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Tag: "constitutional law"

The Commerce Clause and the Slippery Slope

[ 63 ] February 14, 2011 |

I have an article up at the Prospect on the hot new trend in arguments that policies that Republicans supported until Obama started supporting them represent a massive threat to liberty and the Constitution: if the Supreme Court upholds the mandate, the broccoli tyrants will be knocking down your door.    The argument, of course, makes no sense on several levels, not least because you can make similar arguments about any possible government power:

But the most important problem with this argument is that it proves too much. If the federal government cannot be permitted any power it might potentially abuse, there would be nothing left. Utterly uncontroversial powers that are explicitly stated in the Constitution give the federal government the authority to pursue policies that would be far more foolish and destructive than even the dreaded broccoli mandate. Congress could, for example, declare war on Canada, or the president could use nuclear weapons to pulverize the entire European Union. The idiocy and gross immorality of such policies doesn’t mean that Congress’s power to declare war or the president’s status of commander-in-chief of the military should be written out of the Constitution.

And the same goes for the power that Congress has to regulate interstate commerce. Ultimately, the best check against unwise legislation is politics.

Arguments that the ACA is unconstitutional have to stand and fall on their own merits, not based on laws Congress could but won’t pass if the law is upheld. And the merits of these arguments are very weak.


Oddly, His Version of the Constitution Also Contains a 14th Amendment

[ 5 ] February 2, 2011 |

Apparently, former Reagan administration solicitor general Charles Fried didn’t get the memo about John Marshall sharing the constitutional vision of George Wallace. Communists, invading the Reagan administration!

Good Luck With That

[ 1 ] October 12, 2010 |

Shorter Phillip Klein: If the Supreme Court decides to uphold the ACA, giving the federal government “broad new powers” to regulate the national economy that it has had since 1942, we need a constitutional convention!

What I enjoy most about reading this kind of thing is conservertarians who believe that rolling back the federal government back to pre-New Deal norms would actually be popular. They may want to examine what teabag candidates are actually saying: as far as I can tell, not only do they not specifically argue against most federal programs, their most common policy proposal is to oppose Medicare cuts.

Results, Not Process

[ 22 ] October 8, 2010 |

Tom Maguire, engaging in Principled Opposition to “judicial activists” who came up with the idea that marriage discrimination is inconsistent with the equal protection of the laws: “I just wish that we could have a bit more respect for the democratic process and settle this in legislatures rather than employing this Democratic process of legislating through the courts.”

Shorter Tom Maguire, today: “I don’t care about the federal government’s constitutional authority to regulate interstate commerce, I don’t like the mandate provisions of the ACA, so they must be unconstitutional!   How dare the courts not intervene to strike down the legislation passed by democratically elected majorities and supermajorities!”

Admittedly, as I’ve said before, part of me wishes that Maguire’s position (although I believe it is very wrong as a matter of constitutional law) would prevail, because holding the mandate unconstitutional would (given the other plainly constitutional and very popular provisions requiring that insurers not deny insurance based on pre-existing conditions) destroy the private insurance markets, which would just lead to the state-run insurance that has proven in many other countries to provide better results for less money. Which, again, would be clearly constitutional unless you want to argue that Medicare, Social Security, etc. are also unconstitutional. So, hey, good luck libertarian litigators! Try to get DOMA struck down while you’re at it.

Where Do You Draw The Bright Line?

[ 0 ] February 25, 2010 |

For the second time this week, the Supreme Court issued a ruling applying its famous Miranda ruling. A lower court had ruled that because two years had elapsed between a suspect first invoking his right to ask for a lawyer and his decision to waive his Miranda rights and admit a crime, his confession was admissible. This holding is reasonable, and the fact that crime he confessed to was molesting his 3-year-old son made the outcome overdetermined: the Supreme Court’s unanimously held that the confession was admissible. The Court also held that an initial invocation of Miranda rights essentially expires after 14 days.

