Law-Constitutional law/general

I continue with Articles VI and VII of the Constitution for the exciting and informative constitutingamerica.org blog project on the Constitution and the Federalist Papers:

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

When many opponents of the Arizona law hysterically denounce it as allowing unconstitutional race-based stops of innocent people on an afternoon stroll, they betray their (at best) ignorance and (perhaps) their mendacity. As I have argued, the law may be pre-empted by federal immigration law on the issue of aliens having to carry identification already required under federal law. But it is not unconstitutional under the Fourth Amendment’s search-and-seizure protections. Indeed, even before the most recent clarifications, the law simply tracked constitutional requirements. As Professor Jacobson so thoroughly demonstrates in this post, the United States Supreme Court has established rather broad parameters within which investigatory stops (including for immigration violations) may occur. The Arizona law’s standards are well within those parameters, though peripheral issues remain. Professor Jacobson echoes my view that the law’s critics appear not to have read it. He warns the critics (including some deluded Republicans), “Do NOT read this Supreme Court decision, if you want to be able to continue using terms like Nazi, Communist and Apartheid to describe the new Arizona immigration law. Or if, like President Obama, you want to claim that the law would allow people to be questioned merely for going out for ice cream. Because none of these accusations have a basis in reality.”

This is what I blogged at the wonderful constitutingamerica.org blog project about Articles IV and V of the Constitution:

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked later articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.” They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

The State of Arizona has adopted a law that seeks to address problems the state has suffered at least in part as a result of lax enforcement of immigration laws by the federal government. The state has been a particular target of violence from Mexican gangs and from others who are in the U.S. illegally. The enactment of the law has precipitated much outrage from interest groups whose monetary or ideological bread is buttered by supporting illegal immigration and open borders.

First, a quick disclaimer. As an immigrant, I both sympathize with and object to illegal immigrants. Though I was a child when we came to the United States from Germany, I was old enough to remember the process through which we had to go, the anxiety about getting the green card, and the excitement when it came. So, I understand the desire of the illegal immigrants to come to the U.S. Most of them are here to work hard. Those who pack up and leave their homes to travel to an alien country are usually highly motivated and self-reliant, though those characteristics may be less pronounced when the country is your neighbor and there is already a very large community of your compatriots to accept you. On the other hand, having had to “get in line,” and knowing others who would like to get a green card to come to the U.S. and who are also waiting in that line, I get very annoyed with “party crashers.” Accepting those people ahead of those who follow the rules is fundamentally unfair, and I grit my teeth at the effrontery of those who see such law breakers as poor victims of a system they have chosen, in colloquial parlance, to “flip off.”

Based on a quick perusal, the Arizona law (text here) does not sound particularly draconian. In fact, I don’t see much there at all. A few sections are worth mentioning. The main operative section people seem to be broadly aware of is Section 2.B. That part permits law enforcement to investigate the immigration status of people under reasonable suspicion of being in the U.S. illegally. The governor has said that the factors for “reasonable suspicion” will be developed further. But the power to investigate seems to be triggered only if there is otherwise a “lawful contact” between the person and the state. Moreover, the requirement of investigation is simply that a “reasonable effort” be made to determine the immigration status, and race or national origin may not be the sole grounds for enforcing the law. Section 2.B. also declares that a valid driver’s license or similar American-issues identification creates a presumption that the person is not an illegal alien. Similarly, Section 4.E. allows officers to stop someone for reasonable suspicion of a traffic violation “and” (not “or”) violation of the new law. That also sounds like the suspicion of illegally being in the U.S. by itself cannot be the cause of the stop.

Other significant subsections that relate to immigration status in Section 2 are “E” and “G” (which are intended to prevent cities from setting themselves up as “sanctuary cities” in the way quite a few California cities have done). Finally, Section 2.K. contains yet another admonition that everything done under Section 2 must comport with the requirements of the U.S. and Arizona constitutions, which, presumably, would mean there could be no actions against individuals based merely on racial profiling.

I find Section 3 to be more interesting. That section prohibits the mere failure to carry an alien registration document, if that also would violate federal law. Presumably that section would not come into play, unless some lawful contact occurred, as defined under Section 2, so that, again, there would be no stopping people on a fishing expedition because of their skin color. Among other matters, Section 3.C. prohibits suspension or commutation of a sentence imposed for violating this provision. Section 3.D. allows the state to charge the defendant jail costs plus $500 for conviction under this section. That section sounds like the most direct effort to make immigration policy.

Section 6.A.5 allows state officers to arrest people whom they suspect to have committed a public offense that might make them removable from the U.S., which arrest, however, must be based on probable cause.

Sections 5, 7, and 8 address employment of illegal aliens, with the first of those targeting employment of day laborers, such as those who hang around the local Home Depot.

What constitutional problems are there? First, the main focus of criticism has been on the supposed ability just to stop people because they have the wrong skin color. Perhaps I am not reading this right, but it appears to me that the state can only get into the immigration status if the person initiates the contact, such as by trying to get a driver’s license, or if there is first an otherwise lawful stop by law enforcement. As noted above, Section 2.B. specifically prohibits the state from relying solely on race or national origin to implement the law. So, I do not see any particular problem under search-and-seizure principles derived from the Fourth Amendment.

Second, the state law might be unconstitutional under principles of dual federalism, either because federal immigration statutes preempt the state law or because the federal power over immigration in Article I, Section 8 of the Constitution is exclusive in the federal government and not shared concurrently with the states. I think that these are the strongest arguments against the state law, but there are problems with them. For one thing, since the Arizona law emphasizes cooperation with the federal government and strongly relies on federal standards, the state law does not thwart operation of federal policy. Quite the contrary. For another, under the federal statutes it isn’t clear that the federal government is intending to prevent such cooperative supplemental state legislation. No one has raised objections against state criminal laws that target human smuggling, for example.

That leaves the argument that the Constitution itself intends to reserve power over immigration exclusively to the federal government and to exclude the states from that field, regardless of what federal statutes do or do not say. That is an interesting proposition and has some precedent to back it up. The Supreme Court, by 6-3 in Hines v. Davidowitz (1941), among other arguments emphasized the exclusivity of the federal interest over immigration in invalidating a state law that required registration of legally admitted aliens. The Arizona law here is different in that it is not intended to set up a separate system of state registration of aliens but to help enforce public safety, a more traditional state concern. Still, this is the best argument against the law, especially the ”carry an alien registration document” section that is quite similar to the Pennsylvania requirement struck down in Hines.

There is another interesting wrinkle, though. Under Article IV, Section 4, of the Constitution, the federal government is obligated to protect each state against invasion. Arizona is currently the target of much illegal alien trafficking and crime. If Arizona argues that the increasing violence along its border constitutes an invasion, the federal government has abdicated its constitutional responsibility. Every political entity has the right to defend itself against a foreign invader. Arizona can claim that, as a sovereign state, the right of self-defense devolves onto it when the Union has breached the constitutional covenant. The Arizona law would be constitutional, then, regardless of other issues, at least until the federal government takes steps adequately to stem the flow of illegal aliens into the state.

As for discrimination in violation of the equal protection clause, it is unlikely that the targeting of illegal aliens as such will trigger strict scrutiny from the courts. Under the intermediate scrutiny test applied in Plyler v. Doe in 1982, the Arizona law directly and substantially furthers the state’s important interest in public safety. The fact that this law likely will be applied disproportionately against Mexican nationals by itself is not enough for an equal protection violation, as long as the standards for “reasonable suspicion” use race-neutral criteria, such as lack of driver’s license or other American-issue identification combined that are specifically approved in Section 2.B. as creating a presumption that the person is not an illegal alien. Disparate impact on an ethnic group is not enough for a constitutional violation. An invidious purpose is required, and the point of the law is to deal with a public safety issue, not just to harass Mexicans because of their national origin. Overall, the law is very carefully drafted and, indeed, a rather minimal intrusion on top of whatever other, more intrusive, “lawful contact” occurs between government officials and private individuals.

Additional commentary from Hot Air and Charles Krauthammer.

UPDATE: Professor Glenn Reynolds (Instapundit) and Professor Ann Althouse weigh in, especially on the “invasion” issue.

The reaction of thirty-seven states has been to pass or consider legislation to exempt their citizens from portions of Obama/Reid/PelosiCare, mainly through rejection of the individual mandate to purchase insurance. That is an unconstitutional nullification of federal law, if the federal law itself is constitutional. If the federal law is unconstitutional, such state laws are superfluous grand-standing.

More intriguing, however, is what those votes signify. The broad and deep popular dissatisfaction with the nationalization of health care taps into a stronger current of alarm at the aggrandizement of government, especially of the federal government and its bureaucracy. It is that broader issue—the role of government bureaucrats in the increasing regimentation of life—into which the health care debate taps. That, not necessarily the particulars of Obama/Reid/PelosiCare, will be the ground over which the November election, and others to follow, will be fought.

That popular reaction also ties into a brewing class-warfare storm, but one that blows in a different direction than the one fanned by traditional Democratic Party class-warfare rhetoric. The popular element is the productive class, not the dependency class that Democrats and their subsidiaries such as ACORN like to “community-organize.” The targeted elite is not the “evil businessmen,” but the elitist mandarin class of the media, the academy, the entrenched bureaucrats, and various other groups of the political elite and their rent-seeking auxiliaries.

Such a broad political movement can have the legitimacy to open the door to constitutional expression of its principles. While prodding states to pass anti-individual mandate laws does not translate flawlessly into constitutional-level action, it establishes a wedge through which such action may be pushed into the political process. I am raising here the possibility of a constitutional amendment, not just against the particulars of Obama/Reid/PelosiCare, but against the entire relationship between the federal government and the states, and between government and individuals.

Article V of the Constitution provides two methods of proposing constitutional amendments and, separately, two methods of approving them. One way to propose such amendments is by a two-thirds vote of each house of Congress. Although the language is not entirely clear, for reasons that I might discuss in the future, there is no need for presidential approval of such amendments. That has been the adhered-to practice since the Founding. The Supreme Court has given it at least tacit approval since the 1798 decision Hollingsworth v. Virginia over the constitutionality of the Eleventh Amendment. This method is the way all amendments to the Constitution have been adopted so far. Historically, it represents the Founding Era’s Federalist conception of republican government best controlled through the deliberative process in legislatures rather than too-frequent recourse to popular voting. Moreover, this approach reflects the Federalists’ concern that the national government be pre-eminent against the strongly-entrenched state interests in decisions whether to change the Constitution.

The other method for proposing amendments is to have two-thirds of the states (34, currently) petition the Congress to call a convention to amend the Constitution. This option represents the Whig conception of republicanism during the early years of the Republic. That approach prefers conventions over legislation in matters of profound societal significance. There is no direct popular mechanism to amend the Constitution. Conventions, having more participants and being selected for only a limited objective, are more precise images of the popular will and could identify the common good as understood by the people better than legislatures could. While that last sentiment may be significantly in doubt today, given the size of the population of the United States, it explains the continuing popularity of conventions. Conventions selected by the people or their representatives are a compromise between purely legislative action and the direct popular action through petition (signature-gathering) and voting available to amend many state constitutions. This approach under Article V also reflects the Whigs’ preference for “community,” a concept more likely to be realized at the local and state level than at the level of a national government.

The method for approving a constitutional amendment is determined by Congress. Approval must be by either three-fourths of state legislatures or by conventions in three-fourths of the states. That, too, is a compromise between the Federalist view of very difficult amendment and the Whig view of easier amendment. Both groups realized that the Articles of Confederation suffered a weakness from the requirement of unanimous consent by the states for amendment. Indeed, there had been moves to change that requirement that failed—because of the unanimous consent requirement. In all but the Twenty-first Amendment (the repeal of the Eighteenth Amendment that produced national prohibition of alcohol sales), Congress has called for approval by the state legislatures.

It would be entirely possible, then, to have the unhappy states call for a constitutional convention to meet to prohibit the adoption of an individual health insurance mandate or some other aspect of Obama/Reid/PelosiCare. Indeed, it was precisely to allow the states to counteract Congressional aggrandizement that the states were given that role by the Framers. If such a call is made, Congress in theory cannot ignore it. But it seems a waste to limit the exercise to such narrow a focus. In fact, making the objective too technical and narrow might be less likely to excite supporters and more likely to doom the effort. Instead, this provides an opportunity to clip the wings of federal power by redefining the scope of what Congress may do, especially under the commerce clause.

Or, federal power might be blunted through the adoption of a new constitutional mechanism to override federal government action. It might be fruitful in that regard to revisit the theories of nullification that the more anodyne, but essentially useless, state statutory attempts to withdraw their people from nationalized health care raise. Having been used by Jefferson and Madison, but also by John C. Calhoun and the framers of the Confederate States’ constitution, such theories have a checkered ideological pedigree that big government opponents are sure to raise. But that does not negate their intrinsic merit, and the current overreaching by the federal government presents a solid opportunity to recast that image.

As noted before, there is no way for direct popular initiative to amend the Constitution or to propose or repeal federal laws. This is quite unlike the case of many state constitutions, including California’s, that allow for all of those means of popular participation. The popular initiative process is the result of the late-nineteenth and early-twentieth century influence of Progressivism and represents a “democratic” streak that is inconsistent with the unabashedly “republican” national constitution. There are certainly arguments against a democratization of the process as a check on Congress. The state of California is often cited as a laboratory case of what can go wrong. But there is no reason to avoid that discussion, and a constitutional convention called by the states under Article V would be an appropriate forum.

Constitutional change is often more far-reaching and unpredictable than political change. Constitutional change is simply political change on a more profound and more broadly-accepted plane. For that reason, our system by design makes constitutional innovation more difficult than political innovation. If there is a built-in inertia for the political status quo, that applies in droves to the constitutional status quo, absent some intrusion by a politically-suspect interloper such as the judiciary. Of course, that also makes constitutional change more difficult to reverse than political change. Therefore, those who benefit from the existing constitutional structure defend it even more fiercely than they do the political status quo.

As happens with any political structure, the elites seek to control it to their advantage. Over time, they become successful at doing so, as they enrich and empower themselves and favor-seeking associates at the expense of the productive elements of society through symbiotic interaction between the political and other elites. At some point, they push too far, which produces a popular upheaval. The more entrenched the elites, the longer the political dissent has become dammed behind the barrier those elites represent, and the more violent the eventual reaction.

