Newsflash: Bush Administration Ignores Bill of Rights!

Reading about the recent scandal in which HUD Secretary Alphonso Jackson refused contracts to firms for partisan reasons, I was wondering–in addition to the obvious violations of sound government and probable violation of federal regulations–if the decision might run afoul of the Supreme Court’s patronage jurisprudence. The Court, in several contexts, had ruled that making hiring decisions for purely political reasons for non-political civil service jobs violated the First Amendment. What I didn’t know is if this line of cases extended to federal contracts. Well, one nice thing about the blogopshere is that it’s full of law-talkin’ people who can answer questions like this. And the answer is: what Jackson did violates the Constitution:

There is no doubt that if Gratzianna had been a public employee whose job was to perform tow truck operations, the city could not have discharged him for refusing to contribute to Paxson’s campaign or for supporting his opponent. In Branti, we considered it settled that to fire a public employee as a penalty for refusing a request for political and financial support would impose an unconstitutional condition on government employment. Respondents insist the principles of Elrod and Branti have no force here, arguing that an independent contractor’s First Amendment rights, unlike a public employee’s, must yield to the government’s asserted countervailing interest in sustaining a patronage system. We cannot accept the proposition, however, that those who perform the government’s work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights described in this complaint. As respondents offer no justification for their actions, save for insisting on their right to condition a continuing relationship on political fealty, we hold that the complaint states an actionable First Amendment claim. [cites omitted]

And yet another part of the Constitution is ignored by the Bush administration.

Another interesting thing about this case is that it’s an excellent example of the fact that Scalia, as Jeffrey Rosen once argued, is more more consistently motivated by a reactionary traditionalism than by “textualism” or “originalism.” The problem with Scalia’s argument that it’s wrong “to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years,” is that it proves too much. Based on this reasoning, Brown v. Board and Loving v. Virginia were clearly incorrect (particularly in light of Scalia’s claim, for the same reason, that gender discrimination by universities is constitutionally unproblematic). After all, school segregation and bans on interracial marriage are not “clearly” and specifically proscribed by the text of the Constitution, and both were unbroken national traditions. Scalia’s argument fails because it cannot explain, without referring to independent policy preferences, which historical injustices are self-justifying and which ones are not.