The Volokh Conspiracy

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The Volokh Conspiracy

Volokh Conspiracy

"United States"—Plural vs. Singular

When did the change happen, and how quick was it? [UPDATE: For more comprehensive data, see this post.]

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A commenter on the Republic/Democracy thread mentioned the shift from "United States" being seen as a plural noun—e.g., the Constitution's "Treason against the United States, shall consist only in levying War against them" or the Thirteenth Amendment's "Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction"—to the modern treatment of the "United States" being singular ("the United States is …").

This reminded me of an earlier post, which cites an item by Mark Liberman (Language Log). Liberman was commenting on the assertion that,

Before the war, it was said "the United States are." Grammatically, it was spoken that way and thought of as a collection of independent states. And after the war, it was always "the United States is," as we say today without being self-conscious at all. And that sums up what the war accomplished. It made us an "is."

Liberman investigated—see the link above for the start of his investigation—and discovered that, according to Minor Myers, Supreme Court Usage and the Making of an 'Is', 11 Green Bag 2d 457 (2008), usage changed quite gradually, at least in the Supreme Court. To quote Myers,

This survey examines use of the phrases "United States is" and "United States are" in opinions of the United States Supreme Court from 1790 to 1919. It demonstrates that the familiar claim about the timing of the change is not accurate. In the Supreme Court, the plural usage – "United States are" – did not end with the Civil War. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely….

The Civil War does not appear to have altered the Supreme Court's usage in a fashion as dramatic as [some] have suggested. In the 1860s, the usage pattern shifts away from "are" and toward "is," and it is during that decade that usage of "is" first predominates. But the change is not wholesale – "are" and "is" were used roughly equally in the 1860s. In the following decade, Court usage reverted back to antebellum patterns. For the remainder of the nineteenth century, plural usage predominated in Supreme Court opinions, though by slowly declining margins.

Volokh Conspiracy

No First Amendment Right to Display Van as "Lawn Ornament"

And that's so even if the van is red, white, and blue.

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From De Pere Ledgeview Municipal Court v. Knaus, decided today by the Wisconsin Court of Appeals:

In August 2015, the Town sent Knaus a letter advising him, among other things, that an old vehicle kept outside on his property did not comply with a Town ordinance [which generally bans "leav[ing] or allow[ing] to remain on the property any motor vehicle which is abandoned, junked, or hazardous"]. The Town requested that Knaus propose how to rectify this purported violation. Knaus responded via letter that the vehicle was a "van lawn ornament" ….

Knaus … insists that his rights to "Freedom of Speech and Expression" allowed him to display his "lawn ornament van" on his property, citing his vehicle's red, white and blue paint job as "show[ing] patriotic expression." As the circuit court noted, that Knaus may consider his vehicle a "lawn ornament" does not excuse the vehicle from compliance with [the ordinance]. And even if Knaus's "lawn ornament" could qualify as protected speech under the First Amendment, that alone does not render invalid either the ordinance or the Town's enforcement of it. See Ward v. Rock Against Racism (1989) (government may impose regulations on time, place and manner of speech if they are content-neutral, narrowly-tailored in service of a legitimate governmental interest, and do not foreclose all avenues of speech)…. Knaus does not cite any authority or develop an argument on this issue, so we decline to address it in any greater depth….

Sounds right to me. Indeed, if the law focused on the designs (e.g., barring any vehicles painted in American flag colors), it would be unconstitutionally viewpoint-basde—but a content-neutral restriction aimed at promoting aesthetics is constitutional, at least so long as it leaves open ample alternative channels for speech (such as via flags, signs, and the like), see City of Ladue v. Gilleo (1994). One can debate whether such aesthetic regulations improperly restrict people's property rights; but a content-neutral ban on having junked vehicles on one's property doesn't violate the First Amendment, regardless of the vehicle's paint job.

Volokh Conspiracy

Does Jury Nullification Undermine the Rule of Law?

In theory, yes. But not in the world we actually live in, where law enforcement is already rife with numerous discretionary decisions made unavoidable by the fact that we have far too many laws.

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In a recent post at the Law and Liberty website, conservative legal commentator Mark Pulliam takes issue with defenders of jury nullification, including myself. Jury nullification occurs when jurors acquit a defendant who they believe to be guilty because they conclude that the law he or she violated is unjust or carries overly harsh penalties. Pulliam's main concern is that nullification could undermine the rule of law:

The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century's pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek's words: "[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free." Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek's view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case "that it can be said that laws and not men rule.

There is some truth to this argument. Relative to a system where laws really are "uniformly applied, without excessive discretion," jury nullification can indeed undermine the rule of law. This sort of consideration is one of the reasons why I used to oppose jury nullification myself. But, sadly, we do not in fact have such a system. In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce—and vastly more violators thereof than the authorities can possibly go after. The data indicate that a large majority of adult Americans have violated federal criminal law at some point in their lives—to say nothing of the many state and local laws. Some 52 percent admit to using marijuana in violation of both federal law and that of many states; the true percentage of users is likely higher, as some may not be willing to admit it to pollsters.

