The Gun Case Beyond Guns: A New Way to Look at the Bill of Rights? Part II - 03/10/10

While the Supreme Court deliberates the constitutionality of Chicago's handgun ban, 69% of Americans say cities do not have the right to prevent citizens from owning such guns. A new Rasmussen™ poll found that just 25% of adults think city governments have the right to ban guns. This is the second of a series of articles in which I discuss this case, McDonald v. City of Chicago, not from the standpoint of the gun issue however, but how the Supreme Court's rationale could impact future decisions regarding the constitutional rights of American citizens.

The 14th Amendment, along with the 13th and 15th Amendments to the Constitution, were ratified just after the Civil War. These amendments were intended firstly to insure that former slaves would enjoy the same rights, privileges, and immunities enjoyed by white citizens of the various states.

A decade earlier, in 1857, the Dred Scott Decision held that slaves and former slaves were not citizens of the United States. The Supreme Court decision in Dred Scott was legislatively overruled by the Civil Rights Act of 1866. The 14th Amendment, adopted in 1868, made certain the Court could not hold the 1866 law unconstitutional.

The 14th Amendment declared that "All persons born or naturalized in the United States ... are citizens of the United States and of the State wherein they reside."

Very importantly, the 14th Amendment did not by its own terms apply only to former slaves or any particular race or class of people. It applied to "All persons." This meant that whatever the 14th Amendment would bring to American constitutional law, the consequences would be even farther-reaching.

Prior to the Civil War, it was generally thought that one was a citizen of a state -- Virginia or Florida, for example -- which formed a part of the union of all the states. The 14th made it clear that there is citizenship of the United States apart from state citizenship and implies that there are certain rights, privileges, and immunities which are incidental to that citizenship.

The Slaughter-House Cases involved laws that dealt, as the name suggests, with the regulation of butchers and slaughterhouses. This was the first decision of the Supreme Court to arise out of the 14th Amendment and one of the first or possibly the first decision of the Court dealing with environmental law.

The holding of the Court in the Slaughter-House Cases was that the privileges and immunities protected by the 14th Amendment were rights unique to U.S. citizenship and not fundamental rights such as the right to operate a business. Consequently, the privileges and immunities clause could never be used to limit the power of the states or hold them to the Bill of Rights unless it involved one of these unique rights.

However, the privileges and immunities clause is only one of three clauses in section 1 of the 14th Amendment.

The second clause is due process: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law."

The third is equal protection of the laws, the basis of Brown v. Board of Education (1954) and other important civil rights decisions and statutes.

The Bill of Rights enumerates different kinds of rights. The First Amendment is about freedom of speech and other "political" rights. The Second Amendment, the subject of McDonald v. City of Chicago, concerns the right to bear arms.

The Fourth through Eighth Amendments deal with procedural rights. While the privileges and immunities clause might not be useful here, it is clear that the procedural rights would fall within the proscription of the 14th that no state shall "deprive any person of life, liberty, or property, without due process of law."

It is also important to note that the Bill of Rights is not an exhaustive list. As stated in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What, then, of these unenumerated rights and the First Amendment rights? Are these incorporated into the 14th Amendment? Are states bound to respect the rights of citizens to free speech and press?

They most definitely are. To reach that conclusion, the Court relied upon the doctrine of substantive due process.

Procedural due process is fairly easy to understand. In simple terms, due process means the right of someone who is a party to some kind of court proceeding (or other official proceeding) to be duly notified and to be given fair opportunity to be heard.

As evolved and applied over the course of two centuries of constitutional jurisprudence, due process admittedly is a bit more complicated than this. And the concept is further complicated by the doctrine of substantive due process.

One sitting justice in fact has called substantive due process, the term that is, an oxymoron. Not all members of the Court over the years have liked the concept.

Past critics include Justices Hugo Black, Byron White, and Oliver Wendell Holmes. Justice Black, in fact, argued that the privileges and immunities clause was a more appropriate avenue for incorporation of the Bill of Rights into the 14th Amendment, contrary to the holding of the Slaughter-House Cases. Current justices critical of substantive due process doctrine are Clarence Thomas and Antonin Scalia.

Black's Law Dictionary defines substantive due process as follows:

Doctrine that due process clauses of the Fifth and Fourteenth Amendments ... require legislation to be fair and reasonable in content as well as application. Such may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life liberty or property. The essence of substantive due process is protection from arbitrary and unreasonable action.

Substantive due process is not the product of any one decision. It is evolving jurisprudence. Something very close to substantive due process was even used in the Dred Scott Decision. If the Supreme Court decides to incorporate the Second Amendment in the McDonald v. City of Chicago case, it could do so on the basis of substantive due process. But it could also do so using the privileges and immunities clause, which would, in effect, overrule the long-standing Slaughter-House Cases.

The possibility arises because at least two justices who are likely to be in the majority are not fans of substantive due process. On the other hand, Chief Justice John G. Roberts suggested during oral arguments that substantive due process may be the way to go after all to incorporate the individual right to own and bear arms into the 14th Amendment.

Does this really matter? It could be significant.

