In this section:
Fri, 12 Jun 2020
This article isn't going to be fun to write but I'm going to push through it because I think it's genuinely important. How often have you heard me say that?
A couple of weeks ago the Insurrection Act of 1807 was in the news. I noticed that the Wikipedia article about it contained this very strange-seeming claim:
“What the heck is a ‘secret amendment’?” I asked myself. “Secret from whom? Sounds like Wikipedia crackpottery.” But there was a citation, so I could look to see what it said.
The citation is Hoffmeister, Thaddeus (2010). "An Insurrection Act for the Twenty-First Century". Stetson Law Review. 39: 898.
Sometimes Wikipedia claims will be accompanied by an authoritative-seeming citation — often lacking a page number, as this one did at the time — that doesn't actually support the claim. So I checked. But Hoffmeister did indeed make that disturbing claim:
I had sometimes wondered if large, complex acts such as HIPAA or the omnibus budget acts sometimes contained provisions that were smuggled into law without anyone noticing. I hoped that someone somewhere was paying attention, so that it couldn't happen.
But apparently the answer is that it does.
Tue, 28 Jan 2020
Today I learned that James Blaine (U.S. Speaker of the House, senator, perennial presidential candidate, and Secretary of State under Presidents Cleveland, Garfield, and Arthur; previously) was the namesake of the notorious “Blaine Amendments”. These are still an ongoing legal issue!
The Blaine Amendment was a proposed U.S. constitutional amendment rooted in anti-Catholic, anti-immigrant sentiment, at a time when the scary immigrant bogeymen were Irish and Italian Catholics.
The amendment would have prevented the U.S. federal government from providing aid to any educational institution with a religious affiliation; the specific intention was to make Catholic parochial schools ineligible for federal education funds. The federal amendment failed, but many states adopted it and still have it in their state constitutions.
Here we are 150 years later and this is still an issue! It was the subject of the 2017 Supreme Court case Trinity Lutheran Church of Columbia, Inc. v. Comer. My quick summary is:
It's interesting to me that now that Blaine is someone I recognize, he keeps turning up. He was really important, a major player in national politics for thirty years. But who remembers him now?
Thu, 16 Jan 2020
In 2007 I described an impractical scheme to turn the U.S. into a dictatorship, or to make any other desired change to the Constitution, by having Congress admit a large number of very small states, which could then ratify any constitutional amendments deemed desirable.
An anonymous writer (probably a third-year law student) has independently discovered my scheme, and has proposed it as a way to “fix” the problems that they perceive with the current political and electoral structure. The proposal has been published in the Harvard Law Review in an article that does not appear to be an April Fools’ prank.
The article points out that admission of new states has sometimes been done as a political hack. It says:
Specifically, the proposal is that the new states should be allocated out of territory currently in the District of Columbia (which will help ensure that they are politically aligned in the way the author prefers), and that a suitable number of new states might be one hundred and twenty-seven.
Fri, 13 Dec 2019
[ Content warning: dead bodies, sex crime, just plain nasty ]
A co-worker brought this sordid item to my attention: LAPD officer charged after allegedly fondling a dead woman's breast.
Chas. Owens then asked a very good question:
I tried to resist this nerdsnipe, but I was unsuccessful. I learned that California does have a law on the books that makes it a felony to have unauthorized sex with human remains:
I think this addresses Chas.’s question. Certainly there are other statutes that authorize certain persons to disinter or mutilate corpses for various reasons. (Inquests, for example.) A defendant wishing to take advantage of this exception would have to affirmatively claim that he was authorized to grope the corpse’s breast, and by whom. I suppose he could argue that the state had the burden of proof to show that he had not been authorized to fondle the corpse, but I doubt that many jurors would find this persuasive.
Previously on this blog: Legal status of corpses in 1911 England.
Thu, 03 Oct 2019
Last month when I was researching my article about the free coffee provision in U.S. federal highway law, I spent a great deal of time writing this fragment:
I knew that the provision was in 23 USC §131, but I should explain what this means.
The body of U.S. statutory law can be considered a single giant document, which is "codified" as the United States Code, or USC for short. USC is divided into fifty or sixty “titles” or subject areas, of which the relevant one here, title 23, concerns “Highways”. The titles are then divided into sections (the free coffee is in section 131), paragraphs, sub-paragraphs, and so on, each with an identifying letter. The free coffee is 23 USC §131 (c)(5).
