Blog : Bill Clinton and Free Speech

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2/3/2008 5:58 am

Bill Clinton and Free Speech

The Free Speech Clause

The free speech clause of the First Amendment is, without a doubt, the most famous provision of the American Constitution. Its simple, yet profound, command provides: "Congress shall make no law . . . abridging the freedom of speech." The underlying principle of the free speech clause is that "each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence." [9] That principle has been recognized as "one of the preeminent rights of Western democratic theory, the touchstone of individual liberty." [10]

The invocation of the free speech guarantee, however, is often controversial because it requires the government and the citizenry to tolerate the speech and writings of unpopular, crude, ignorant, and malicious people. Civil libertarians must often remind government officials (and others) that if the First Amendment only protected the expression of popular and agreeable ideas, it would be totally unnecessary since those ideas would never be threatened by our democratic form of government. Our society's commitment to free speech is tested when we encounter the expression of ideas that are disagreeable--or even offensive.

One would think that President Clinton, a former professor of constitutional law, would have a deep appreciation for the principle of freedom of speech, but his official actions in office show just the opposite. The Clinton Justice Department has attempted to censor (a) the rights of peaceful protesters; (b) the views of priests and doctors; (c) radio, television, and the Internet; and (d) truthful advertisements for lawful products.

Censoring Protesters

President Clinton has used the "bully pulpit" of the Oval Office to express his opinion on a whole range of topics--from teenage pregnancy rates and gasoline prices to human rights abuses in China. He can use the power of his office to reverse the policies of past administrations and to initiate new policies. Indeed, that is what the electoral process is all about. At the same time, however, the Constitution protects the rights of those who oppose the president and his policies. As the Supreme Court has noted, "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no election." [11] The oath of office requires the president to effect change cautiously-- so as not to violate the constitutional rights of the minority party, or, for that matter, the rights of a single individual.

Unfortunately, the Clinton administration has repeatedly attempted to use the power of government to suppress dissent. In July 1994, for example, the Department of Housing and Urban Development launched an "investigation" of a married Berkeley couple, Alexandra White and Joseph Deringer. White and Deringer did not want a hotel in their neighborhood to be converted into a homeless shelter, so they organized a fledgling opposition campaign. HUD managers were put off by the citizen resistance to their "fair housing" initiative. The HUD officials threatened White and Deringer with fines in order to set an example for other would-be objectors. [12] According to defense attorney David Bryden, federal investigators asked for every article, flier, and letter to the editor that his (White and Deringer) had written. The opinions expressed in those publications were to be used as "evidence" of Fair Housing Act violations. When the incident began to receive national attention, HUD secretary Henry Cisneros tried to quell the controversy over his agency's tactics by pledging to protect the right of every American "to speak freely on issues of public concern." [13] That magnanimous gesture was small comfort to White and Deringer.

The Clinton Justice Department has supported extraordinary measures against abortion protestors. In Madsen v. Women's Health Center (1994), Solicitor General Drew Days urged the Supreme Court to uphold the constitutionality of "buffer zones" around abortion clinics in order to keep abortion demonstrators away from clinic staff and potential patients. [14] It is, of course, an important responsibility of government to keep the peace and to protect citizens from criminal behavior. But Days went so far as to defend a judicial injunction that barred protesters from merely displaying "images" that might be "observable" by people within the abortion clinic during prescribed time periods. [15] The Supreme Court upheld the buffer zones but found the most sweeping aspects of the injunction unconstitutional. The blanket prohibition on all "images observable" was ruled a violation of the First Amendment since it "burdened more speech than [was] necessary to achieve the purpose of limiting threats to clinic patients." [16]

Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas saw constitutional infirmities with the buffer zone concept as well and could not help concluding that the Justice Department was seeking to strip abortion demonstrators of their First Amendment rights. "Anyone . . . familiar with run-of-the-mill labor picketing, not to mention some other social protests, [would] be aghast" at the creation of zones in which "only a particular group, which had broken no law, cannot exercise its rights of speech, assembly and association." [17]

American Civil Liberties Union attorney Robyn Blumner agrees with the Madsen dissenters that the Court's ruling on buffer zones marks a serious setback for the First Amendment right of protest. Blumner recognizes that the president's legal team is attempting to send "a censorious message to the activist world: If your protest is too relentless, too provocative, too persuasive, a court will intervene to stop it." [18]

Censoring Priests and Doctors

In the 1992 presidential campaign, Bill Clinton railed against the so-called gag rule, which prohibited abortion counseling by medical personnel in federally funded clinics. After he assumed office, President Clinton fulfilled a campaign promise by rescinding that rule with an executive order. A few years later, however, the Clinton White House signed off on a few gag orders of its own.

In September 1996 the Catholic Church directed its bishops and priests to notify parishioners of the Project Life Postcard Campaign. Parishioners were to be encouraged to write to Congress to urge an override of President Clinton's veto of a legislative ban on "partial-birth" abortion. When the Pentagon learned of that initiative, however, it ordered service chaplains not to push the postcard campaign, since lobbying was not permissible under Defense Department regulations. [19]

Facing a "conscience conflict," the Rev. Vincent Rigdon, an Air Force Reserve chaplain, filed suit in federal district court, contending that the military orders violated his right to free speech and religious liberty. While it is true that chaplains are government employees, the role of a military chaplain is comparable to that of a public defender. Rigdon argues that the men and women of the military "have a right to a real chaplain, not a tame one, and to real homilies, not censored ones." [20] He has asked the court to void the military order and allow service personnel and their families to receive "uncensored homilies and counseling from their clergy members." The Clinton administration is defending the constitutionality of the Pentagon directive in federal court.

