in the drawer. E.g. a can opener. We might only use our cherry pitter once a year, but it is worth having.
I rarely use a garlic press, but I bought one to replace one I broke in our community kitchen.
I cook for about 50 people each Saturday with Food Not Bombs.
The First and 14th Amendments are generalist tools. So we have rules which limit their use.
O'Brien, Anderson v Celebrezze, Burson v Freeman, are cases that show the First Amendment is not absolute, but involves balancing competing interests.
Caroline Products, and the Slaughterhouse cases also show that the 14th Amendment is far from absolute, but will trigger different standards of review depending on the claims and facts.
The 24th Amendment, on the other hand, is a unitasker. It says you can't charge money to let people vote. The 3rd Amendment is another fine example - the government can't station troops in your kitchen during peacetime. There's only been one Supreme Court case resolving a 24th Amendment issue on the merits. Harman v Forssenius, 1965. In the recent Texas voter ID case, the court dissolved a stay, or stayed an injunction or something, but has not yet reached the merits. In an early morning dissent, Justice Ginsberg brought up the poll tax issue, so this case may see further developments down the road. http://www.supremecourt.gov/opinions/14pdf/14a393_08m1.pdf
My thesis is that when a clause of the constitution is highly specific, in the way that the 24th Amendment is specific, there is no need for balancing tests. Courts should not allow the other branches to do that one specific thing that the constitution tells them they may not do. Here, that would be charging money to vote. The lower court opinion, while it may or may not stand as matter of law, does a great job with the facts. It shows how a Texan may be charged $22, or over $100, or over $12, depending on which set of documents they use as voter ID. Even the "free" option comes with costs. The prohibition on using poll taxes and other taxes as an obstacle at the polls should be treated as an absolute.
The Wisconsin Supreme Court, faced with the same problem, construed its statute narrowly to prohibit the state from charging money for the underlying documents such as a birth certificate, and remanded to the agency for how to handle situations such as someone born in another state. Having solved that problem, it went on to uphold the statute more generally. As Christian Adams has pointed out, it would be relatively easy for Texas to amend its voter ID plan to avoid the 24th Amendment issues. Indiana could and should do the same. I oppose voter ID for a whole host of reasons not limited to the taxation issue, but I admit there are things the states could do to fix some of the current constitutional problems with voter ID statutes. Georgia addressed this, by amending their statute to stop charging for IDs.
I live in Indiana,and have been denied the vote repeatedly since 2006, because I am unwilling to show the voter ID I have bought and paid for. I am convinced this is unconstitutional, and that as person whose votes aren't being counted, I have standing. Not everyone agrees. I have lost at both state and federal levels, and due to res judicata issues I am not suing over my most recent denial earlier this month. I had tried to recruit a few other people to be potential plaintiffs, but one ended up not voting, another showed their ID, and a 3rd was not challenged when they didn't show ID.
I have a pending public records request for the names of the people who didn't have their provisional votes counted due to ID issues in Marion County,and maybe one of them would be willing to sue.
At this point my analogy breaks down. I'm not sure exactly how a poll tax is like a garlic press.
But I know I support freedom of the press, and the right to vote.
Professor Will Baude at Volokh compares unitasker cooking implements to legal doctrines,
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/20/how-is-a-garlic-press-like-a-legal-doctrine/
He was inspired by http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2527648,
On Doctrines That Do Many Things.
Some kitchen implements, like a cleaver, or string, are generally useful, while others have a specific task. While kitchen snobs tend to look down on unitaskers, some are useful and justify their space on the counter or in the drawer. E.g. a can opener. We might only use our cherry pitter once a year, but it is worth having.
I rarely use a garlic press, but I bought one to replace one I broke in our community kitchen.
I cook for about 50 people each Saturday with Food Not Bombs.
The First and 14th Amendments are generalist tools. So we have rules which limit their use.
O'Brien, Anderson v Celebrezze, Burson v Freeman, are cases that show the First Amendment is not absolute, but involves balancing competing interests.
Caroline Products, and the Slaughterhouse cases also show that the 14th Amendment is far from absolute, but will trigger different standards of review depending on the claims and facts.
The 24th Amendment, on the other hand, is a unitasker. It says you can't charge money to let people vote. The 3rd Amendment is another fine example - the government can't station troops in your kitchen during peacetime. There's only been one Supreme Court case resolving a 24th Amendment issue on the merits. Harman v Forssenius, 1965. In the recent Texas voter ID case, the court dissolved a stay, or stayed an injunction or something, but has not yet reached the merits. In an early morning dissent, Justice Ginsberg brought up the poll tax issue, so this case may see further developments down the road. http://www.supremecourt.gov/opinions/14pdf/14a393_08m1.pdf
My thesis is that when a clause of the constitution is highly specific, in the way that the 24th Amendment is specific, there is no need for balancing tests. Courts should not allow the other branches to do that one specific thing that the constitution tells them they may not do. Here, that would be charging money to vote. The lower court opinion, while it may or may not stand as matter of law, does a great job with the facts. It shows how a Texan may be charged $22, or over $100, or over $12, depending on which set of documents they use as voter ID. Even the "free" option comes with costs. The prohibition on using poll taxes and other taxes as an obstacle at the polls should be treated as an absolute.
The Wisconsin Supreme Court, faced with the same problem, construed its statute narrowly to prohibit the state from charging money for the underlying documents such as a birth certificate, and remanded to the agency for how to handle situations such as someone born in another state. Having solved that problem, it went on to uphold the statute more generally. As Christian Adams has pointed out, it would be relatively easy for Texas to amend its voter ID plan to avoid the 24th Amendment issues. Indiana could and should do the same. I oppose voter ID for a whole host of reasons not limited to the taxation issue, but I admit there are things the states could do to fix some of the current constitutional problems with voter ID statutes. Georgia addressed this, by amending their statute to stop charging for IDs.
I live in Indiana,and have been denied the vote repeatedly since 2006, because I am unwilling to show the voter ID I have bought and paid for. I am convinced this is unconstitutional, and that as person whose votes aren't being counted, I have standing. Not everyone agrees. I have lost at both state and federal levels, and due to res judicata issues I am not suing over my most recent denial earlier this month. I had tried to recruit a few other people to be potential plaintiffs, but one ended up not voting, another showed their ID, and a 3rd was not challenged when they didn't show ID.
I have a pending public records request for the names of the people who didn't have their provisional votes counted due to ID issues in Marion County,and maybe one of them would be willing to sue.
At this point my analogy breaks down. I'm not sure exactly how a poll tax is like a garlic press.
But I know I support freedom of the press, and the right to vote.
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