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Tag: "constitutional interpretation"

The Wit and Wisdom of Anthony M. Kennedy

[ 31 ] January 14, 2011 |

Some radical Trotskyites on the Kentucky Supreme Court decided to ignore the new, annotated Federalist Society version of the Constitution, which includes the crucial provision “please disregard all previous clauses if the War (on Some Classes of People Who Use Some) Drugs is involved,” resulting in oral arguments at the Supreme Court earlier this week. The case involves a warrantless search undertaken because police searching for another offender believed they smelled drugs being consumed behind another door. Dahlia Lithwick’s report suggests a strong likelihood that the Supreme Court will use the Federalist Society version and are therefore “poised to eviscerate the warrant requirement in a broad class of “exigent” situations.” Depressing, although far from surprising. The whole thing is worth reading, but I especially liked this passage about some, ah, method acting from Kennedy:

Here’s Chief Justice John Roberts, for example, describing the average jailbreak: “I assume the ordinary prison escape is—I don’t know—over the wall, under the tunnel, or, you know, while the guard’s looking a different way.” Justice Anthony Kennedy wonders aloud: “This may be a bit rudimentary, but can you tell me why isn’t the evidence always being destroyed when the marijuana is being smoked? Isn’t it being burnt up?” And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, “there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid.”

Whoa, like, deep, man. I think we might want to consider some warrantless, no-knock seraches of chambers at the Supreme Court…

The Essential Meaningless of the “Original Intent/Original Meaning” Distinction

[ 33 ] January 6, 2011 |

In my experience, almost any discussion (including this one) of “originalism,” somebody will bring up a distinction between “original intent” and “original meaning.” This argument was made prominently in Robert Bork’s The Tempting of America, and at least since then originalists have generally try to argue that they believe in the latter rather than the former. On its face, the distinction makes sense — it’s more plausible to say that we’re bound by what the framers and ratifiers of constitutional provisions wrote than what they subjectively expected. But it seems to me that — obviously unserious arguments like Steve King’s “no matter what’s in the Constitution it couldn’t apply to Mexicans” aside — it’s a distinction largely without a difference. Not only does “original meaning” not really solve any of the problems of originalism (most prominently, indeterminacy and normative unattractiveness), it essentially relies on the same kinds of evidence.

As it happens, for another of the series of papers I’m doing with djw about judicial review and democratic theory, I’ve been reading Randy Barnett’s Restoring the Lost Constitution. In the book, Barnett not only makes a case for the importance of the distinction but presents it explicitly as a road-to-Damascus story: he had always rejected originalism, but once he understood it to mean “public meanings” rather than “original intent,” he became a convert. Despite this, it’s not really clear what methodological differences are involved. For the most part, to determine the meaning of constitutional provisions Barnett uses the same sources — the Federalist, statements of prominent framers, etc. — that you would use if you were trying to determine original “intent” rather than “meaning.” And when you get down to cases, such evidence is almost never sufficient to establish a genuine widely shared “public meaning” that could be useful in resolving a constitutional dispute of any interest.

To take an example, let’s consider a case where I’m sympathetic to Barnett’s bottom line — his discussion of the Privileges or Immunities clause of the 14th Amendment. Like me and most other people who have considered the issue today, Barnett finds the reasoning of the majority opinion in the Slaughterhouse Cases — which permanently gutted the provision — unpersuasive. In addition, Barnett argues that Miller’s majority opinion “set aside” the original meaning of the clause. (p. 195) What is the evidence for this? Barnett relies heavily on the statements of John Bingham (of Ohio, not New York as Barnett claims), the amendment’s primary author, and also refers to more general claims about the intent of Congress from the dissenting opinions.   If we’re talking about “public meaning,” though, this evidence is inadequate.  If we are bound by meanings rather than intent, Bingham’s statements mean little absent evidence that they were almost universally shared by the many other federal and state legislators who voted to ratify the amendments, as well as the public at large. Barnett does not provide this evidence, and he also doesn’t confront the extensive evidence presented in the ur-text of originalism (Berger’s Government By Judiciary) that Bingham’s sentiments were largely anomalous even among members of Congress. Bingham’s evaluation of the 14th Amendment is more attractive to both Barnett and myself, but no member of Congress can establish a “public meaning,” and if anything Bingham’s interpretation of the implications of the text he wrote is a minority one.

