School choice at the Supreme Court

Another school funding case is knocking at the U.S. Supreme Court’s door. This case, Espinoza v. Walborn, hales from Montana, where the state’s fledgling school-choice program was killed moments after it left the crib. The Court now has a chance to revive it and land a major victory for educational choice across the country.

Montana’s first school-choice law, passed in 2015, took the form of a tax-credit scholarship program. If a taxpayer donated to an approved scholarship organization, she could claim up to $150 of the donation as a tax credit. The scholarship organizations then dished out scholarships to help parents afford to put their kids through private school.

Then the Montana Department of Revenue gutted it. The Department promulgated a rule that none of that scholarship money could go to religious private schools. This basically killed the program, since the vast majority of private schools in Montana–and in most states–are religious schools.

The Department claimed that the state constitution prohibited the scholarship dollars from going to religious schools because of the state ban on indirect public aid to religious schools. This is an absurd argument. The scholarship funds are privately donated dollars–they never touch a public coffer. The fact that someone can claim a tax credit hardly means that the donation becomes “public funds” because of diverted revenue. Such an argument, extended to its logical conclusion, would mean that all money is the government’s, and when it graciously declines to tax us, that extra money of ours is in fact part of the public fisc.

Nonetheless, the government prevailed at the Montana Supreme Court. In fact, the Court did the state one better–they just invalidated the whole tax-credit program, even for the few parents who might use a scholarship to send their kids to a secular school.

It’s a terrible blow to parents in Montana trying to find some genuine variety in education. But it also gives the Supreme Court a chance to right a wrong that has been festering in education policy for well over a century. The Supreme Court should hold that barring religious schools from accessing a neutral and generally available funding program violates the Free Exercise Clause and the Equal Protection Clause of the U.S. Constitution.

The portion of Montana’s state constitution that laid the tax-credit program in an early grave is known as a Blaine Amendment, named after 19th-century Congressman James Blaine. In 1875, Blaine proposed a federal constitutional amendment that would, among other things, prohibit states from funding “sectarian” schools with public money. Blaine’s federal amendment failed, but many states passed state-level amendments to the same effect, and Congress managed to make inclusion of such amendments a condition of statehood for new states entering the union.

The history is clear that these amendments are rooted in anti-Catholic bigotry. As the United States transitioned to a public school system, public schools had a distinctly Protestant flavor (often state-endorsed or even state-forced). Catholic migrants therefore began forming and attending private religious schools of their own. The backlash was fierce, and anti-Catholic sentiment often expressed itself in hostility to Catholic schools. James Blaine’s proposed amendment was a key manifestation of this bigotry.

And the bigotry lives on today. Ironically, however, now opponents of genuine choice in education have retrofitted Blaine Amendments as a partisan weapon to combat vouchers, tax credits, and education savings accounts. Montana’s law is only the most recent victim. If the Supreme Court doesn’t grant this case and strike down these state laws rooted in religious bigotry, it won’t be the last.

Old Property

Property is the basis for every right and ounce of autonomy we have. James Madison called property “that dominion which one claims and exercises over the external things of the world, in exclusion of every other individual.” Madison went on to argue that basically every right we enjoy is reducible to a property right. We have property in our opinions, in the free use of our faculties, in the safety and liberty of our body, and so on. He believed that “Government is instituted to protect property of every sort” and a government can only be just if it “impartially secures to every man, whatever is his own.”

But government has not remained impartial in this endeavor. It has become a massive property owner in its own right.  It has also become a gatekeeper, setting the terms for individuals’ uses of their own property. It has also become a broker and redistributor of property. And finally, it has =become a creator of property in the form of entitlements–what Charles Reich famously called “new property.” It’s this last role that I’d like to discuss here.

Government’s role as a creator of property has muddled and watered down the strength of property rights. The problem began when U.S. courts started grappling with claims that individuals had been deprived of a constitutional right when government stripped them of a government-created entitlement, such as social security.

