Balkinization  

Saturday, June 16, 2012

Compulsory burial insurance--It's not only a good idea, but (like gravity), it's the law!

Sandy Levinson

Possibly the stupidest question that arose during the oral argument over the Affordable Care Act was by Princeton-, Yale Law School-educated Samuel Alito, who questioned whether, gasp, the federal government could require persons to buy burial insurance. The very idea.... Leslie Gerwin, who teaches at the Cardozo Law School on, among other things, public health, and I offered our own response to Justice Alito, published at the Huffington Post. I confess I was struck by the first comment following our piece, by one George Hanshaw:
It is NOT the purpose of the Supreme Court to decide issues of public policy. Their purpose is to decide issues of law. Both sides submitted briefs that addressed certain issues of law pertaining to the ACA. Whether the law itself was 'good' or 'bad' from a policy perspective is not in the least germane to that process. The Supreme Court's role is to decide whether or not the LAW of the ACA was consistent with other laws and with the constitution - and moreover ONLY in those areas that were covered in the legal complaints and briefs. THAT is the scope of the decision for the SCOTUS. Whether their decision causes more people or less people to have medical coverage, indeed, more people or less people to DIE is irrelevant to the SCOTUS role. The SCOTUS rules on the appropriateness of the law, not the appropriateness of the policy, and certainly not the outcome.
I don't know if Mr. Hanshaw is a "let the Constitution be obeyed though the heavens fall" or "the Constitution is a suicide pact" kind of guy or not. Perhaps he was equally incensed when Antonin Scalia suggested in one of the habeas cases (where the Court was pretending really to care about the fate of detainees) that it counted against the Court's presumably sincere reading of the Constitutions that Americans might die. I don't deny that there is an available theory of constitutional interpretation that makes Mr. Hanshaw's remarks perfect sensible. One can find it most eloquently set out, for example, in Chief Justice Taney's opinion in Dred Scott or in John Marshall's opinion in The Antelope, which also, not entirely coincidentally, dealt with the "duty" of the "jurist" (who is being distinguished from the "moralist") to be indifferent to any qualms one might have about chattel slavery. But I don't think one can make sense of the American constitutional tradition, whether in its liberal or conservative instantiations, by reference to the kind of positivism embraced by Mr. Hanshaw. Nor, for what it is worth, do I think the American legal culture would accept the elimination of "compelling interest" tests that protect us against a mindless literalism that would treat, for axample, all speech or all religious practices as protected regardless of their harm to vital social interests.

Comments:

Presumably Mr. Hanshaw is fond of falsely shouting fire in crowded theaters.
 

It is a perfectly sensible remark. There's no place in a democracy for unelected, unaccountable policy makers. Judges are not policy makers. They are policy implementers.

Only people who want policies contrary to the will of the people will find the remark offensive.
 

Given that the SG was apparently unwilling to make the concession that you think is appropriate (or required?) here, I am not sure why Justice Alito is the one to blame for asking. Maybe he wanted to know whether the government would make the concession.
 

Given that the SG was apparently unwilling to make the concession that you think is appropriate (or required?) here, I am not sure why Justice Alito is the one to blame for asking. Maybe he wanted to know whether the government would make the concession.
 

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It's not "making policy" to decline to apply a robotically literal interpretation of words. Even at English common law in the 18th C -- where everyone agreed that judges had no ability to overrule the legislature -- the courts used canons of interpretation to prevent that.
 

Yes, actually it IS "making policy", if you let the policy implications drive your interpretation. A judge faces rules other people made, and were entitled to make in ways the judge doesn't like.
 

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"policy implications"

Simply put, it depends what you mean by that. Prof. Levinson cited various antebellum slave cases where judges insisted they were just applying the law.

Turns out that there was more than one way to do that, including in ways that respected more certain underlining principles (such as aiming on the side of freedom when in doubt) that some might call "policy matters" but others saw as basic underlining principles of our legal institutions.

The Constitution's Preamble has certain "public policy" principles too such as the "general welfare" that application of the Constitution should be guided by. This might partially in close questions determine a law passed to protect the health of the nation was "necessary and proper" while one for a vegetable might not be.

Here, the people's will as expressed by Congress & the President supported it. I am not sure as Brett that disagreement with the statement was based on those who want policies contrary to the will of the people. In fact, applying the law at times disrespects public will such as an overly literal application of the text of a statute that refuses to look behind it to see what the will of the people was.

Anyway, the HP article seems to apply constitutional rules -- determining what is "necessary and proper" and the legitimacy of this law would entail weighing various things such as the importance of the coverage provision to advance the ends of the statute that is set forth as a regulation of interstate commerce (such as how many people would get medical coverage).

Even the 1A protections aren't absolute. Certain matters of the most compelling order to "public policy" result in exceptions, such as releasing secrets or dangerous religious behavior. I don't see the clear lines there.
 

Mark:

The United States rejected the English common law 'constitution' in favor of a written constitution.
 

I quite agree with Professor Levinson's post, but I do not see how is it incompatible with positivism (correctly understood). No sane positivist would deny that most constitutional provisions are vague, abstract or ambiguous and that every constitutional interpretation is therefore guided by political or moral choices. Well, of course if by positivist you mean stubborn formalist...
 

Perhaps in the Constitution our yodeler can locate for us specific - or general - provisions for rules governing its interpretation/construction. It lacks a specific provision for judicial review. It lacks a specific provision for judicial supremacy. And the English common law did carryover into American jurisprudence, with variations based upon experience here. As an example, consider the British Somerset decision on the status of a slave brought into a free nation by his master; this was adopted in MA in 1836 and by other states (even in the slave-south). While America may have rejected the "English common law constitution", America did not reject English common law.
 

"Perhaps in the Constitution our yodeler can locate for us specific - or general - provisions for rules governing its interpretation/construction."

Sure: See the 9th and 10th amendments. They represent rules of interpretation.
 

Just to follow up on Joe's point, it's important to keep in mind that the Constitution is not actually the sovereign authority. That was, and remains, the people. The Constitution is a law (Art. VI) passed by the people in their sovereign capacity. That law has to be interpreted in order to effectuate their intent. Mindless literalism fails that test.
 