Indeed, I would argue that the claim that the Slaughterhouse Cases set aside the “original meaning” is virtually self-refuting. If the decision had been rendered by a Court dominated by Southern Democrats decades after the fact, that would be one thing. But the holding was the product of a Republican-dominated Court less than a decade after the 14th Amendment was ratified. (The Lincoln and Grant appointees split 4-4, with the lone Democratic holdover providing the margin for the majority.) The closely divided Court provides definitive evidence that there was no authoritative “original meaning” of the Privileges or Immunities clause. The broad language of the amendment concealed sharp divisions within even the dominant governing coalition of the time.

So, essentially, I think the “original meaning” has the same problems in practice as any other form of originalism — the evidence presented is almost always selective and inconclusive, it does little to constrain judges, and to the extent that it does provide a constraint it leads to outcomes that most will consider normatively unacceptable.

Constitution-Revering Republicans Propose Unconstitutional Law

[ 101 ] January 6, 2011 |

As if to provide a perfect example for Dahlia Lithwick’s demonstration of the superficial and selective nature of Tea Party reverence for the Constitution, Steve King has decided to open the new Congress by introducing a flagrantly unconstitutional law. And by “unconstitutional,” I don’t mean “contradicts one possible reading of an open-ended constitutional provision.” I mean “is inconsistent with the unambiguous, specific language of the Constitution”:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Most constitutional disputes involve a clause that is subject to multiple plausible interpretations. The “debate” over birthright citizenship is an exception — it’s like running a 21 year-old for president. But King has a very convincing argument in response:

Though others have called for changing the 14th Amendment, King said that ending birthright citizenship through statute makes sense because it’s easier to do.

Similarly, it would be “easier” for the president to abolish the Senate through executive order than to call a new constitutional convention — let’s do that! I guess that reading of the Constitution will have to skip some parts…

Now That’s Restraint

[ 65 ] January 5, 2011 |

In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”

…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”

Lind and the Pentagon Papers Case

[ 36 ] December 22, 2010 |

A few points about Michael Lind’s argument here:

Even if WikiLeaks is defined as a news organization, American law allows both prior injunctions halting publication of government secrets and prosecutions of media organizations following publication, in certain circumstances. In New York Times v. Sullivan, the Pentagon Papers case, the Supreme Court held that the government failed to pass a heavy test in trying to prevent publication of state secrets in advance — but conceivably in some cases that test could be met. And according to the Court, the federal government had the right to prosecute the New York Times and the Washington Post after publication, although it chose not to. The government’s case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was thrown out because of the gangster-like methods used against them by Richard Nixon’s sinister “plumbers,” not because the government lacked the power to prosecute them under the Espionage Act.

  • The case is NY Times v. U.S., not Sullivan (the landmark 1964 libel case.)
  • Lind’s assertion that the Court said that the government had the “right” to prosecute the newspapers is, at best, deeply misleading.   It implies that the Court found that such a prosecution would not violate the First Amendment, but the Court’s three paragraph per curiam is entirely silent on the subject of an after-the-fact prosecution.
  • Similarly, while the Court did theoretically hold open the possibility that prior restraints on the press would be constitutional, it is exceptionally unlikely that any of the WikiLeaks material would come close to meeting that burden, which must involve immediate and direct harm (such as revealing troop positions for an imminent attack.)
  • It is true that (absent the Nixon administration’s other illegal actions) the government had the authority to prosecute Ellsburg, but that’s conflating two very distinct issues:  stealing/directly leaking classified data and publishing data leaked by a third party.    Wikileaks is comparable to the newspapers, not to Ellsburg.   The government has the legitimate authority to prosecute Bradley Manning (although it shouldn’t have the authority to torture him.)    That’s an entirely different question for whether the government can prosecute Assange, and even after the fact it faces an extremely high First Amendment burden.   I very strongly doubt that a prosecution of either Assange or the New York Times for publishing the leaks could pass constitutional muster.   And if it did, the chilling effect would be appalling.

Today In Bad Slippery Slope Arguments

[ 40 ] December 17, 2010 |

Megan McArdle apparently believes she has liberals who support broad federal powers dead to rights:

1) Can Congress enact a $50,000 tax on second term abortions?

2) Can Congress enact a $50,000 tax increase, which is then rebated to anyone who does not have an abortion?

3) If not, why not? I don’t want to hear any arguments about the social side: how necessary abortions are, how women would just have terrible back room abortions, how tragic this might be for women forced to carry a child to term. Nor do I want to hear any arguments that this doesn’t involve interstate commerce, as of course abortions are frequently purchased across state lines, while in many places, it is illegal to buy insurance from other states. Presuming that Congress is agreed that abortions are bad, and they want to discourage them, why shouldn’t they be able to use their taxing power to enact a ban that they could not enact more directly?

4) If yes, they can, how long do you think it will take before Republicans enact one?