Consider this blog post (02/22/10) by Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center (CAC), which filed an amicus curiae brief in support of the petitioners in the McDonald case:

The history of the Privileges or Immunities Clause shows that the drafters of the provision were particularly concerned with protecting the right to keep and bear arms for newly freed slaves and Unionists in the South, who were experiencing violent persecution in the aftermath of the Civil War. Accordingly, the McDonald case provides a rare, clear opportunity for the Court to apply the Privileges or Immunities Clause as it was originally intended and protect this individual right to keep and bear arms against state and local infringement. Reviving the Privileges or Immunities Clause would not just protect the gun rights asserted in McDonald, however; as CAC has explained in its report, The Gem of the Constitution, reinvigorating the Clause would strengthen other fundamental, substantive rights—including the right to reproductive choice recognized in Roe v. Wade and the protection for sexual intimacy recognized in Lawrence v. Texas -- by giving these rights a stronger textual foundation in the Constitution.

In other words, while the decision on the principal issue may upset ardent gun-control advocates, if the Court chooses to base its holding on the privileges and immunities clause of the 14th Amendment, McDonald v. City of Chicago could have form an important precedent for future cases involving individual rights of all sorts.

It could be a new way to look at the Bill of Rights.

Ethics, Shmethics: The New County Ethics Code - 02/25/10

The voter-mandated Ethics Commission has finished its work on a "Code of Ethics for the Broward County Commission." The deal is that the county commission must take the code as is or send it to the voters in November. One glitch, realized late in the day, but fortunately not too late, is that the code is an ordinance and once adopted can be changed -- weakened -- by the county commission until rendered pretty much useless (think state code of ethics).

To counteract this, the ethics commission wrote the following "Restrictions on Amendment" into the enabling ordinance (§ 2):

Except as to any amendments required as a result of changes in governing law: (a) The Board of County Commissions may at any time strengthen or supplement the restrictions and protections provided under this Code, but the restrictions and protections hereof may be weakened or removed, in whole or in part, only by citizen initiative as referenced in Section 7.01 of the Broward County Charter [relating to powers of initiative and referendum]. (b) If any Court determines that the above-provided requirement of a citizen initiative is inconsistent with applicable law, then, to the full extent permitted under applicable law, the restrictions and protections of this Code may be weakened or removed, in whole or in part, only by an affirmative vote of a majority plus (1) member [six members] of the full Board of County Commissioners.

This may take care of the problem, but it also invites litigation. Does a change strengthen or supplement or weaken or obliterate "the restrictions and protections" of the code? These are questions that could be raised every time the code is amended by someone who doesn't like the change. And a question for lawyers to ponder: how far will the courts go to answer these questions.

Commissioner Sue Gunzberger offered a proposal at the February 23d meeting of the county commission, that the code be put on the November ballot as a charter amendment. This way, of course, the commission could not tamper with the code, period. Her motion failed for want of a second. But, as we say: ethics, shmethics. It will be a cold day in July before the county commission moves to strengthen, improve, or protect this code of ethics.

For all of the hype the proposed code has generated and all the hair pulling the drafting process entailed, it is actually fairly conservative. It sets out seven standards of conduct. Additionally, the code mandates an educational program for commissioners, creates an office of inspector general, and provides for penalties.

The seven standards of conduct deal with the following subjects:

1. Acceptance of gifts.

2. Outside employment.

3. Lobbyists.

4. Honest services.

5. Solicitation and receipt of contributions.

6. Procurement.

7. Financial disclosure.

Perhaps the most interesting parts of the code from the standpoint of our own recent discussions of ethics in Deerfield Beach are the proposed standards dealing with gifts and honest services.

GIFTS

This is draft § 1-19(b)(1) of the Code of Ordinances dealing with the acceptance of gifts:

a. County Commissioners, their spouses or registered domestic partners, other relatives and office staff, shall not accept gifts, directly or indirectly, regardless of value, from lobbyists registered with the County or any principal or employer of any such registered lobbyist, or from vendors or contractors of Broward County. b. County Commissioners may accept gifts from other sources given to them in their official capacity, where not otherwise inconsistent with the provisions of Florida Statutes Chapter 112, Part III, up to a maximum value of $50.00 per occurrence. Gifts given to a County Commissioner in his or her official capacity up to $50.00 in value are deemed to be de minimis. The above restrictions and limitations do not apply to gifts given to County Commissioners in their personal (non-official) capacity, and such gifts are still subject to the reporting requirements of Florida Statutes section 112. 3148.

In a previous essay I noted that while the county appears to be moving to our "don't ask, don't take" position with respect to gifts offered to public officials, we seem to be in retreat. Compare the proposed subsection a, above, with the controversial § 2(o) of the Deerfield Beach Ethics Code.

Our code prohibits gifts of any value from developers, city contractors, and people asking for money from the city. The proposed county code does not cover developers, but includes lobbyists.

The change recommended by the Deerfield Beach ethics committee is to omit the zero-value provision altogether (substituting a $50 per year limitation) but expanding the restriction to include lobbyists. The county proposal, however, permits a $50 per gift limitation on all others including those seeking land-use changes.