I agree with Matthew Carpentier, but would go further: legal positivism, whether 'inclusive' or 'exclusive', does not forbid jurists from using moral or policy reasons in reaching decisions. For the 'exclusive' positivist (e.g., Raz, Green, Gardner) this implies only that -- in doing so -- it is reaching outside the existing social sources of law. Of course, it might be unwise to do so, but it is important not to confuse 'positivism' with 'formalism'.
 

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The 9th and 10th Amendment are rules of interpretation but like proofs of God, how does one interpret them?

Basically, they are of limited value, since they themselves need to be interpreted in part by means beyond their text.
 

The 10th A is technically a rule of interpretation, but its actual wording renders it meaningless. At least for those who take literalism, well, literally.
 

Shag:

Apart from the existence of a written constitution, the provisions of the Constitution which prohibit federal common law are the Article III grant of power, the Article V provision to amend the Constitution and by implication the Bill of Rights demanded because the people did not trust the government to respect their liberties without being expressly commanded to do so.

Outside outlaw progressive circles, this is basic hornbook law.
 

Our yodeler is an eerie fellow, since it was determined by the Court in Erie in the 20th century that there is no FEDERAL common law, in a not so swift decision in effect overruling Swift's 19th century decision. But Erie did not overrule common law as adopted/incorporated by the States post colonial days. Our yodeler's earlier reference failed to specify FEDERAL common law. So perhaps he should check the proper section of his hornbook under federalism.
 

"Basically, they are of limited value, since they themselves need to be interpreted in part by means beyond their text."

Yes, the very concept of written law, including rules of interprestation, rests on the assumption of good faith. Once it is absent, they are of no avail at all.
 

"assumption of good faith"

Yes, this is a factor, though the system doesn't merely rely on it. The Constitution was written by realists who knew each side would not always have good faith.

The text is interpreted using various rules of interpretation including history, structure, principle, doctrine and general legal maxims. Public policy, as noted by me and Mark Field in some sense factor in here.
 

@ Hans Oberdiek This was exactly my point. Thank you for reformulating it in a much clearer way, and a much better English than mine.
 

Perhaps Brett needs to be more precise with respect to his "assumption of good faith." There is quite a bit of legal commentary on the "covenant of good faith" in the interpretation of law. See in particular references to "good faith" in the Uniform Commercial Code. Perhaps Brett's emphasis is on "faith" that is "good." Boston Jack Balkin and Sandy Levinson have written about "faith" in the Constitution without necessarily being in agreement on what that "faith" may be. But Brett's "assumption of good faith" may reflect his view of original intent originalism. "Good faith" is more of a technical term in interpretation of law, not a matter of morality. So it seems that Brett is using "assumption of good faith" as a straw horse. Was there an "assumption of good faith" in CJ Taney's Dred Scott opinion? Was there an "assumption of good faith" in the majority decision in Bush v. Gore? Perhaps Brett is leaning on conscience as he perceives it through a narrow lens looking back in time to the good old days of the framing.
 

Further on Brett's "assumption of good faith," consider this start to Kevin Drum's Mother Jones article "Does Money Corrupt the Political Process" (2/22/120:

"In Citizens United, the Supreme Court ruled that the only justification for limiting campaign expenditures was 'corruption or the appearance of corruption.' And since independent expenditures, including those from corporations and unions, don't have any kind of corrupting influence, there's no justification for limiting them."

Was there an "assumption of good faith" in Justice Kennedy's opinion for the Court (5-4)? Surely hindsight what with SuperPacs has been 20-20 with respect to at least the "appearance of corruption." In fact, so was fore sight 20-20. (See Ann Telneas' political video cartoon at the WaPo today on Mitt's new billionaire benefactor who had earlier been Newt's benefactor. Ann does not focus on the foreign money aspect of Adelson contributions.)
 

This whole notion of "or the appearance of corruption" is fatally flawed. We're dealing with the exercise of a basic civil liberty, bad optics by themselves can't justify infringing it, you need genuine evidence of actual corruption, provable in a court of law.

Further, ever since the Court unwisely uttered that phrase, self-appointed reformers have gotten ever more sensitive to the slightest whiff of 'corruption'. To put it bluntly, they define anything the don't like as looking corrupt, including people making genuinely independent expenditures to further the election of candidates they agree with.

The whole idea is so subjective as to be untenable as a basis for restricting speech.
 

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bad optics" isn't the only thing that results with the "appearance of corruption," which is partially why merely the appearance of corruption can lead to a judge not sitting on a case. It taints trust in the system. And, in effect, like peremptory challenges, has a back-stop function of dealing with likely corruption that can't fully be proven.

[as Buckley notes, "stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions"]

It is open to debate, obviously, if this is enough to support various regulations here. Less so, I guess, if you think it obvious and trivialize what is at stake. You need not - speech is protected even when bad results are possible.

'Appearance of corruption' has been a concern in politics and other areas before Buckley v. Valeo cited it in this context. Each side is going to exaggerate. There is a reasonable group all the same, right or wrong, that point more than a "shred."
 

I love the way literalism gives way to metaphor when the topic switches to Citizens United. No longer is it "speech", but now suddenly money "is" speech.
 

Money does talk.
 

How about subjectivity of Brett's "good faith"?

And imagine conflict of interest rules that do not address the appearance of a potential conflict, requiring actual conflicts of interest.

And read through Frank's post above on educational institutions accepting contributions and appearing to then push the interests of such contributors.

Yes, money talks loud and clear, as noted by the Montana court.

And the First Amendment is not absolute with its speech/press clauses or its free exercise/no establishment clauses.

Jack Balkin's reference to "America's Second Gilded Age" has been jump started by Citizens United. Political corruption has many shades, some quite subtle. Do we have to go through another Watergate?
 

"And imagine conflict of interest rules that do not address the appearance of a potential conflict, requiring actual conflicts of interest."

"Conflict of interest rules"? I don't hold any public office, I'm a citizen, and my exercise of my civil liberties is not subject to any "conflict of interest rules".

Campaign censors want to treat everyday life like a special forum, treat citizens discussing the government like people who've undertaken a position of trust. You want to use special cases as an excuse to jam a dirty sock in the mouth of anyone you want shut up.

I don't have to pretend it's a respectable position. It's the sophistry of people who've rejected the values behind the Constitution, and find claims of ambiguity a way of never having to admit the highest law of the land is against them.
 