President Clinton also supports a gag order on doctors who believe that drugs like marijuana can alleviate the suffering of some patients. Medical research suggests that marijuana can relieve symptoms associated with glaucoma and AIDS, among other illnesses. In November 1996 the citizens of California and Arizona approved referenda that would allow physicians to recommend marijuana for patients if the physicians deem it appropriate. But Clinton drug czar Gen. Barry McCaffrey has threatened to criminally prosecute any physician who prescribes marijuana for a patient. [21] Under the Clinton policy, doctors must seek the permission of the drug Enforcement Administration before they can render forthright medical opinions. And the citizens who might benefit from the medicinal use of marijuana face even starker choices: they must forgo the drug and endure the pain and discomfort of their illness, use the drug and risk arrest and a jail sentence, or leave the United States.

Censoring Television and Radio

President Clinton has supported increasing state control over television and radio. The president has been eager to show the American people what an activist government can do for citizens who are tired of gratuitous sex and violence on television. For example, when the White House learned about a computer chip (popularly know as the V-chip) that could block out certain TV channels or programs, the president urged Congress to force the technology on television makers. [22] Congress acceded to the president's request, and the bill was signed into law. The Justice Department will now fine any person or organization that has the temerity to build an "old-fashioned" television set to be sold to buyers who have no interest in electronic censorship.

The Clinton administration has also asserted the power to police the content of television programming. In October 1993 Attorney General Janet Reno defended the constitutionality of legislation that would have regulated the content of television entertainment. Reno warned the television industry that if it did not reduce its "violent" programming, the White House would seek laws to do it for the industry.

When Reno was asked about the constitutionality of a law that would have prohibited "violent" programming during 's hours, she said the law posed no free speech problem. [23] But attorney Floyd Abrams, who specializes in First Amendment issues, pointed out that the White House-backed proposals would inevitably lead to the creation of a national censorship board that would determine such questions as whether the battle scenes in Star Wars or Patton constituted excessive or gratuitous violence. Abrams called the Clinton effort to reduce programming to that fit for "censorship, plain and simple." [24]

The Clinton administration has not only tried to wield a veto over TV programming, it has also mandated what America should be watching. In July 1996 the Federal Communications Commission issued a regulation that is forcing television stations to carry a certain quota of state-approved "educational programming" aimed at . [25] The president backed the idea at a White House "summit" on 's issues.

President Clinton also believes that government must police speech on the radio more aggressively than in years past. Over the last four years, he has repeatedly condemned radio-talk-show hosts for filling the airwaves with "hate" and "indecency." The Clinton White House has supported FCC efforts to crack down on American broadcasters. The administration maintains that because some parents do not supervise what their listen to, all material considered "indecent" should be restricted to the hours between midnight and 6 a.m. As for the millions of adults who like to sleep during those hours, the White House response seems to be, "You've had it too good for too long."

When a panel of the U.S. Court of Appeals for the D.C. Circuit struck down the FCC regulations as an abridgment of the free speech clause, the Clinton administration urged that the case be reargued en banc. During reargument, Judge Patricia Wald deplored the president's paternalistic proposal. "You are [trying to be] the national nana. You are not facilitating parents. You are saying 'We are the people who decide' [what will be listened to]." [26] Unfortunately, the White House ultimately scored a "victory" when Judge Wald and two other judges were overruled by the other judges on the panel. [27]

Censoring the Internet

President Clinton supports federal censorship of the Internet. In February 1996 he signed the Communications Decency Act into law. That act makes it a crime to transmit or allow "indecent" material to be transmitted over computer networks to which minors have access. But since there is no affordable, effective way for nonprofit or low-profit speakers to restrict 's access to such a broad, ill-defined category of material, the CDA has the effect of banning much speech from the Internet. [28] As civil liberties attorney Harvey Silvergate observed, "Overnight, the federal government transformed the newest and freest medium of communication into the most heavily censored." [29]

The Internet is a revolutionary development in communications. It has been described as "the most participatory marketplace of mass speech that [America]--and indeed the world--has yet seen." [30] Forty million people around the world have access to the Internet. And that figure is expected to grow to 200 million by the year 2000. Computer communications networks, including the linked network of networks that constitutes the Internet, "empower anyone, anywhere, to create any kind of content and to distribute it to anyone, anywhere, who seeks it out." [31] Never before has the ordinary citizen had the ability to reach a potential audience of millions of people. But because the sweeping provisions of the CDA add to the speaker's cost, in effort and in money, that law threatens to "chill" public discourse over computer networks.

Recognizing that fact, the ACLU brought a constitutional challenge to the CDA in federal court within hours of its enactment. On June 11, 1996, a three-judge panel unanimously ruled that the CDA violated the free speech clause of the First Amendment.

We have . . . found that there is no effective way for many Internet content providers to limit the effective reach of the C.D.A. to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that many speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution. Such a choice, forced by Sections 223(a) and (d) of the C.D.A., strikes at the heart of speech of adults as well as minors. [32]

Judge Stewart R. Dalzell, in his separate opinion as a member of the panel, said the CDA was no more acceptable than a "newspaper decency act" or a "novel decency act." [33] Judge Dalzell also pointed out that concerned parents are not without options in the marketplace. Blocking software can be installed on home computers, or families can subscribe to commercial online services that provide parental controls.

The Clinton Justice Department has asked the Supreme Court to overturn the federal district court ruling on the CDA. [34] The president's lawyers are attempting to persuade the courts that the Justice Department can be trusted not to violate the free speech rights of Americans. [35] That argument misses the whole point of our constitutional safeguards. The Framers of the Constitution crafted the Bill of Rights so that Americans would not have to rely on the promises of prosecutors and politicians to respect their rights. [36]

Censoring Advertisements

Judging from his official actions, President Clinton seems to subscribe to the view that commercial advertising falls wholly outside the protection of the First Amendment's free speech clause. [37] Although he has not explicitly challenged Supreme Court holdings on that proposition, Clinton has demonstrated his willingness to push the limits of federal power over commercial marketing.

