Common Law Marriage in the United States

Does any state in the United States recognize common law marriage?[1]  The answer to this question is somewhat complex.

Questions Regarding the American Solidarity Party

A friend of mine has recently joined the American Solidarity Party (ASP).  Being mildly curious about this organization – of whose existence I was, until recently, unaware – I decided to peruse its platform to see what it was all about.  My reading of this document left me with several questions.  These first two concerned issues on which the ASP’s platform was apparently silent.

1. What is the ASP’s position (if any) on gun-related issues? E.g., Concealed carry, universal background checks, gun registration, assault weapons bans?  What about proposals to expand restrictions on firearms possession by certain persons (e.g., DUI offenders, persons on terror watchlists, “gun violence restraining orders”).
2. Does the ASP consider birthright citizenship for U.S.-born children of illegal aliens, transient aliens, and/or aliens generally to be constitutionally-mandated by the Fourteenth Amendment’s Citizenship Clause?
3. In the ASP’s view, what role (if any) should the original public meaning of the Constitution play in constitutional law?

These other questions concerned particular aspects of the platform (in quotation marks):

4. “We oppose conscription into the armed services and other forms of compulsory government service . . . .” Does this include jury duty?
5. “We will work to restrict the legal construct of ‘personhood’ for organizations and corporations.” What sort of “restrictions” on corporate personhood does the ASP favor?
6. “We advocate a tax shift from earned income (wages and interest) to unearned income (economic rent).” How is “unearned income” defined; does it include dividends, interest, rental income from rental properties?  What magnitude of tax rates are we talking about?
7. “We advocate . . . legal accountability for the misrepresentation of facts in political advertising.” What form would this “accountability” take, and would it be consistent with existing First Amendment case law?
8. “We insist on legal protection for occupational safety . . . .” How is this different from what OSHA currently does?
9. “We oppose government censorship of the media and the internet.” Does “censorship” include laws prohibiting obscenity and child pornography?
10. “We support stricter controls on consumer credit, including limits on interest and regulation of credit-card companies and payday-loan and title-loan stores.” What sort of “regulation” does the ASP favor for credit cards and payday loans?  Besides interest-rate ceilings, what other “stricter controls” does the ASP favor for consumer credit?

DUIs and Gun Possession

In recent years, some have recommended banning gun possession by persons with one or more DUI convictions.[1]  Such recommendations implicitly assume that current federal and state laws largely fail to impose such a ban.[2]  This assumption, however, appears to be incorrect.  In the District of Columbia and every state (except perhaps one), either federal or state law explicitly or implicitly bars gun possession by persons with multiple DUIs.[3]

The History of U.S. Draft Registration

In a recent Vox post, Katherine Hicks stated,

. . . If [S.2943, the Senate version of the 2017 National Defense Authorization Act] becomes law, women turning 18 on or after January 1, 2018, will have to sign up for the Selective Service System.

Men have been required to do so since the Civil War, though the Selective Service System has only existed in its current form since 1980.[1]

The italicized phrase, however, oversimplifies the history of American draft registration, and seemingly – but erroneously – implies that male draft registration has been continuously required from the Civil War until today.  In fact, during the Civil War, the federal government probably did not require men to register for the draft.  During both world wars, the United States required men to register, but initially only on certain days.  Continuous registration, with men having to register upon turning 18, only began in World War II.

The Origins of Felon Disenfranchisement in Virginia

The Virginia state constitution denies the vote to every “person who has been convicted of a felony . . . unless his civil rights have been restored by the Governor or other appropriate authority.”[1]  Recently, Virginia governor Terry McAuliffe ordered the restoration of voting rights for all felons “who have, as of this 22nd day of April 2016, (1) completed their sentences of incarceration for any and all felony convictions; and (2) completed their sentences of supervised release, including probation and parole, for any and all felony convictions.”[2]  Defending this order, articles in several publications subsequently argued that Virginia’s felon disfranchisement provision originated in the commonwealth’s previous, Jim-Crow-era, 1902 constitution.[3]  Disagreeing with this position are various other parties, including Governor McAuliffe himself,[4] opponents of his order,[5] federal courts,[6] and scholarly opponents of felon disfranchisement,[7] all of whom explicitly or implicitly concede that Virginian felon disfranchisement long predates the 1902 constitution.  In my view, this latter position is correct; Virginia first disfranchised felons at least three, and perhaps seven, decades before the enactment of the 1902 “Jim Crow” constitution.

Housekeeping & NDAA12 § 1031 Post

Because WordPress.com has recently expressed hostility towards the practice of “mirroring” posts, until further notice I’ll be posting the full text of my posts at Alexandria, and a short synopsis and link here.

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Responding to Dreher’s concerns regarding the AUMF reauthorization in the § 1031 of the pending National Defense Authorization Act, I post a few thoughts at the following link:

http://aleksandreia.wordpress.com/2011/11/30/reflections-on-ndaa12-§-1031/

On the Constitutionality of the Al-Aulaqi Killing

I had planned to do a post about the constitutionality of the Al-Aulaqi killing.  Prior to completing that post, however, I discovered that John Dehn had already addressed the issue in a pair of posts on Cato’s website.  See here and here.  Basically, Dehn argues that, under Supreme Court decisions like the Prize Cases and Hamdi v. Rumsfeld, “lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war,” even “without a prior adjudication of guilt . . . .”  Admittedly, Dehn does not specifically consider whether Al-Aulaqi was indeed targetable under the laws of war.  However, this article by Robert Chesney does, and (mostly) answers that question in the affirmative.

I find Chesney’s analysis, and Dehn’s, persuasive.  Consequently, I am inclined to stand by my previously-expressed view regarding Al-Aulaqi’s killing.