Two concurrences in the case, however, point to an interesting issue about how to apply broadly-worded constitutional rights. When applying a right like the Fifth Amendment’s right against self-incrimination, some (often called “minimalists”) argue that appellate judges should issue narrow rulings based on the particulars of a case, while others argue that appellate jobs should create clear rules that will govern a wide array of cases. Antonin Scalia is the Court’s strongest advocate for creating “bright-line” rules that minimize judicial discretion. (It should be noted that this doesn’t make preferring non-minimalist jurisprudence is inherently “conservative”; Miranda itself is also an example of the Court replacing a standard that gave wide discretion to other judges with a relatively clear rule.) Scalia’s position is attractive in many respects, and all things being equal I’m inclined to agree that it’s preferable for the Supreme Court to set rules that are as clear as possible.

The twin concurrences of Stevens and Thomas, however, do point to a paradox inherent in Scalia’s approach. One of the most important selling points of creating clear rules is that giving excessive discretion to lower court judges can make their rulings essentially arbitrary. One of the most significant drawbacks to the approach is that the rules themselves can be arbitrary; as Thomas argues, the Court “does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the ‘closest possible fit’ with the Self-Incrimination Clause.” And the potentially arbitrary nature of the rule can be seen by comparing the opinions of Stevens and Thomas. The former argues that the 14-day period is probably too short and fails to consider other relevant factors, while Thomas at least implies that invocations of Miranda rights should expire as soon as custody is broken. This isn’t to say that the Court’s decision to create a clear rule is wrong, just that any means of applying a general right to specific cases has its strengths and weaknesses.

You Disagree With Tony Kennedy (When He Reaches a Conservative Result), You Oppose the Rule of Law

[ 0 ] January 29, 2010 |

Paul and I have compiled some examples of conservative academics arguing that Obama needs to be sent to Sally Quinn Reeducation Camp or something for disagreeing with an innovative constitutional doctrine just announced by a bare majority of the Court. At the time, though, I missed an even funnier argument, namely William Jacobson’s assertion that by criticizing the Court, Obama was threatening the rule of law itself:

The attack on the Supreme Court exposes the intolerance of this President. The politician who campaigned and allegedly champions the rule of law actually has very little use for the rule of law when it does not advance his political agenda.

This is an…interesting argument. Let’s examine some other examples of prominent public officials who, in disagreeing with decisions announced by the Supreme Court, therefore oppose the rule of law:

  • “The 10th anniversary of the Supreme Court decision in Roe v. Wade is a good time for us to pause and reflect. Our nationwide policy of abortion-on-demand through all nine months of pregnancy [sic] was neither voted for by our people nor enacted by our legislators — not a single state had such unrestricted abortion [sic] before the Supreme Court decreed it to be national policy in 1973. But the consequences of this judicial decision are now obvious: since 1973, more than 15 million unborn children have had their lives snuffed out by legalized abortions. That is over ten times the number of Americans lost in all our nation’s wars…Make no mistake, abortion-on-demand is not a right granted by the Constitution.” —Saint Ronald Reagan, 1983
  • After a day of consideration, the McCain Campaign has decided to come out hard against yesterday’s 5 to 4 decision to grant more rights to court review for enemy combatants held at Guantanamo Bay, Cuba. “The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country,” McCain said. He went on to quote from Justice Roberts dissent in the case, rail against “unaccountable judges,” and say that the courts are about to be clogged with cases from detainees.”

The 2008 election was contested between two candidates who oppose the rule of law — shocking! Anyway, I could go on, but since I assume that even Jacobson himself doesn’t believe in this ridiculous definition of the “rule of law” cataloging further examples would be redundant.

For further comedy, in attempting to claim that Obama’s public disagreement with 5 of the Court’s 9 members was “unprecedented,” Col. Mustard uncritically quotes someone asserting that “[e]ven President Franklin D. Roosevelt, who had a lot of grievances with the Court, never mentioned it in any of his State of the Union messages.” This might strike you as implausible in the extreme. Well, I happen to have FDR’s 1937 State of the Union Address right here, and…

Yet More Citizens United

[ 0 ] January 22, 2010 |

I have an article up at The American Prospect putting Citizens United in context as the latest manifestation of the Court’s increasing sympathy to the interests of big business.