In August 1995, for example, the president supported sweeping regulations of tobacco products proposed by the Food and drug Administration--an agency that had not previously considered tobacco within its purview. [38] Under the administration's proposals, tobacco businesses would be forced to spend their own money on anti-smoking campaigns. Cigarette ads would be limited to black-and-white text in any magazine more than 15 percent of the readership of which is under age 18. T-shirts with company logos would be forbidden, as would brand name sponsorship of sporting and entertainment events. To fully appreciate the breathtaking scope of the power that the president is asserting here, it is important to take a step back from the immediate context of the White House proposal, which is tobacco regulation. Since there is no First Amendment "exception" for tobacco advertisements, the president apparently believes that the federal government can arbitrarily target lawful products and censor the communicative activity of the businesspeople who manufacture those products. To sustain his proposal, therefore, President Clinton presumably would like to see the Supreme Court roll back a series of First Amendment cases that limit the government's power over commercial speech.

President Clinton's legal team has tried mightily--but so far unsuccessfully--to advance the government's censorship powers over business communications. In November 1994, for example, the Coors Brewing Company asked the Supreme Court to recognize its First Amendment right to display truthful and verifiable information about alcohol content on its beer labels. Solicitor General Days urged the Court to uphold the constitutionality of federal labeling restrictions because "consumer preferences might change if . . . brewers were free to market malt beverages on the basis of their alcohol content." [39] The Supreme Court unanimously rebuffed Days's argument. Justice John Paul Stevens noted that the Justice Department was carrying its paternalistic notions of consumer protection too far.

Any [governmental] "interest" in restricting the flow of accurate information because of the perceived danger of that knowledge is anathema to the First Amendment; more speech and a better-informed citizenry are among the central goals of the Free Speech Clause. Accordingly, the Constitution is most skeptical of supposed state interests that seek to keep people in the dark for what the government believes to be their own good. [40]

In another case, Justice Clarence Thomas also rejected the government's asserted interest in keeping legal users of products and services "ignorant in order to manipulate their choices in the marketplace." [41]

The Clinton White House has rationalized its tobacco regulations on the basis of protecting youngsters from slick and seductive marketing campaigns from Madison Avenue. But Days's strenuous arguments against the simple display of alcohol content on beverage containers are a clear indication that the administration does not want even grownups to make informed choices about their lives because it fears too many will make the "wrong" choice.

Most telling of all was the suggestion by Days that the Supreme Court resolve constitutional doubts in the government's favor: "Any doubt as to whether the labeling restriction . . . Comports with the First Amendment should be resolved in favor of the statute's validity." [42] That suggestion to the highest court in the land about a fundamental constitutional guarantee lay bare the true colors of the president's legal team. It was a suggestion that flatly contradicted President Clinton's publicly stated preference for an "expansive view" of the Bill of Rights. [43] And it speaks volumes about the constitutional reading that the Clinton White House actually advocates in constitutional litigation, namely, an expansive view of federal power.

The Ex Post Facto Clause

The Framers of the Constitution detested the idea of retroactive legislation. The Constitution contains two specific prohibitions against ex post facto laws: Article I, section 9, addresses Congress: "No . . . ex post facto Law shall be passed." Article I, section 10, addresses state officials: "No State shall pass any ex post facto Law." The Constitution contains no exception to either prohibition. As Professor William Winslow Crosskey of the University of Chicago once observed, it is evident that ex post facto laws "were thoroughly disapproved by the framers of the Constitution and intended by them to be completely impossible under our system." [44]

Not only has President Clinton failed to defend the prohibition of ex post facto laws; he encouraged the 103rd Congress to violate the prohibition. In the summer of 1993 he urged Congress to levy a retroactive tax on the American people. Under the president's initial budget plan, income, corporate, gift, and estate taxes were to be increased retroactively to January 1, 1993--20 days before the president assumed office. Never before in American history had a tax been made retroactive to the time of a prior administration.

The retroactive tax plan was bitterly opposed by many in Congress as grossly unfair and unconstitutional. Yet the Clinton administration defended its initiative--pointing out, as if it made a difference, that most Americans would be unaffected by the controversial tax. Vice President Al Gore, for example, displayed a callous disregard for the constitutional rights of a minority when he told a television interviewer, "All of the hoopla and waving of arms about retroactivity is all in behalf of the wealthiest 1 percent of people in this country. Those are the only people affected by retroactivity." [45] Obviously, the constitutionality of a law does not depend on the number of people it affects. The president swears to protect the constitutional rights of all Americans--even those who happen to be wealthy.

President Clinton pressed his views on the legality of retroactive taxation on the judiciary as well. When the U.S. Court of Appeals for the Ninth Circuit struck down a 1987 retroactive change in the tax code as unconstitutional, the Clinton administration asked the Supreme Court to reverse the ruling. Instead of defending the ex post facto clause against "artful" interpretations, President Clinton's legal team urged the Court to give the legislators great leeway.

In preparing tax legislation, it is not always possible for Congress to foresee all possible applications of proposed statutory language. The possibility of drafting errors is far from negligible in a massive legislative undertaking such as the Tax Reform Act of 1986, a highly complex bill that made extensive revisions in the Internal Revenue Code. [46]

For the taxpayer hit by retroactive tax changes, Clinton expressed little sympathy. The Justice Department's legal brief coldly warned, "The taxpayer must be prepared for such possibilities." [47]

In the landmark case of McCulloch v. Maryland (1819), Chief Justice John Marshall issued his famous warning that "the power to tax involves the power to destroy." [48] Instead of shielding the American people from the unconstitutional power to tax retroactively, President Clinton fought for additional power. [49]

The Warrant Clause

The warrant clause of the Fourth Amendment, specifying the conditions that must be met before officials may search a person's home or seize papers and effects, provides: "no [search] Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." The warrant clause protects the citizenry from arbitrary searches by requiring law enforcement personnel to obtain judicial authorization before they demand entrance to any person's home. The Supreme Court described the constitutional importance of the warrant application process in McDonald v. United States (194

.