Courts confronted with this problem basically held that while constitutional rights do attach to entitlements, the government has an increased authority to limit the rights to those entitlements. Essentially, since the government created the entitlement, the government can define the scope and terms of that entitlement.

This “new property” doctrine then became entangled with a different idea altogether. The United States Constitution protects against deprivations of life, liberty, and property without due process of law. The Constitution, however, does not define property. Courts have held instead that state law defines property , and the Constitution then protects rights to that property.

That does not mean, however, that all property can be whisked away at a whim as if it is all “new property.” Rather, even though state law may establish what property is, states do not have the power to mutate and redefine all property rights on a whim. In essence, there is “new property” and then there is “old property.”

“Old property” is a bundle of long-recognized property rights rooted in common law. But just because those rights have arisen from common law courts over the centuries does not mean that these are property rights created by government in the same sense as less-protected “new property.” There is a fundamental difference, for constitutional purposes, between government recognizing a boundary line and creating a food stamp program. In some sense, this difference strikes a deeper philosophical chord, one that distinguishes between positive law and natural law–or fundamental rights that are acknowledged and respected by government, and entitlements that are created and controlled by government.

What are these fundamental property rights? Most are intuitive and understood by babies as soon as their hands are capable of grasping. They include the right to exclude others (the first property right understood by all children everywhere), the right to quiet enjoyment, the right dispose of the property by sale or lease, the right to develop and improve the property, etc. That right extends to chattel and land–things the government does not create but simply exist and are brought under human ownership through a first-in-time rule or a transfer.

The idea that “new property” deserves lesser protection because government dictates its bounds has bled over into the “old property” rights. This stems from confusion between government recognizing the existence of a fundamental right and government creating an entitlement. Extensive permitting regimes have only exacerbated this confusion. When local governments demand a permit before a property owner can do something with their land, the government looks upon that permit as an entitlement–a privilege and not a right. Thus, “new property” ideas come to overlay and suffocate “old property.” As permitting regimes expand, the world of “old property” retracts. But that permit is not a “new property” entitlement–it’s a condition placed upon a fundamental background right–an intruder upon natural law. When a permitting authority tries to strip away or deny a permit, that denial should be subjected to the full rigor of constitutional scrutiny offered to “old property,” not the weak sauce protections for entitlements.

If a government is only just if it limits itself to protecting what is ours, as Madison believed, then we don’t have many just governments left to us. Courts could help by establishing a clearer distinction between the old and the new forms of property so that governments can’t get away with redefining or stripping away fundamental property rights.

Mending Wall

Robert Frost’s lovely poem, “Mending Wall,” says something profound about the importance of the institution of property. The poem is about Frost and his neighbor meeting together to piece together a crumbling wall between their two properties. Frost pokes fun at the tradition; without a wall, will Frost’s apple trees sneak across the property line and gobble up the cones piled up beneath the neighbors’ pines? As the two walk the line, replacing a stone here and a stone there, the neighbor, in an almost ritualistic mantra, responds to Frost’s skepticism with the well-worn line, “Good fences make good neighbours.”

Some can and have interpreted Frost’s poem as a gentle argument against erecting barriers that separate us. I think that’s a mistake. Of course, I admit to overlaying my own political and philosophical views atop his writing. But with that in mind, the poem tells me to that clear property lines do indeed make good neighbors. In fact, this wall is what draws Frost and his neighbor together in a valuable social ritual. Even in the absence of an obvious need for the wall, the tradition stokes good will.

In a broader and more directly political sense, property does indeed make good neighbors. Where property rules are unclear or have not been established, social strife and distrust tend to proliferate. Where they are established by law or custom, parties have a neutral arbiter whose presence alone allows them to avoid dispute and uncertainty.

This seems to hold true on small and large scales. Parents of young children have all learned that allowing kids common ownership of toys is a recipe for constant conflict. If parents establish clear ownership of childrens’ possessions, then order settles in and kids can learn important social values like sharing–a virtue that will never arise if property rules are unclear or non-existent. Truly, in a home of common ownership, children only learn to cling desperately to everything and not give an inch.