Some other links of interest:

Compared To What?

[ 0 ] January 15, 2010 |

I’m certainly no admirer of Justice Kennedy’s jurisprudence, but I nevertheless found Eric Posner’s critical (of both Kennedy and the book) review of a recent book about AJK somewhat slippery and disappointing. I haven’t read the book, but according to Posner Colucci argues that Kennedy’s jurisprudence is more internally consistent than Kennedy’s harshest critics acknowledge. Posner will have none of it:

For Kennedy’s libertarian reading of the Constitution to be jurisprudentially respectable, that reading must be based on the text of the Constitution, Founding-era understandings, precedents, constitutional traditions, or other legal sources external to his moral views. Otherwise, he cannot duck the argument that he simply enforces his moral views, which happen to be libertarian.

Colucci identifies some clues but they do not add up to a jurisprudence. Kennedy endorses the familiar idea that judges should not enforce the original understanding of the Constitution, but should constitutionalize and enforce evolving social values. Yet Colucci offers no evidence that Kennedy tries to enforce evolving social values. Why does Kennedy believe that society gives priority to liberty over all the other evolving social values that could be identified—equality, diversity, and privacy, to name a few? Neither Colucci nor Kennedy answers this question. Lacking an explanation, Colucci’s defense of Kennedy doesn’t make any headway against the suspicion that Kennedy votes his moral instincts, thus abusing his judicial role.

This line of criticism — which is based on what I would see as an excessively formal separation between law and “moral instincts” — has some clear flaws as a criticism of Kennedy in particular. If the claim is that Kennedy literally does nothing but vote his moral instincts, entirely ignoring “legal sources” — the claim is quite clearly false, unless you think that Kennedy favors every economic regulation passed by Congress or a state government that wasn’t stuck down by the Courts during his tenure. If we assume that Posner is making a more plausible claim — that Kennedy’s moral and political values affect his decisions in cases in which legal materials plausibly support multiple conclusions — then the criticism is true but lacks much bite insofar as no Supreme Court justice has a “jurisprudence” by this standard. No justice — most certainly including Scalia and Thomas — consistently finds that “legal materials” trump their most cherished moral instincts.” (It should also be probably be noted here that Posner’s excoriation of Kennedy manages to leave out the worst opinion Kennedy will ever write, which was of course joined by the conservative justices we’re implicitly meant to believe are more principled. Anybody care to mount an “originalist” defense of Bush v. Gore?)

So why single out Kennedy here? Posner does have an answer:

Kennedy stands out from his colleagues because of the frequency with which he votes to strike down statutes, and the vapid, flowery language he uses to explain his decisions. His aggressive posture toward statutes jars democratic sensibilities, and cuts against a scholarly trend favoring judicial deference. Although striking down statutes is hardly new, in the current environment it demands a more muscular justification than Justice Kennedy has delivered. Instead he delights in gaseous pronouncements. [“Meaning of life” passage from Casey that according to federal law must be cited in every conservative critique of Kennedy although it’s not terribly important to the opinion omitted.]

The fact that Kennedy’s opinions do contain some irritating prose isn’t very helpful to the larger points under discussion, since they hardly constitute the entirety of the justifications offered in the long opinions in which they’re embedded. The claim that Kennedy is worse than other Justices because he votes to strike down statutes with an unusually high frequency would be more convincing. But the problem is that it’s not true. While it’s literally true that Kennedy voted to strike down more statutes than any member of the late Rehnquist Court, every justice on the Court with the exception of Rehnquist voted to strike down legislation at an essentially similar rate.

While I can’t say anything about Colucci’s book, then, I wouldn’t say that Posner’s rebuttals are very convincing.

Not All Bad Policy Is Unconstitutional

[ 0 ] November 16, 2009 |

Attempts to use Pfzier pulling out of New London to argue that Kelo was wrong rather than using it to argue that the New London and Connecticut governments were involved in stupid public policy really gives away the “conservatives object to same-sex marriage because of teh judicial activism!!!1!1!” show. It’s not just that it’s obviously a policy argument, but in the vast majority of cases there’s really no pretense otherwise.