Democratic republics have an advantage over other political systems in the extent to which they allow for dissent to manifest itself. It is more like a cresting free-flowing stream than one blocked by a dam. As political disaffection finds channels for outlet, a republic can avoid the catastrophe of a dam that eventually fails. The early American republic (and its Western European antecedents) had a strong tradition of “popular constitutionalism.” This is a way of defining the acceptable norms of conduct and appropriate policies for the community. It goes beyond the formal methods of legislating or making constitutions.

Popular constitutionalism includes peaceful mass movements, political agitation, and petitioning for a redress of grievances. Historically, it also includes more confrontational political action, such as destruction of property and symbolic threats such as hanging politicians in effigy. Operating within broad informal customs, a certain amount of violence and level of threats was permitted. Though they sometimes exceeded the accepted limits, the Sons of Liberty (with their Boston Tea Party and other events) were well-known practitioners of this form of “authentic” disobedience that resulted in constitutional change that had been choked off through the formal political channels. Others were the opposing political clubs that supported Hamilton and Jefferson, the organized and armed rural opponents of the federal excise tax on whiskey, and the agitators against the Sedition Act in the 1790s. Indeed, reading histories of that era, such as David McCoullough’s book about John Adams, one gets a good impression of the pervasiveness of such popular militancy. More recent historical examples abound, from the Dorrites in the Rhode Island constitutional crisis of the 1840s to the Bonus Army of the 1930s to the civil rights movement of the 1960s in the South.

Looked at through this historical prism and the tradition of popular constitutionalism as a counterweight to those who control the formal levers of political power, the vocal opposition to Obama/Reid/PelosiCare led by the current tea party movement is part of the American heritage. That is so, even if the charges of a brick thrown here or a threatening insult yelled at a congressman there turn out not ot be staged. By comparison to the robust popular constitutionalism of the early Republic and the Age of Jackson, especially, these tea party protesters are remarkably polite and well-mannered. But, like their ancestors, they have tapped into a rich vein of discontent about the scope and nature of government in people’s lives. If maintained long enough, this popular sentiment can provide the force necessary for political reform and, perhaps, constitutional reform.

Having addressed the substantive constitutional arguments over Obama/Reid/PelosiCare, I want to consider some institutional factors that might influence the outcome of the challenge by the state attorneys-general or by anyone else who hopes to derail this “road to serfdom” through litigation. It is difficult to predict how the courts will react to these suits. There is a general aversion on the part of courts to intervene in matters of complex social policy. The courts are institutionally and politically ill-equipped to second-guess the political branches on responses to this type of question. They do not have the requisite ability to gather and evaluate evidence and to decide the best way to balance competing societal interests. Such issues are also generally seen as involving matters of public policy, not constitutional law. Involvement by the courts in such policy disputes is likely to trigger a hostile political reaction against the judiciary as constituting a serious breach of the separation of powers.

One can add to that the particular hostility that would arise if a Republican-appointed Supreme Court majority were to overturn a law adopted by a Democratic administration without Republican support, especially when that law has become the standard around which, for better or worse (hopefully, worse), the Democrats have made their stand. Just recall the Democrats’ over-the-top reaction against the Citizens United case, where the Supreme Court finally struck down restrictions on political speech by people organized into corporations. That reaction carried over to the President’s unprecedented and pointed attack on the justices sitting in front of him as guests of Congress during the State of the Union speech. It would be Bush v. Gore again, but now with the Democrats in control of the political branches. The President and the howling mob of Congressional Democrats may have intended to intimidate the justices with their display, and the Court may have that scene in mind when they rule.

That said, this case is not Citizens United. I have not seen evidence that the Chief Justice has been particularly intimidated by the State of the Union theatrics. I suspect that Justices Scalia and Thomas would be even more inclined than usual to be pugnacious. Moreover, striking down portions of Obama/Reid/PelosiCare might be divisive, but, given the continuing unpopularity of the law, the Supreme Court likely would get significant public support. As for a Bush v. Gore redux, liberals might still be smarting over that case, but there was no negative fall-out among Americans at large over the Court’s role in that case.

But if any part of the judiciary is likely to stand up to Congress, it is the Supreme Court, not the lower courts. It is likely that the lower courts will uphold the legislation. There are currently two suits by attorneys-general. It might have been better for them to file suits in several different federal circuits, in order to hope that at least one of them might rule in their favor. Aside from the intrinsic importance of any particular issue, the best way to be one of the eighty or so cases to get review out of the six thousand filed each year, is to show a split on the issue in the federal circuits that needs to be resolved by a final decision of the Supreme Court. If none of the lower federal appellate courts hold for the attorneys-general , the Supreme Court can avoid the issue simply by denying the states’ petition for review. Of course, conversely, if the states lose in all federal circuit courts, any decision by the Supreme Court to grant their petition for review would be a sign that the Court is favorably disposed to at least some of the arguments of the states.

One factor that might weigh on the minds of the conservative justices and incline them in favor of the states’ position is that this is an opportunity for them to reaffirm the Lopez decision from 1995. In that case, the Court for the first time since the New Deal declared a federal law unconstitutional under the commerce clause and ended nearly sixty years of relentless expansion of Congress’s powers. The Court affirmed that it was willing to enforce constitutional limits on Congress under the commerce clause in U.S. v. Morrison in 2000. But then, in 2005, the Court slid back in Gonzales v. Raich and threw in doubt the tentative steps taken in the two prior cases. The suit by the state attorneys-general is perhaps the best opportunity to reinforce the limits of the commerce clause and to constrain Raich.

Another institutional consideration here is the timing of the suits. On the one hand, some provisions of this law go into effect soon. As the law involves a massive restructuring of health care funding and delivery, a quick resolution is desirable before too many people have changed their position to accommodate themselves to the new reality. Usually, cases take a long time to get to the Court. On the other hand, these suits mostly involve challenges to the statute itself, though at least one of the theories might depend ultimately on a factual resolution of the law’s impact on the various states’ budgets and relevant administrative bodies. To the extent the factual issues can be resolved quickly, there are procedures available to expedite review, and the Court has shown that it can move a case along quickly if it is so inclined.

Another potential institutional (and constitutional) issue is who has standing to sue. The state attorneys-general are filing the suit on behalf of their states and on behalf of their states’ residents. The constitutional boundaries of standing are ambiguous and ill-defined, and their interpretation and application may depend on the Court’s considerations of institutional competence and prudential wisdom to decide the case. States generally cannot sue under the parens patriae theory on behalf of their residents for harm suffered by those residents, especially some economic harm that affects them individually. An exception might be for harm, such as environmental harm, that affects the citizenry in a collective and indivisible fashion. Moreover, the states cannot sue the United States under parens patriae. The states can sue even the United States if the harm from federal action affects them as state entities, apart from harm to their residents, such as in the enforcement of their laws. However, the states cannot sue the United States merely for economic harm resulting from some federal action, lest the states be able to turn every federal policy that affects the states into a judicial contest.

It is difficult to know how this would work here. Some of the challenged provisions, such as those dealing with the individual mandate and the fine, would appear to be actions by the state in parens patriae. Certainly those individuals can sue for themselves, but those mandates do not apply yet, so it is unknown who might qualify as an affected plaintiff. On the other hand, by the time their specific identities could be known, the system would be so entrenched that a judicial decision would cause such disruption that the Court would be especially reluctant to intervene.

Other provisions, like the challenge based on the federal government’s takeover of the states’ political and administrative machinery and on the unfunded mandate theory regarding federal changes to the states’ Medicaid programs do involve the states’ interests directly. However, these challenges still sound like claims based on economic effects, especially as the states are emphasizing budgetary concerns. On the other hand, the suits try to phrase this in terms of fundamental structural issues at the core of federalism. It is also unclear whether there is a difference between suing the United States directly and suing federal agencies and officials.

The main obstacle that I see is that the suit asks the justices to reinterpret so much existing precedent and to push so much received constitutional law in a different direction that the Court becomes unwilling to act as boldly as necessary to get the job done. This law is so broad and operates on so many levels, constitutionally and politically, that it requires action on many fronts. On the other hand, perhaps, the very scope of the law may induce the Court to act. This law is not overwhelmingly popular, so that there will be defenders of a decision to scrap the system. This is particularly true if the Republicans make significant gains in November. It would be difficult thereafter for the Democrats to replicate their success, so that Congressional defiance of the Court by adopting a similar law and having the President run against the Court in 2012 is unlikely. It is said that hard cases make bad law. It is also true that bad laws may make hard cases to ignore, and it is certainly possible that the Court will undertake the constitutional adjustments necessary at least for this case. It is too difficult to predict, which is why this suit is a long-shot, but not a fool’s errand. 

If the states’ lawsuit fails, there remain other alternatives. There is, of course, the political remedy through the states’ representation in Congress. It has long been taken as given that there is no real need for the courts to intervene as the states and their officials have plenty of influence on federal policy through their members of Congress. The politics of Obama/Reid/PelosiCare have exposed that canard. But a change in the partisan composition of Congress will have an effect on the future of the health care law, though it is not likely that the political process will accommodate the near-wholesale repeal that is needed.

Going in a different direction altogether, a number of states have passed, or are considering, laws that exempt people from the mandates or purport to opt out of the system. Those laws are fruitless. If the federal law is constitutional, state laws cannot nullify a federal law.

There is one intriguing possibility. If thirty-seven states have enacted such exemption laws, or are considering them, that political energy might be re-directed to petitioning Congress for a constitutional amendment to curb the federal government’s powers in health care and otherwise. It is that last possibility that I will address in a separate post.

In addition to the main constitutional Achilles heel of the health care law, the individual mandate to purchase insurance, there are several other potential soft spots. I will address first some residual issues raised by the brief for 13 of the 14 state attorneys-general who have challenged Obama/Reid/PelosiCare so far. I have read that brief. I have not yet read the brief of the Virginia attorney general, who filed separately. Thereafter, I will address some more general constitutional issues.

Direct versus indirect taxes
On the residual issues, one argument that the attorneys-general make is a highly technical one. They claim that the penalty, even if it is considered an ordinary tax, is a “direct tax,” rather than an “indirect tax,” and has been apportioned incorrectly under Article I, Sections 2 and 9 of the Constitution. Essentially, those sections require that direct taxes be apportioned among the states on the basis of population. This is a very arcane concept that preoccupied the Supreme Court on a few occasions before the twentieth century. A “direct tax” is best described as a capitation (head) tax assessed directly on all persons or, before the adoption of the 16th Amendment, as a tax on certain kinds of income, especially from real or personal property (sources of wealth). The apportionment approach would benefit wealthier states whose people could better afford to pay the same per capita tax than people in the poorer states.

The health care penalty applies to all, and it applies without depending on any particular activity of the person. Thus, it has the qualities of a capitation tax. It is not likely, though, that the Court will accept a constitutional theory that has not been used successfully in over a century. Assuming that the individual mandate is constitutional, the Court might hold, instead, that the tax is an indirect excise tax, in that it applies not to an individual as such, but to his or her decision to forgo the insurance purchase. In that case, there is no requirement under Article I, Sections 2 and 9 for apportionment among the states.

State sovereignty, federal coercion and the spending power
The attorneys-general also argue that Congress’s significant expansion of Medicaid programs operates as an unfunded mandate that is unconstitutional as a violation of cooperative dual federalism embraced in the 10th Amendment. The states argue that this expansion requires them to raise significant taxes to fund and administer the program. It also forces them to adopt numerous new regulations and to use the state’s administrative machinery to administer these federal requirements. Though their brief is devoid of precedents, the attorneys-general here are relying on the 1992 case New York v. U.S. and the 1997 case Printz v. U.S. They are claiming that these requirements fail to treat them as sovereigns in accordance with our constitutional framework of dual sovereignty. Rather, Congress is coercing them to become federal agents in their legislative and executive capacities. 

On the other hand, states are not required to be in Medicaid and, to the extent they are, Congress helps pay for the cost under its spending power. This is, then, not an unfunded mandate that commandeers the states’ sovereign political institutions, but merely a conditional grant that involves a voluntary decision on the part of the states to participate on the terms (including at least some funding) that the federal government establishes. In reality, though, the political pressure to participate in such “voluntary” programs is overwhelming, especially if much money is at stake. Still, at some point states may decide (as Arizona has been reported to have done) to jettison the program if it becomes too underfunded by Congress.

However, the attorneys-general argue that the usual rule of conditional grant/spending power cases as being voluntary arrangements to which states consent, does not apply here. The health care law creates massive changes in numbers and qualifications of participants and in the scope of coverage required, while federal contributions will diminish. It requires states to set up and administer new insurance exchanges or, if they choose to opt out of that, to dump even more people into a pool of uninsured and provide them with coverage. Moreover, the attorneys-general assert, changes of such magnitude were entirely unforeseen and unforeseeable when the states became voluntary partners with the federal government in Medicaid. Those changes would fatally harm state budgets that already groan under the weight of Medicaid spending and that have to be balanced because states cannot print money. Because of the long and intricate Medicaid partnership between the federal government and the states, the latter cannot extricate themselves from the relationship because that would throw millions of people into the ranks of the uninsured that have come to depend on that partnership.

While the argument has merit because the scope of the federal changes goes well beyond anything the Court has addressed in the past, this is likely not a winning argument. The Court in the 1987 case South Dakota v. Dole was unmoved by the coercion argument when it upheld the constitutionality of a conditional grant of federal highway funds. The Court concluded that the state had chosen to accept the funds and was not coerced. Though the Court left open the possibility of a different result if better evidence of coercion were shown, there are no cases of which I am aware in which the Court has accepted the argument that a federal grant under the spending power was unconstitutionally coercive of the states.

The current case is a more sympathetic fact pattern for the states than Dole, and there is more of the disconnect between financing and accountability to the public that is common for unconstitutional unfunded mandates. But the Court still is likely to tell the states that they have the choice to withdraw from Medicaid, however difficult that may be as a practical political matter. If the Court treats this case as an ordinary conditional grant case, the arguments that Congress is commandeering the states’ legislative and executive processes in violation of the 10th Amendment will fail.