The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. [50]

The Clinton administration has repeatedly attempted to play down the significance of the warrant clause. In fact, President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping.

Warrantless "National Security" Searches

The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [51] According to Gorelick, the president (or his attorney general) need only satisfy himself that an American is working in conjunction with a foreign power before a search can take place.

The warrant clause was designed to give the American people greater security than that afforded by the mere words of politicians. It requires the attorney general, or others, to make a showing of "probable cause" to a magistrate. The proponents of national security searches are hard-pressed to find any support for their position in the text or history of the Constitution. That is why they argue from the "inherent authority" of the Oval Office--a patently circular argument. The scope of such "authority" is of course unbounded in principle. Yet the Clinton Justice Department has said that the warrant clause is fully applicable to murder suspects but not to persons suspected of violating the export control regulations of the federal government. [52] If the Framers had wanted to insert a national security exception to the warrant clause, they would have done so. They did not.

The Clinton administration's national security exception to the warrant clause is nothing more, of course, than an unsupported assertion of power by executive branch officials. The Nixon administration relied on similar constitutional assertions in the 1970s to rationalize "black bag" break-ins to the quarters of its political opponents. [53] The Clinton White House--even after the Filegate scandal--assures Congress, the media, and the general public that it has no intention of abusing this power.

Attorney General Reno has already signed off on the warrantless search of an American home on the basis of the dubious "inherent authority" theory. [54] The actual number of clandestine "national security" searches conducted since 1993 is known only to the White House and senior Justice Department officials.

Warrantless Searches of Public Housing

In the spring of 1994 the Chicago Public Housing Authority responded to gang violence by conducting warrantless "sweeps" of entire apartment buildings. Closets, desks, dressers, kitchen cabinets, and personal effects were examined regardless of whether the police had probable cause to suspect particular residents of any wrongdoing. Some apartments were searched when the residents were not home. Although such searches were supported by the Clinton administration, Federal District Judge Wayne Anderson declared the Chicago sweeps unconstitutional. [55] Judge Anderson found the government's claim of "exigent circumstances" to be exaggerated since all of the sweeps occurred days after the gang-related shootings. He also noted that even in emergency situations, housing officials needed probable cause in order to search specific apartments. Unlike many governmental officials who fear demagogic criticism for being "soft on crime," Judge Anderson stood up for the Fourth Amendment rights of the tenants, noting that he had "sworn to uphold and defend the Constitution" and that he would not "use the power of [his] office to override it, amend it or subvert it." [56]

The White House response was swift. President Clinton publicly ordered Attorney General Reno and HUD secretary Henry Cisneros to find a way to circumvent Judge Anderson's ruling. One month later the president announced a "constitutionally effective way" of searching public housing units. The Clinton administration would now ask tenants to sign lease provisions that would give government agents the power to search their homes without warrants. [57]

The Clinton plan was roundly criticized by lawyers and columnists for giving short shrift to the constitutional rights of the tenants. [58] A New York Times editorial observed that the president had "missed the point" of Judge Anderson's ruling. [59] Harvard law professors Charles Ogletree and Abbe Smith rightly condemned the Clinton proposal as an open invitation to the police to "tear up" the homes of poor people. [60]

Warrantless drug Testing in Public Schools

The Clinton administration has defended warrantless drug testing programs in the public schools. In March 1995 the Supreme Court heard arguments on whether public school officials could drug test student athletes without a warrant or any articulable suspicion of illegal drug use. The Department of Justice sided with the school authorities, arguing that the privacy rights of individual students were outweighed by the interest of the school in deterring drug use by the student body generally. [61]

Solicitor General Days, arguing for the government, claimed that the school district "could not effectively educate its students unless it undertook suspicionless drug testing as part of a broader drug-prevention program." [62] Days maintained that the Fourth Amendment's requirement of individualized suspicion would "jeopardize" the school's drug program. Justices Sandra Day O'Connor, John Paul Stevens, and David Souter expressed skepticism about that claim and pointed out that if the Supreme Court followed the Justice Department's reasoning, America's public school students might well end up receiving less constitutional protection under the Fourth Amendment than do convicted criminals under correctional supervision. [63]

The Clinton administration supports warrantless drug tests in other contexts as well. Thus, when Republican presidential candidate Robert Dole said, during the 1996 campaign, that he would subject welfare recipients to warrantless, suspicionless drug tests, President Clinton quickly followed suit with his own approval of such an initiative. [64]

Warrantless Wiretapping

The Supreme Court has recognized that electronic surveillance, such as wiretapping and eavesdropping, impinges on the privacy rights of individuals and organizations and is therefore subject to the Fourth Amendment's warrant clause. [65] President Clinton, however, has asked Congress to pass legislation that would give the Federal Bureau of Investigation the power to use "roving wiretaps" without a court order. [66] The president also fought for sweeping legislation that is forcing the telephone industry to make its network more easily accessible to law enforcement wiretaps. Those initiatives have led ACLU officials to describe the Clinton White House as "the most wiretap-friendly administration in history." [67]

It is unclear why the president made warrantless roving wiretaps a priority matter since judges routinely approve wiretap applications by federal prosecutors. According to a 1995 report by the Administrative Office of U.S. Courts, it had been years since a federal district court turned down a prosecutor's request for a wiretap order. [68] President Clinton is apparently seeking to free his administration from any potential judicial interference with its wiretapping plans. There is a problem, of course, with the power that the president desires: it is precisely the sort of unchecked power that the Fourth Amendment's warrant clause was designed to curb. As the Supreme Court noted in Katz v. United States (1967), the judicial procedure of antecedent justification before a neutral magistrate is a "constitutional precondition," not only to the search of a home, but also to eavesdropping on private conversations within the home. [69]