The same appears true for communities and nations. Where countries do not have established customs and laws governing property, strife, distrust, and corruption fester (Russia is, unfortunately, a prime example of this problem). A similar phenomenon seems to have played its role in the rapid demise of the various utopian communal arrangements that cropped up during the Second Great Awakening in 19th century America.

Frost’s repeated refrain throughout his poem is: “Something there is that doesn’t love a wall.” I think Frost’s neighbor had the right of it–communities survive and thrive thanks to walls. We should take time to mend them.

The Rao Roe Row

Neomi Rao, nominee to the D.C. Circuit Court of Appeals, has fallen victim to an old fissure–conservative and libertarian disagreement over unenumerated rights. At the hint that she believes that rights exist outside the express text of the Constitution, conservatives have pounced, concerned that Rao will betray conservatives on abortion issues. On both political and legal dimensions, this concern is silly.

As a general matter, it’s beyond clear that Rao is qualified. Conservatives shouldn’t cripple a great candidate over a minor issue. The Supreme Court has many times confirmed that unenumerated rights exist. Rao is bound by those precedents, including Roe, and whether she agrees with those precedents or not is immaterial to the job she’s nominated to do. The chance that Rao will even have a chance to expand the existing list of recognized unenumerated rights is exceedingly low. It just doesn’t come up that often, and the courts already have tests for assessing whether a right should be recognized.

But perhaps more importantly, non-enumerated rights don’t lean toward one side of the ideological spectrum or the other. The Supreme Court of the early twentieth century recognized, for instance, liberty of contract as a constitutionally protected right–though unenumerated. Progressive jurists bent on defending Roosevelt’s New Deal did so in part by opposing the enforcement of unenumerated rights. Unenumerated rights also include other “conservative” causes such as the right to earn a living. And, of course, unenumerated rights have also favored “liberal” values such as a broad right to privacy. In short, it is unclear why Rao’s alleged support for the enforcement of unenumerated rights should enter into the partisan calculus.

And then there’s the simple fact that unenumerated rights do in fact exist and deserve constitutional protection. The history and passage of the Ninth Amendment, which says enumeration of rights shouldn’t detract from those retained by the people, make this clear. The founding generation didn’t see rights as reserved to a fixed set of especially important activities. In fact, many feared that the enumeration of certain rights would imply that the unenumerated ones shouldn’t be recognized. That fear has turned to be prescient, despite the inclusion of the Ninth Amendment, which was written to make clear that the enumerated rights shouldn’t be seen as implying that unenumerated rights should go unprotected.

In short, not only would Rao be right to recognize such rights–though the scope of those rights is always a matter of intense debate–she has to recognize them under binding law, and her thoughts on the matter are unlikely to make much difference to her job. If she gets nominated to the Supreme Court later down the road, the concern may have more relevance. For now, just get her confirmed.

Expression at the polls

Last election, Jillian Ostrewich drove to a polling place at a Houston rec center, expecting to vote. But she made the mistake of wearing a “Houston Fire Fighters” t-shirt. An election worker confronted Jillian, insisting that she couldn’t vote unless she turned the offending shirt inside out. The rationale: a measure on the ballot was related to firefighter pay, and the shirt was related to firefighters.

Tony Ortiz suffered a similar fate in Dallas. Tony’s crime was wearing a MAGA hat while he stood in the voting line outside his local library. An election worker said he couldn’t wear the hat to the polls because the MAGA slogan constituted “electioneering.” Tony responded that the hat had nothing to do with any issue or candidate on the ballot. The election worker threatened to call the police.

These election workers were relying on a Texas law that forbids electioneering or wearing “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot” in or near a polling place. The law even prohibits someone from wearing an ID if the name is the same as someone appearing on the ballot. A violation is a criminal misdemeanor. Today, my colleagues and I at Pacific Legal Foundation filed a lawsuit on behalf of Jillian and Tony challenging the Texas ban.