Spending for the “general welfare”
There are also constitutional arguments not raised by the states. For example, the legislation contains pay-offs to various states to get the necessary votes for passage. These pay-offs have been given colorful names that will resonate with voters, such as “Louisiana Purchase,” “Cornhusker Kickback,” “Gator-Aid” (not, strictly speaking, a pay-off, but an exemption), and “Bismarck Bank Job.” While some of these have since been deleted, there are still others that, separately, benefit residents of only Connecticut, Montana, and Tennessee.

These pay-offs may violate Congress’s spending power that, under the Constitution, must be used for the general welfare. Under the 1936 case United States v. Butler, the Court gave that term very broad meaning and left to Congress the principal responsibility to define it. Usually, Congress readily meets that test by making formal “findings” about how some give-away to a favored individual, company, or group of people nevertheless benefits the American people generally. That is how Congressional funding earmarks survive. This type of pork-barrel spending is a well-established tradition by now, as spending on this or that agricultural or industrial support payment, bridge to nowhere, recreation center, race-defined college, or (in my institution’s case) moot court room attests.

It is highly unlikely, then, to be a successful line of attack. However, it is not impossible. In this particular instance, the local favoritism is so pronounced that it will require a conscious disregard of the facts for the Court to ignore the brazen lack of general welfare. Why should the citizens of 49 states pay to give a benefit for which only residents of, say, a town in Montana qualify? Still, the Court has studiously ignored the parochial nature of past spending measures.

State nullification laws
Another constitutional argument arises out of the laws that a number of states have passed that purport to allow their citizens to opt out of the individual mandate. If those laws run counter to what is constitutionally in the federal law, they are unconstitutional under the Supremacy Clause of Article VI. Section 2. Despite grandstanding symbolic efforts by “anti-war” cities such as Berserkeley, California, to declare themselves “nuclear-free” zones, active nullification by states of federal laws has been rejected as a constitutional doctrine at least since Appomattox in 1865. To the extent they comply with the toothless and unworkable Senator Ron Wyden-sponsored provision in the health care law that allows states to opt out, these state laws are constitutional. But they are also toothless and unworkable.

Non-delegation doctrine
In addition, there are some provisions that give much discretion to various bureaucrats, including the Secretary of Health and Human Services to adopt regulations. One of these is to decide what kinds of items are not to be subject to the new excise tax on medical devices. Under current definition, such devices could include tampons and breast pumps. However, the Secretary is given authority to exempt “any other medical device determined by the Secretary to be of a type which is generally purchased by the general public at retail for individual use.”

This is a question under the “non-delegation” doctrine. To delegate this type of legislative authority to others, Congress must show that it has the power to regulate in this field (which it does) and that it has set adequate boundaries to the agent’s discretion. Those boundaries might consist of clear objectives to be attained or standards of performance by which the agent’s conduct could be judged. There has been no successful constitutional challenge under a direct application of the non-delegation doctrine since the 1935 case Schechter Poultry Co. v. U.S. In light of the broad deference the Supreme Court gives Congress in this area, it is unlikely that a challenge under the non-delegation doctrine would succeed.

The “Slaughter Rule”
With the “Slaughter Rule” (also known as “deem and pass”) having been abandoned, there is no longer any proper constitutional challenge under Article I, Sections 5 and 7, to the process under which the law was adopted.

Origin of revenue bills to be in House
Article I, Section 7 of the Constitution also requires that all bills for raising revenue must originate in the House of Representatives (a historical throwback to English and American practice and theories on taxation and its connection with the consent of the people). The Senate, however, may provide amendments. Since the health care law purports to raise revenue through various taxes, it has to originate in the House. But wasn’t it the Senate (specifically Senator Harry Reid and a few of his companions) that wrote the bill eventually passed by the House last weekend? Yes, it was, but Reid took the completely different House bill passed last fall and had the Senate gut it by “amendment” that inserted his own bill. The formality of House origination was met, though the bill became the Senate’s version.

In the next post, I will address some institutional considerations that might affect a judicial resolution of the health care law’s constitutionality.

I have received requests from the media and my students to discuss the constitutional issues raised in the suits by various state attorneys-general that challenge the recently passed Obama/Reid/PelosiCare. There are two dimensions to the inquiry. One is the strictly constitutional problem. The other is the question of institutional response.

Regarding the substantive constitutional dimension, there are, again, several issues, the most salient of which is the individual mandate that requires the public to purchase insurance and, in the alternative, fines those who refuse. The Congress purports to be acting under the power to ”regulate commerce among the several states” (the “commerce clause”). The relevant precedents here are the 1942 case Wickard v. Filburn and the 1995 case U.S. v. Lopez. In Filburn, a holding reinvigorated in the 2005 case Gonzales v. Raich, the Supreme Court gave the commerce clause a very expansive reading and upheld the application of crop restrictions and fines under the second Agricultural Adjustment Act to a farmer whose wheat production for interstate commerce was trivial and who used a portion of his wheat for home consumption. The Court held that Congress’s regulation of the national wheat market fell under the commerce clause, and that the law could be applied even to a trivial participant in the overall wheat market as long as that regulation was needed to address the evil of national overproduction of wheat that Congress was trying to address. Farmer Filburn’s production, when aggregated with the production of other wheat farmers, had a substantial effect on the national commerce in wheat. A similar result was reached in the Raich case in regard to the home growing of marijuana when considered in light of the Congress’s attempt to control the national market of marijuana.

Under that reasoning, Congress might well be able to impose the insurance mandate. The mandate is necessary to effectuate the regulation of the national market in health insurance, especially the prohibition against denying coverage for pre-existing conditions. Even if an individual’s failure to purchase insurance would have no effect on the national health insurance market, the failure of large numbers of people in the aggregate would have a tremendous effect, ultimately destroying the ability of insurance companies to issue policies that cover pre-existing conditions. People would simply wait until the condition occurred and buy insurance then, sort of like buying fire insurance to cover the house while it is burning.

However, the health insurance mandate is different from the farmer or even the person growing marijuana under artificial light in the basement. The Court has always required under the commerce clause that Congress be regulating some identified activity. That activity has to be commercial or, if it is non-commercial, it has to be part of a regulation of an identified national market. In Lopez, for example, the law targeted the possession of a firearm that the defendant must have acted to acquire. In the health insurance scenario, the person has not engaged in any identified activity, commercial or otherwise. For the first time, Congress is regulating non-activity and is forcing someone under the commerce clause to engage in an activity, rather than seeking to restrain him in an activity he has already chosen to undertake.

Even so, the Supreme Court struck down the law in Lopez on the ground that the regulated local activity was non-commercial and not tied to broader regulation of a national market. A major concern of the Court in that case was to identify a limit beyond which the Congress could not go under the commerce clause, the principal regulatory power of Congress. Our system of government is a “federal” system of dual sovereignty in the states and the federal governments. Under that system, formally the Congress is a legislature of limited and delegated powers, though that theoretical position is sorely tested under this health care monstrosity. The powers not delegated to the national government, nor prohibited to the states under the Constitution, are reserved to the states or the people. That sentiment is “codified” in the Tenth Amendment, so when the attorneys-general declare that Obama/Reid/PelosiCare violates the Tenth Amendment, this is the theory they are espousing. If the legislation does not come within the commerce power, it falls within the power of the states to regulate.

In Lopez, the Court held that there had to be some limit to Congress’s power under the Framers’ design, both in the specific language of the Constitution and in its history. The dissent in that case would have upheld the law on the ground that gun possession near a school (the object of regulation in the challenged law) might lead to violence, that violence disrupts the educational process, that the disruption leads to uneducated children, that this lack of education leads to less capable workers, and that the lower capabilities of workers will lead to lower productivity. The majority rejected that connection to the economy (rather than to a specific market activity) as too remote and speculative. It was telling, according to the majority, that the dissent could not come up with an example that, under the latter’s approach, would be beyond Congress’s power to regulate.

But here the connection to interstate commerce is even more remote than in Lopez. In the latter case, the individual had opted to acquire a gun. Here, again, the person is passive. Merely living has only a remote and speculative effect on any specific commercial market. To hold that a person affects interstate commerce simply by living would mean that there are no limits whatever to Congress’s reach under the commerce power. It would turn the commerce power into a general legislative power previously always understood to belong to the states. Not even at the height of World War II did the federal government require the people to buy something, not even war bonds.

Alternatively, Congress could argue that the mandate to buy insurance is really a tax. Congress has the power under the Constitution to raise taxes to spend, among other things, on the common defense and the general welfare. This “general welfare” provision represents one of the limits of Congress’s spending power. It is not an authority just to regulate for the general welfare. That power is reserved to the states. Just as the spending power is limited to items that, say, advance the general welfare, the spending power itself is a limit on the reasons for which Congress may raise taxes.

The Court has spoken in this area. In two cases in 1937, Helvering v. Davis and Stewart Machine Co. v. Davis, the Court upheld the constitutionality of the retirement pension and unemployment insurance provisions of the Social Security Act under the taxing and spending powers. The Roosevelt administration had marketed these programs to the public as insurance plans, but, when the cases went to the Court, the government’s attorneys shifted tactics. Rather than being merely insurance payments, they were taxes because the funds could be borrowed by the government and transferred to the general fund for expenditures.

That approach avoided the commerce clause problem, but also made this type of payment a “tax.” Under the current health care law, the insurance mandate is not paid to the government or into any government-directed fund. It would be unlike any other taxes that I can recall. Congress might be able under the taxing power to effectuate the same policy by giving a tax deduction to those who buy such insurance, but creating a tax incentive is not the same as compelling someone to buy something from another person.

The portion of the law that imposes a penalty in lieu of buying insurance looks more like a tax, but that runs into another problem. Recall that the power to tax under Article 1, Section 8, clause 1 is limited to spending for various purposes. A tax under that provision must be a revenue-raising tax, not a penalty. While the Court has been very generous in calling taxes “revenue-raising,” as long as they have that purpose or there is a clear revenue-raising effect, this law pushes the constitutional envelope. It is forthrightly described by all involved as a penalty.

If it is a penalty, that part of the health care law might still be constitutional, but not under the taxing/spending powers. It would have to be justified as a reasonable means to accomplish one of Congress’s other delegated powers, here, the commerce clause. But that would run into the problem discussed earlier, that the penalty is to assure compliance with the purchase of an insurance policy, which, in turn, might not be a constitutional use of the commerce power. The Court has long declared that Congress may not achieve indirectly under the taxing power what it could not achieve directly under the commerce power.

The challenge to the constitutionality of the individual mandate is the core of the attorneys’-general constitutional attack. It is an uphill fight, but not impossible. Tomorrow I will address some additional constitutional problems. Thereafter, I will address some institutional considerations and conclude that, though the constitutional arguments against the individual mandate have more merit than the supporters of government health care would grant, they are still likely to fail.

In 2008, the Supreme Court decided D.C. v. Heller. That case overturned a D.C. law that effectively banned private handgun ownership for personal use. The law also made other firearm ownership for personal defense impractical by imposing burdensome restrictions. In Heller, the Court for the first time clearly recognized that the 2nd Amendment protects an individual right to own guns for, among other purposes, personal defense.

Under long-standing precedent going back to Barron v. Baltimore in 1833, the Bill of Rights applies only against the federal government. The Court therefore had no occasion in Heller to reach the question of whether similar gun ownership restrictions by states or municipalities are unconstitutional, as well.

Today, the Court will hear McDonald v. Chicago, a case that challenges Chicago’s similar de facto private handgun possession ban. The question avoided in Heller thus is squarely presented and indeed was carefully set up this way by the 7th Circuit, the lower court whose decision the Supreme Court is reviewing.

By its text, the 14th Amendment applies to the States. Three clauses that directly restrict state action are Privileges or Immunities (P/I), Due Process (DP), and Equal Protection (EP). The EP clause is not applicable to the core issue, and the litigation is limited to the effect of the other two. The Court has long held that the DP clause has a substantive component. It protects against substantively arbitrary and capricious laws that deprive a person of life, liberty, or property. The key is “liberty,” a concept that means more than freedom from physical restraint, but whose boundaries are obscure. The problem becomes to distinguish that liberty which is subject to majoritarian political control from that which is given more insulation by being recognized as part of the fundamental liberties incorporated in the due process clause.

The Court has used various formulations to define such liberty. A common one is derived from Palko v. Conn.: the claimed right must be “implicit in the concept of ordered liberty.” Similar formulations go back to the earliest days of the Supreme Court and indicate jurisprudential principles rooted in natural law, natural rights and social contract philosophy. More recently, the Court has refined the Palko test to confine the universalism of that language to American legal tradition. One version, from Duncan v. La., provides that the right must be “fundamental to the American scheme of justice” or “necessary to an Anglo-American regime of ordered liberty.” Another version from Snyder v. Mass. defines such liberties as those that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The Supreme Court over the years has applied most clauses of the Bill of Rights against the states through the DP clause of the 14th under a case-by-case process of “selective” incorporation. In opting for that approach, the Court has rejected the alternative of “wholesale” incorporation of the entire Bill of Rights proposed by Justice Hugo Black.

The Court has not incorporated the Second Amendment. In a trio of 19th century cases, U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas (1894) the Court declined to apply the 2nd Amendment to the states, though this was before the process of selective incorporation through the DP clause began. So the Court now has to consider whether this more recent incorporation project requires a reconsideration of those precedents and a finding that 2nd Amendment protections are so fundamental to the Anglo-American regime of ordered liberty as to apply to the states.

A similar issue applies to the P/I clause. Again, the Court had declined to find in those three 19th century cases that the P/I clause applied the 2nd Amendment to the states. Those cases, in turn, rested on the 1873 Slaughterhouse Cases which was the first occasion for the Supreme Court to interpret the meaning of privileges and immunities under the 14th Amendment. It is that precedent (and the subsequent Cruikshank-Presser-Miller line of precedents) on which the McDonald petitioners and most of the supporting legal briefs have trained their sights, and which they seek to have the Court overrule.

The problem begins with a different privileges and immunities clause, in Art IV, Sect. 2. Known as the “interstate privileges and immunities clause” and modeled on a similar provision in the Articles of Confederation, this is an anti-discrimination provision which prohibits a state from discriminating against citizens of other states visiting the former in the enjoyment of certain rights that the state recognizes for its own citizens. It does not, however, require recognition of any particular constitutional guarantees of those rights for anyone. It is solely an anti-discrimination provision.