As with most slippery slope arguments, this isn’t very convincing.   Indeed, it’s a particularly weak example:

  • This isn’t actually a hard question to answer.   Congress can’t do this because it would violate the Fifth Amendment.    Congress cannot use its taxation powers solely for the purpose of  abrogating a fundamental right — the policies described in #1 and #2 would be unconstitutional just as it would be unconstitutional for Congress to use its spending and taxation powers to abridge speech based on its content (even if it’s not clear that the purpose of the tax was to inhibit speech per se.)   In addition, given the entrenchment of “reverse incorporation,” I would also argue that such a policy would violate the 14th Amendment’s guarantee of equal protection to women.
  • At this point, McArdle might respond, “but what if Republicans appoint enough justices to overturn Roe v. Wade and hold that the 14th Amendment doesn’t prohibit gender discrimination?”   Well, yes, then in that case Congress would have the authority to ban abortion, whether directly or indirectly.    To which I would then respond, “your point being?”   Congress has the power to enact an innumerable number of policies I consider abhorrent.   That’s politics.    To deny Congress essential powers because it might do something stupid with them would be akin “to wish[ing for] the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”
  • If I were a conservative who liked to talk about “federalism,” I personally would avoid bringing up hypotheticals about abortion, because it’s one of the best examples of the eternal fact of American politics that nobody actually cares about federalism.
  • And as it happens, the recent ad hoc arguments about the unconstitutionality of the mandate are an equally excellent example.   Not only was this alleged affront to the Constitution a mainstream Republican position until 2009, many Republicans still believe that the federal government should use its authority to compel people to purchase retirement annuities from private companies.
  • On the last question, Republicans would not enact these hypothetical policies.   Abortion bans, historically, have been able to stay on the books because anti-choicers don’t have the clout to get them enforced in a way that would prevent affluent women from obtaining safe abortions in hospitals.    You’d have an easier time passing an outright national ban than a tax heavy enough to make abortion a near-impossibility for all but the wealthiest women.    And in some hypothetical future universe where such a policy could pass, the fact that some liberals argued that Congress didn’t have the authority to enact a mandate to purchase health insurance would do nothing to stop it from passing anyway.

The Limits of the Commerce Clause

[ 26 ] December 15, 2010 |

Radley Balko asks:

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

The Problem With the “Inactvity/Activity” Excuse for Striking Down the Mandate

[ 108 ] December 14, 2010 |

As others have noted, Henry Hudson’s opinion holding that the mandate provision of the ACA was unconstitutional contained the bizarre argument that “[i]f a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” This not only contradicts nearly 200 years of precedent but is illogical on its face — if the necessary and proper clause merely gives Congress the power to do things it is authorized to do in other provisions, what is its purpose? Jason Mazzone argues that this argument becomes more coherent if you consider Scalia’s arguments about the importance of the necessary and proper clause in his Raich concurrence, which “uses the word ["activity"] 42 times.” While this makes sense of Hudson’s argument strategically, I still don’t think it makes any sense as an interpretation of the necessary and proper clause. If a regulation is necessary to a broader regulatory scheme, what difference does it make whether it is “activity” or “inactivity” that is being regulated?

Perhaps more importantly, it’s hard to see how the “activity/inactivity” distinction makes sense even when looking at the commerce clause alone. This Mark Tushnet post is brilliant:

Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person’s own farm of wheat grown on that farm.

What the farmer did, though, could just as easily — indeed, probably more easily — be described as a failure to purchase wheat in the general market. (Justice Jackson’s opinion made the point in this way: “The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs” (emphasis added). Those who do not purchase health-care insurance “forestall resort to the market” by paying the full out-of-pocket costs of their medical care when they incur those costs (or at least assert that they are willing to do so) or by relying on charity to cover the costs (although I would think that in principle the person should forgo that portion of the charity care attributable to the public decision to grant tax-exempt status to charitable health care — or at least that Congress could require that the person do so).

To expand on the last point a bit, the “activity/inactivity” distinction is particularly meaningless when considered in the context of actually existing health care policy. Perhaps if we lived in a libertarian dystopia in which people without insurance were denied access to emergency rooms, the distinction would be meaningful. But given the safety net that actually exists, refusing to buy insurance is economic activity in all most the most formal sense.   It just defers economic activity to a later time and places the burden on the taxpayers, and at the same time affects the “activity” of the insurance market immediately.   Either way, if the mandate is integral to a broader regulatory scheme — and it obviously is — I think it is quite clearly constitutional under existing precedents.