President Clinton also lobbied for and signed the Orwellian Communications Assistance for Law Enforcement Act, which is forcing every telephone company in America to retrofit its phone lines and networks so that they will be more accessible to police wiretaps. [70] The cost of that makeover is expected to be several billion dollars. Any communications carrier that fails to meet the technology standards of the attorney general can be fined up to $10,000 per day. The passage of that law prompted Attorney General Reno to marvel at her newly acquired power: "I don't think J. Edgar Hoover would contemplate what we can do today." [71] That is unfortunately true. In the past, law enforcement had to rely on the goodwill and voluntary cooperation of the American people for investigative assistance. That tradition is giving way to a regime of coercive mandates. [72]

The Takings Clause

The takings clause of the Fifth Amendment provides: "nor shall private property be taken for public use, without just compensation." While government officials have relentlessly sought to narrow the judicial application of that clause to circumstances in which the state has actually taken title and deed away from the property owner, the Supreme Court has recognized that governmental regulations that leave the title with the owner might also amount to a compensable "taking." Thus, the Court has held that regulations that take all the value from the property by effectively prohibiting its use amount to a taking of the property. [73]

As the number and scope of federal and state regulations have multiplied over the years, so have the grievances of landowners who point out that their property has been commandeered for various public policy objectives--from the preservation of wetlands and wildlife habitats to the provision of various community amenities. [74] But since few property owners have the financial wherewithal to wage a long legal battle against the federal or state governments, many governmental takings go uncompensated because lawsuits are never filed in the first place. The 104th Congress attempted to redress the imbalance between landowners and regulators by introducing various property rights measures aimed at giving property owners a statutory remedy against overweening federal agencies. [75]

Unfortunately, the move to enact property rights legislation stalled when President Clinton announced that he was unalterably opposed to such measures and would veto any such bill that emerged from Congress. The president characterized the property rights legislation as a "budget buster" that would "benefit wealthy landowners at the expense of ordinary Americans." [76]

It is revealing to consider the president's characterization of takings legislation as a "budget buster" in context. The Clinton White House, after all, has been urging Congress to spend a trillion dollars--over and above current spending levels--during the next several years. Against that background, it is difficult to take the president's expression of concern over spending levels seriously.

But even if the president were a true advocate of spending restraint, his budgetary objection would be irrelevant as a constitutional matter. Since the takings bills were an attempt to vindicate constitutional rights guaranteed under the Fifth Amendment, the president had a duty to find room in the federal budget for victims of regulatory overreach. To paraphrase Justice Antonin Scalia, the president and Congress are not at liberty to conduct a cost-benefit analysis of a constitutional guarantee and then adjust the meaning of that guarantee to comport with their findings. [77] Everyone recognizes, for example, that jury trials are more expensive and time-consuming than bench trials, but no one who takes the Constitution seriously would propose the legislative abolition of the jury trial procedure in order to "balance the budget." President Clinton's inability to distinguish the property rights bills in Congress from the vast array of special-interest spending programs (foreign aid, corporate welfare, art subsidies, etc.)--which are not necessitated by the Constitution--should be disturbing to all Americans.

Not only is the president's claim that the takings bills "benefit wealthy Americans" false, but it is important to recall that the Bill of Rights was designed to protect the rights of every individual against the government. No American should be forced to expend exorbitant amounts of money in litigation in order to vindicate his constitutional rights (those rights, after all, were the individual's to begin with). The fact that some individuals and organizations can comfortably absorb those expenses is beside the point. That said, it is not difficult to see that middle-class and poor owners of property would have been the primary beneficiaries of the takings legislation, since they are the least able to afford the attorneys' fees that are necessary to fight a regulatory agency in court.

Finally, as will be argued below, President Clinton's record on behalf of "ordinary Americans" is open to question--at least in the takings context. When a small businesswoman named Florence Dolan took a takings claim to the Supreme Court in March 1994, the Clinton Justice Department filed a legal brief against her.

Dolan wanted to expand her plumbing and electrical supply store in Tigard, Oregon, but the local zoning board refused to issue a permit for the expansion unless she dedicated a 15-foot strip of land to the city to be used for a bicycle pathway. The city also said that Dolan would have to pay for the construction of that pathway.

After several failed attempts to secure a variance from the proposed condition, Dolan sued the city for forcing her to choose between two of her rights: her right to build without giving up her land and her right to compensation if she did give up her land. [78] Dolan's attorney, David Smith, introduced evidence that showed that city planners had contemplated the construction of a citywide floodplain greenway and bicycle-pedestrian pathway. Smith plausibly argued that the city had planned to use its permit and zoning powers to force certain landowners to pay for the public improvements in a piecemeal fashion instead of using funds from the general treasury.

Smith's argument raised a classic takings claim. The Supreme Court has noted that one of the primary purposes of the takings clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." [79]

Solicitor General Days's legal brief to the Supreme Court made two primary arguments: first, that the burden of proof in the takings area ought to be shouldered by property owners, not governmental regulators--and Days maintained that Dolan had not met the requisite burden in the instant case--and second, that cities ought to be given "considerable latitude" when they impose permit conditions. Days urged the Court not to subject governmental conduct in the takings area to the high level of scrutiny that the Court uses in reviewing other claims of constitutional violation. [80]

The Supreme Court rejected both of Days's pleas and then went on to remind the Clinton Justice Department that "the Takings Clause of the Fifth Amendment [is] as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment" [81] and to place the legal burden on the government to justify any conditions it wishes to attach to zoning permits. The Supreme Court sent the case back to the Oregon district court to give the city of Tigard another opportunity to justify the conditions it attached to Dolan's permit.