The scope of those rights was not thoroughly addressed in the early years of the Republic. But in 1823, in Corfield v. Coryell, Justice Bushrod Washington, sitting as a circuit judge, gave a partial but expansive listing of these “fundamental principles,” including “the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.”

One can include just about anything within this elastic phrasing. Certainly it can include a right to own guns. The issue is whether this definition of privileges and immunities has the same meaning for the 14th Amendment, but now for all U.S. citizens, even the state’s own residents, without the limitation that the states are only prohibited from discriminating against out-of-staters in regard to these rights.

In the Slaughterhouse Cases, the Court answered “No.” The privileges and immunities of citizens in the 14th and in Article IV, Justice Samuel Miller wrote, are different in that they relate to different “citizens.” The 14th makes a clear distinction between citizens of the U.S. and those of the states. The definition of U.S. citizenship was intended to reverse the opinion of Chief Justice Roger Taney in Dred Scott v. Sandford in 1857. Taney had said that the definition of citizenship was left to the United States, and the United States had never considered Blacks (free or slave) to be citizens, a concept he derived from the Declaration of Independence’s and the Constitution’s use of “people.” The “people” of the United States did not, in the late 1700s, include Blacks, and the United States had never acted to make them citizens. One of the dissenting Justices, Justice Curtis, argued for a citizenship based on state law, thereby meaning that Dred Scott became free when taken to reside in a free state (Illinois) and in a Northern territory (Wisconsin) before returning to Missouri (a slave state).

The 14th Amendment divides citizenship into U.S. citizenship and state citizenship based on different criteria. The Amendment then in so many words provides that the privileges and immunities of citizens of the United States are protected and that persons are entitled to due process and equal protection of the laws. The Slaughterhouse Court seized on that distinction between U.S. and state citizenship and the specific reference to “citizens of the United States” to set up distinctive rights for people based on this federated concept of citizenship. The potentially vast universe of rights described in Corfield was based on state citizenship, the Court declared, as the states were the basic building blocks in the federal system. The rights of U.S. citizenship were limited and arose out of the Constitution, laws, and very nature of such government. They included an unspecified, but pointedly limited, list of protections of habeas corpus, freedom of assembly to petition the government, travel on navigable waters, protections by the U.S. government while abroad, access to federal buildings and instrumentalities such as courts, and moving from one state to other states without impediment.

The dissent saw this narrow interpretation as unduly restrictive, because it would protect little of substance with which any state likely would interfere. The dissent instead argued that the phrase was intended by the framers of the 14th to incorporate the expansive scope of the rights envisioned in Corfield, but to ground them in U.S. citizenship so that they applied to all citizens in whatever state and protected those citizens against infringement of those rights even by their own state.

What is the evidence? It is likely that the dissent got it right as to the intention of the Congressional framers about a broad definition of privileges and immunities to be protected as rights of citizens of the U.S. But are there ways to accept this broad scope of the privileges and immunities and still narrow the reach of that clause so that it would not prohibit the states from restricting or even prohibiting those rights?

The narrow purpose of the 14th Amendment was to constitutionalize the Civil Rights Act of 1866, a statute that began with a very similar declaration of U.S. citizenship and then listed a number of rights that “such citizens” should have. Those rights, such as making contracts, bringing lawsuits, owning property, and full and equal benefit of all laws, were to be protected under the statute to the same extent as was enjoyed by white citizens in that state.  The purpose of the law was clear, historically, politically, and constitutionally, to provide equal status for Blacks, including former slaves in the enjoyment of rights that were typically denied them under the former slave codes and under more recent “Black Codes” in the post-Civil War South. The statute, then, was another anti-discrimination protection, though, unlike Article IV, Section 2, of the Constitution, the Act targeted not discrimination against out-of-staters, but against Blacks.

Its prime sponsors, Senate Judiciary Chairman Lyman Trumbull of Illinois and House Judiciary Chairman James Wilson of Iowa, intended the law to make concrete the promise of the Thirteenth Amendment that abolished slavery. Both asserted that the definition of citizenship, applicable to all citizens, including Blacks, recognized that they possessed certain rights. They described those rights as fundamental or natural, and both referred to the Corfield definition of privileges and immunities as providing examples of such rights. The statute did not create these rights but merely enforced those that were already part of the rights listed in Corfield.

The problem was that the statute was based on Congress’s power to enact laws to enforce the 13th Amendment, the anti-slavery amendment. Many members of Congress voiced doubt about the constitutional sufficiency of the 13th, as the statute would also protect free Blacks who had never been slaves and apply in states that had never had slavery. Moreover, the statute didn’t deal with slavery as such, but with other personal rights. Therefore, an effort was launched even before the Act was voted on to provide a constitutional basis for the Act in what became the Fourteenth Amendment. This connection between this anti-discrimination law—the Civil Rights Act of 1866—and the 14th Amendment was made explicit over and over again by the Amendment’s backers.

The prime movers behind the 14th Amendment were Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan, both of them members of the Joint Committee on Reconstruction. Both of them declared repeatedly that the Amendment would apply Corfield as well as the protections of the Bill of Rights to the states. Howard from the beginning asserted that the amendment was to protect a right to own guns. Many opponents also read the Amendment in similarly broad fashion, though, of course, they saw that as a negative. Bingham, Howard, other supporters, and, as well, opponents of the Amendment placed these rights in the P/I clause. Professor Michael Curtis has concluded that “Not a single Senator or Congressman contradicted Bingham and Howard’s assertions that the Privileges or Immunities Clause would apply the Bill of Rights to the States.”

Another contemporary law, the re-enacted Freedman’s Bureau Act, also specifically mentioned the “constitutional right of bearing arms” as needed to enjoy the rights of personal security identified in Corfield as part of the privileges and immunities. This protection was adopted because the new Southern state governments (as well as some Northern state governments) prohibited Blacks from owning guns. That Act, too, along with the Civil Rights Act of 1866, was intended as a protection for Blacks in the South and suffered from the same perceived constitutional infirmities that precipitated the adoption of the 14th Amendment.

Several well-known treatise writers at the time described the 14th P/I clause as incorporating the Bill of Rights generally and the right to own guns, in particular. Today, legal scholarship generally supports that view, including among many, Professors Curtis, Akhil Amar, Laurence Tribe, and Randy Barnett.

Then what is the problem? Isn’t this a slam-dunk case to resurrect the P/I clause from the constitutional purgatory in which it has dwelled as a result of the Slaughterhouse Cases? There is, obviously, the issue of overturning a 140-year-old precedent, always a daunting task. Another problem is both the text of the Amendment and the ambiguities that come out of any debate over the understanding of language in a major and controversial piece of law, such as the Reconstruction-Era amendments. Indeed, some contemporary treatise writers, including the most influential at the time, Thomas Cooley, did not ascribe to the P/I clause the expansive meaning that the McDonald petitioners advance.

First, there is the text of the 14th, which clearly distinguishes between U.S. citizenship and state citizenship. If the petitioners in McDonald are correct, and all of these rights from Corfield and in the Bill of Rights are part of U.S. citizenship, what rights remain that are based on state citizenship? One possible answer that, interestingly I did not see the McDonald petitioners make, is that rights that relate to the establishment of state governments are state-citizenship-based rights. Those would be political rights (which also might explain the 15th Amendment), as well as rights that arise out of the establishment of state institutions, such as government schools. In other words, we invert the balance of rights from Slaughterhouse, in which the Court placed primary importance on state citizenship.

Second, there are at least four ways to interpret the meaning of privileges and immunities in the 14th Amendment. One is the way the Court did, very narrowly. A second is to go in the opposite direction and to say that the clause incorporates the broad definition given in Corfield, and also the Bill of Rights. This is the view of the McDonald petitioners and of Senator Howard. Congressman Bingham expressed similar views, but his references to the incorporation of the Bill of Rights usually came after the Amendment was adopted. There were, however, others who spoke in favor of a similarly broad understanding during the Congressional debates.

A third way is to take a middle position and to define privileges and immunities as broadly as Corfield did, but to reject the Howard position that the clause went beyond Corfield and was intended to include all of the Bill of Rights provisions wholesale. That would make the task for the McDonald petitioners more difficult, though certainly not impossible. They would have to show that the right to own guns (though not the Second Amendment as a whole) was one of those fundamental privileges that would be included in Justice Washington’s non-exclusive list in Corfield. Much of what the Court discussed in Heller about the fundamental right of self-defense and the need to possess firearms to protect that right supports that position.

A fourth way to interpret the meaning of privileges and immunities as understood by the framers of the 14th is to say that, while it did include that broad scope described in Corfield, and it may even have included more broadly the rights under the Bill of Rights, it was only intended to protect Blacks against racially discriminatory laws in their exercise, not to guarantee the protection of those rights, as such. After all, that was the purpose of the Civil Rights Act of 1866 and of the re-enacted Freedman’s Bureau Act, and the impetus to proposing the 14th was to constitutionalize those laws. That position, too, was often advanced in the debates, including by Congressman Bingham. There is, however, contrary evidence, in the introduction, modification, and rejection of various versions of the P/I clause of the 14th. If the Supreme Court adopts that position, however, the McDonald petitioners will fail because the Chicago gun laws do not discriminate on the basis of race.

Here is a summary and analysis of Tuesday’s oral argument before the Supreme Court in McDonald v. Chicago, the gun rights case that addressed whether the Second Amendment protection of a personal right to possess guns for self-defense also applied to the states through the Fourteenth Amendment. Here is a transcript of the oral argument.

Ed Whelan at National Review Online’s Bench Memos has a terrific multi-part series that explores the egregiously biased and imperious handling of the challenge to California’s traditional marriage initiative, Proposition 8, by the forum-shopped San Francisco judge, Vaughn Walker. Walker’s conduct of the case has been disturbing, to say the least. The only good to come from it is that his actions are probably setting the case up for an eventual reversal, should he, as now appears likely, indulge his prejudices and declare that the definition of marriage universally used since time immemorial violates some newly-concocted version of the due process and equal protection clauses never before imagined.

As Whelan correctly declares, Walker’s approach “has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.” The judge tried to have the trial broadcast to courthouses around the country and on YouTube, in an open attempt to intimidate potential pro-Prop 8 witnesses at the trial, who are very cognizant of the fact that Prop 8 opponents have a history of intimidation and violence against supporters. Walker’s ludicrous claim that this was just part of a project to test how cameras might be used in the courtroom was belied by the fact that he violated federal statute and judicial conference guidelines, as well as circuit rules that such cameras (especially in pilot projects) should be used only in non-controversial proceedings. Walker, with the connivance of Ninth Circuit Presiding Judge Alex Kozinski, set up this project in haste and semi-secretly to avoid public reaction, thereby violating rules against adequate public comment on such changes. It subsequently was revealed that the two set up this “pilot project” with the Prop. 8 trial in mind. These shenanigans were properly rebuffed by the Supreme Court, with a rebuke to the judge’s lack of impartiality in addressing that question.

The very fact that the judge is holding a “trial” in this matter is evidence of his intent to turn this case into an emotion-driven circus rather than a sober and judicious constitutional ruling. When a law’s constitutionality is challenged on its face, as this one is, there is little need for fact-finding. The text of the law is what it is. While the parties might disagree on the constitutionality of the law, and while in some cases there might be use for expert opinion on matters such as the reach of the law or the understanding of the framers of the constitution, there is no need for fact-finding, as such. Yet, “Judge” Walker has held extensive evidentiary hearings that have sought to allow grossly intrusive discovery into the internal communications of the pro-Prop 8 groups and individuals (without, of course, similar intrusions into the right of political association of those on the other side). That overreaching has been blunted even by a panel of the notoriously liberal Ninth Circus Court of Appeals composed of three Clinton appointees. Still, eventually many thousand of documents had to be turned over by individuals, churches, and other groups that supported Prop 8 to the same-sex marriage faction.

This ham-fisted discovery regime is a part of this Solomon’s unprecedented Stalinist strategy to put pro-Prop 8 organizers and, indirectly, the California electorate on trial for their political views. Again, there is no reason to do this, even if the judge wants to hold that the Proposition is unconstitutional. If his intent is to show that the Proposition violates the equal protection clause because it supposedly targets homosexuals out of bigotry, along the lines of the Supreme Court’s decision in Romer v. Evans or Lawrence v. Texas, this will come a cropper in light of language in Lawrence that distinguishes laws against same-sex marriage from other laws that might be seen as targeting homosexuals. Walker, indeed, apparently agrees that there exists some rational basis for the proposition, even presumably under the unusual–and stricter–type of rational basis test used in Romer and Lawrence. Investigating the subjective motivations of voters (and even more ridiculously of merely the sponsors) is not only practically impossible, but it is also constitutionally irrelevant and goes beyond the competence and jurisdiction of mere judges. Hence courts have found that it is impermissible to investigate voters’ subjective motivations. Instead, the court should be focusing on the wording of the Proposition and, if the court wants to explore “intent,” the official statements that were presented to the voters in the ballot pamphlet.

Walker also allowed a parade of witnesses of dubious standing who discussed their emotional turmoil from the passage of Prop 8, though such theatrics have absolutely no relevance for the issue of the proposition’s constitutionality. The only reason for this exercise is to allow the judge to indulge his prejudices against supporters of traditional marriage and to further the political goals of those who seek to impose a regime on the people of California and of the rest of the U.S., goals that the former have rejected twice, and that the latter have rejected all 30 times it has been put to a popular vote. As Justice Scalia so aptly put it in his dissent in Lawrence,

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct….Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means….But persuading one’s fellow citizens is one thing, and imposing one’s view in absence of democratic majority will is something else.

Judge Walker’s Skewed Judgment

Judge Walker’s Wild Witchhunt: Part 1 Part 2 Part 3 Part 4 Part 5. Read them all.

Maybe Judge Walker is emboldened by the squishy defense by the Obama Justice Dep’t of the Clinton-era Defense of Marriage Act that is also being challenged in federal court in California (of course).

From the archives: The Obama Justice Department takes a firm position against race-based affirmative action.