Today’s Health Care Ruling…

[ 18 ] December 13, 2010 |

…matters if the Supreme Court will uphold it.    I continue to think that this is very unlikely, and if they did it would probably produce a better health care policy anyway.

“Wholly Without Merit”: The 10th Anniversary of Bush v. Gore

[ 30 ] December 13, 2010 |

Today is Yesterday was the 10th Anniversary of the Supreme Court’s disgraceful  Bush v. Gore decision.   Where exactly the decision ranks among the worst decisions in Supreme Court history depends on what metric you’re using.   Certainly, the Supreme Court has issued many, many more immoral rulings throughout its history.    But Dred Scott, Plessy, U.S. v. Cruikshank, Hammer v. Dagenhart, et al. were at least based on intelligible constitutional principles — evil principles, but actual principles, in each case shared by a substantial measure (if not an overwhelming majority) of the country’s political elites.    One can say the same thing of most of the other Rehnquist and Roberts Court decisions that have generated significant criticism — McCleskey v. Kemp and Parents Involved and Citizens United might have been based on the wrong constitutional principles, but they do rest on actual constitutional principles.   Bush v. Gore is different, in that it was essentially lawless all the way down.   Not only was the legal “principle” announced in the case flagrantly inconsistent with the past jurisprudence of the majority, even more unforgivably the nominal principle wasn’t even applied to the case itself.     What the Supreme Court does is inevitably “political” in a broad sense, but not necessarily in the sense of narrow partisan politics or favoring particular litigants.

For those interested in further expansion on these points, some of my previous posts on the topic:

Equality’s Unlikely Champion

[ 8 ] December 10, 2010 |

Occasioned by his recent NYRB article about the death penalty, I have a new American Prospect article about John Paul Stevens and equal protection. I think that his relatively obscure solo dissent in  Armstrong v. U.S. is particularly instructive, both about Stevens’s understanding of equal protection and the extent to which Breyer and Ginsburg did not fill the void on the Court left by Brennan and Marshall:

The “war on drugs” is an area of public policy where racial discrimination has been particularly egregious. So the relatively obscure case Armstrong v. U.S. provides an illuminating example of Stevens’ criticism of the Court’s approach to equal protection. In that case, the Court prevented defendants indicted for offenses involving “crack” cocaine from examining evidence from the files of the U.S. attorney’s office. It did so despite the fact that the defendants provided clear evidence of systemic discrimination (as Stevens noted, “While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack”) and provided at least anecdotal evidence of discrimination on the part of the U.S. attorney.

As Stevens explained, combined with McCleskey, the case created what should be a constitutionally intolerable catch-22: Defendants have to provide evidence of individualized rather than systematic discrimination, but the Court then establishes conditions that make proving individualized discrimination impossible. Yet this effective sanctioning of racial discrimination in the criminal-justice system was sanctioned by the other eight justices, including Democratic appointees Stephen Breyer and Ruth Bader Ginsburg.

The formalist Catch-22 con has been run by the Court’s conservatives pretty much since the ink on the 14th Amendment was dry. Even in its most white supremacist periods, the Supreme Court wouldn’t uphold laws that explicitly prevented African-Americans from voting or serving on juries. As long as states excluded African-Americans by applying formally race-neutral laws in a discriminatory manners, however, the Supreme Court washed its hands, creating standards that made it essentially impossible to prove discrimination. The nice Kafkasesque circle of denying the relevance evidence of systemic discrimination and then making it nearly impossible to prove individualized discrimination is just the latest iteration. You’d think that if being a liberal justice meant anything, it would be to see through this — and yet the moderate Illinois Republican dissented alone.

The Latest Attempt to Insulate Activist Conservative Judges From Charges of Judicial Activism

[ 10 ] December 8, 2010 |

George Will has introduced the latest effort to claim that, by definition, only liberal judges can be enagaged in judicial activism. This latest gloss on the more accurate “judgifying I don’t like” is about as useful as you’d expect.

Perhaps for the 10th anniversary of Bush v. Gore we can get a symposium of conservative pundits and legal scholars to praise the Court for its judicial “engagement.”   After all, if the ratification debates of the 14th Amendment produced any common thread, it must be “using different standards to count ballots is illegal if it might prevent a Republican from winning Florida’s electoral votes and not in any other case.”    More sophisticated conservatives can provide the extensive evidence that the Framers uniformly understood Article II to mean that “only state legislatures can make or enforce election laws, unless it’s an executive or judicial branch official making a ruling favorable to the Republican candidate, with executive branch officials appointed by the candidate’s brother given especially wide discretion.”    That could be almost as convincing as Will’s column!

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