Ego-Boosting Anti-Semitism

A recent David Samuels interview with Edward Luttwak (HT Tyler Cowen) includes this hilarious excerpt:

[Samuels:]  There have been many different explanations given over the past 10 years for the strength of the American-Israeli relationship, ranging from the idea that Israel has the best and most immediately deployable army in the Middle East, to the idea that a small cabal of wealthy and influential Jews has hijacked American foreign policy.

[Luttwak:] You mean the Z.O.G.? The Zionist Occupied Government?

Yes.

Personally, from an emotional point of view, myself, as me, I prefer the Z.O.G. explanation above all others. I love the idea that the Zionists have sufficient power to actually occupy America, and through America to basically run the world. I love the idea of being a member of a secretive and powerful cabal. If you put my name Luttwak together with Perle and Wolfowitz and you search the Internet, you will get this little list of people who run the American government and the world, and I’m on it. I love that.

Anytime you need an added jolt of ego gratification, you open your laptop and confirm the fact that you rule the world.

In Pakistan, there are millions of people who go to schools where they are taught that I am the ruler of the universe. So, emotionally speaking, I would explain everything that happens by referring to the Z.O.G., the Zionist Occupied Government, which is run by a small cabal of people, and that I am one of them.[1]

This reminded me of a line by Jack Ryan in Tom Clancy’s “Clear and Present Danger”:

Some old guy on the shtetl in Czarist Russia . . . was reading the hate rag of the antisemites – you know, the Jews are doing this, the Jews are doing that.  So a neighbor asked him why he got it, and the old guy answered that it was nice to see how powerful he was.[2]

I’m not sure if the latter story is actually true, but I find it funny nevertheless.

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[1] Luttwak’s more serious explanation for the US-Israel relationship is a “solid mass of foreign-aware Americans, who also happen to be Bible-believers—we’re talking 50 million people—to [whom], the only foreign policy that counts is America’s support for Israel. Period.”  I find this response significantly less entertaining.

[2] Tom Clancy, Clear and Present Danger, in Three Complete Novels 371, 672 (1994)

Al-Awlaki Killing Links

As Steve recently noted, Anwar Al-Awlaki was killed via US drone strike in Yemen a few days ago.  Out of the commentary provoked by this action, here are a few pieces that caught my eye:

• In the NYT, Jack Goldsmith defends the legality of the killing.
• Kenneth Anderson at VC gives some cogent thoughts on the matter.
• Robert Chesney comments re. Al-Awlaki’s role as an operational leader, and the inaccessibility of his location.
• Michael Lewis comments re. the laws of war & neutrality law.
• Benjamin Wittes addresses the issue of due process.
• Michael Ramsey offers an originalist perspective regarding the killing.
• Marty Lederman makes a very educated guess about the contents of the Obama administration’s legal justification for killing Osama bin Laden.  (Somewhat apropos, since both killings implicate many of the same legal issues.)
• A more critical perspective comes from Ta-Nehishi Coates (who rounds up the views of other like-minded individuals); and from Mary Ellen O’Connell.  (Of note:  the latter scholar was only able to square OBL’s killing with her view of the law by – unpersuasively, IMHO – characterizing the Abbottabad raid as having “followed law enforcement standards.”)

Also worth noting is this article by Robert Chesney, which explains why the Al-Awlaki killing was consistent with international law.  I find his argument persuasive.

In my (tentative) view, the Al-Awlaki killing was permissible under U.S. statutory & constitutional law.  More on that at a later date (hopefully).

Infectious Disease & the Law

In response to comments by H.M. Stuart & one Lee Pierson regarding Steve’s recent vaccination post, I figured I’d take a stab at the legal & constitutional aspects of mandatory vaccination & quarantine measures.  Note:  I’m a layman, not a lawyer, and I haven’t studied this matter in detail; so take what follows with a grain of salt.

1.       From a federal constitutional standpoint, mandatory vaccination is not analogous to the ACA’s individual mandate provision, since vaccination is primarily mandated by state – not federal – law.[1]  Such laws are enacted as part of states’ police power, which does not implicate the strictures of Article I.

2.       State sovereignty is not absolute; the Constitution places many limits upon state action,[2] and empowers federal courts[3] (and sometimes Congress[4]) to enforce these limits.  However, state vaccination mandates have long been deemed consistent with these limits.[5]

3.       Federal & state quarantine authorities derive from the Commerce Clause & state police powers, respectively.[6]  Federal law primarily concerns the military,[7] as well as interstate & foreign travel.[8]  The primary constitutional limit upon quarantine powers isn’t the First Amendment’s association clause, but rather due process & the writ of habeas corpus.[9]

Corrections & comments welcome.

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[1] Kathleen S. Swendiman, Cong. Research Serv., RS21414, Mandatory Vaccinations: Precedent and Current Laws 2-4 (2011), available at http://www.fas.org/sgp/crs/misc/RS21414.pdf.  Federal vaccination mandates do extend to immigrants & the military.  Id. at 7-8.

[2] See, e.g., U.S. Const. art. I, § 10; U.S. Const. amend. XIV, § 1.

[3] See, e.g., Randy E. Barnett, The Original Meaning of the Judicial Power, 12 S. Ct. Econ. Rev. 115, 123-125 (2004); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 948-951, 958, 960, 964 (2003).

[4] See, e.g., U.S. Const. amend. XIV, § 5.

[5] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[6] Kathleen S. Swendiman & Jennifer K. Elsea, Cong. Research Serv., RL33201, Federal and State Quarantine and Isolation Authority 3-4 (2007), available at http://www.fas.org/sgp/crs/misc/RL33201.pdf.

[7] 42 U.S.C. § 266 (2006).

[8] 42 U.S.C. § 264 (2006).

[9] See Swendiman & Elsea, supra note 6, at 12-15.