“Specifically, the division challenged the school’s practice of leapfrogging candidates with lower scores over those with higher scores in order to ensure a particular degree of racial representation. Indeed, in its insistence on a colorblind approach, the administration went even farther, apparently objecting even to measures that, while racially neutral on their face, were nonetheless adopted with an eye to achieving particular racial results and, specifically, a racial balance. For example, the administration archly noted that the number of accepted candidates overall had been expanded; moreover, it complained that selection criteria were being changed — in particular, that grades were being given more weight relative to other criteria than had previously been the case. It specifically attacked the race-norming of selected students; that is, the administration did not like the fact that a top white student and a top black student were picked, rather than just the top two students, even if they happened to be the same color.”

Would it be surprising to point out that the students who were the beneficiaries of the school’s racial preference were White and those who complained about the school’s actions were Black? Let’s hope that the administration expresses its opposition to racial preferences consistently and not based on the race of the beneficiaries. A racially discriminatory approach to the equal enforcement and protection of the law has a certain oxymoronic quality.

Thanks to L.A. County Superior Court Judge Lawrence Mira (my wife’s boss), my wife and I were able to attend a conference/gathering with Supreme Court Justice Anthony Kennedy at Pepperdine Law School. Justice Kennedy was in good form. I have met him before and had a chance to talk with him, when he visited my law school and I was asked by the then-Dean to introduce him to the students.

Kennedy is a very warm and personable man. He answered many questions in a thoughtful manner, but was also quick on his feet with quips and humorous stories. My favorite was his story of visiting some federal practice attorneys in Alabama. They asked him whether he actually read all the briefs. He replied that he enjoyed listening to opera, so he would read the briefs at home listening to opera. Depending on length and subject matter, some briefs were one-opera briefs, others were two-opera briefs, with the occasional three-opera brief. Kennedy related how those Alabama attorneys must have thought him to be some snooty elitist from D.C., talking about opera. But one of the attorneys responded that he had a similar system when writing briefs to the court. There was the one six-pack brief, the two six-pack brief….

Kennedy gave some insight into the Court’s process and his (guarded) opinions about other justices. He expounded on constitutional interpretation and the roles of advocates and judges. He also explained his philosophy of judging. That turned out to be no philosophy at all, as he cheerfully conceded. This is where I am troubled by Kennedy. His lack of a consistent philosophy shows in his opinions. He defends his approach by claiming that subscribing to a particular approach might cause the judge to pay more attention to complying with the philosophy than considering the case on its own merits. One can read this as a not-too-subtle dig at Justice Scalia and, perhaps, at Justice Thomas.

There are several problems with Kennedy’s approach. First, from a precedential standpoint, his approach fits well with his positioning himself as a “centrist” or “swing” vote. Justice O’Connor on the right and, less effectively due to the slight rightward tilt of the Court, Justice Souter on the left used to play those roles before they retired. Justice Kennedy’s counterpart on the Left today (and heir to Justice Souter) would be Justice Breyer. Such swing justices can have significant effect on the immediate cases. Their presence can certainly be useful to smooth out ideological and jurisprudential differences among the justices and to lend constitutional movement a more appropriately incremental, evolutionary cast. But their opinions often have little staying power, and their influence wanes quickly after they leave the Court. More jurisprudentially rigorous and principled justices, such as Scalia, are playing long ball. Many of their opinions, too, will lose force once they leave the Court, but some will become dominant doctrine in the future. These are the justices whose legacy is more likely to be remembered.

Second, institutionally speaking, the Supreme Court is different from trial courts or intermediate appellate courts. The Supreme Court is a “court of law, not a court of error.” Developing law requires attention to predictability and consistency. That is best accomplished within a jurisprudential framework that gives form to the decisions over time. For example, Justice Scalia’s “original meaning” framework gives a cohesiveness across cases that lends legitimacy to the result. As Justice Kennedy noted, the Court has to explain its decisions, which gain legitimacy through the reasoning. Having a rigorous analytical approach that constrains the subjectivity of judges’ decisions furthers that legitimacy. Moreover, it is unlikely that a specified jurisprudential framework will imprison the judge’s will. Judges are not known for being shy about making known their ideological views and impressing them on their decisions. At most, a jurisprudential framework will have the salutary effect of braking the natural tendency of the justices to decide cases according to their preferences.

Third, even if a justice shuns a jurisprudential framework, he or she is still likely to clothe an opinion with references to precedent. Precedent, too, is intended to constrain variability and promote consistency and predictability. Even judges such as Justice Kennedy pay formal homage to precedent and will even adhere to precedent, at least when it serves his purpose. No judge disclaims fealty to the doctrine of stare decisis. As an aside, even were a judge to do so, that, too, would be a jurisprudential approach, at least of sorts.

Justice Kennedy also defended the use of foreign law in Supreme Court opinions. He declared that such use was merely a recognition that the decision reached by the Court was supported by common attitudes in other countries. The use of foreign law operates as an affirmation of the Court’s decision, not as the basis of that decision. In support, he referred to the Declaration of Independence language about decent respect for the opinions of mankind requiring an explanation for what the Americans did there.

This rationalization is unconvincing. First off, the Declaration is not a legal document, but a manifesto that seeks political justification for a revolution and diplomatic and military alliances with foreign nations. Second, Justice Scalia has done a thorough job destroying the argument in favor of the use of foreign legal sources in his debate with Justice Breyer at American University a few years ago. There is no reason to seek “affirmation” from foreign courts for decisions involving the American Constitution. There is no democratic connection or a shared political culture with those foreign courts. Those courts come from a different legal culture and tradition, as well. Moreover, those courts were not around when the framers adopted the Constitution. If references to foreign law do not determine the outcome, as Justice Kennedy has assured, they are meaningless and should be omitted from official cases. As Justice Scalia has pointed out, justices are free to read foreign legal sources and comment on them outside the written opinions, such as at conferences.

One more point. Justice Kennedy averred that the reason he is not confining his search for constitutionally protected rights to those expressly protected in the language of the document is that, had the framers thought that they could foresee all the particular aspects of liberty, they would have written them down. But they protected “liberty” more broadly. Leaving aside the obvious point whether the protection of liberty in the due process clause(s) was intended to be more than a protection of a fair trial before incarceration, there are significant problems with Justice Kennedy’s conception of “substantive due process.” Obviously the framers did not intend the list of protections in the Bill of Rights to be an exhaustive recitation of all rights a person might have. The Ninth Amendment confirms that.

But the real issue is how, and by whom, the balance between the exercise of individual liberty and the community’s need for order was to be struck. That’s why an originalist such as Scalia (and, contrary to current academic fiction, there were many originalists before Scalia) would argue that, in the absence of express language of constitutional protection for some claimed right, that balance was to be struck by the political process, not by the courts. “Liberty,” after all, is a very expansive concept. Law is an ordering device that seeks, first and foremost, to control liberty. My liberty to kill my neighbor is controlled by law just as much as my liberty to engage in consensual sexual conduct or to make consensual contracts of employment.

The problem under the Kennedy approach is to decide how to separate constitutionally recognized liberty interests that are protected just as much as if they had been expressly enumerated from those that do not so qualify. That task has led to charges of result-orientation and ideologically-motivated judging. Justice Kennedy declared that each generation must be able to give constitutional content to its values. If that is so, however, and leaving aside Justice Kennedy’s own objection to popular influence over constitutional content in Planned Parenthood v. Casey, which branch best reflects those popular values, the unelected and isolated federal judges or the popularly-elected legislatures? Which process best reflects the requisite flexibility to allow each generation to shape the Constitution? Is it to constitutionalize issues so that any change is difficult to achieve except by constitutional amendment or the laborious process of overriding decisions? Or is it by leaving decisions not specifically taken from majoritarian control by the express words of the Constitution within the more flexible and responsive political process?

These questions demand much fuller discussion. Justice Kennedy raised these questions, and I believe that he failed to answer them adequately. That said, I wish that our school would make a concerted effort to bring Supreme Court justices to campus, a task at which Pepperdine and, to a degree, Chapman, have been quite successful. Instead, we will bring in yet another post-modern Leftist to demonstrate exclusively how various identity groups are oppressed by America’s endemic and subconscious racism, sexism, homophobia, and other evils that occupy the fevered imaginations of typical academics.

One of the cases to watch in the 2009-10 term of the United States Supreme Court is McDonald v. Chicago. This case involves a challenge to Chicago’s ban on handguns and to various registration provisions that affect rifles and shotguns. It was a companion case to the Seventh Circuit’s NRA v. Chicago decision. But the latter case challenged the failure of Chicago’s gun registration law to allow the registration of handguns, whereas McDonald is a broader challenge to the Chicago ordinance.

Essentially, McDonald is a full frontal assault on state and local gun prohibitions and “regulations” that effectively prohibit gun possession. Specifically, in McDonald the petitioners challenge the prohibition of handgun registration that effectively bans handgun possession; the requirement that other guns be registered before acquisition, something that cannot always be done; imposing an effective tax on the exercise of Second Amendment liberties by requiring an annual re-registration of all guns; and making a gun permanently non-registrable (and, therefore, illegal to own) if the registration lapses at any time.

The constitutional argument builds on the 2008 decision in D.C. v. Heller, a case that held that the Second Amendment applies to a similar registration-plus-ban scheme in the District of Columbia. Because the Second Amendment, like the rest of the Bill of Rights, only controls the federal government, Heller left open the question whether the Constitution prohibits such laws if they are adopted by states or localities. Since Heller, several appeals courts have addressed that question and have split in their conclusions. In Maloney v. Cuomo, the Second Circuit rejected such constitutional protection in a challenge to a law that prohibits, among other weapons, nunchuks (martial arts weapons). In Nordyke v. King, the Ninth Circuit accepted the constitutional argument of the challengers to a law that prohibits gun possession at certain public events, but upheld the constitutionality of the law itself. In NRA and McDonald, the Seventh Circuit rejected the constitutional argument in a very well written opinion that perfectly set up a conflict among circuits with the Ninth Circuit’s Nordyke opinion and paved the way for Supreme Court review of the issue. (I posted about this earlier in Seventh Circuit dodges gun rights bullet.)

The argument in McDonald has two parts. One is based on the Fourteenth Amendment’s Privileges or Immunities Clause (”P or I Clause”) and claims that, by historical understanding of those terms or by intent of the Amendment’s framers, protects a fundamental right of gun possession for personal defense. The other argument focuses on the Fourteenth Amendment’s Due Process Clause (”DP Clause”) and holds that the protection of “liberty” in that clause extends broadly to protect certain fundamental liberties, including gun possession, against state incursion.

The obstacle for the Seventh Circuit was the existence of some 19^th century precedents. Regarding the P or I Clause, the Slaughterhouse Cases held that, due to its connection to the Amendment’s definition of independent U.S. and state citizenships, the clause only protected very limited rights derived from U.S. citizenship. Those rights did not include, according to the Slaughterhouse Court, those that were derived from citizenship in a particular state. Since most rights are based on state citizenship, a general right to gun possession would not be protected under the P or I Clause.

The McDonald petitioners challenge that interpretation. They point to the Congressional debates on the Fourteenth Amendment and to the Amendment’s connection to the Civil Rights Act of 1866. The latter statute, which served as the catalyst for the adoption of the Fourteenth Amendment, protected various privileges and immunities that, its supporters (and the supporters of the Fourteenth Amendment) asserted, included a right to gun possession for self-protection. The debates reveal the sentiments of some of the leading members of Congress about the Fourteenth Amendment. For example, Ohio’s Representative John Bingham and Michigan’s Senator Jacob Howard took strongly expansive views of the P or I Clause as protecting rights of U.S. citizenship that were defined by the first eight amendments to the Constitution, i.e., the Bill of Rights. Moreover, the historical impetus for the Civil Rights Act of 1866 and, subsequently, the Fourteenth Amendment, was the adoption of oppressive Black Codes by a number of post-Civil War Southern legislatures. One of the features of these Codes, which reinstituted some of the restrictions of slavery while falling short of allowing commerce in humans, was to restrict the rights of Blacks to own guns. The McDonald challengers and their “friend-of-the-court” allies point to that evidence as cementing their argument that the privileges and immunities to be protected under the Fourteenth Amendment include the right to keep and bear arms.

The other source for the McDonald petitioners is a pre-Fourteenth Amendment case, Corfield v. Coryell, a circuit court opinion by Supreme Court Justice Bushrod Washington (a nephew of George Washington). Justice Washington declined to offer an exhaustive definition of protected privileges and immunities. But he gave examples and included historically-accepted fundamental rights. Gun ban opponents then point to various sources, including language in Heller, to argue that gun ownership is among those fundamental rights. That is precisely the argument rejected by the Slaughterhouse Court, which limited those fundamental rights to aspects of state citizenship covered in another part of the Constitution, but not in the Fourteenth Amendment’s P or I Clause.

Calling for the overruling of a century-old precedent that interprets a constitutional provision shortly after it was adopted and while the historical circumstances that gave rise to it were still fresh in Americans’ minds is a jurisprudential equivalent of a “Hail, Mary” pass in football. On a legal level, it does not fit the criteria for overruling a precedent that the lead opinion in the 1992 Planned Parenthood v. Casey decision summarized. Whatever historical weaknesses the Slaughterhouse opinion has are not so destructive as to make the holding plainly wrong, constitutionally speaking. I agree with the historical understanding set forth by the McDonald challengers and their academic allies. I also agree that the Slaughterhouse opinion probably does not reflect the views about the Amendment’s effect on state-national relations held by many of those who supported the Fourteenth Amendment in Congress (though that is less certain in regards to the views of those in the state legislatures that had to approve the amendment). But I do not agree with the sense one gets from the professors who have weighed in on the case that the Slaughterhouse Court’s view is indefensible. For one thing, Congressman Bingham himself made a remark that the Amendment was not to change the basic relationship of the state and national governments.

Nor has the decision proved unworkable. Indeed, the evolution of judicial constitutional creationism under the due process clause (the McDonald petitioners’ other argument) demonstrates that the Slaughterhouse decision has not inhibited development of the law. Some would say that actually has not been a good thing.

Nor has the Slaughterhouse decision been eroded by other legal precedent or by a change in the social “facts” and conditions that gave rise to it. The McDonald challengers and their allies dispute that point by arguing that the incorporation decisions demonstrate that the Court has repudiated the Slaughterhouse concept of federalism that the Fourteenth Amendment did not fundamentally change the federal-state balance. Under their view, the Court has “encouraged citizens to look to the federal government for a long list of fundamental rights.”