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"Everyday life" isn't the issue here nor "citizens" like yourself.

Campaigns and public office holders are. They were always regulated and treated in certain different ways.

Brett and Shag, as usual, are talking past each other.

Brett also is quite assured the other side isn't just wrong, but has bad faith. It is not merely one side is wrong. The matter is so clear. They are practicing "sophistry" and reject the values of the Constitution.

I think this mentality is the one that is anti-republican. "Respectable" should not be an epithet.
 

"Campaigns and public office holders are. They were always regulated and treated in certain different ways"

Joe, campaign finance laws don't just apply to office holders or even candidates. Office holders and candidates aren't even the primary targets of these 'reforms'. Tell me, what office did Citizens United hold? What were they running for?

The aim of campaign finance 'reform' is the restrict the speech of everybody else.
 

Federal common law? P'shaw!

What about cases affecting the rights and obligations of the United States? E.g., Clearfield Trust Co. v. United States; United States v. Standard Oil Co.

What about border disputes between states?

What about cases affecting international relations? Act of State Doctrine? Banco Nacional De Cuba v. Sabbatino. Dormant foreign affairs preemption? Hines v. Davidowitz; Zschernig v. Miller. Dormant foreign commerce clause? Japan Line, Ltd. v. County of Los Angeles; Barclays PLC v. Franchise Tax Board. Incorporation of customary international law? United States v. Smith; Sosa v. Alvarez-Machain.

What about all that immunity? Feres v. United States.

What about any of the abstention doctrines?

Where does all this law come from?!

You say Article III contains a provision prohibiting federal common law? Wow! Why didn't someone tell my old professor, Bradford Clark? Maybe then he wouldn't have had to spend much of his academic career devoted to producing scholarly works arguing against federal common law! http://portal.law.gwu.edu/Bibliography/Bibliography.asp?uid=1748

Sorry for the snark, but you should read more cases before making such general pronouncements.

PS, the way the Court goes about adjudicating cases under the Constitution, and even statutes like the Sherman Act, it might as well be engaged in common law law-making. Read David Strauss's "Common Law Constitutional Interpretation." 63 The University of Chicago Law Review 877 (1996).
 

Brett reveals his Citizens United slippery slope concerns with:

"The aim of campaign finance 'reform' is the (sic) restrict the speech of everybody else."

He seems to base this upon his:

" ... campaign finance laws don't just apply to office holders or even candidates. Office holders and candidates aren't even the primary targets of these 'reforms'. Tell me, what office did Citizens United hold? What were they running for?"

Imagine if campaign finance laws just applied to office holders and candidates for office. Through agency, such laws could be avoided. Have someone else do the nasty. That's now basically the SuperPac, with unlimited spending. It helps to have the potential of 16 billionaires funding a presidential election outside of enforceable campaign laws. Citizens United was specially designed by the SCOTUS majority beyond the issues that had been raised by the parties in the litigation, perhaps in Bush v. Gore fashion, to assist the Republican Party. (Recall on the 40th anniversary of Watergate Deep Throat's "Follow the money.") This was a form of judicial corruption. While there are set rules on matters of judiciary conflicts of interest, there are apparently none for SCOTUS Justices.

No, Brett's slippery slope is as imaginary as Justice Scalia's many such slopes. The First Amendment's speech/press clauses work well, as should be obvious from this and other blogs. Campaign financing reform would not prevent Mr. Adelson from buying newspapers and spewing just about whatever he wants whenever he wants. Even with such reforms political campaigns can - and do - get quite nasty. Political campaigns result in decisions that may take 2, 4 or 6 years for a do-over. Some reform - limits - are necessary. This isn't 1789.

It seems clear that Brett favors the power of money -if it supports his causes. The power of money is a real slippery slope, especially Ayn Randian versions that seem to be dominating the GOP. In a confessional for his penance, I would have Brett read C. Wright Mills' "The Power Elite" published in 1956.
 

"Through agency, such laws could be avoided. Have someone else do the nasty."

Where "the nasty" is somebody who doesn't own a newspaper or broadcast station buying time for their own opinions on the race to be aired, at a time close enough to the election that people are starting to pay attention.

Oh, that's really nasty, alright, right up there with a NYT editorial, or a news article in the Washington post. Which you could violate McCain/Feingold by simply reprinting!

Exercising your 1st amendment right to discuss candidates for public office is "the nasty". Sums up the attitudes of campaign 'reformers": Free speech concerning politics is nasty.
 

Brett in his "Daddy Warbuck$" mode identifies the NYTimes and the WaPo, ignoring the Wall Street Journal. These and other newspapers have long histories, supported by readers and advertisers, that can be reviewed to consider political leanings. Readers have to take the step to actually obtain, by purchase or otherwise (Internet, libraries, stealing from neighbors), newspapers. Critiques resulting in corrections are now commonplace with most newspapers. How do newspapers compare with the Citizens United SuperPacs?

Well, quite a bit of SuperPac monies are spent on TV, cable, radio. It is easier to ignore a full page Macy's ad in the NYTimes than SuperPac political ads on TV, etc. If there were a free "app" that would provide viewers/listeners of such media the option to ignore SuperPac political ads, that would prove to be popular. (Some of use would pay for such an "app.") Perhaps Brett thinks that such viewers/listeners seek out SuperPac political ads for repetitive viewing/listening.

With newspapers we have more information/disclosure of those responsible for content. Readers/advertisers of newspapers can more readily challenge - especially economically - crappy, false content. But that's not the case with SuperPac ads. SuperPacs are not part of the Fourth Estate as presently constituted as a result of Citizens United, especially with limited disclosure requirements. And then there are the SuperPacs that obtain favorable income and other tax relief.

One doesn't have to be a mind reader to understand the motivations of the SuperPacs. Accuracy, disclosure be damned. Newspapers could not survive in the same manner. SuperPacs hide the money and its sources, perhaps even accommodating personal tax relief for the contributors.

Both the NYTimes and WaPo have histories attacking both Democrats and Republicans. Their columnists and OpEd pages provide differing political views, usually with disclosures. The fact checking of their content can be embarrassing. Are unnamed billionaire contributors to SuperPacs embarrassed by inaccurate content in their SuperPac ads? No, most likely they approve of just about anything they feel will help their political cause, even though they are not required to say they approve.