As it happens, the Supreme Court issued a decision just last year striking down a similar law in another case brought by Pacific Legal Foundation called Minnesota Voters Alliance v. Mansky. The Minnesota law in MVA prohibited wearing a “political badge, political button, or other political insignia” in the polling place. The Court said states can limit some electioneering at the polling place to prevent voter intimidation and excessive disruption. But the government has to have some clear and logical basis for sifting “what may come in from what must stay out.”

The word “political” was not a clear boundary. As the Court noted, almost anything could be considered political, and the fuzzy language offered too much wiggle room for abuse and discrimination. The attorney arguing for Minnesota drove this point home during an onslaught of blistering questions in oral argument: how about a rainbow flag shirt? Permitted, maybe. How about a “Parkland Strong” shirt? Permitted, probably. How about an NRA shirt? Definite no. How about a shirt with the text of the Second Amendment? Definite no. At about that point, most everyone knew the outcome of the case–the attorney had just proven the inherently arbitrary standard he was trying to defend.

The Texas case filed today is a bit different. For one, the ban extends to 100 feet outside the polling place, which clearly encompasses sidewalks and other public areas where speech rights enjoy their widest berth. But the ban is not quite as amorphous as the word “political.” Instead, the ban extends to messages that relate to a candidate, measure, or party on the ballot.

This slightly narrower language probably doesn’t save the Texas law. After all, almost anything can be considered related to a candidate if the candidate has taken any kind of position on it. If a candidate has criticized Trump (have any not?), then is Tony’s MAGA hat “related” to the candidate? If Ben & Jerry’s takes a position on a ballot measure, does a Ben & Jerry’s shirt relate to that ballot measure? Maybe, but it depends on the election worker–and therein lies the problem. As the Supreme Court said in MVA, “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions over every candidate and party on the ballot is not reasonable.” Not only would such an index be impossible, but the contents and application of that index would be dictated by an election worker’s own biases and background.

The integrity of the electoral process is vital. But surely Jillian’s firefighter shirt or even the much-reviled MAGA emblem do not imperil the right to vote. Wed don’t shed the right to express ourselves in peaceable ways when we step into a polling line.

Musk in contempt?

The SEC wants to slam Elon Musk with contempt over a thirteen word tweet. Musk has taken to Twitter to both vaunt his company and castigate the SEC. He’s under an existing SEC settlement that requires company oversight of his communications. Musk’s brief tweet on Feb. 19 that stoked the ire of the SEC said: “Tesla made 0 cars in 2011, but will make around 500k in 2019.” The SEC swooped in, charging that Musk hadn’t received preapproval for the tweet and convinced Musk had misled the public.

The SEC’s overzealous attempt to wield the contempt power is disturbing. Especially given Musk’s vocal and mocking disdain for the SEC, the regulator’s attempted coup over the content of his tweets raises serious First Amendment concerns. Here, it seems the 500K estimate was not precise, but Musk went on to clarify on his Twitter feed, and he didn’t conjure the number from the ether. At worst, it was incomplete information. Welcome to Twitter. I just can’t quite stomach the fact that a regulator is out there lurking, ready to pounce on any linguistic imprecision in a forum where brevity is the name of the game. Obviously, Musk’s statements have an impact on the market, but investors are sophisticated actors who should be expected to do their homework. The SEC’s paternalistic and aggressive monitoring of Twitter feeds should raise our hackles.

Originalism and defamation

Today, Justice Clarence Thomas issued a solo opinion urging the Supreme Court to reconsider a hallmark case in First Amendment law–New York Times v. Sullivan. That case held that defamation claims brought by public figures had to meet a heightened standard of proof by showing “actual malice” by the alleged defamer. The basic premise is that muscular use of private defamation suits discourages criticism of public figures and thus clashes with First Amendment interests.

Justice Thomas’s primary complaint with this standard is that judges created it with a wave of the wand rather than a serious analysis of the original understanding of the First Amendment. He points out that the ratifiers of the Constitution gave no indication that they intended to abrogate the long-standing common law of libel that had existed in the colonies and England for centuries. For those who believe that the Constitution’s meaning should reflect what the ratifiers thought the language meant at the time, I think Justice Thomas makes a convincing case.