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Tag: "constitutional interpretation"

Stevens and the Machinery of Death

[ 21 ] April 17, 2008 |

Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:

Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.

The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)

Lawyers, Judges, and Money

[ 11 ] April 16, 2008 |

The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.

I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.

White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.

The Individualized Second Amendment

[ 46 ] March 19, 2008 |

The first question about the D.C. gun case is, how will they rule? Reporters who observed the oral argument today seem nearly certain that 1)a majority of the Court will find some individual right to gun ownership in the Second Amendment, and 2)the D.C. gun ban will be struck down. All observers also point out that most of the interesting questions will come in the scope of the Second Amendment rights identified by the Court: what kind of regulations short on an outright ban of a large class of gun might pass constitutional muster? Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases. (Scalia’s dismissal of Dellinger’s claim that finding an individual right would make it harder to ban machine guns or armor-piercing bullets makes it unlikely that even he will press for a particularly broad rule.)

The other question is whether this is a good thing. As with most constitutional issues of any interest, the text is unclear and can plausibly support both positions, so we’re left with a largely pragmatic judgment. I don’t really have a problem with where the Court seems headed. At least in a context of a federal system where weapons can be easily acquired right outside District limits, it’s hard to argue that the D.C. ban is an especially effective public safety measure, and it’s a very broad restriction. And although I’m often skeptical of minimalism, I think in this case leaving future cases open to particularized judgments that balance Second Amendment rights against the reasonableness and effectiveness of regulations makes a lot of sense.

Exclusionary Rule Back On the Chopping Block

[ 12 ] February 20, 2008 |

I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.

The Textual Basis For The Right To Privacy

[ 0 ] January 1, 2008 |

I’m not going to get into the question of Juno and abortion because I reject the idea that the picture is a “brief” for or against anything; this might be an appropriate way to discuss an Aaron Sorkin project, but Diablo Cody seems like an artist as opposed to someone who was things to say about issues of the day and divides them among, for lack of a better word, characters. I do, however, want to address publius’s argument in comments that he disagrees with Lawrence because “the right to privacy underlying this cluster of cases has no textual basis in the Constitution.” This is, I think, puzzling:

  • As Mark Tushnet pointed out in Balkin’s book about Roe, Douglas’s much-derided opinion in Griswold is actually quite intelligent. People who assert that there’s no textual basis for limiting a state’s authority in this line of cases need to explain what would, say, remain of the Fourth Amendment if the state could ban the use of contraception or noncommerical, consensual, private sexual behavior. What would the search warrants even look like? (“We believe that the individual in question is predisposed to desire sex.”) This kind of state power is inconsistent with several parts of the Bill of Rights, which clearly imply that the state does not have unlimited dominion to invade private residences. (Or to put this utterly banal interpretive point in slightly more pretentious terms, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”)
  • Here, I would assume that Publius would object that nobody thinks that these laws would be used to routinely inspect private residences to ensure that people aren’t using contraception or giving head. And this is, of course, accurate; such laws would, in fact, be sporadically and arbitrarily applied against unpopular individuals or powerless classes of individuals. Or, in other words, they inherently fail to comport with the Constitution’s perfectly explicit textual command that no state can “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There’s nothing non-textual about the argument that general laws which are unenforceable against most of the people they cover on their face cannot be enforced against anyone; if “equal protection” and “due process” mean anything, they mean that.

Admittedly, Roe does not automatically follow from Griswold and its progeny; it’s like it in some respects (arbitrarily enforced laws, interference with intimate family and sexual relations) and unlike it in others (usually a commercial transaction, not confined to private domiciles), and also involves some issues that aren’t addressed by the case (the importance of reproductive freedom to gender equity, the state’s interest in fetal life.) But it’s not true that Roe lacks any textual basis except in the less-than-sophomoric sense that the generalities of the 14th Amendment don’t include specific policy prescriptions, and in the case of the other (somewhat misleadingly named) “privacy” cases the textual basis is quite clear.

Christmas Cheer

[ 23 ] December 24, 2007 |

It wouldn’t be an LGM Christmas without a little politically-driven holiday cheer, courtesy of the Center for Constitutional Rights.

Merry Christmas everyone. Yes, even you tgc.

(via)

The Second Amendment on Trial

[ 36 ] November 20, 2007 |

The Supreme Court has decided to hear an appeal to the D.C. Circuit decision striking down D.C.’s handguns ban. I’ll have more discussion about this later, but to stimulate discussion in the interim I’ll say that 1)the most plausible interpretation of the 2nd Amendment, I think, confers an individual right to bear arms, although this is certainly not the only reasonable interpretation; 2)given this, D.C.’s draconian ban is (for better or worse) clearly unconstitutional, but 3)more reasonable gun control measures may be constitutional even if the right to bear arms is considered an individual right.

A Constitutional Amendment About Nothing

[ 20 ] November 19, 2007 |

The recent hysteria about a few peripheral citations of legal norms in other liberal democracies in Supreme Court opinions has reached some kind of apex with a speaker at a Federalist Society convention proposing a constitutional amendment banning the practice. What’s strange is the amount of energy being expended over what it quite obviously a trivial issue — it’s not clear why anyone thinks such dicta have any actual causal effects on the outcome of cases. Such citations are likely to come up almost exclusively in cases where the text of the Constitution can plausibly support a wide range of outcomes, and hence are overwhelmingly likely to be used only to back up conclusions judges have reached for independent reasons. This is certainly true of the cruel and unusual punishment clause, at issue in the case that has generated the greatest outrage about the supposedly pernicious effects of citing foreign law. Does anybody seriously think that a single vote in the case would have changed had the Constitution forbidden the citation of law of other democracies? Scalia noted in his dissent that Kennedy would be unlikely to cite foreign law when its conclusions were less favorable to his position, but that’s the point: the cites are window dressing. It may be true that Kennedy’s experience teaching abroad has had a moderating effect, but this would remain true whether his opinion cited the laws of other countries or not.