But this didn't tell me when the coffee exception was introduced or in what legislation. Most of Title 23 dates from 1958, but the coffee sign exception was added later. When Congress amends a law, they do it by specifying a patch to the existing code. My use of the programmer jargon term “patch” here is not an analogy. The portion of the Federal-Aid Highway Act of 1978 that enacted the “free coffee” exception reads as follows:
(The “[…]” is my elision. The Act includes the complete text that was to be inserted.)
The act is not phrased as a high-level functional description, such as “extend the list of exceptions to include: ... ”. It says to replace the text ‘and (4)’ with the text ‘(4)’; then replace the period with a comma; then …”, just as if Congress were preparing a patch in a version control system.
Unfortunately, the lack of an actual version control system makes it quite hard to find out when any particular change was introduced. The code page I read is provided by the Legal Information Institute at Cornell University. At the bottom of the page, there is a listing of the changes that went into this particular section:
Each of these is a citation of a particular Act of Congress. For example, the first one
refers to “Public law 85–767”, the 767th law enacted by the 85th Congress, which met during the Eisenhower administration, from 1957–1959. The U.S. Congress has a useful web site that contains a list of all the public laws, with links — but it only goes back to the 93rd Congress of 1973–1974.
And anyway, just knowing that it is Public law 85–767 is not (or was not formerly) enough to tell you how to look up its text. The laws must be published somewhere before they are codified, and scans of these publications, the United States Statutes at Large, are online back to the 82nd Congress. That is what the “72 Stat. 904” means: the publication was in volume 72 of the Statutes at Large, page 904. This citation style was obviously designed at a time when the best (or only) way to find the statute was to go down to the library and pull volume 72 off the shelf. It is well-designed for that purpose. Now, not so much.
Here's a screengrab of the relevant portion of the relevant part of the 1978 act:
The citation for this was:
(Note that “title I, §§ 121, 122” here refers to the sections of the act itself, not the section of the US Code that was being amended; that was title 23, §131, remember.)
To track this down, I had no choice but to grovel over each of the links to the Statutes at Large, download each scan, and search over each one looking for the coffee provision. I kept written notes so that I wouldn't mix up the congressional term numbers with the Statutes volume numbers.
It ought to be possible, at least in principle, to put the entire U.S. Code into a version control system, with each Act of Congress represented as one or more commits, maybe as a merged topic branch. The commit message could contain the citation, something like this:
Or maybe the titles would be directories and the sections would be numbered files in those directories. Whatever. If this existed, I would be able to do something like:
and the Act that I wanted would pop right out.
Preparing a version history of the United States Code would be a dauntingly large undertaking, but gosh, so useful. A good VCS enables you to answer questions that you previously wouldn't have even thought of asking.
This article started as a lament about how hard it was for me to track down the provenance of the coffee exception. But it occurs to me that this is the response of someone who has been spoiled by plenty. A generation ago it would have been unthinkable for me even to try to track this down. I would have had to start by reading a book about legal citations and learning what “79 Stat. 1028” meant, instead of just picking it up on the fly. Then I would have had to locate a library with a set of the Statutes at Large and travel to it. And here I am complaining about how I had to click 18 links and do an (automated!) text search on 18 short, relevant excerpts of the Statutes at Large, all while sitting in my chair.
My kids can't quite process the fact that in my childhood, you simply didn't know what the law was and you had no good way to find out. You could go down the the library, take the pertinent volumes of the USC off the shelf, and hope you had looked in all the appropriate places for the relevant statutes, but you could never be sure you hadn't overlooked something. OK, well, you still can't be sure, but now you can do keyword search, and you can at least read what it does say without having to get on a train.
Truly, we live in an age of marvels.
[ Addendum 20191004: More about this ]
Wed, 02 Oct 2019
Last month I mentioned that, while federal law generally prohibits signs and billboards about signs within ⅛ mile of a federal highway, signs offering free coffee are allowed.
Vilhelm Sjöberg brought to my attention the 2015 U.S. Supreme Court decision in Reed v. Town of Gilbert. Under the Reed logic, the exemption for free coffee may actually be unconsitutional. The majority's opinion states, in part:
The court concluded that the Sign Code (of the town of Gilbert, AZ) was therefore subject to the very restrictive standard of strict scrutiny, which required that it be struck down unless the government could demonstrate both that it was necessary to a “compelling state interest” and that it be “narrowly tailored” to achieving that interest. The Gilbert Sign Code did not survive this analysis.
Although the court unanimously struck down the Sign Code, a concurrence, written by Justice Kagan and joined by Ginsburg and Breyer, faulted the majority's reasoning:
Kagan specifically mentioned the “free coffee” exception as being one of many that would be imperiled by the court's reasoning in this case.