I wish Adelson would buy a newspaper to let him put his mouth where his money is - or was! At least there would be sunshine. Maybe we can expect our own "Daddy Warbuck$" to join in a chorus of "The Sun'll come out, tomorrow, betcha bottom dollar ...."
 

"Campaigns and public office holders are. They were always regulated and treated in certain different ways"

Joe, campaign finance laws don't just apply to office holders or even candidates.

They apply to campaign finance. If such and such person cannot freely say everything, such as a lawyer, others are also interfered with in the process.

Office holders and candidates aren't even the primary targets of these 'reforms'. Tell me, what office did Citizens United hold? What were they running for?

Scare quotes duly noted. The "primary target" is campaigns. The regulations only arise in respect to campaigns. More narrowly, the "primary targets" of CU involved certain types of corporations, which "respectable" people note were regulated differently, including in the 1A context, for quite some time.

The aim of campaign finance 'reform' is the restrict the speech of everybody else.

Yes, disclosure laws are not about regulation and "more speech" but merely "restricting" speech. Ditto disclaimer laws. And, laws that would regulate how shareholders in public corporations take part in decision making and if corporations go beyond their incorporation authorization. Or, any number of other possible rules.

Not being "respectable" allows open-ended hyperbole.
 

"Scare quotes duly noted. The "primary target" is campaigns. The regulations only arise in respect to campaigns."

Only in the trivial sense that these restrictions on the political speech of American citizens occur around elections, and candidates typically campaign. Aside from that, they're being applied to people who have nothing to do with the candidates except that the candidates are the topic of their speech.

I treasure discussions like this, because the campaign 'reformers' always reveal themselves as utterly unconcerned with freedom of speech. I guess that accounts for why repealing the 1st amendment is an increasingly popular topic among the 'reformers'.
 

they're being applied to people who have nothing to do with the candidates except that the candidates are the topic of their speech

A disclosure law for some large sum of money given to a candidate has "nothing to do" or some "trivial" thing to do with campaigns? To cite but one type.

I treasure discussions like this, because the campaign 'reformers' always reveal themselves as utterly unconcerned with freedom of speech.

Yes, like me, I am "utterly unconcerned" with freedom of speech. Except when I am over and over again. Being unreasonable and not making nuanced arguments is more fun, I guess.

I guess that accounts for why repealing the 1st amendment is an increasingly popular topic among the 'reformers'

Assume one side of a 5-4 opinion on one aspect of the 1A is correct and that changing something that was only settled doctrine for two years or so now means "repealing" the "1st Amendment" as a whole.

Scare quotes citing a minority of opponents of CU -- most realizing the unlikelihood of amending the Constitution -- duly noted.
 

"A disclosure law for some large sum of money given to a candidate has "nothing to do" or some "trivial" thing to do with campaigns? To cite but one type."

How about disclosure laws for money which ISN'T given to the candidate? Which is what this "DISCLOSE" act actually requires.

I've read these proposed amendments. There hasn't been one of them which would leave political speech any protection to speak of. They all, quite deliberately, strip away all protection for any speech which actually costs anything to have heard.
 

How about disclosure laws for money which ISN'T given to the candidate? Which is what this "DISCLOSE" act actually requires.

How about if when you use words like "trivial" to mean "overboard in some ways," you use the right term?

"Trivial" has a meaning, and you talk about caring about abusing clearly understood words. But, you are so very selective yourself.

Ditto saying things like "leave political speech any protection to speak of." Words have meanings. I can list stuff not covered, just tip of the iceberg stuff, but I did that already. You ignore it.

BTW, the DISCLOSE Act that has "trivial" connection to campaigns? Its function:

"To amend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes."

If it's too broad, fine, the point of having diverse groups, factions, in Congress is to find a proper compromise. Hyperbole and selective responses might be real fun for you, but its not what the system the 1A, the one you think so many of your opponents don't care about, is supposed to be about.
 

Feh, that's "the purpose", which means exactly squat. It's what's IN the bill that matters. You can name a dump heap of a bill "The all things bright and beautiful act of 2012", and it's still a dump heap.
 

Here's a title our resident "Daddy Warbuck$" might appreciate:

"It's a Rich Man's World"

By Thomas Frank, in Harper's Magazine available at:

http://readersupportednews.org/opinion2/277-75/12002-its-a-rich-mans-world
 

The details match the statement of purpose and doesn't change what I said. Both purpose and text matters.

CU left open various regulations. As with Heller, you might not actually like this. But, it does, and if supporters don't even let those regulations pass, the cynicism of the opponents, and support for some ill advised alternatives, is unsurprising.

The result of both sides sneering at the other, not wanting to be "reasonable," will be depressing. It would be like one of these threads. Oh look, there's the pol who uses cute nicknames.
 

Perhaps close to election time we can expect a Citizens United "approved" documentary titled:

"wHIte ANXIETY"

I propose someone photogenic for the Mel Brooks spoof-on-spoof role. Hmmm, who comes to mind?
 

Here's a comment of mine from the Balkinization archives on Jack Balkin's March 28, 2006 post "What Is Living Constitutionalism? Part II

***:

PARTICLE PHYSICISTS AND THE “BIG BANG” COMPARED TO CONSTITUTIONAL SCHOLARS AND ORIGINALISM

While particle physicists are of the view that the Universe continues to expand, they continue to look back light years to the “Big Bang” for its origins. Meanwhile constitutional scholars seem to split into two ranks, one group looking back to 1787-9 for variations of originalism of the Constitution while the other group focuses upon a living Constitution. Physicists look back and forward with the benefit of the scientific method and lots of expensive research to address the past measured in light years, the present and the future. Particle physics has underway an expensive research program in Europe with the Hadron Accelerator to learn more about the past, present and the future. (A dyslexic might wonder why so many millions are being invested at a time when Viagra works well, subject to certain side effects some may consider unfortunate.) If only constitutional scholars could avail themselves of the scientific method, perhaps they could better define constitutional issues we face.

I am not suggesting that the Constitution and its Amendments are the equivalent of the “Big Bang,” but it continues to be explosive. If fact, many are up in arms currently over the Second Amendment. Perhaps the Heller decision may be constitutional law’s “Big Bang.” But one thing that is clear is that the Constitution (like the Universe) is expanding despite, or because of, the battles between the originalists and the living constitutionalists.
# posted by Blogger Shag from Brookline : 10:49 AM

***

I recalled this as I read Andy Koppelman's "Obamcare hater No. 1" at Salon.com, linked to by Andy's recent post here, in his takedown of Randy Barnett.
 