Crucial to making this triviality into a major issue is a strawman. According to Adler, the advocate of the amendment laid out the “basic case against relying upon foreign or international law in constitutional interpretation.” [my emphasis] But, of course, nobody says (as the word “rely” would seem to imply) that American judges are bound by the laws of similar countries; rather, at most it’s simply one of many sources that a judge might consult when trying to construe the meaning of an ambiguous constitutional clause. Reasonable people can differ about whether it’s an appropriate source to look at, but such pragmatic use of sources outside the constitution is utterly banal. I don’t recall any conservatives complaining about, say, Clarence Thomas’s (implausible) paean to the emancipatory effects of vouchers, although strictly speaking such policy effects are irrelevant to the question of whether state funding that goes almost entirely to parochial schools violates the First Amendment. I’d also be interested to know how many people furious about Roper have railed against the Rehnquist Court’s “sovereign immunity” doctrine, which seems to “rely” heavily on centuries-old British common law being binding in American federal courts…

Rights and the Hyde Amendment

[ 64 ] November 2, 2007 |

David Nieporent says:

But a right means the government can’t stop you from doing something; it doesn’t mean that you have some claim on anybody else’s wallet to give you that thing.

There are a number of potential misconceptions here. First, not all rights are constitutional rights. Second, there’s nothing inherent about rights that they be merely “negative” rights. Third, as Cass Sunstein and Stephen Holmes correctly point out, even the enforcement of “negative” rights requires substantial state expenditures (and hence claims on “other people’s wallets”), making the distinction between “positive” and “negative” rights itself problematic. And finally, leaving aside the fact that there are other constitutional traditions than the American one, even the primarily “negative rights” American framework recognizes positive rights. Most obviously. the Sixth Amendment’s right to counsel has been construed to require that taxpayers provide legal counsel, even if libertarians would prefer that the law in its majestic equality merely prevent the state from denying rich and poor defendants alike access from the lawyers they have on retainer.

With respect to the issue under discussion, the Hyde Amendment, the issues of constitutional rights are more complex than they may appear at first glance. There are other cases in which the Constitution mandates a positive right in any plausible long-term political context; Brown v. Board, for example, does not require the state to provide public schools but does require that if the state does provide public schools that they be provided equally to whites and African Americans, which (at least if taken seriously) requires the spending of taxpayer money. The Hyde Amendment presents such an issue. There is not a constitutional right to medical treatment; however, if the state provides medical treatment it does have a constitutional obligation to provide such benefits impartially. It’s a difficult case, but denying funding to a medical procedure not for reasons logically related to the purpose of the program but to obstruct the exercise of a fundamental right does in fact raise a difficult constitutional question and at least arguably a violation of constitutional rights.

And lest you think this is some kind of crazy-left wing notion, the court’s conservatives — including Scalia and Thomas — have held that the state is obligated to provide money from taxpayer wallets to religious student newspapers if it provides funding for other publications. And this case goes further, in the sense that providing state funding to religious organizations arguably violates the Establishment clause, while nobody believes that current doctrines make Medicaid unconstitutional. At any rate, most people across the ideological spectrum accept that there are cases in which the state’s arbitrary use of its spending powers raises a constitutional violation, and hence Nieporent’s description of American constitutionalism is inaccurate. And it’s therefore perfectly reasonable for Ann to describe the Hyde Amendment as not only awful public policy but an interference with reproductive rights.

Happy Anniversary!

[ 19 ] October 24, 2007 |

Via Roy, I see that conservatives are whining about the great day 20 years ago on which arch-reactionary Robert Bork was justly rejected by the Senate. First if all, it’s worth repeating that in this case the Senate functioned as it should, focusing on constitutional philosophy rather than trivial details, and that attempts to turn “Borking” into a pejorative notwithstanding, it’s ridiculous to argue that the President can consider ideology in nominations but the Senate cannot consider in in confirmation.

In addition, for the occasion it’s worth once again excerpting Bruce Ackerman’s devastating review of Bork’s shoddy, transparently outcome-orietnted attempt to defend his “originalism” in The Tempting of America:

Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a Red-baiting n3 political tract. Tempting reveals that Bork’s ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. Mutatis mutandis, he is America’s Grand Inquisitor — grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.

[...]

The historical vacuum at the core of Bork’s orthodoxy may seem surprising, since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork’s principal academic specialty was antitrust, not constitutional law. He did not win national leadership in this field by dint of historical research, but by championing the Chicago School of Economics’ notably ahistorical and theory-laden approach to antitrust. Few readers of Bork’s major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.

Particularly telling is Bork’s remarkable dismissal of the Ninth Amendment, and its obvious implications for his jurisprudence:

Perhaps we should be grateful, then, that Bork tries to decipher the Ninth Amendment without an independent examination of extrinsic sources. Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’”

The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity…

[...]

It is, of course, an old lawyer’s trick to create uncertainty by writing hypothetical texts that, in the writer’s mind, do a better job than the Framers’. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he considers as replacements. His hypothetical “clarifications” would narrowly address the courts and explain to them that they should not “disparage” unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.

Bork’s jurisprudence in fact had a great deal to do with reaching conservative policy outcomes and very little to do with “originalism.” From the right, Glenn Reynolds makes a similar point.

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