Thanks very much to M. Sjöberg for pointing this out.
Mon, 16 Sep 2019
23 USC §131 controls the display of billboards and other signs within 660 feet of a federal interstate highway. As originally enacted in 1965, there were a few exceptions, such as directional signs, and signs advertising events taking place on the property on which they stood, or the sale or lease of that property.
Today I learned that under the Federal-Aid Highway Act of 1978, the list of exceptions was extended to include:
There is no exception for free tea.
[ Addendum 20191002: A 2015 Supreme Court decision imperils the free coffee exception, according to three of the justices. I've written a detailed followup. ]
Sat, 09 Dec 2017
The Volokh Conspiracy is a frequently-updated blog about legal issues. It reports on interesting upcoming court cases and recent court decisions and sometimes carries thoughtful and complex essays on legal theory. It is hosted by, but not otherwise affiliated with, the Washington Post.
Volokh periodically carries a “roundup of recent federal court decisions”, each with an intriguing one-paragraph summary and a link to the relevant documents, usually to the opinion itself. I love reading federal circuit court opinions. They are almost always carefully thought out and clearly-written. Even when I disagree with the decision, I almost always concede that the judges have a point. It often happens that I read the decision and say “of course that is how it must be decided, nobody could disagree with that”, and then I read the dissenting opinion and I say exactly the same thing. Then I rub my forehead and feel relieved that I'm not a federal circuit court judge.
This is true of U.S. Supreme Court decisions also. Back when I had more free time I would sometimes visit the listing of all recent decisions and pick out some at random to read. They were almost always really interesting. When you read the newspaper about these decisions, the newspaper always wants to make the issue simple and usually tribal. (“Our readers are on the (Red / Blue) Team, and the (Red / Blue) Team loves mangel-wurzels. Justice Furter voted against mangel-wurzels, that is because he is a very bad man who hates liberty! Rah rah team!”) The actual Supreme Court is almost always better than this.
For example we have Clarence Thomas's wonderful dissent in the case of Gonzales v. Raich. Raich was using marijuana for his personal medical use in California, where medical marijuana had been legal for years. The DEA confiscated and destroyed his supplier's plants. But the Constitution only gives Congress the right to regulate interstate commerce. This marijuana had been grown in California by a Californian, for use in California by a Californian, in accordance with California law, and had never crossed any state line. In a 6–3 decision, the court found that the relevant laws were nevertheless a permitted exercise of Congress's power to regulate commerce. You might have expected Justice Thomas to vote against marijuana. But he did not:
Thomas may not be a fan of marijuana, but he is even less a fan of federal overreach and abuse of the Commerce Clause. These nine people are much more complex than the newspapers would have you believe.
But I am digressing. Back to Volokh's federal court roundups. I have to be careful not to look at these roundups when I have anything else that must be done, because I inevitably get nerdsniped and read several of them. If you enjoy this kind of thing, this is the kind of thing you will enjoy.
I want to give some examples, but can't decide which sound most interesting, so here are three chosen at random from the most recent issue:
Sun, 22 Mar 2015
Shortly after I posted A public service announcement about contracts Steve Bogart asked me on on Twitter for examples of dealbreaker clauses. Some general types I thought of immediately were:
A couple of recent specific examples:
[ Addendum 20191107: Our FIOS was installed in January of 2018. Lucky I hadn't signed that ten-year contract, huh? ]
Sat, 21 Mar 2015
Every so often, when I am called upon to sign some contract or other, I have a conversation that goes like this:
There is only one response you should make to this line of argument:
Because if the lawyers made them put in there, that is for a reason. And there is only one possible reason, which is that the lawyers do, in fact, envision that they might one day exercise that clause and chop off your hand.
The other party may proceed further with the same argument: “Look, I have been in this business twenty years, and I swear to you that we have never chopped off anyone's hand.” You must remember the one response, and repeat it:
You must repeat this over and over until it works. The other party is lazy. They just want the contract signed. They don't want to deal with their lawyers. They may sincerely believe that they would never chop off anyone's hand. They are just looking for the easiest way forward. You must make them understand that there is no easier way forward than to remove the hand-chopping clause.