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SCOTUS' Obamacare decision may discover the Barnett Boson, the Libertarian God particle of con/law, Restoring the Lost Constitution! Can you hear Ayn Rand clapping in all that heat?
 

Koppelman:

The most fundamental problem with this constitutional vision is that the Constitution was adopted specifically in order to give Congress power adequate to address the nation’s problems. That is its fundamental and overriding purpose. A situation in which neither the states nor the federal government could solve the country’s problems was what we had under the Articles of Confederation.

No, the Constitution was the product of a debate between men who would today be considered raging libertarians about how small the federal government could be and still function.

The drafters intentionally denied a general police power from Congress and reserved it to the states.

Barnett's war is with the progressive rewrite of the Constitution and not the Constitution as it was written.
 

Our yodeler did not bother to complete Andy Koppelman's penultimate [still my favorite word!] paragraph from his Salon article. Here's what our yodeler conveniently omitted:

"It is precisely what the Constitution was intended to prevent. Yet on Barnett's reading of the Constitution, the existence of large numbers of people without adequate healthcare is a problem no one can address. 'The Structure of Liberty" [Barnett's book] answers the puzzle: Barnett does not believe that there are any common problems that a national government is necessary to solve. In the debate over ratification, he would have been solidly with the Antifederalists. It is odd to read the Constitution as if the Antifederalists had won."

I would add to this the concept of "property" in 1787-91 exulted by libertarian Randy Barnett trumped the "liberty" of slaves. "Raging libertarians" indeed.

Our yodeler's history is as hysterical as is his Hayekian economics. There is of course no pure libertarianism as there are no pure markets. And what, pray tell, were Hamilton and Madison all about? Why was the Articles of Confederation inadequate that led to the Constitutional Convention? One inadequacy was the unanimity requirement of the Articles, which might well have thwarted America's role in the Industrial Revolution.
 

Jack Balkin's June 14, 2012 post "The Puzzle of Political Faith" at this Blog provides a link to his recent paper "The Distribution of Political Faith" respecting a Symposium on his book "Constitutional Redemption," that perhaps provides background for Andy Koppelman's Salon article. Jack's first sentence:

"The original title of Constitutional Redemption - which my publisher prevailed on me not to use - was 'Agreements with Hell.'"

serves as a foundation for his paper. The entire paper is a great read but I particularly enjoyed Jack's discussion of Jamal Greene's Symposium critique of "Constitutional Redemption" and Jack's response focusing on conservative originalism and libertarian originalism relative to interpretation of the 14th Amendment (at pages 1154-1158). While Jack does not refer to Randy Barnett as "Feudal," it seems an apt description. Jack's paper describes the Constitution of 1787-91 as "fallen," which calls for Redemption, for which Faith is required. Restoration would be looking through the wrong end of the constitutional telescope.
 

Jamal Greene's essay "Fourteenth Amendment Originalism" spelling out his views (in 33 pages) is available via SSRN at:

http://ssrn.com/abstract=2066185

pointing out that conservative originalists "devote insufficient attention to the Fourteenth Amendment."
 

Shag:

Randy Barnett's self evident observation that the CC power to regulate existing commerce does not include the power to compel Americans to engage in the commerce iof Congress' choice hardly means that Congress is bereft of powers concerning health care. Kopelman is engaging in hyperbole.
 

I'm not enthused about Balkin's originalism project as some but anyway, there was some good talks at the ACS Convention, including the two lions of the 9CA (Reinhardt and Kozinski) having a debate on federalism.

(Judge) Goodwin Liu had a good speech using Martin King Jr.'s analysis of the parable of the Good Samaritan as a model.

http://www.acslaw.org/news/video/acs-2012-convention-june-14-gala-dinner

Liu got in trouble for some of his writings when nominated as a federal judge though him being mean to Alito after spelling out in 15 pages why he was not a good pick might have sealed the deal.

Liu co-wrote "Keeping Faith with the Constitution" and I think that summarizes the best approach to interpretation; Balkin seems to be playing with originalists. Still thinks he gives them a bit too much credit.

http://www.acslaw.org/publications/books/keeping-faith-with-the-constitution
 

What's self evident to Randy Barnett and our yodeler is not constitutionally self evident to many others. As the punchline says: Nobody eats broccoli any more.
 

Randy Barnett stresses liberty. So it seems the liberty to free ride healthcare is a basic right in the eyes of some libertarians under the Constitution.

The NYTimes Opinionator online for June 22, 2012 features Daniel W. Crofts' "Runaway Masters" about the North's Maj. Gen. David Hunter who tried emancipation in the field prior to Lincoln's Emancipation Proclamation combined with forming troops of Negro Union soldiers in the South. While the article is interesting in its entirety, here's its closing paragraph:

****

Emancipation thus became an official Union war aim, but former slaves failed to secure citizen rights. To make a long story short, the North won the war and attempted to frame a color-blind Constitution, but the white South won the peace and imposed a new form of quasi-slavery. Hunter envisioned a different result. He wanted former slaves to have voting rights and he wanted to disfranchise “every white man in the least degree prominent on the rebel side.” In his view the Confederate South had fought for “the liberty to do wrong” — “liberty to keep four millions of your fellow-beings in ignorance and degradation; — liberty to separate parents and children, husband and wife, brother and sister; — liberty to steal the products of their labor, exacted with many a cruel lash and bitter tear, — liberty to seduce their wives and daughters, and to sell your own children into bondage.” The old warrior could not have been happy at the ultimate outcome.

***

Yes indeed, liberty to free ride property in the form of African American slaves under the Framers' Constitution. And now the liberty to free ride healthcare. But one man's liberty (to do wrong) may be another man's tyranny.
 

Verilli talked about "liberty" at the end of his oral arguments. "Liberty" is one of those open-ended things that both Lincoln and Jeff Davis managed to infuse with meaning.
 