That assertion is open to considerable challenge. The Supreme Court has consistently adhered to the Slaughterhouse position that the Fourteenth Amendment may have shifted the federal-state balance but did not change it so fundamentally as to make Congress a body with general legislative power. That position was emphatically declared in the old Civil Rights Cases and has been recognized by this Court in recent cases, such as City of Boerne v. Flores, that hinge on the continuing recognition of separate state sovereignty in interpreting Congress’s powers to enforce the Fourteenth Amendment.

As an alternative, the McDonald challengers propose to rest their case on the “incorporation” theory. Under that approach, the Supreme Court over the past three-quarters of a century has held that most provisions of the Bill of Rights apply to the states. It has done so by finding that these provisions “reflect fundamental principles of ordered liberty” that define free republican government or are “deeply rooted in our nation’s [legal] history and traditions.” As such, the Court has declared, they are part of the “liberty” protected against deprivation by the states under the due process clause of the Fourteenth Amendment (”No state shall deprive any person of life, liberty, or property without due process of law”). The substance of any law that substantially burdens such a fundamental liberty arguably violates the due process clause.

Again relying on history and language in Heller, the McDonald challengers argue that the provisions of the Second Amendment, just as those of the First, should be incorporated into the Fourteenth Amendment and applied to the states. In part, their argument goes further than merely asserting that the existence of the Second Amendment mandates the incorporation and application against the states of a right that is explicitly protected under the Bill of Rights against infringement by the federal government. Rather, they correctly analogize the right to self-defense against violent crime to the interest in personal autonomy and dignity. If that interest includes a right to abort an innocent child for reasons of personal convenience, it surely includes the right to protect oneself from physical injury or death from a violent attack.

It is commonly believed from the oral arguments and the Court’s opinion in Heller that the Second Amendment protections will be applied against the states and used to strike down the Chicago law. I agree. The only question seems to be the basis of the holding. The other post-Heller firearms regulation cases all have focused on the incorporation doctrine, and I would expect the Court to focus its reasoning on that argument. However, based on their prior statements, I also would expect Justice Thomas and, maybe, Justice Scalia to be sympathetic to a reconsideration of the Slaughterhouse Cases, as urged by the McDonald challengers. Chief Justice Roberts and Justice Alito might agree personally that the Slaughterhouse opinion was dubious constitutional history and analysis. But they would be reluctant to overturn such a hoary precedent, a position that I think Justice Scalia ultimately will take, as well. Justice Kennedy will not be sympathetic to overturning the Slaughterhouse Cases, in light of the paean to precedent that he signed in Planned Parenthood v. Casey.

The only thing that gives me pause here is that the Court consciously accepted the certiorari petition in McDonald and placed NRA on hold. One difference between the two is that the former includes the P or I Clause as a question on review, whereas the latter only deals with the due process incorporation theory. That suggests that several judges are interested in the P or I Clause issue. I generally agree with Professor Orin Kerr’s excellent vote analysis in this post at the Volokh Conspiracy. (Also some excellent comments in the thread.)

As to the four liberal justices, I do not expect them to support application of the Second Amendment to the states, but if they were to do so, I am not clear which basis they would choose. The more obvious would be traditional due process clause incorporation theory. However, there are some liberal law professors who have signed a brief in favor of an expansive reading of the P or I Clause, presumably in anticipation of commissioning federal judges to use the vague contours of that clause to recognize various other unenumerated rights not yet “found” as a protected liberty under due process. Perhaps the liberal justices will follow suit. But I doubt it. There is no need for them to embark on a poorly marked constitutional trail that could lead to challenges to the regulatory state. The P or I Clause only protects rights of “citizens,” and is inapplicable to aliens or to merely “legal” persons, such as corporations. The liberals’ interests in protecting sexual privacy matters is adequately served by existing Due Process and Equal Protection Clause doctrine, which also protect “persons” more generally. After all, those same Fourteenth Amendment framers also enthusiastically emphasized protections of freedom of contract and property ownership to be among the P or I Clause’s core goals. Protecting those freedoms from government infringement is hardly of concern to those liberal justices.

In 2005, the United States Supreme Court decided the notorious case of Kelo v. City of New London. In Kelo, the Court rejected the argument by property owners that the city’s condemnation of their properties through the eminent domain power coupled with a broad plan eventually to turn over the properties to private use was a violation of the “takings clause” of the Constitution. Kelo, unfortunately, was not new. The Court there was just continuing on a path on which it had set out in1954’s Berman v. Parker and 1984’s Hawaii Housing Authority v. Midkiff.

The takings clause prohibits government from taking the property of A and giving it to B, except under restricted circumstances. There may be a question as to what exactly constitutes a taking (physical invasion only, or also destructive regulation). But the basic principle, especially as it relates to land, is enmeshed in the two broad strands of American founding ideology. Those strands, republicanism and liberalism (in the classic sense), still resonate in the American sense of national identity, though their declining effect as a boundary to acceptable government action attests to their increasing marginalization in the arena of political practice. Under a classic republican view that tied land ownership to republican virtue and political self-rule, the danger from allowing government to take people’s property is the threat that is posed to the survival of the Republic. Under a classic liberal view of Lockean theory, the danger rests in the gross injustice and violation of the bonds of society that characterizes having the government take the basis of one’s material existence and one’s self-identity and turning it over to another who has no greater status of privilege as an autonomous and competent person than does the owner.

Justice Samuel Chase, who, like others grounded in Anglo-American political theory of the 17th and 18th centuries, saw government control over property through taxation and taking as the essence of tyranny, put the point in 1798 in Calder v. Bull: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority….[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers….” In 1795, Justice Patterson, writing in Vanhorne’s Lessee v. Dorrance, had gone Chase one further. He declared that the legislature had no “authority to make an act, divesting one citizen of his freehold and vesting it in another, even with compensation.”

Having government be authorized to take freely a person’s property creates such insecurity in one’s person and in one’s property that it contravenes the very purpose for which people form society. Such a power in the government is contrary to the very purpose for which government exists, a state of affairs that cannot be. There was one exception to this profound and categorical prohibition. Property could be taken if it was needed to accomplish some overriding public need. Even then, it could only be done on payment of just compensation.

Requiring compensation for such an action might give the political majority pause, especially at a time in our history when taxes were hugely unpopular, and politicians had to use a deft touch when seeking to impose them. But in a system where taxes are spread widely and increments of taxation may be small, the pain of the many is no match for the incentives provided by the pleasure to the few of having tax money used for their benefit. The political process could not be counted on to counteract the inexhorable political pressure to use the legislature to gain an economic advantage over one’s fellow citizens. Inevitably, a member of the economic and political elite would seek to exercise a kind of droit de seigneur over coveted property that was owned by a recalcitrant and poorer or less politically well-connected owner. What better way to do that than by using some well-placed cash to pursuade the legislature to condemn that parcel and use public funds for the purpose?

That left overriding “public need” as the limitation on taking. But public need is an ambiguous concept tending to protean political adaptation. Hence, the Framers required that the legislature act only if the property actually would be “used” by the “public.”

While 19th century cases show occasional dubious assertions of what constitutes public use, the U.S. Supreme Court moved the markers considerably in Berman v. Parker, when it upheld the use of eminent domain to seize blighted property that was part of an area slated for urban renewal under a broader plan of area revitalization. Those properties would not be “used” by the public, as a freeway or a park might be used. Rather, the benefit would come in part from private development of the area to serve the new test of a “public purpose” for the action. Still, that case might be justified by analogizing the situation in Berman to the government’s power to abate a public nuisance even without compensation. The apparent situation in Berman of thousands of delapidated apartments beyond repair certainly has all the appearance of a public nuisance to the health and safety of the community. On the other hand, as Justice Thomas points out in his dissent in Kelo, it is precisely the difference between allowing nuisance abatement without compensation that sets such cases apart from an actual taking of the property that can only be done with compensation. The takings clause and the broader state “police” (regulatory) power are not congruent.

Hawaii Housing Authority v. Midkiff went considerably further than Berman in emasculating the takings clause. There, the state condemned the fee title to land held by various entities, such as trusts, and gave the title to the private lessees of the land, after compensating the landowners. Even the Ninth Circuit saw that as a “naked attempt…to take the property of A and transfer it to B solely for B’s private use and benefit.” The Supreme Court, however, accepted the state’s argument that eliminating the “social and economic evils of a land oligopoly” was a valid public purpose. Indeed, the Court saw the taking’s “purpose,” not its mechanics of giving the land to private parties as satisfying the “public use” restriction.

Public benefit and public purpose are police power concepts that broadly limit everything that the state and local governments do. Equating the public use limitation of the takings clause with the vague and distant limits of the state police power effectively turns what was intended as a clear limitation on government action into an expansive source of government power. That replicates the neutering the Court has performed on other constitutional protections in one’s property, such as the contracts and due process clauses. 

In Kelo, the Supreme Court simply repeated what it had done in Midkiff. Some of Kelo’s dissenters, led by Justice O’Connor, claimed that Kelo differed from the earlier cases in that the city of New London had not shown any “social harm” arising from the litigants’ well-maintained homes. That possibly might distinguish Kelo from Berman, but the social harm from an impoverished tax base and high joblessness due to a lack of economic development is just as much a social harm as is Midkiff’s shortage of fee simple land (especially when there is much government-owned land that could alleviate the shortage). Moreover, none of them have anything to do with “public use.”

With the “public use” requirement melting under the Supreme Court’s influence faster than the ice caps from the asserted impact of global warming, it was truly refreshing to see this decision from a panel of the intermediate appellate court in New York. In Kaur v. New York State Urban Development Corporation, the judges held that the state’s use of eminent domain to condemn private property so that Columbia University could expand a satellite campus into the area and redevelop it for gentrification was unconstitutional. The state had declared the area blighted to conform with the U.S. Supreme Court’s Berman case. The New York court labelled that designation and the process that led to it as “sophistry,” “idiocy,” and a “scheme.” The state’s purpose did not even meet the economic development test of Kelo. Rather, the property was taken solely to facilitate the expansion by Columbia, a private beneficiary of the action.

The state probably will succeed in getting the ruling reversed by the New York Court of Appeals, the highest court of that state. That court, after all, recently ruled, 6 to 1, ”that the state could exercise eminent domain in taking businesses, public property and private homes on behalf of a Brooklyn developer who planned a 22-acre residential development and a basketball arena.” Nevertheless, the case shows that, however endangered the takings clause is, there are still judges who recognize that the majority’s (or, more likely, a well-connected minority’s) right to seize the property of a private individual for what is, essentially, the benefit of another private person is contrary to our constitutional foundations.

Constitutional custom reflects the dominant political sentiments and ideological ground norms of society. Unfortunately, our society is increasingly tending to a blurring of the basic lines of “mine and thine” that are essential to the protection of property. It is a sign of societal infantilism, as every child eventually has to learn to recognize boundaries. Those who fail to do so become a menace to the safety and liberty of others. Just as that is true in regards to social interaction generally, it is true about rights in property. It is little surprise, then, that the courts increasingly mimic the broader political attitude so bluntly summarized in the German motto of seventy years ago, “Gemeinnutz geht vor Eigennutz,” the common need comes before private need. That is little different from a general position that whatever public benefit can be contrived comes before private benefit. That insecurity of private property, in turn, is the essence of the tyranny the Framers rejected.

Peter Robinson of The Hoover Institution at Stanford University conducted an informative interview with former Yale law professor, U.S. Solicitor General, federal appeals court judge, and unsuccessful U.S. Supreme Court nominee Robert Bork, now with the American Enterprise Institute.

They discuss the theory of original understanding in the interpretation of constitutional clauses, the role of precedent, and the evolution of the “right of privacy” from protecting certain intimacies within the marital relationship (Griswold v. Connecticut) to protecting the obtaining of an abortion (Roe v. Wade) to protecting homosexual sodomy (Lawrence v. Texas). Of particular interest is Judge Bork’s prediction about the future course of the same-sex marriage controversy at the constitutional level, given that the interview took place six years ago and a case on that precise matter is currently working its way through the federal courts.

This is the transcript of the interview.

A few years ago, the city of New London, Connecticut, sought to seize the land of Suzette Kelo and others in her neighborhood (with compensation), to clear it, and then to open it to development by other private entities to obtain more tax revenues. The houses to be destroyed were habitable, and the area was not blighted. Kelo and some of the others had lived in those houses for years, sometimes for a couple of generations.

The residents challenged what they saw as an abuse of the city’s eminent domain power, as the properties were not condemned for a traditional “public use,” such as a highway or a school. Instead, the properties were given to others for what the city claimed was a “public purpose,” a higher tax base. The challengers deemed this a violation of the Constitution’s takings clause, but the Supreme Court eventually held against them.

One of the beneficiaries of the city’s actions was Pfizer Corp., which was building a facility there and wanted to have better and more upscale surroundings, including commercial and residential development. Ten years after the initial condemnation move, the homes have been razed, but the property is still undeveloped. Worse, Pfizer has withdrawn, closing its research facility and moving those jobs to a city across the river from New London. Cosmic justice for the foolish government of New London. As Ed Morrissey opines,

“The Kelo decision — which was not a radical departure by any means, but the nadir of a slow trend of hostility towards private property — assumed that the decision about the best use of private property by private entities was better off being made by the government.  That insulted the entire notion of private property and put individual liberty in jeopardy….Instead of having homeowners on that property, paying taxes and providing stability, the city now has an empty lot and a ton of political baggage.  The biggest lesson is that private owners should have the benefit of deciding for themselves the best private use of their land — primarily to bolster the rule of law and the concept of private property that lies at the heart of our personal liberty, but also because government is a lot more likely to muck it up.”

This is an eery and depressing glimpse into the future of government control over health insurance/care.

Every political alignment has its more ideologically extreme members. They, presumably, consider themselves ideologically principled. On the Right, they often rap themselves in the Constitution and the Flag. Fair enough. These folks serve a purpose because often they push the debate on policy and give a voice to issues that turns out later to be prescient. But too often they come across as strident and even demented. This effort to launch a movement to impeach President Obama is one of those moonbattery moments among the Right.

