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The Mailbag: Responses to Reader Comments on the Electoral College, Religious Freedom, Defamation, and Signing Statements

By Wilson Huhn Published: July 9, 2009

     Here are responses to reader comments over the past week on a variety of topics.

    In response to my post yesterday about Sarah Palin's threat communicated through her attorney to sue bloggers like Shannyn Moore who reported that there were rumors that Palin resigned because of some wrongdoing that is being investigated, Buddy Toledo asked whether Shannyn herself is a public figure who would be limited by the rules of New York Times v. Sullivan if she (Shannyn) were to sue Governor Palin for defamation.  Off the top of my (pointy little) head, Buddy, I would say 'Yes she is!'  She writes a blog read by millions of people.  Buddy also states: 

     I could sure use a recap about the "matter of public concern" (or something like that) standard too.

      What a gentle way for Buddy to remind me that I forgot to mention that the severe standards of New York Times v. Sullivan apply to public officials and public figures only if they are defamed with respect to "a matter of public concern."  Published inaccuracies about purely private matters remain actionable under the rather generous rules of the common law of defamation.  When public officials and public figures are defamed about something that is utterly private and not connected with their fitness for office or the matter for which they are famous, they still have the burden of proving that the statements regarding matters of private concern were false, but they only have to prove that the statements were negligently made, they only have to prove their case by a preponderance of the evidence, and they can recover punitive damages if the defendant published the untrue statements of a private nature with 'actual malice.'  But this brings us to an important difference between Shannyn Moore and Sarah Palin.  Unlike Governor and former Vice-Presidential candidate Sarah Palin, I think that Shannyn would be a public figure only with respect to her blogging ' only to that extent has she thrust herself into the vortex of public consciousness.  Governor Palin, on the other hand, has sought or become the focus of attention into virtually all aspects of her life.  Like a rock star Palin has precious little privacy, either constitutionally or realistically.  That's a horrible position to be in (isn't it, John Edwards, Mark Sanford, and a host of others) and this situation seems to have contributed to her decision to resign from the governorship. 

     In Tuesday's post about how we elect the President I thought that I had made a compelling argument for amending the Constitution just by quoting language from Article II, Section 1, which provides that 'Each State shall appoint, in such Manner as the Legislature thereof may direct,' the Presidential Electors.  In other words, the Constitution does not guarantee individuals the right to vote for President ' instead, under the Constitution the state legislatures have this right.  Dave apparently thinks that this is just fine, and he goes one step further and advocates repeal of the 12th Amendment!  Dave writes: 

     No way, I wouldn't change much! The Electoral College is one of the most brilliant ideas of our founding fathers. I wouldn't mind laws that freeze things where they are now. You were not a big fan of my earlier at-large congressmen idea.

     The power of the state legislature is not absolute. They are accountable to the voters. And weren't there some unsuccessful attempts for states to term limit themselves that were overturned in courts?

     I would like to go back to the idea of the Vice-President (and therefore the President of the Senate) being the Presidential candidate that finished second. I think there should be some healthy friction between the legislature and the executive branches.


      Taking the last argument first, our country adopted the 12th Amendment because of what happened in the election of 1800.  Under the original Constitution each Presidential Elector would vote for two persons, and the candidate with the most Electoral votes would be President and the one with the second most votes would be Vice-President.  Aaron Burr and Thomas Jefferson ran as a ticket and each received the same number of Electoral votes, even though it was understood that Jefferson was to be President and Burr was to be Vice-President.  Burr was not what you would call a 'team player' and he tried to wrest the Presidency away from Jefferson.  Jefferson won because Alexander Hamilton threw him the support of the Federalist Party - Hamilton despised Jefferson but he knew that Burr had a traitorous heart, and he stopped Burr in his tracks.  Four years later Burr repaid Hamilton and then some.  Anyway, the 12th Amendment was swiftly adopted before the next presidential election to provide that each Elector would cast one vote for President and one vote for Vice-President.  Dave, if our society hadn't made that change I think that over the last two centuries we would have witnessed more than a few coup attempts.  In my opinion things work much better when the Vice-President has the same amount of power and influence as a potted plant.  (I'm lookin' at you, Dick Cheney!)

     Also, Dave, I oppose the Electoral College because of a little thing I like to call 'democracy.'  We hold elections and respect the principle of majority rule precisely because each individual has an equal right to participate in the governance of society.  Our ancestors fought a revolution in support of the idea that no person has any inherent right to rule any other person.  To the extent that we accept undemocratic practices and institutions like the Electoral College, malapportionment, gerrymandering, the committee system, or the filibuster, we derogate the principle that 'all men are created equal.'  

     In response to my post about restrictions on the veil and the burqa, N.E. Frye writes:

     But freedom of religion is no more absolute than any other right. There have been many religions that practiced human sacrifice; I presume it would not be protected, and there have been court cases involving a parent's right to refuse medical treatment for a child etc. Brutality as a part of exorcism has been prosecuted successfully I believe.

     I have no particular problem with head coverings or even face coverings, but where there is some reasonable need for accurate identification, it seems the government can reasonably demand a clear proof of identity. You don't have to show your face, but we don't have to let you on the plane or into the federal building or whatever.


     I agree with you Frye, which means, I suppose, that one of us is losing his grip.  You are correct that 'freedom of religion is no more absolute than any other right.'  Of course, the right to religious belief is absolute, while religiously motivated conduct may be regulated to some degree.  As you note, parental behavior that amounts to child abuse or neglect, whether religiously motivated or not, is punishable.  Furthermore, according to the conservative justices on the Supreme Court, religious freedom receives even less protection than other rights.  Pursuant to Justice Scalia's decision in Employment Division v. Smith (1990) when the government enacts a general law that imposes a substantial burden on the free exercise of religion, the law is subject only to the 'rational basis' test ' it is constitutional so long as there is any rational basis for the law ' and the court does not subject the law to 'strict scrutiny.'  It is only those naughty, activist, liberal judges who think that it is unconstitutional for the government to interfere with an individual's religiously motivated conduct unless the government can prove that it has a compelling reason to support the restriction.

     Both the Reverend and Miss Terby responded to my post about Obama's signing statement reserving the right to conduct diplomacy with the World Bank without being controlled by Congress.  The Reverend states:

     Signing statements become a "third way" to avoid complying with specific details of legislation, even though the Constitution is silent on signing statements.

     The very reason presidents issue signing statements is political in nature. If a president vetoes a bill because it includes specifics he has no intention of following, opposition politicos will use the veto as proof that the president is "against the troops", or some such tripe.

     If America fails .it will be because our federal leaders can no longer do the right thing. Pragmatism wins and the nation's rule of law suffers.


     Miss Terby adds:
     Not to mention that Candidate Obama denounced signing statements and vowed not to use them. This seems to be just one more example of Obama finding out that things are a bit different when you are actually the president than they are on the campaign trail. It's much easier when you don't have actual decisions to make.

     I agree with you both.  I'm against pragmatism and for it, too, depending on the circumstances.  :)

     Tomorrow, some predictions about Sotomayor, speculations about Rove, and an analysis of the proposed amendments to the Military Commissions Act.

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