They will say “The deadline is looming! If we don't get this contract executed soon it will be TOO LATE!” They are trying to blame you for the blown deadline. You should put the blame back where it belongs:
And if the other party would prefer to walk away from the deal rather than abandon their hand-chopping rights, what does that tell you about the value they put on the hand-chopping clause? They claim that they don't care about it and they have never exercised it, but they would prefer to give up on the whole project, rather than abandon hand-chopping? That is a situation that is well worth walking away from, and you can congratulate yourself on your clean escape.
[ Addendum: Steve Bogart asked on Twitter for examples of unacceptable contract demands; I thought of so many that I put them in a separate article. ]
[ Addendum 20150401: Chas. Owens points out that you don't have to argue about it; you can just cross out the hand-chopping clause, add your initials and date in the margin. I do this also, but then I bring the modification it to the other party's attention, because that is the honest and just thing to do. ]
Thu, 16 Aug 2012
The weird ethics of life insurance
Without this clause, the insurance company might find itself in the business of enabling suicide, or even of encouraging people to commit suicide. Completely aside from any legal or financial problems this would cause for them, it is a totally immoral position to be in, and it is entirely creditable that they should try to avoid it.
But enforcement of suicide clauses raises some problems. The insurance company must investigate possible suicides, and enforce the suicide clauses, or else they have no value. So the company pays investigators to look into claims that might be suicides, and if their investigators determine that a death was due to suicide, the company must refuse to pay out. I will repeat that: the insurance company has a moral obligation to refuse to pay out if, in their best judgment, the death was due to suicide. Otherwise they are neglecting their duty and enabling suicide.
But the company's investigators will not always be correct. Even if their judgments are made entirely in good faith, they will still sometimes judge a death to be suicide when it wasn't. Then the decedent's grieving family will be denied the life insurance benefits to which they are actually entitled.
So here we have a situation in which even if everyone does exactly what they should be doing, and behaves in the most above-board and ethical manner possible, someone will inevitably end up getting horribly screwed.
[ Addendum 20120816: It has been brought to my attention that this post constains significant omissions and major factual errors. I will investigate further and try to post a correction. ]
Wed, 21 Jan 2009
The loophole in the U.S. Constitution: recent developments
Recently Jeffrey Kegler wrote to inform me of some startling new developments on this matter. Although it previously appeared that the story was probably true, there was no firsthand evidence that it had actually occurred. The three witnesses would have been Philip Forman (the examining judge), Oskar Morgenstern and Albert Einstein. But, although Morgenstern apparently wrote up an account of the epsiode, it was lost.
Until now, that is. The Institute for Advanced Study (where Gödel, Einstein, and Morgenstern were all employed) posted an account on its web site, and M. Kegler was perceptive enough to realize that this account was probably written by someone who had access to the lost Morgenstern document but did not realize its significance. M. Kegler followed up the lead, and it turned out to be correct.
Now came an exciting development. [Gödel] rather excitedly told me that in looking at the Constitution, to his distress, he had found some inner contradictions, and he could show how in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime, never intended by those who drew up the Constitution.But before I let you get too excited about this, a warning: Morgenstern doesn't tell us what Gödel's loophole was! (Kegler's reading is that Morgenstern didn't care.) So although the truth of story has finally been proved beyond doubt, the central mystery remains.
The document is worth reading anyway. It's only three pages long, and it paints a fascinating picture of both Gödel, who is exactly the sort of obsessive geek that you always imagined he was, and of Einstein, who had a cruel streak that he was careful not to show to the public. Kegler's website is also worth reading for its insightful analysis of the lost document and its story.
Wed, 12 Sep 2007
The loophole in the U.S. Constitution: the answer
Apparently, the "inconsistency" noted by Gödel is simply that the Constitution provides for its own amendment. Suber says: "He noticed that the AC had procedural limitations but no substantive limitations; hence it could be used to overturn the democratic institutions described in the rest of the constitution." I am gravely disappointed. I had been hoping for something brilliant and subtle that only Gödel would have noticed.
Thanks to Greg Padgett, Julian Orbach, Simon Cozens, and Neil Kandalgaonkar for bringing this to my attention.
M. Padgett also pointed out that the scheme I proposed for amending the constitution, which I claimed would require only the cooperation of a majority of both houses of Congress, 218 + 51 = 269 people in all, would actually require a filibuster-proof majority in the Senate. He says that to be safe you would want all 100 senators to conspire; I'm not sure why 60 would not be sufficient. (Under current Senate rules, 60 senators can halt a filibuster.) This would bring the total required to 218 + 60 = 278 conspirators.
He also pointed out that the complaisance of five Supreme Court justices would give the President essentially dictatorial powers, since any legal challenge to Presidential authority could be rejected by the court. But this train of thought seems to have led both of us down the same path, ending in the idea that this situation is not really within the scope of the original question.