The Double Jeopardy Clause

The double jeopardy clause provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." As Justice Hugo Black once observed, the underlying principle of the double jeopardy clause was recognized long before the American Revolution.

Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of early Christian writers. . . . While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong to "be brought into Danger for the same Offense more than once." Few principles have been more deeply "rooted in the traditions and conscience of our people." [82]

The double jeopardy principle was explicitly incorporated into the Constitution when the Bill of Rights was ratified in 1791.

Although the double jeopardy clause bars federal prosecutors from subjecting any person to multiple prosecutions for the same offense, the Supreme Court opened the door to double jeopardy when it sanctioned separate prosecutions by federal and state officials for the same conduct. The Court announced its "dual sovereign" exception to the prohibition against double jeopardy in Bartkus v. Illinois (1959). [83] The sharply divided (five-to-four) decision in Bartkus was and remains very controversial. Many legal analysts thought the majority opinion was poorly reasoned. Indeed, 24 states have, on their own initiative, attempted to shore up the double jeopardy principle by prohibiting their prosecuting officials from pursuing any defendant who had already been prosecuted by the federal government. [84]

A president committed to vindicating the double jeopardy principle could close the Supreme Court's "dual sovereignty" loophole with the stroke of a pen by issuing an executive order forbidding U.S. attorneys to pursue individuals who have already been prosecuted by state authorities. To the disappointment of many civil libertarians, President Clinton has expressed no such interest. In fact, the Clinton Justice Department has signed off on several double prosecutions since 1993.

The best known double prosecution in recent years was the federal case that was brought against the Los Angeles police officers who viciously beat Rodney King in 1991. The Bush administration was responsible for convening a federal grand jury in the wake of the state court acquittal, but the trial did not get under way until after President Clinton assumed office. [85] It could have been--and should have been--stopped. [86]

When columnist George Will asked Attorney General Reno about the constitutionality of retrying the Los Angeles police officers, she tried to absolve the Clinton administration of responsibility by invoking the Bartkus precedent.

Mr. Will: As you know . . . a lot of civil libertarians, generally, are worried that this second trial constituted double jeopardy, that it violates the principle and the spirit of the principle that you should not be subject to trial twice for the same offense. Can you explain simply to our viewers why this wasn't double jeopardy?

Ms. Reno: This wasn't double jeopardy, because you have two separate sovereigns. We addressed this issue in Miami on a number of occasions where federal authorities followed with a subsequent prosecution. And as the Supreme Court--as case law has evolved in this nation, you had two separate sovereigns, and therefore it is not double jeopardy. [87]

Reno's response, while strictly accurate, obscures the fact that the Justice Department can initiate or decline successive prosecutions at its discretion. There is a critical difference, after all, between permissible action and obligatory action. Indeed, that difference explains why the political branches of our government can be legitimately criticized for constitutional negligence with respect to their failure to desegregate the public school systems before the Brown decision was rendered in 1954. The fact that Plessy v. Ferguson (1896) had condoned separate but equal facilities did not absolve the other branches of our government of their responsibility to abide by the Constitution. Similarly, Reno cannot excuse the Clinton administration's failure to defend the double jeopardy clause by throwing up her hands with a bland reference to Supreme Court case law.

The Clinton administration has not only embraced the double prosecutions that began under the Bush administration but has initiated a few of its own as well. When Lemrick Nelson was acquitted of murder charges by a jury in state court in October 1992, pressure began to build for a second trial in the federal court system. It was only a pending matter when President Clinton assumed office--a matter that required no action. The attorney general took an interest in the Nelson case, however, and the federal code was combed for possible charges. [88] Like the Los Angeles police officers involved in the King incident, Nelson was ultimately charged with violating the civil rights of the victim. [89] There are probably dozens of unreported double prosecutions being plea bargained in federal courthouses across the United States. [90]

The Clinton Justice Department has also sought to limit the effect of the double jeopardy clause as it relates to civil forfeiture proceedings. When the United States Court of Appeals for the Sixth Circuit told a federal prosecutor that he could not constitutionally seize a drug dealer's home in a civil forfeiture proceeding and prosecute the dealer under federal criminal law, the Clinton administration appealed. [91]

Even though there was no evidence that the home had been purchased with drug money, Solicitor General Days filed a legal brief with the Supreme Court that said the civil forfeiture action should not trigger the double jeopardy clause since it could not be fairly characterized as a "punitive" measure. [92] How, one wonders, could the confiscation of someone's home not be punitive?

The Second Amendment

The Framers of the Constitution despised the governments of Europe for being "afraid to trust [their own] people with arms." [93] If a government had no designs on the liberties of the people and administered justice in its courtrooms, the Founders thought there was no reason to fear an armed citizenry. Indeed, an armed citizenry would be an effective "check" on the nefarious ambitions of politicians.

The Second Amendment to our Constitution provides: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." One of the most salutary developments in law schools in recent years has been a growing recognition among constitutional theorists that "perhaps the [National Rifle Association] is not wrong, after all, in its general Second Amendment stance." [94] The idea behind that stance, of course, is that the general purpose of the Second Amendment is to guard the right of the citizenry to keep and bear arms. [95]

The Clinton White House has shown little interest in Second Amendment scholarship. In fact, President Clinton has established himself as the most fervent opponent of gun ownership in presidential history. He lobbied strongly for the passage of the Brady bill and a ban on "assault weapons"--and signed both measures into law. The president has also indicated his desire for a national scheme for licensing all gun owners. Although there are hundreds of federal and state regulations concerning the manufacture and use of firearms, Clinton believes that the right to keep and bear arms must be regulated further because that right has become an instrument for "maintaining madness." [96]