The Sunday Boston Globe Brainiac feature today discusses Allison Orr Larsen's "Confronting Supreme Court Fact Finding" which is available via SSRN at:

Http://ssrin.com/abstract=2009904

which I have downloaded (52 pages) and plan to read in the next day or so. The Brainiac discussion is quite short and available on the Internet. So it seems that the Justices, or at least some of them, may be checking out this and other legal blogs and elsewhere in the Internet in their efforts to get at "facts" that may not be presented in briefs/filings with the Court. Here's Brainiac's closing paragraph:

""What to do? In-house judicial research should either be shut down, [Allison] concludes, or delegated to an independent entity like the Congressional Research Service. If things continue as they are, she warns, opinions at the Supreme Court might become more like the opinions in your favorite online discussion forum."

Perhaps Justice Scalia may use the punchline: "Nobody eats broccoli anymore."
 

Being 4 score+ years means frequently waking up during the night and finding it difficult to fall back asleep. Sometimes a little reading, especially if boring, primes the pump to falling asleep. So shortly after 2:00 AM, I picked up Allison Orr Larsen's article, figuring it might serve as a sleeping pill. But it turned out to be more Viagra-like in that I could not stop reading the article. It was fantastic, finishing it in time to eat breakfast. [No, I don't take Viagra, for fear of the potential side effects, including having to walk around like Groucho Marx for 4 hours or more.]

The article was indeed a great read - eye-opening! [pun intended] -and I made a lot of notations. I wish there were a separate thread focusing on the article as I'm sure others would have much to say about it as well as myself.

This article makes no mention of ACA as it focuses on decisions of the Supreme Court and the utilization by Justices of "in house fact finding" in their opinions. So when ACA is decided, I shall read the decision, concurring/dissenting opinions, with the article in mind to identify any "in house fact finding."

The article includes references to "original intent" in the form of "in house fact finding," including in Heller and McDonald.

And Google is quite prominent in the article since it is used as a means of "in house fact finding." Even Jon Stewart is mentioned. Perhaps we can expect a satirical "out house fact finding" commentary in due course.

The article at one point makes reference to Daubert that should be further explored, particularly regarding "in house fact finding" of scientific matters addressed by Daubert.

Also, while reading the article I thought of CJ Roberts' view of the Justice as Umpire. Imagine an Umpire making a decision based upon something that doesn't happen on the field. Keep in mind the adversary system as well as the Court serving in a minimalist role. How can the parties respond to "in house fact finding" regarding matters not briefed, not on the record?

These are just a few of my thoughts as I may indeed fall asleep soon. So even you youngsters out there, take my advice and don't start reading the article without allotting time to finish it. Like eating pistachio nuts, you can't stop until they're finished.

But one other thought: A Justice may employ Google that might lead to "in house fact finding" not only at the Court but perhaps also from home or even a Smartphone with suitable apps. Do Justices exchange via Email what they might find of interest to other Justices, either selectively or in the aggregate?

I wonder if Sandy thinks this is a matter to be addressed at a Constitutional Convention.
 

No sleep yet. So consider this from Ms. Larsen's article (at page 39):

"Moreover, with the speed at which information can now be disseminated online it becomes possible for those with a stake in the litigation - even if not the litigants - to actually post factual findings and studies manufactured in anticipation of the case's resolution. Without knowing it, therefore, a justice can stumble upon factual information online that was purposefully and quickly posted with the hope that he would find it. If, at trial, an expert relied on data or a study that was generated with an eye towards the litigation at hand, that fact would certainly be brought up by an opponent (and even perhaps the study would be deemed unreliable and screened out under Daubert)). But if the study is instead discovered by a judge in house, there is no similar screening mechanism in place to stop it from becoming an authority."

This can also apply to legal arguments, perhaps explaining Randy Barnett's recent proliferation of postings at VC and opening them for comments, in his seeking his "Revenge for Raich" and a cure for "Wick-burn."

Finley Peter Dunne's Mr. Dooley might posthumously say: "The Supreme Court follows the blogs."
 

Shag:

So it seems the liberty to free ride healthcare is a basic right in the eyes of some libertarians under the Constitution.

The fact that government mandates compelling the health care industry to provide treatment create a monster free rider problem does not grant Congress the power to mandate that we all buy government designed health insurance.

Also, while reading the article I thought of CJ Roberts' view of the Justice as Umpire. Imagine an Umpire making a decision based upon something that doesn't happen on the field.

"In house fact finding" to determine the original meaning of the written law is very much "on the field." Unless the court is trying to develop its own record of the case, I do not see the problem.
 

Perhaps our yodeler thinks that Ms. Larsen's article, because of my praise for it, is liberal versus conservative. Actually, the article is non-partisan, pointing out that most if not all of the Justices engage in "in house fact finding." I have the feeling that our yodeler has not read the article and does not understand the issues raised by it.

But my comment about the Justice as Umpire was a demonstration of the dumbness of C.J. Roberts' view expressed to the Senate of his role on the Court. How can a party challenge a Justice's "in house fact finding," especially when it is pulled out of the Internet without an opportunity for such finding to be challenged for bias, accuracy and fairness?

The article is not partisan, raising important questions on the role of the Court.
 

Shag:

I was commenting on the quoted sections of your post and not the Larsen article, which I have not read.

When I address a third party's work, I will note the author like I did with Prof. Koppelman above.
 

So an Umpire making a decision at Yankee Stadium on a play at home plate might consider something that happened in Fenway Park?
 

With respect to the quoted portion from my earlier comment in our yodeler's response, the following is from page 39 of Ms. Larsen's article:

"The answer my depend on the subject matter of the fact. Some legislative facts are the sort a Justice is well-equipped to evaluate on his own and other facts are not. Today's Justices are all lawyers and have experience studying American history, for example, so perhaps it matters less that they unearth historical documents on their own as opposed to medical journals or raw data.191"

"191 Of course, this argument is far from infallible. For one thing, not everyone agrees that the task of 'reliably identifying original intent' falls within judicial competence as opposed to trained historians. Faigman, Constitutional Fictions at 91 ('Complicating matters substantially is the the challenge that history as a discipline is rarely able to provide definitive proof and is very susceptible to the bias of the age in which it is done')."

It has been pointed out that in both Heller and McDonald both sides of the 5-4 divide had been erroneous on matters of history. Ms. Larsen's article points out that some of that history, on both sides, was "in house fact finding."