Ed Morrissey at Hot Air thoroughly explains the political and constitutional foolishness of such an effort at this time. I fully agree with the message of his posting. Obama’s actions so far do not meet the constitutional understanding of “high crimes and misdemeanors” under even the most generous reading. Democrats will not launch impeachment proceedings even if the evidence of qualifying wrongdoing by Obama were orders of magnitude clearer. If anything, the Congressional leadership considers Obama insufficiently committed to the radical cause. For the Republican minority to press such an issue would not only be fruitless, it would be politically suicidal. It would allow the Democrats to shift attention from their disastrous policies onto comparisons of personality. And, whatever their political skills, House Minority Leader Boehner and Senate Minority Leader McConnell cannot match the President’s propaganda machine or his on-camera telepromptered charisma.

The American public punished the Republicans politically for the dubious impeachment efforts directed at President Clinton. Those Republicans at least had perjury and obstruction of justice as predicate offenses by the President. Any attempt to replicate such efforts against Obama would tar the Republicans and invite a political backlash that the GOP cannot afford. It would waste an increasingly promising opportunity to expose the Democrats on their substantive radicalism to slow them down in 2010 and beyond. The American people are not forgiving of contrived impeachment efforts or other tactics that are unnecessarily divisive and alter political issues into legal or quasi-legal ones.

That is one reason why I have not been unduly concerned about efforts by the extreme Left, as represented among a number of the faculty at my school, to prosecute Bush-era officials. The Democrats would pay dearly politically for such a course, and I do not see Obama pursuing it unless he felt supremely confident of his political position. Given his eroding approval ratings, that is unlikely. Or, Obama feels driven into a political corner with nothing to lose. He is nowhere near that, given the difficult struggle for his ambitious and radical domestic agenda.

I, along with Ed Morrissey, am also sick and tired of the Nazi-comparisons coming from both sides. This is done far less often by the Right than by the Left (during the Reagan and Bush administrations, and now against anyone who dares to express disapproval of Obama policies at town hall meetings). But when the Right does it, it is equally despicable and over-the-top, unless there is a direct and relevant factual comparison. Here, there is not.

There are plenty of troubling policy initiatives that threaten disastrous economic and social consequences, but neither Obama nor the Democrats are carting peaceful American dissenters off to camps any more than Bush and Cheney were doing through the Patriot Act. There are plenty of personality cult stirrings in the administration and its supporters. It is perfectly legitimate to point out the similarities of both the President and his supporters in this regard to the natural dynamic between the totalitarian leader in history and his followers. But it is not legitimate to call him Hitler until he, well, starts to act like Hitler in his policies.

I disagree with Morrissey’s column on one minor point. He accepts that a reading of Federalist 65 (though not the Constitution’s text) supports the claim that impeachment can be done for political reasons. Not exactly. Hamilton agreed that impeachment was not simply a criminal process. Hence, someone could be tried in the courts for conduct that led to his impeachment, without violating double jeopardy or due process. But to assert that the process was, at some level, “quasi-political,” not “legal,” does not validate the use of the procedure for purely political differences.

Hamilton is clear about that distinction between process and substance. The process could only be used for misconduct that, even if it did not amount to criminal bahavior, showed unfitness for office by undermining the constitutional order. English practice that, in the 17th century, had allowed impeachment for purely political differences during the Long Parliament of Charles I, by the latter part of the 17th century already required more solid, non-political cause. Early American state constitutional practice that had flirted with the purely political model of impeachment, had moved to the language and custom reflected in the U.S. Constitution, as well. Hamilton recognized those roots, affirmatively citing the English precedent. Impeachments, therefore, are never pursued on the formal grounds of even severe political differences, though such political squabbles may fuel the decision to pursue impeachment for conduct that otherwise would be ignored.

I have not written about my fellow constitutional law professor Doug Kmiec in a while. Professor Kmiec, teaching at Pepperdine University Law School, was a staunch Catholic Republican pro-lifer who served in the Office of Legal Counsel during the Reagan administration. During the most recent election, after supporting the doomed primary candidacy of Mitt Romney, he parlayed his distaste for the more openly pro-life John McCain into an increasingly full-throated support of—Barack Obama. Not only did Professor Kmiec support Obama, he came to view the latter as the true pro-life candidate and one of the most pro-life Presidents ever.

The tenor of Kmiec’s increasingly militant pieces on the topic caused much derision among his former political associates and ideological fellows, about which I have posted before. Academics, such as Princeton philosophy professor Robert George lined up to dismantle Kmiec’s philosophic arguments. Members of the Catholic priesthood and hierarchy began to question Kmiec’s religious assertions. Columnists have dismissed Kmiec’s political rationalizations. I met Doug Kmiec a few years ago and was quite impressed by his philosophic rigor about the application of natural law thinking to current issues of rights. I barely recognized the new Doug Kmiec. 

As the Obama administration faced questions about its domestic policies, Kmiec vigorously defended it. When Notre Dame was criticized for extending an invitation to the President to speak at the graduation ceremony and to receive an honorary degree, Kmiec was right there to defend the university and to laud the President in a gush of fawning verbiage. When Justice Souter retired and even before Sonia Sotomayor was nominated, Kmiec immediately (and unconvincingly to me) jumped on the Obama ”empathy” bandwagon.

Kmiec even reversed himself clumsily on the D.C. v. Heller decision. In 2007, he had supported an amicus curiae (”friend of the court”) brief in support of the constitutional argument for an individual right to bear arms for self-defense and against the D.C. ban on private possession of handguns. In 2008, the Supreme Court had adopted the position that brief advanced. In 2009, Kmiec criticized that same ruling as unconstitutionally ignoring the prefatory clause of the Second Amendment. He also opposes extension of that right to protect against state and local gun possession bans like the one in Chicago that is currently on review before the Supreme Court in McDonald v. Chicago. Apparently, that natural law/natural rights approach that Professor Kmiec so favors in his constitutional law casebook does not apply to the right of self-defense that is crucial to protection of the right to life. Once more, he abandons his former straightforward pro-life position for one to match the nuances, not to mention bald-faced contradictions, on the topic coming from his idol in the White House.

That flip-flop was in accord with Kmiec’s reversal of his position on California’s Proposition 8, the pro-opposite sex marriage vote, something he also was for, before he was against it. In what has become drearily predictable, Kmiec has also reversed himself on the jurisprudential issue of constitutional interpretation. He now ridicules the “conservative” position that courts should interpret constitutional clauses in light of the original understanding of the language when it was adopted. This is in sharp contrast to his long-held and published previous views, voiced as recently as two years ago, when he was still working for the Romney campaign, about the essential nature of original understanding constitutional interpretation. His embrace of the jurisprudence of original understanding has disappeared along with his philosophic attachment to natural law.

Many have wondered what is producing this conversion. While not happening with the speed of Paul’s epiphany, it is nevertheless producing an equally complete Road-to-Damascus reversal of deeply-held beliefs, albeit in the opposite direction. I have previously speculated that Kmiec was angling for a federal judgeship. Others thought it was an ambassadorship to the Vatican. But the Vatican apparently let it be known behind the scenes that Kmiec was too blatant in his dubious assertions of the pro-life qualities of the President and unconvincing in his protestations of his own continuing pro-life stance. His increasingly accommodating views about abortion that essentially measured compromise as surrender to the pro-abortion rights side were unacceptable to the Vatican. Of course, the reality of Kmiec’s new-found acceptance of common ground mimicked that of the President himself, the most radically pro-abortion President ever and someone whose position on partial-birth abortion and whose hostility towards protecting babies born alive after abortion was more radical than even Senator Boxer’s.

So the question remained exactly what Kmiec was after. Now we know. It is indeed an ambassadorship. To Malta. For that, one surrenders life-long positions that, presumably, were deeply held and carefully thought-through philosophic and religious tenets? I am again reminded of something I have posted before, a remark from Sir Thomas More (”A Man For All Seasons”) to Richard Rich, the snivelling opportunist who acts as the King’s tool to bring down More in return for becoming Attorney General of Wales: “For Wales? Why Richard, it profits a man nothing to give his soul for the whole world…But for Wales!”

For Malta, Doug? For Malta?

In his ongoing series “Uncommon Knowledge,” the Hoover Institution’s Peter Robinson interviews Judge Laurence Silberman of the D.C. Circuit Court of Appeals. Silberman is probably today’s most influential federal judge who has not been appointed to the Supreme Court In that regard, Silberman joins such historical American jurists as Judge Learned Hand and Judge Henry Friendly.

Here is Part One: They discuss original understanding and the interpretation of the Second Amendment. Silberman wrote the appellate court opinion that the Supreme Court accepted in D.C. v. Heller.

Here is Part Two: They discuss the “incorporation” of various Bill of Rights guarantees into the liberty provision of the due process clause of the Fourteenth Amendment. Silberman correctly characterizes that incorporation doctrine as judicial activism. Justice Scalia has called it a “mistake,” but has acknowledged that a half-century of practice has made any challenge too late. That is what I call constitutional customary evolution at work. The unwritten Constitution that the Court’s opinions help to shape embodies a constitutional understanding and practice that has gained legitimacy by long adhered-to practice.

Here is Part Three: Silberman was co-chairman of the bipartisan Silberman-Robb Commission appointed by President George W. Bush to review the sufficiency of pre-Iraq War intelligence regarding Saddam Hussein’s possession of weapons of mass destruction. He ridicules the notion that “Bush lied; people died.” His comments are a fascinating look at the difficulties of intelligence gathering and the ambiguities of intelligence analysis.

Here is Part Four: Judge Silberman discusses the thesis of his 1978 article “Will Lawyering Strangle Democratic Capitalism?” The number of lawyers has increased from 448,000 to 1,014,000 since he published his article. While the population has increased 40%, the number of lawyers has increased 126%. Silberman believes that, while lawyering is an essential component of democratic capitalism, too much lawyering is “too much of a good thing.” he points out that too many of the brightest people go into lawyering instead of business. Like the political class with which they overlap, lawyers do not produce wealth. They redistribute it. I wholeheartedly agree. Moreover, lawyers are part of the elite that fundamentally distrusts people to make their own decisions without guidance or control by lawyers. Silberman states that law schools and law professors are distrustful of capitalism and the democratic process. Amen. Even in 1978; no less today. But Silberman rejects the notion that academics are necessarily drawn to the Left, though in practice today they often are. Instead, academics are drawn to social organizing and systems controlled by those who are smartest and whom they deem to be the deserving leaders. Plato’s Republic, in other words.

Here is Part Five: Peter Robinson returns the conversation to constitutional originalism, the interpretive approach of Justice Scalia and of Judge Silberman. Robinson asks some intellectually very pointed questions. Silberman does a good job responding. One of those questions is the potential conflict between “original understanding” jurisprudence and respect for precedent. Silberman properly states that either an undecided issue or one that has not been truly settled because the precedent is of recent vintage would allow an originalist full freedom to decide on the basis of that original understanding. But the longer a precedent is around, the more settled expectations become, and the more difficult (though not impossible) it becomes for an originalist to overturn a precedent on grounds of original understanding. That is, for me, the difficulty with Justice Thomas’s historically correct understanding of the commerce clause, the interpretation of which has now been distorted for 75 years and around which distorted interpretation almost the entire federal bureaucratic and welfare state has grown.

Today is the opening of the Supreme Court’s 2009-2010 term. On tap are a number of interesting and potentially significant cases. The Court is expected to resolve shortly the campaign finance reform/free speech controversy in the Citizens United v FEC case (the “Hillary Movie” dispute), which is likely to result at the very least in a significant reinterpretation of the statute’s application to non-profit pro forma “corporations.” There is also a solid possibility that the Court will overturn an earlier outlier precedent on the limits of corporations’ political speech, along with a section of the McCain-Feingold Campaign Finance and Constitutional Travesty Act of 2002. The result likely will depend on the willingness of Chief Justice Roberts and Justice Alito to abandon their preference for upholding even bad precedent and move boldly in the direction in which the Court has taken baby steps.

Another free speech case is United States v. Stevens. That case involves the criminalization of depictions of animal cruelty, with an exception for depictions that have serious artistic, scientific, etc., value. The federal statute has been defended as targeting a category of speech with low social value and significant social harm (animal cruelty). Conversely, it has been attacked on overbreadth grounds as targeting significant amounts of protected speech in relation to the small amount of harmful speech. Moreover, the defendant (who did not engage in animal cruelty or film the video) claims that the legislative creation of categories of speech that are outside the first amendment is disfavored, and that, here, the state lacks a compelling interest to prohibit his speech. (The Congress had justified the statute on grounds of targeting a specific kind of video, not animal cruelty in general, an interest it had specifically disavowed.)

Another First Amendment case, though not a free speech case, is Salazar v. Buono. That case involves a cross on formerly federal land. The cross was placed in the middle of the Mojave Desert in 1934 by the VFW in honor of WW I dead. It is maintained by VFW members. in 1999, someone complained. The Park Service wanted to remove the cross, which was then on federal land. Congress denied the Park Service money to do so. The federal courts then found the cross a violation of the Establishment Clause. Congress then made the area a national memorial and gave an acre of the land, including the site of the cross, to the VFW in exchange for five acres of other land that the organization owned. The cross currently has a cardboard box that covers it, lest someone inadvertently suffers psychological damage from seeing a cross in the middle of the desert far from an interstate or other well-traveled highway. The case raises issues about similar monuments, e.g. the Argonne Cross in Arlington National Cemetery. Constitutionally, the problem is whether Congress is sufficiently involved to be seen by the knowledgeable observer as endorsing the cross. There is also the lack of other monuments that might dilute the religious aspect of the display, as well as the blatantly religious meaning of the cross. On the other hand, there is its remote location, its history, and the fact that the knowledgeable observer would know that the cross is a war memorial set up by a private organization. That, and the threat to other monuments of this type if the Court rules against the cross.

An interesting non-First Amendment case is McDonald v. Chicago. The case involves the question left unresolved in DC v. Heller, whether the Second Amendment applies against the states, and how. The arguments focus on the historical understanding of the Fourteenth Amendment’s privileges or immunities clause, and the interpretation of “fundamental principles of ordered liberty” under that amendment’s due process clause. If the Second Amendment is held to apply against the states, as the predictions overwhelmingly indicate (and I agree, based on the Heller court’s strong hints), it likely will come under the due process clause. There is considerable historical inertia against using the privileges/immunities clause as a vehicle for incorporation, though I think that, based on the Congressional debates and the origins of the Fourteenth Amendment as a constitutional foundation for the controversial Civil Rights Act of 1866, the clause actually is the better source as a direct basis for protection of gun ownership for self-defense. If the Court applies the Second Amendment against the states, it will be interesting to see what the standard of review will be for state laws, a matter left unresolved in the Heller case, as well, but more important for the more frequent enactment of state laws in this field. Stay tuned for more litigation.