As a final note, I will point out what I think is a much more serious loophole in the Constitution: if the Vice President is impeached and tried by the Senate, then, as President of the Senate, he presides over his own trial. Article I, section 3 contains an exception for the trial of the President, where the Chief Justice presides instead. But the framers inexplicably forgot to extend this exception to the trial of the Vice President.
[ Addendum 20090121: Jeffrey Kegler has discovered Oskar Morgenstern's lost eyewitness account of Gödel's citizenship hearing. Read about it here. ]
[ Addendum 20110525: As far as I know, there is no particular reason to believe that Peter Suber's theory is correct. Morgenstern knew, but did not include it in his account. ]
[ Addendum 20160315: I thought of another interesting loophole in the Constitution: The Vice-President can murder the President, and then immediately pardon himself. ]
Sun, 09 Sep 2007
Gödel took the matter of citizenship with great solemnity, preparing for the exam by making a close study of the United States Constitution. On the eve of the hearing, he called [Oskar] Morgenstern in an agitated state, saying he had found an "inconsistency" in the Constitution, one that could allow a dictatorship to arise.(Holt, Jim. Time Bandits, The New Yorker, 29 February 2005.)
I've wondered for years what "inconsistency" was.
I suppose the Attorney General could bring some sort of suit in the Supreme Court that resulted in the Court "interpreting" the Constitution to find that the President had the power to, say, arbitrarily replace congresspersons with his own stooges. This would require only six conspirators: five justices and the President. (The A.G. is a mere appendage of the President and is not required for the scheme anyway.)
But this seems outside the rules. I'm not sure what the rules are, but having the Supreme Court radically and arbitrarily "re-interpret" the Constitution isn't an "inconsistency in the Constitution". The solution above is more like a coup d'etat. The Joint Chiefs of Staff could stage a military takeover and institute a dictatorship, but that isn't an "inconsistency in the Constitution" either. To qualify, the Supreme Court would have to find a plausible interpretation of the Constitution that resulted in a dictatorship.
The best solution I have found so far is this: Under Article IV, Congress has the power to admit new states. A congressional majority could agree to admit 150 trivial new states, and then propose arbitrary constitutional amendments, to be ratified by the trivial legislatures of the new states.
This would require a congressional majority in both houses. So Gödel's constant, the smallest number of conspirators required to legally transform the United States into a dictatorship, is at most 269. (This upper bound would have been 267 in 1948 when Gödel became a citizen.) I would like to reduce this number, because I can't see Gödel getting excited over a "loophole" that required so many conspirators.
[ Addendum 20070912: The answer. ]
[ Addendum 20090121: Jeffrey Kegler has discovered Oskar Morgenstern's lost eyewitness account of Gödel's citizenship hearing. Read about it here. ]
[ Addendum 20160129: F.E. Guerra-Pujol has written an article speculating on this topic, “Gödel’s Loophole”. Guerra-Pujol specifically rejects my Article IV proposal for requiring too many conspirators. ]
[ Addendum 20200116: The Harvard Law Review has published an article that proposes my scheme. ]
Wed, 29 Nov 2006
Legal status of corpses in 1911 England
I got rid of one recently. It was a 1962 Grolier's. Obviously, it was out of date, but I was using it for general reference anyway, conscious of its shortcomings. But day I picked it up to read its article on Thurgood Marshall. It said that Marshall was an up-and-coming young lawyer, definitely someone to watch in the future. That was too much, and I gave it away.
But anyway, my main point is to talk about the legal status of corpses. One of the encyclopedias I have is a Twelfth Edition Encyclopaedia Britannica. This contains the complete text of the famous 1911 Eleventh Edition, plus three fat supplementary volumes that were released in 1920. The Britannica folks had originally planned the Twelfth Edition for around 1930, but so much big stuff happened between 1911 and 1920 that they had to do a new edition much earlier.
The Britannica is not as much fun as I hoped it would be. But there are still happy finds. Here is one such:
CORPSE (Lat. corpus, the body), a dead human body. By the common law of England a corpse is not the subject of property nor capable of holding property. It is not therefore larceny to steal a corpse, but any removal of the coffin or grave-cloths is otherwise, such remaining the property of the persons who buried the body. It is a misdemeanour to expose a naked corpse to public view. . .
[ Addendum 20191213: it is a felony in California to sexually penetrate or to have sexual contact with human remains, except as authorized by law. ]