Berkeley part 2: South Dakota v. Dole

Lat night on The O'Reilly Factor, Bill O'Reilly had a spirited argument with his network's legal analyst, Judge Andrew Napolitano. The Judge made clear that he did not condone the City of Berkeley's actions trying to kick the Marines out of town, but he objected to the idea of Congress withholding federal funds from Berkeley in response to the action. This, the Judge asserted, would constitute an infringment on the Berkeley Council's free speech rights.

There is certainly a good deal of merit in Napolitano's thoughts, given that in our democracy we prize freedom of speech over almost any other value of liberty. As Oliver Wendell Holmes wrote almost ninety years ago:

"(The Constitution) is an experiment, as all life is an experiment... While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

With that in mind, I still have no objection to Congress denying funds to Berkeley. I think a notable precedent here is South Dakota v. Dole, 483 U.S. 203 (1987), in which the Court refused to invalidate Congressional legislation withholding five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota challenged the law, arguing that both the powers reserved by the states in the Tenth Amendment, and the state and local authority over liquor acknowledged in Section 2 of the Twenty-first Amendment were violated by Congress's action (Dole at 205, 210). The challenge was unsuccessful; the Court sided with Congress.

While South Dakota may have been putting its share of the highway funds in peril by having a drinking age of eighteen, the state was not directly attempting to prevent the federal government from exercising an enumerated power. That is, however, exactly what the Berkeley City Council is trying to do by forcing the USMC recruiting center out of their town. As I mentioned in my previous post, Article I, Section 8 of the Constitution expressly gives the federal government power to raise military forces; maintaining recruiting centers is quite clearly a necessary and proper means to do so.

Free speech gives the Berkeley politicians the right to criticize the Marines, or the war, or the President and Congress responsible for the war. They can even draft resolutions denouncing the
process of military recruitment if they want. They just can't tell a unit of the federal government that it must leave town, and if they try, I see no reason Congress can't respond by closing its purse.