So let me repeat the entire paragraph of my comment that our yodeler had only quoted in part, for context:

"Also, while reading the article I thought of CJ Roberts' view of the Justice as Umpire. Imagine an Umpire making a decision based upon something that doesn't happen on the field. Keep in mind the adversary system as well as the Court serving in a minimalist role. How can the parties respond to 'in house fact finding' regarding matters not briefed, not on the record?"
 

Prof. Balkin cites Linda Greenhouse (who's "Very Short History of the Supreme Court" is about as quick to read as one of Shag's long law review articles) and her June 13th column seeking insights on a little known case is interesting:

http://opinionator.blogs.nytimes.com/2012/06/13/when-enough-is-enough/?ref=lindagreenhouse

The Nation also has a John Nichols article flagging something I myself wondered: last week's union fees case required non-members at a work place have a right to vote on how their funds are used. Do shareholders, including those who usually don't have power over policy, also have such rights in corporations?

Solicitor General Kagan noted something of the kind and was told that one can simply sell one's shares. But, the ability to leave the job wasn't enough in the case last week (which split the liberals, though two accused the majority of being "activist").

Are unions second class citizens?
 

Shag:

Researching legal history to determine the original meaning of the law is indeed within the competence of the judiciary. The court should not be engaged in any other fact finding.

Reliance on "trained historians" involves a great deal of risk because historians get published by offering controversial new takes on history, their opinions are generally informed by their politics and their politics are skewed sharply to the left. Indeed, the work of multiple "trained historians" concerning the Second Amendment has been exposed as outright fraud.

That being said, our adversarial system of justice would recommend that the parties be able to respond to judicial research. The dissent in Heller and to a lesser extend Scalia certainly could use an education.
 

Joe:

The Nation also has a John Nichols article flagging something I myself wondered: last week's union fees case required non-members at a work place have a right to vote on how their funds are used. Do shareholders, including those who usually don't have power over policy, also have such rights in corporations?

A shareholder voluntarily buys and holds stock. If they are a minority and do not agree with the politics of the company, shareholders can sell their stake in the corporation.

In CA, all government employees are compelled to belong to a union and pay that union dues. This closed shop system is imposed because, if you give employees a choice as WI has, they will leave the union in droves.

Under this involuntary arrangement, the Courts have granted compelled union members the option to opt out of paying for union political speech in which they do not agree. This still makes union members second class citizens compared to shareholders in that they forfeited their freedom of association.
 

The Court's refusal to reconsider Citizens United in its 5-4 per curium decision on the Montana case makes it clear that corporations as citizens ride first class (and unions second class as Joe suggests), as the 5 seem reluctant to accept the short history of SuperPacs following Citizens United as "in house fact finding" demonstrating the appearance of corruption, witness in particular Mr. Adelson. Of course this was a political statement on the part of the 5 [which one of them is man enough to say he wrote it?] on the November elections as was Justice Scalia's diatribe in his dissent on the Arizona immigration case with his reference to an event that took place well after orals in that case. Perhaps this was Scalia engaged in "out house fact finding."
 

A person voluntarily gets a job. In fact, more voluntarily in various instances than how their retirement funds might be invested. The average person chooses more in the former case.

As to the law generally, one does not have a "freedom of association" to choose how governments structure their own employment. If a state thinks unions are the best approach, they can set up employment that way.

The freedom of government employees to speak in the context of their jobs has been limited in multiple opinions for decades. The freedom of association works the same way. I reckon BP thinks the Pickering line, e.g., was wrongly decided.

In this sense, the government itself (which we all are a part of in the end) is the "association" in question. If the people want a new rule there, they can vote for one. The rules as to changing things by direct vote looser in CA.
 

Joe:

"As to the law generally, one does not have a "freedom of association" to choose how governments structure their own employment. If a state thinks unions are the best approach, they can set up employment that way."

That is an interesting theory given that PEUs are in a nominally adverse position to the government. In reality, PEUs are a corrupt bargain where Dem politicians force government employees into a union in exchange for union contributions to the politicians - all on the taxpayers' and government employees' dime.
 

My vote in Jack's case naming scheme is "the Obamacare cases." The author of this unconstitutional debacle should be enshrined in the name of the reversal. Sort of like the FDR court packing scheme.
 

If Jack Balkin wants to ask rhetorical questions, okay, but comments can make them ones we can respond to.

The government sets up various things, such as public defenders, that can in the end represent clients who challenge the government.

But, I do try to be interesting.
 

I ask our yodeler to name names to support his:

"Indeed, the work of multiple trained historians' concerning the Second Amendment has been exposed as outright fraud."

Notice I used the plural - "names." Further, was any such alleged outright fraud presented to the Court in Heller and/or McDonald? If so, cites please.
 

Shag:

Michael Bellesiles and his fictional America: The Origins of a National Gun Culture is the most infamous.

However, fraudulent "research" to support firearm prohibition has a long and sordid history.

http://www.firearmsresearch.org/content.cfm/article_summary?article_id=3474#
 

As I had expected, our yodeler came up with only one name. And that historian had been exposed well prior to Heller and McDonald. So once again our yodeler has demonstrated a Joe McCarthy accusation technique with his:

"Indeed, the work of multiple trained historians' concerning the Second Amendment has been exposed as outright fraud."

But of course Scalia's and other Justices' "law office history" is not sordid - or outright fraud?

With regard to the link provided by our yodeler, perhaps some viewers recall the "history" of Mr. Lott, speaking of sordid. And there are references to Glen Beck as well.

So I ask our yodeler again whether there was:

" ... any such alleged outright fraud presented to the Court in Heller and/or McDonald? If so, cites please."
 

While being sleepless in Brookline, I learned of the passing of Nora Ephron, a lady with a sense of humor. One of her latest books was a memoir "I Remember Nothing," which came out about the same time as George W. Bush's "Decision Points," which, she said, could also have been titled "I Remember Nothing." Her works, especially her movies, will live on. Maybe I should go to a deli and ....
 

Re: Joe's question "Are unions second class citizens?" and our yodeler's exchange of comments with Joe thereon, take a peek at Harold Meyerson's WaPo column 6/26/12 "Class war at the Supreme Court?" at:

http://www.washingtonpost.com/opinions/harold-meyerson-class-war-at-the-supreme-court/2012/06/26/gJQAuffO5V_story.html?hpid=z2
 

By the Bybee [expletives deleted], didn't the Supreme Court validate the 1850 Fugitive Slave Act with its mandates requiring citizens to serve the economic interests of slaveowners? Keep in mind that the Framers provided for such an act in the Constitution of 1787-91. But these mandates were much harsher than ACA's mandate "infiringing" upon the libertarian right of free riding on healthcare.