Now if our city commission were to keep the zero-value provision in our code as is, extend it to lobbyists, and adopt a $50 limit from other sources, it would be one step ahead of, and not behind, the county standard as proposed.

HONEST SERVICES

Draft § 1-19(b)(4) incorporates an honest services provision similar to federal law:

a. A County Commissioner may not engage in a scheme or artifice to deprive another of the material intangible right of honest services or any activity in contravention of his or her duty to provide loyal service and honest governance for the residents of Broward County. b. This section shall be construed, to the extent possible, in accordance with the standards and intent set forth under 18 U.S.C. s.1346, as may be amended, and Florida Statutes Chapter 838.

The ethics commission also inserted in an artful way a section on appearance of impropriety; this is a common feature of federal ethics rules, but for whatever reason this concept mortifies local officials. It provides [§ 1-19(b)(3)]:

County Commissioners should avoid even the appearance of impropriety in their interaction and dealings with lobbyists registered under the Broward County Lobbyist Registration Act and the principals or employers of lobbyists.

A lot of the ostensibly corrupt behavior of county officials (remember that the county commission has already agreed to apply this code to other officials besides themselves) is in their dealings with lobbyists. Thus, the two provisions -- appearance of impropriety and honest services -- taken together could have interesting consequences.

Even without this pairing, the honest services provision could be the key element in combating corruption at the county level. The federal counterpart of this provision, 18 U.S.C. § 1346, is a type of mail and wire fraud. The county version, of course, is not tied to the use of mails or electronic transmissions to be operative, so it is to that extent more flexible than its federal counterpart. The Florida statute referred to in subsection b, Florida Statutes Chapter 838, is bribery, unlawful compensation, and official misconduct in its various forms. Official misconduct under Florida Statutes § 838.022 means conduct by a "public servant,"

with corrupt intent to obtain a benefit for any person or to cause harm to another, to: (a) Falsify, or cause another person to falsify, any official record or official document; (b) Conceal, cover up, destroy, mutilate, or alter any official record or official document [including only public records] or cause another person to perform such an act; or (c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant.

The federal honest services fraud statute is increasingly used by federal prosecutors to pursue corrupt state and local officials. However, the statute is controversial because it is not specific as to the sort of conduct that constitutes fraud. Thus, it may not give sufficient notice as to the crime and may be unconstitutionally vague. (One question: must there be a violation of state law?) Some readers may be aware that the Supreme Court is currently considering three cases involving honest services convictions. There is concern that the Court could strike down § 1346. This would be quite a blow to the federal prosecutions of local public corruption. Oral arguments have been heard in two of the cases; arguments have not been heard in the third case and are not scheduled. A ruling is not expected until arguments in the third case are heard.

However, draft code § 1-19(b)(4) may have successfully avoided the vagueness issue by specifying that "a scheme or artifice to deprive another of the material intangible right of honest services ... shall be construed, to the extent possible, in accordance with the standards and intent set forth under [the federal honest services statute] and Florida Statutes Chapter 838," i.e., bribery, unlawful compensation, official misconduct, etc.

It's not clear though that honest services fraud as contemplated by the code is limited to the crimes defined in Chapter 838. We will have to wait to see first, how narrowly the inspector general's office created to enforce the code construes § 1-19(b)(4), and second, how the U.S. Supreme Court rules on its federal counterpart.

If the Court rules, as it well could, that there are standards of conduct inherent in the fiduciary duty of a public official which he should know, whether or not enumerated by statute, this would be a boon not only to the federal prosecutions but would give the county ethics code a bit more muscle. However, this outcome is by no means a certainty.

A Pier for the People - 02/14/10

These are the concepts presented by Garcia Stromberg, architects for the new pier entrance buildings.

The overall project, which is scheduled to begin construction in November, encompasses the pier restaurant, the restrooms, and the bait shop.

Instead of Key West or Mizner style (ugh!), which characterizes much of the new construction in South Florida, the project architect, Steve Edwards, let his inspiration be historic architecture in and around Deerfield Beach itself. The two unique features of the proposed design are: the pier view from the street will be open, as clearly seen in the first two images, and the north-south walkway will go right through the complex rather than around the front as it does now. Also, the pier facilities (bait shop) will be moved to the south side of the pier and will include an office, enclosed space for ice machines and storage, and an observation tower for use by law enforcement and ocean rescue.

The rest rooms will be ADA compliant. There will be restrooms in the restaurant, on the second floor deck, and outside for beach users. The second floor deck and the deck outside the restaurant, incidentally, will be available to everyone, not just restaurant patrons.

The pier entrance as it now looks from the street side:

The pier entrance as it will look from the street side:

The view from the beach:

The observation tower:

Aerial view looking east:

This schematic shows the relative locations of the entrance buildings in the concept. The bait shop and beach restrooms are located on the south side of pier:

Aerial view from ocean side:

All of the above images are from the City of Deerfield Beach website. More project details are available there.

On a different note, the pier entrance project as it has progressed so far could serve as the prototype of how the public should be engaged in future development plans for the city at every step, especially those at the beach involving city property, and how such plans should serve the citizens first, and not special interests. I am happy to say, this is a great plan, and the city and the architects are to be commended.