In the 1992 presidential election campaign, Bill Clinton vowed to fight for the passage of the Brady bill. He kept his promise by making that bill a top priority. After a ferocious legislative battle, the Brady bill was signed into law on November 30, 1993. That law requires the purchaser of a handgun to wait five business days before taking possession of the gun. During the five-day waiting period, law enforcement officials are supposed to check the background of the prospective buyer for any criminal record or mental instability. The ostensible purpose of the law is to "keep guns out of the hands of criminals." [97]

To understand the ferocity of the Brady battle, it is important to note that before the Brady law took effect, federal law presumed--as a general proposition--that every American citizen had the right to gun ownership. That right could be overridden, but the government had to have a very good reason to do so. A felony conviction, for example, would have disqualified a person from lawful gun possession. President Clinton and advocates of gun control were anxious to reverse that legal presumption so that it would work against the constitutional right to keep and bear arms. The five-day waiting period was to be the "first step" toward solidifying a new legal presumption against gun ownership. [98]

Gun lobbyists, many lawmakers, and principled defenders of the Constitution were equally determined to protect the Second Amendment against encroachment. They viewed the Brady bill as an unconstitutional "prior restraint" on the right to keep arms. They also feared that the Brady law would open the door to a series of incrementally restrictive gun control measures.

One month after passage of the Brady bill, a new round of calls for government controls was touched off when a deranged man killed five commuters and injured many others on the Long Island Railroad. President Clinton seized the moment with an ambitious gun control initiative. He publicly ordered Attorney General Reno to develop plans for a national licensing system for all American gun owners. [99]

President Clinton's licensing scheme would have crippled the constitutional right to keep and bear arms because it would have forced law-abiding citizens to go hat in hand to the government to get permission to purchase a firearm. Far from defending the Second Amendment rights of the citizenry, the president sought to reduce a constitutional guarantee to an arbitrary dispensation of government. [100] President Clinton clearly hoped that a poll-sensitive Congress would succumb to his far-reaching proposal in the wake of a well-publicized tragedy. Although the president's gambit failed, it was a telling indication of his understanding of federal power and the Second Amendment.

The Jury Trial Clause

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The Clinton administration's fidelity to the jury trial clause was tested on three occasions--all involving cases before the Supreme Court. Unfortunately, President Clinton's legal team tried to weaken the jury trial guarantee in each case.

Shifting Power from Juries to Judges

The first case was United States v. Gaudin (1995). [101] Michael Gaudin was accused of making false statements on Federal Housing Administration loan documents. The issue before the Supreme Court was whether the trial judge gave appropriate legal instructions to the jury. The trial judge told jurors that he had already determined that Gaudin's statements were "material" and that the only question for the jury to resolve was whether the accused had "knowingly" made false statements.

Gaudin's attorney argued that the materiality issue should have been decided by the jury, not the trial judge. The Sixth Amendment gives the accused the right to demand that a jury find him guilty of all of the elements of the crime with which he is charged. Since materiality was an essential element of the crime with which Gaudin was charged, his right to have that issue resolved by a jury was violated.

Instead of defending the jury trial clause, the Clinton Justice Department urged the Supreme Court to affirm Gaudin's false statement conviction, arguing that historical and legal precedents supported the trial judge's legal instructions. The Supreme Court unanimously rejected the Clinton administration's legal position.

The existence of a unique historical exception to this [constitutional] principle--and an exception that reduces the power of the jury precisely when it is most important, i.e., in a prosecution not for harming another individual, but for offending against the Government itself--would be so extraordinary that the evidence for it would have to be convincing indeed. It is not so. [102]

The Court concluded that the trial judge had violated Gaudin's constitutional right to trial by jury and that the government would have to give him a new trial.

No Jury Trial for "Minor" Offenses

The second case involving the jury trial clause was Lewis v. United States (1996). [103] Ray Lewis was a postal employee charged with two counts of obstructing the mail. Each count carried a maximum authorized prison sentence of six months. Lewis requested a jury trial, but federal prosecutors argued that because the crimes with which he was charged were only "petty offenses," he had no constitutional right to trial by jury. The magistrate sided with the prosecutors, and a bench trial was held shortly thereafter. Lewis was found guilty, but he appealed the magistrate's decision denying him a jury trial.

The language of the Sixth Amendment is unambiguous. The accused is guaranteed the right to a jury trial in "all criminal prosecutions." Unfortunately, many years ago government lawyers persuaded a majority of Supreme Court justices that a jury trial was required only for "serious" offenses. According to Supreme Court case law, a "serious" offense is a crime that carries a penalty in excess of six months' imprisonment. Over the years a number of Supreme Court justices have questioned the logic underlying the so-called petty offense doctrine. Justice Hugo Black, for example, found the "petty-serious" distinction to be utterly specious.

The Constitution guarantees a right of trial by jury in two separate places but in neither does it hint of any difference between "petty" offenses and "serious" offenses. . . . Many years ago this Court, without the necessity of amendment pursuant to Article V, decided that "all crimes" did not mean "all crimes" but meant only "all serious crimes." . . . Such constitutional adjudication, whether framed in terms of "fundamental fairness," "balancing," or "shocking the conscience" amounts in every case to little more than judicial mutilation of our written Constitution. [104]

Instead of seizing on Justice Black's clear-eyed analysis of the constitutional text and urging the Supreme Court to correct its past mistake, the Clinton administration defended the petty offense doctrine and asked the Supreme Court to affirm Lewis's conviction. [105]

Overturning Jury Acquittals at Sentencing

The third case involving the jury trial clause was United States v. Watts (1997). [106] Vernon Watts was arrested after police detectives discovered cocaine base in his kitchen cabinet and two loaded guns in his bedroom closet. At trial, the jury convicted Watts of drug charges, but acquitted him of "using a firearm" during a drug offense. Despite Watts's acquittal on the weapons charge, the sentencing court announced that Watts had indeed possessed the guns in connection with the drug offense and that his prison sentence would be increased accordingly. Watts promptly appealed the additional prison time. The Clinton Justice Department defended the controversial sentence before the Ninth Circuit Court of Appeals but lost. The appellate court vacated Watts's sentence, holding that "a sentencing judge may not . . . rely upon facts of which the defendant was acquitted." Undaunted, Clinton's legal team asked the Supreme Court to overturn the Ninth Circuit ruling--and to reinstate Watts's original sentence.