(It's time for breakfast.)
 

Second Amendment followers might check out Eric A. Posner's review, in The New Republic, of Adam Winkler's "Gunfight: The Battle Over the Right to Bear Arms in America" at:

http://www.tnr.com/book/review/gunfight-adam-winkler

Note the brief discussion of originalism on Heller.
 

Shag:

I did extensive research in law school on the Second Amendment's original meaning for a law review article about the same time Sandy wrote his famous article on the subject. Scalia got most of his Heller opinion right. His only questionable finding that the Second Amendment is analogous to the right of self defense. In fact, the Second Amendment was written by a group of revolutionaries to arm the citizenry as a check on the government, a concept that is nearly incomprehensible to today's legal elite.
 

Perhaps our yodeler could provide a cite to his law review article.

Regarding our yodeler's comment on Scalia in Heller, I'll provide further comment this afternoon. But I wonder if our yodeler has read Winkler's book or any of his articles on guns, the Second Amendment and follow up to Heller and McDonald.
 

Shag:

My Florida State University Law Review declined to publish the article because the editor said, and I quote: "We cannot publish more than one Second Amendment article per class."

I put hundreds of hours into that piece and was not happy.

It worked out in the end, though. I submitted an abbreviated version of the article to an NRA law school essay contest and won first place and five grand.
 

Shag:

"But I wonder if our yodeler has read Winkler's book or any of his articles..."

Currently, I only keep track of the evolving federal Second Amendment case law to see how it impacts Colorado law and my practice in a rural area where nearly everyone owns a firearm. The rest of my time has been dedicated to my firm, current book and two others I am working on, and blogs.

Does Winkler actually offer anything new concerning there original meaning of the Second Amendment? I have better things to do than waste my time on yet another attempt at revisionism.
 

How much of an NRA toady was our yodeler with this:

"It worked out in the end, though. I submitted an abbreviated version of the article to an NRA law school essay contest and won first place and five grand."

Does NRA have this archived and available to the public?
 

For the third time:

"So I ask our yodeler again whether there was:

" ... any such alleged outright fraud presented to the Court in Heller and/or McDonald? If so, cites please."

It is so easy for our yodeler to make blanket accusations and ignore challenges.
 

Winkler with Tina Mehr published "The Standardless Second Amendment" (only 9 pages) at the ACS website in October 2010 focusing on post-Heller/McDonald federal lower court decisions that for the most part have upheld Second Amendment limitations along the lines of Scalia's limitations-dicta in Heller that Alito picked up in McDonald. I'm searching for an update.

I recall our yodeler even before Heller/McDonald decisions came down bragging having a Second Amendment case ready to be filed. Could it be that this limitations-dicta has created a problem for our yodeler, who seemed to be a Second Amendment absolutist?

My library has Winkler's "Gunfight" which I soon hope to be packin'.

Also of interest is David Thomas Konig's May 2012 paper (23 pages) "Heller, Guns, and History: The judicial Invention of Tradition" available via SSRN at:

http://ssrn.com/abstract=2081973

At pages 187-197, the focus is on Scalia in Heller and some bad history, especially Scalia's use of a portion of Sen. Charles Sumner's lengthy speech out of context in "proving" an individual - as opposed to a militia collective - Second Amendment right. Also, Konig shows how slavery was used for this same purpose, in that plantation owners feared slave insurrections requiring self-defense, as those poor plantation owners were out numbered. Konig also brings in Roger Taney's Dred Scott opinion.

In an earlier comment, I had made reference to Scalia's political rant against Obama in his dissent in the AZ immigration case. E.J. Dionne, Jr. has a column dated 6/27/12 "Justice Scalia Should Quit" that focuses on this rant and a recent speech. Here's a link:

http://www.tauntongazette.com/newsnow/x425601344/E-J-DIONNE-With-inability-to-be-impartial-Justice-Scalia-should-quit-the-court
 

In my adult lifetime, I have survived Richard "Tricky Dick" Nixon twice ('52, '68) and the Court in 2000 (Bush v. Gore, 5-4) and in 2010 (Citizens United, 5-4). (But we'll always have Brown v. Board of Education ('54, 5-4), won't we, or is this the real target of the attack on our first African-American President as we approach the drumroll of the Court's ACA decisions?

Jack's AP nocturnal emission [H/T to Stephen Colbert] "Supreme Court Strikes Down All Laws Signed By Barack Obama" suggests another "Robing Room" schtick may be in order. I'm working on various alternatives, with the Tony Awards theme, featuring Fat Tony and Skinny Tony. Surely there will be a role [silent] for Unk, with "Mr. (CJ) Roberts" protecting a potted plant (Raich). Of course there will be the soothing Breyer flavor du jour, especially if Fat Tony is preparing for another rant. [See Ann Telnaes' animated cartoon at the WaPo today that displays some underwear - with hearts? - with Fat Tony jumping in his robe as he rants.]
 

Given that the SG was apparently unwilling to make the concession that you think is appropriate (or required?) here, I am not sure why Justice Alito is the one to blame for asking. Maybe he wanted to know whether the government would make the concession.
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Shag:

"But I wonder if our yodeler has read Winkler's book or any of his articles..."

Currently, I only keep track of the evolving federal Second Amendment case law to see how it impacts Colorado law and my practice in a rural area where nearly everyone owns a firearm. The rest of my time has been dedicated to my firm, current book and two others I am working on, and blogs.

Does Winkler actually offer anything new concerning there original meaning of the Second Amendment? I have better things to do than waste my time on yet another attempt at revisionism.

ensure vs insure
 

Where does the phrase "shouting fire in a crowded theater" come from? I hear it all the time, but only recently. Secondly, in accordance with giorgi's comment, I agree when it comes to revisionism. I've had enough with people who are constantly attacking old ways just because they are old. This is especially true when it comes to law. Practicing lawyers and Denver truck accident attorneys need to be super careful.
 

When my grandpa passed away a denver personal injury lawyer told us about this. How much is this insurance? Is it the same in every state?
 

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