With so many lawbreakers to choose from, police, prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials. I expanded on that point here:

The case for jury nullification today is strengthened by the enormous growth of modern criminal law, which has expanded to the point where almost all of us are guilty of some crime or other…. In a world where almost everyone is a criminal, there is already enormous arbitrariness, because prosecutors can only go after only a small percentage of the many perpetrators. Jury nullification is unlikely to make that situation worse than it already is.

Moreover, many of the crimes on the books are ones that either should not be illegal at all, or should not carry such harsh penalties. As a practical matter, jury nullification is much more likely to target those kinds of laws than ones that rest on a broad social consensus to the effect that the activities they ban should be criminalized and violators subjected to severe punishment.

Even in a legal system with less discretionary authority than our own, jury nullification might still sometimes be justified. Consider a deeply unjust law such as the Fugitive Slave Act of 1850. Even if it were enforced in a predictable, uniform, and nondiscretionary fashion, it would still be a great evil; in some ways it would be an even greater evil than if officials let many violators go. And conscientious jurors would be justified in nullifying it (as some northern juries in fact did). The rule of law is an important value. But it is not the only important value, and can sometimes be outweighed by other considerations.

This is not to say that jury nullification is a magic bullet for all the ills of our criminal justice system, or even that it is always a good thing. Ultimately, the best solution to the problem of overcriminalization is to cut back on the amount of criminal law.

And jury nullification can sometimes be used for bad ends, as well as good ones—such as the notorious Jim Crow-era cases where all-white jurors acquitted whites guilty of racially motivated crimes against African-Americans. In this day and age, where racial prejudice is less severe than fifty years ago, and minorities are themselves able to serve on juries to a far greater extent than in the days of segregation, I believe the benefits of nullification outweigh the risks. But we certainly should not ignore the latter.

In a more ideal legal system, where the amount of law is strictly limited and there are few or no unjust restrictions on liberty, there would be little if any legitimate role for jury nullification. In the far more problematic system we actually have, it is a useful check on government power that deserves support, even as we remain aware of potential downsides.

Volokh Conspiracy

The United States Is Both a Republic and a Democracy

"Democracy" has long included representative democracy as well as direct democracy; and "Republic" was used by the Framers to refer to regimes that were not representative.

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[A couple of items I read in the last several days—including one I'll blog about later this week—lead me to write again about this question, adapting some items I wrote up when we were at the Washington Post site.]

[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them" — we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives" — we are that, too.

The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.

[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.

Likewise, James Wilson, one of the main drafters of the Constitution and one of the first Supreme Court justices, defended the Constitution in 1787 by speaking of the three forms of government being the "monarchical, aristocratical, and democratical," and said that in a democracy the sovereign power is "inherent in the people, and is either exercised by themselves or by their representatives." Chief Justice John Marshall — who helped lead the fight in the 1788 Virginia Convention for ratifying the U.S. Constitution — likewise defended the Constitution in that convention by describing it as implementing "democracy" (as opposed to "despotism"), and without the need to even add the qualifier "representative."

Sir William Blackstone, who was much read and admired by the framers, likewise used "democracy" to include republics: "Baron Montesquieu lays it down, that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil …." Holland was of course a republic, and England was compounded of monarchy and government by elected representatives; Blackstone was thus labeling such government by elected representatives as a form of "democrac[y]." The same is so today. America is a democracy, in that it's not a monarchy or a dictatorship. (Some people claim it is too oligarchic, in which case they'd say America isn't democratic enough — but again they'd be distinguishing democracy from oligarchy.) America is not a democracy in the sense of being a direct democracy.

[3.] And the Framers didn't just refer to representative government as democratic—they referred to direct democracy as a republic.

One way to get at this is to ask: What is the first nation that you think about when you hear the word "Republic" today, and that the Framers likely thought about? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed as a republic. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis. (If someone suggests that the Senate was Rome's elected representative legislature, you can point out that it was not elected, not representative, and not a legislature.)

Roman lawmaking was thus direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate — such as one of the 10 tribunes of the plebs — and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic — indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic." (Profs. Akhil Amar and Rob Natelson have written more extensively on this.)

[4.] Today, "republican" does tend to refer more to representative systems, but "democratic" often refers to following the will of the people, whether through direct democracy or representative democracy—the precise meaning differs depending on the context. If you're asking whether to do something by direct ballot or by representative processes, you might ask whether we should be more democratic or more republican. If you're asking whether China would be better off giving more power to Chinese voters, you might ask whether it should be more democratic or less democratic, quite apart from whether you think the democracy should be direct or representative.

To be sure, in addition to being a representative democracy, the United States is also a constitutional democracy, in which courts restrain in some measure the democratic will. And the United States is therefore also a constitutional republic. Indeed, the United States might be labeled a constitutional federal representative democracy.

But where one word is used, with all the oversimplification that this necessary entails, "democracy" and "republic" both work. Indeed, since direct democracy — again, a government in which all or most laws are made by direct popular vote — would be impractical given the number and complexity of laws that pretty much any state or national government is expected to enact, it's unsurprising that the qualifier "representative" would often be omitted. Practically speaking, representative democracy is the only democracy that's around at any state or national level. (State and even national referenda are sometimes used, but only for a very small part of the state's or nation's lawmaking.)

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