The legal issue in Watts had been festering in the federal court system for years. Ever since the Federal Sentencing Guidelines were enacted by Congress in 1984, federal courts have been engaged in "real-offense" sentencing, which basically allows a sentencing judge to consider a broad range of "relevant conduct" on the part of the defendant. As unbelievable as it may seem, our courts have been punishing individuals even after juries have found them not guilty of the conduct for which they are being punished.

The Framers of the Constitution placed the jury at the heart of our criminal justice system. They did so for a very specific reason. The Framers did not want the federal government to have the power to unilaterally brand a citizen a criminal. In America prosecutors must first persuade a jury of laymen that the accused is a criminal who must be punished. The jury's unanimous assent to the government's indictment was to be a prerequisite to punishment.

Real-offense sentencing, however, undermines the constitutional safeguard of trial by jury in at least two ways. First, if prosecutors fail to persuade a jury of a defendant's guilt at trial, they can now ask a judge for a second opinion. That is what the federal prosecutor did in the Watts case.

Second, by filing an indictment with a single charge, prosecutors can withhold shaky evidence on some allegations, then introduce it at the sentencing phase. If the government is able to secure a conviction on the charge set forth in the formal indictment, prosecutors can then seek "enhanced penalties" for offenses the jury never heard about. The government has a strong incentive to employ that strategy against defendants because the evidentiary standards before a sentencing judge are well below those required at trial. Prosecutors only have to prove "sentencing factors" by a preponderance of the evidence instead of the traditionally high standard of "beyond a reasonable doubt." And because the Federal Rules of Evidence do not apply at sentencing, federal judges can add years to a defendant's sentence on the basis of flimsy hearsay evidence.

Justice Department officials defend real-offense sentencing by claiming that no person is being punished for conduct of which he has not been convicted; rather some are being punished more severely simply because of the factual circumstances surrounding the crime of which they were convicted. That is a dangerous play on words. For if the connection between trial and sentencing procedures is severed, Congress can simply manipulate the statutory maximum penalties for the thousands of offenses that are criminally prohibited. Such manipulation would effectively obviate the government's burden to prove beyond a reasonable doubt criminal activity before juries. Law professor Elizabeth Lear of the University of Florida observes that "under the current regime of nonconviction offense sentencing, only the judge and the prosecutor need approve the bulk of punishment decisions." Such unbridled governmental power "dislodges the jury from its crucial oversight role in the criminal justice system." [107]

The Watts case was a golden opportunity for President Clinton's lawyers to demonstrate the administration's commitment to an "expansive view of the Constitution and the Bill of Rights." [108] Sadly, the Justice Department once again sought the opposite, advocating a narrow reading of the jury trial clause.

The Separation of Powers Principle

One of the most important structural features of the American Constitution is the partition of powers among three separate branches of government: legislative, executive, and judicial. James Madison expressed the sentiment of the founding generation when he wrote that "the preservation of liberty requires that the three great departments of power should be separate and distinct." [109] Every president is responsible for remaining within his sphere of authority and respecting the powers the Constitution vests in the judicial and legislative branches.

President Clinton and the Judiciary

The Framers of the Constitution believed in an independent judiciary. Their colonial experience under English rule taught them that when the executive power is combined with judicial power, liberty and justice are endangered. One of the grievances set forth in the Declaration of Independence was that King George III had "made Judges dependent on his Will alone, for the Tenure of their Offices." To guard against that potential threat to the impartial administration of justice, the Framers created a court system in which federal judges would enjoy lifetime tenure as long as they remained honest and avoided malfeasance. In the 1992 presidential campaign, Governor Clinton assured the legal community that he appreciated the importance of an independent judiciary in our constitutional framework: "As a lawyer, a former law professor and attorney general of [Arkansas], I have a deep commitment to our legal system and a reverence for the role that federal judges play in our system as interpreters of federal law and protectors of constitutional rights." [110]

A few years later, President Clinton shocked the legal community when he brazenly pressured a federal judge to reverse an evidentiary ruling. In March 1996 Federal District Judge Harold Baer Jr. suppressed incriminating physical evidence and a videotaped confession in a New York City drug bust. That controversial ruling provoked a firestorm of criticism from local and national politicians, including Dole. Dole used the incident to attack the president for appointing "soft-on-crime" judges to the federal bench. Under rising political pressure to distance himself from some of the liberal rulings of his judicial appointees, President Clinton made an extraordinary move. On March 21, 1996, the White House let it be known that if Judge Baer did not reverse his suppression ruling, President Clinton would ask for his resignation. [111]

The president's blatant attempt to intimidate a judge in a pending case sparked its own firestorm of controversy. The chief judge and three senior judges of the United States Court of Appeals for the Second Circuit issued a statement that said calls for the resignation and impeachment of Judge Baer had "done a grave disservice to the principle of an independent judiciary." [112] The White House quickly retreated from its earlier announcement by issuing platitudinous statements about the importance of "judicial independence." [113]

The Baer incident is a telling indication of President Clinton's commitment to an independent judiciary. Like so many of his other purported beliefs, it is evidently subject to raw political calculations.

President Clinton and the Legislature

President Clinton claims the Constitution gives him the unilateral power to attack other countries whenever he deems that course of action appropriate. Over the last four years, he has authorized missile attacks against Iraq, ordered