Another thing to note is that eminent domain is just one instance of large corporate welfare scheme. Even had the development scheme that required eminent domain never gotten off the ground, New London would still be out the tax breaks, subsidies, and giveaways of public land, and the decentralization of economic regulation conservertarians like so much makes this kind of stuff more, not less, likely. The Courts are probably right not to use the commerce clause to stop these stupid subsidies, just as they were probably right in Kelo. Kelo deserves sympathy for having her house appropriated for a stupid project, but she was protected by the takings clause: she got compensation, while New London’s other taxpayers weren’t. (I do think Marty Lederman had a point that the courts would be better policing eminent domain abuse by ensuring that takings compensation is on the high side.)

Ali Ahmad Kurd Visits Lexington

[ 0 ] August 21, 2009 |

Speaking of Kentucky, a short time ago I was fortunate enough to attend a speech by Ali Ahmad Kurd, leader of the Lawyer’s Movement in Pakistan. Kurd detailed his views regarding Pakistani democracy, and his own efforts to see Pervez Musharraf removed from power. Shortly prior to the speech Lt. Governor Dan Mongiardo made Kurd a Kentucky Colonel, an honor he now shares with PZ Myers and Tiger Woods, among others.

This was Mr. Kurd’s first visit to Kentucky, and indeed is part of his first visit to the United States. I asked him what he knew of Kentucky, and he responded “KFC and Cassius Clay,” which reminded me of a conversation I had with another UK professor about the world’s most famous Kentuckian. The argument boiled down to Muhammed Ali vs. Harland Sanders; it’s refreshing to learn that it appears we were in the right neighborhood…

Pre-Emptive Ricci Post

[ 0 ] June 29, 2009 |

I will be in a car returning from a graduation party most of the day. So if, as expected, the Court hands down its decision in Ricci today and reverses the Second Circuit, let me say that this in no way shows that Sotomayor was “wrong” on the law. First, because the Supreme Court can create new law in way that Circuit Courts can’t. And, second, because cases interesting enough to make it to the Supreme Court generally admit to multiple reasonable interpretations, and New Haven’s belief that civil rights law did not allow it to use a test that would disproportionately promote white people unless it could show a much stronger relationship between the test and job performance was certainly plausible, and a legal position that obtains 3 or 4 Supreme Court votes in particular cannot usefully be said to be “wrong.”

Court Finds Arbitrary Strip Search Unconstitutional

[ 0 ] June 25, 2009 |

I’m very, very happy to be wrong about this one. In a very pleasant surprise, today 8 justices found that the appalling arbitrary strip search of Savana Redding violated the Fourth Amendment. The majority opinion, by Souter, split the baby by finding a constitutional violation but holding that because the law was unclear the administrator who order the illegal search was granted qualified immunity. Ginsburg and Stevens dissented in part, holding that the search was clearly illegal under the controlling precedent, and therefore the administrator should not be immunized:

Here “the nature of the [supposed] infraction,” the slim basis for suspecting Savana Redding, and her “age and sex,” ibid., establish beyond doubt that Assistant Principal Wilson’s order cannot be reconciled with this Court’s opinion in T. L. O. Wilson’s treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it. I join Justice Stevens in dissenting from the Court’s acceptance of Wilson’s qualified immunity plea, and would affirm the Court of Appeals’ judgment in all respects.

I think this is right — granting that the TLO standard involved substantial discretion, if this serach didn’t violate it, I’m not sure what would, and Ginsburg is right that the principal’s actions wre transparently irresponsible — but given the grim outlook I can live with this outcome. Setting limits on these searches going forward is the most important thing, although it might be preferable to establish clearer disincentives.

Thomas, meanwhile, held to his longstanding opinion that the Constitution for all intents and purposes does not apply in the context of schools. Given that upholding this search would have constituted a de facto endorsement of the Thomas position, I’m glad that the Court finally said that enough is enough.

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