An odd First Amendment-related case is Holder v. Humanitarian Law Project. That case argues the unconstitutionality under the First Amendment of several phrases in the Patriot Act amendments to a Clinton-era statute that prohibits providing “material support” to terrorist groups. That statute is very important to the government in going after terrorist organizations and their supporters. The challengers here are concerned that some of these terms will prevent them from providing advice to terrorist groups (the Kurdish PKK and the Sri Lankan Tamil Tigers) for non-violent lawful matters. The 9th Circuit agreed with the government on most aspects of the challenge, but held several important clauses to be unconstitutionally vague. Given the importance of combating terrorists, and given the Court’s hostility to facial challenges, it will be interesting to see whether the government overrules this and decides to wait for an actual “as applied” challenge if the feds go after protected speech activity under the law.

The last case I want to mention here is one that the Court has let languish since early this summer. It involves the challenge by 13 Uighurs at Guantanamo, Kiyemba v. Obama. They have been cleared on being unlawful enemy combatants because their affiliation with terrorist groups targets China. Since the Chinese would likely torture them if the Uighurs were returned to China, the U.S. has been trying to get other countries to take them. So far, there has been limited success in getting Palau and Bermuda to take some. A district court ordered that the Uighurs be released into the U.S. The D.C. Circuit Court of Appeals overturned that decision. Congress has, since then, severely restricted the transfer of Gitmo detainees into the U.S.

The Supreme Court seems to be waiting for some further diplomatic efforts to bear fruit. But this potential clash between the historically dominant power of the political branches over who gets entry into the U.S. and the Court’s increasing boldness in matters relating to the Gitmo detainees’ detention cannot be avoided forever. Sooner or later, the matter will need to be addressed, as there are also some detainees who want to avoid being sent to certain countries and are preparing to challenge the President’s power to transfer them without their consent.

This is a provocative article that counting of illegal aliens in the census distorts legislative reapportionment. The numbers surely are correct. I am less convinced by the constitutional argument. I think that the authors’ reliance on the Wesberry line of reapportionment cases is weak, as those cases made it clear that the system in place for the states is not on the same constitutional footing as that of the federal government. The argument that states should be able to apportion their legislatures (or at least one house thereof) on factors other than purely population because that is also how the federal legislature is apportioned left the Court cold. In Lucas v. 44th General Assembly District, the Court clearly and formally rejected that argument. Personally I think the Court was wrong in its decision in that case both politically and constitutionally, but for other reasons than that the states could per se copy the national system.

I agree that there is a solid argument based on the 1790 statute if that law expresses, as the authors assert, a long adhered-to test for who shall be counted. Such long practice itself can attain the status of a constitutional standard. I also agree that, to the extent the term “inhabitant” means someone with a bona fide connection based on allegiance and intent to submit to the full jurisdiction of the U.S. and the several states, illegal aliens do not fit the bill. That would require the exclusion of such persons for purpose of apportionment, though not necessarily other aspects of the census, as the authors correctly aver.

My colleague Kelly Strader recently had an op-ed piece published in the L.A. Times. He proposes that the Supreme Court in the 2003 Texas homosexual sodomy case, Lawrence v. Texas, eliminated majoritarian morality as a legitimate basis for legislative action. The Court there struck down the law in the face of the argument that the law furthered social notions of morality. He then asserts that many lower state and federal courts have not got the Supreme Court’s message and continue to uphold legislation grounded on nothing more than community-wide notions of morality. He says that legislation has to be premised on some notion of tangible harm and concludes that taking the Lawrence case seriously would require governments to remove criminal laws that punish any (adult) sodomy, non-marital cohabitation, fornication, and adultery. He might have added laws that punish obscenity, prostitution, desecration of corpses and, indeed, potentially the entire canon of criminal law that might be described as male in se actions or that are directed at protecting the actor from himself out of some paternalistic sense that we have a moral duty to do so.

Let it be assumed that there are still jurisdictions that actively enforce criminal non-marital cohabitation laws and such. Professor Strader asserts that the state may not make criminal law on the basis of majoritarian morality. It may do so only if it can show “tangible” harm. This goes against the centuries-old definition of the state police (regulatory) power as the power to act for the community’s health, safety, welfare, and morals. We are asked to assume, then, that the Lawrence court, without much ado, intended to overturn an ancient aspect of the community’s power to legislate for the common good.

Let us assume, though, that Professor Strader is correct. The Lawrence court talked about a liberty to determine for oneself one’s private sexual life. But Professor Strader quite properly does not limit the potential reach of Lawrence that way. There is absolutely no way other than by unreasoned judicial ukase to distinguish between the use of majoritarian morality to pass laws relating to sexual conduct and to other behaviors. Hard as this may be to understand in this age of flagrant sexualization and with a Supreme Court whose envious members passed their family-building years during the sexual revolution of the 1960s, sexuality is not the entirety of human self-definition.

To require demonstration of a tangible harm as a presumed alternative to morality raises some questions, though. One of those is why that should be. The Constitution does not enact John Stuart Mill’s On Liberty. Community morality is just a collection of generally accepted standards of behavior that provide a lubricant for harmonious social coexistence. Obviously, those standards can change. Moreover, in a society as large and impersonal as ours, many such traditional social lubricants may lose effectiveness over time. Legislatures take those factors into account as they opt to withdraw community control over certain personal behaviors. But that is a far cry from a proposition that, based on a judicially-announced constitutional requirement, all morality is always off-limits as a basis for community control over personal choices.

Another question is whether considerations arising out of morality still can be the basis of legal sanctions outside the criminal law. For example, could the state refuse to enforce contracts for sexual favors? Could there be actions to abate public nuisances, such as strip joints near schools or churches? Could the state decline to give formal recognition to a bigamous relationship? In his Lawrence dissent, Justice Scalia argued “no.” It is not immediately obvious why there should be a principled difference, unless one argues that principles of majoritarian morality more generally inhere in the essential purpose of the criminal law, while non-criminal legal norms are directed more to other interests. Such an argument ultimately is unhelpful for Professor Strader. 

Yet another question is what Professor Strader means by “tangible harm.” A physical injury, no doubt. Property damage, most likely. What about purely economic harm, such as criminal fraud laws? Emotional injury, such as from threats? What if the harm is only to the actor, such as a law against cocaine possession? Or is the harm in such a case only to the actor, if his family’s welfare is threatened by his drug addiction? What if the harm is not to an identifiable individual, but to society in its very form, such as a treason law? Or not to an identifiable individual, but to society’s broad public policy interests, such as an anti-tax evasion law? What if the harm to others is aesthetic, such as a nude dancing law? Or emotional, such as a law against animal cruelty?

As to several of these, how would such a “tangible harm” differ from an expression of majoritarian morality that disapproves of certain acts simply because they are contra bonos mores? A public nudity law would be such an example. It will not suffice to respond that public nudity exposes an unwilling viewer to another’s assets. What’s the big deal? Unless the term includes emotional distaste, there is no tangible harm. If emotional distaste is sufficient, that checkmates the argument against many of the laws that Professor Strader finds unacceptable. Moreover, what is such distaste based on other than majoritarian morality that public nudity is, well, just not done. A different morality may well prevail in certain European locales, and it cannot be due just to a more aesthetically pleasing quality of assets. 

There is also the dubious proposition that such laws are only based on majoritarian morality. In the famous case of Griswold v. Connecticut, which “found” a general right of privacy in the penumbras and emanations of the Bill of Rights, the concurring Justice White implied that the state could have made a better argument had they sought to defend the anti-contraceptive use law as a means to promote population expansion. In similar vein, an anti-sodomy law could be based on an argument to promote sexual conduct most likely to lead to reproduction. Now, that might not sit well with today’s sexual choice paradigm, but it certainly is an argument in defense of such laws that would not be based on unadorned majoritarian morality. Again, we may opt legislatively against such laws, but they do not violate some imagined constitutional proscription against laws based on majoritarian morality. A reasonable argument could be made (and for centuries has been made) that sex is to be constrained within marriage, not purely out of irrational moralism, but because a stable male-female relationship is the best way to raise children with the least disruption to society. That would be a powerful argument against adultery and adult incest, which have the disturbing tendency to undermine the family structure, the essential building block of stable human societies and a necessary political and psychological cushion between the autonomous individual and a suffocating state.

Indeed, even tangible harms may be harms for the criminal law only because of majoritarian morality. Why is murder criminalized? Only because our sense of morality says so. I have never heard an argument that murder should be criminally punished because the killer has deprived the state of a taxpayer, though I have read that the Romans criminalized abortion because the woman deprived the father of an heir. Murder is “wrong” because it violates our sense of morality, a difficult-to-define sense that something deep inside us has been attacked. As Kant might say, such laws appeal to our nature of ethical beings. Same for theft. It is “wrong” to take that which belongs to another. We can leave it to tort law to recompense the victim for his loss. And it is majoritarian morality that thoroughly enfuses the criminal law, for the quite sensible reason that generally accepted norms of conduct based on broad majoritarian morality are most easily known by the public. And law directed against a mere minority that refuses to conform to well-known and accepted standards is the kind of criminal law most easily enforced.

The example I usually pose to my students is the afore-mentioned animal cruelty law. I propose a horrible hypothetical that I have borrowed in part from the late Yale law professor Alexander Bickel. Suppose I own a property in the middle of the desert, with no one near me for a mile. I capture two feral dogs, let them mate, and proceed to torture the puppies to death. I dispose of their bodies in an environmentally friendly manner. Due to my geographic isolation, no one can hear the howls of pain. Information only gets out because I let it slip when talking one day at the local Lattebuck’s. People are outraged, and I am prosecuted under an animal cruelty statute.

But, why? I have violated no principle of tangible physical harm to another. I have violated no one’s property interest. I have not violated any environmental interest of the broader community. Really the only harm is a sense of unease. That unease could be that someone who will do this to animals will soon do it to humans. That is analogous to the argument that murder laws protect against the unease that the community suffers from knowing there is a murderer loose, which may change the community’s behavior in ways that damage commercial intercourse and our innate human sociality. As to murder, if such unease is the only basis, would there have to be an exception if the killer can prove that the victim “needed to be killed,” and that the community actually was happy he was gone? Some notorious gang leader, perhaps? As to the unease from the animal torture, can the community feel similar unease about a woman who aborts a child and therefore prohibit abortion? After all, she has already killed a human being by the abortion, whereas the hypothetical “I” have limited myself to killing a brute.

The real reason we prohibit animal torture is that it revolts us. Something deep inside us is repelled by the ugliness of the act. We cannot quite explain that unease, but we know it is there and real. The defendant has acted in a way that violates generally accepted standards of how we expect people to conduct themselves as respectable members of our civilized society. That is majoritarian morality.

Professor Strader’s focus on “tangible” harm is a policy choice, not a distinctive constitutional or readily-defined jurisprudential principle. There is no clear and hermetically distinct set of intangible harms. There is no self-evident lack of even tangible harm in actions targeted by laws rooted in nothing more than majoritarian morality, if tangible harm includes emotional injury or broader social or economic injury. On the other hand, if such injuries are not included, many more criminal and civil laws than he proposes are in trouble. Finally, even if such distinctions were plausible, there is no reason to claim that an affront to the social bonds based on a broadly common morality is not a harm worth preventing as much as laws against petty theft or parking violations.

It may turn out that the Supreme Court agrees that its opinion in Lawrence is as conceptually hapless as Professor Strader makes out, and as Justice Scalia’s dissent acidly concludes. Until then, however, the lower courts may be excused for not reading into the decision any more than how Justice Scalia also characterized it, as a thumb on the scale of justice in favor of a politically popular (among the right-thinking elite) interest group. I seriously doubt that polygamists, adulterers, pornographers, prostitutes, or practitioners of bestiality will be similarly welcomed by our robed readers of constitutional tea leaves. Rather, the Court is likely to follow the example of the Ohio appellate court in State v. Lowe and find some rational basis to uphold laws against adult step-relations incest by finding a “harm” that, when examined closely, is majoritarian morality in another form.

In my blogging about Judge Sotomayor’s nomination, I forgot to mention her dissent in a Voting Rights Act case. The case was a challenge to Massachusetts’s enactment of a state constitutional amendment that disenfranchises felons. Many states, though far from all, prohibit voting by incarcerated felons. A minority of states continues that disenfranchisement even after release, until the felon has applied for, and received, a gubernatorial pardon. Felons have long been seen by Democrats as a potential constituency. It was surprising, then, that a liberal Democratic state as Massachusetts would approve a the disenfranchisement of this electoral group, though, perhaps, Democrats believe that their political position in Massachusetts is secure enough even without an assist from imprisoned felons. The catalyst for the action apparently was the formation of a political action committee by incarcerated felons to lobby the legislature. Even the reputedly tolerant voters of Massachusetts were not amused and overwhelmingly approved the state constitutional amendment that takes away the voting privilege.

The amendment was challenged as violating the Voting Rights Act. The federal First Circuit Court of Appeals rejected the challenge. In reaching that result, the court joins the other two federal circuits that have considered such challenges, the Eleventh and Second Circuits. The Second Circuit’s case, Hayden v. Pataki, was a challenge to New York State’s similar disenfranchisement of incarcerated felons. Sotomayor sat on that Second Circuit panel. The majority rejected the challenge. She dissented.

Her dissent was completely unwarranted. The Voting Rights Act is a remedial statute that, according to well-established Supreme Court precedents that interpret Congress’s powers under the 13th, 14th, and 15th Amendments, must remedy demonstrable constitutional violations. Those violations must be by state action when the law in question is adopted under the 14th and 15th Amendments, as is the Voting Rights Act. However, Section 2 of the Fourteenth Amendment specifically approves of state denial of voting rights for criminals. Therefore, such state action is not a violation of these Amendments, and there cannot be a federal “remedy” against such state laws. Moreover, any attempt to interpret the VRA’s coverage broadly runs afoul of the Supreme Court’s clear direction (admittedly since Sotomayor’s dissent) that it is losing patience with the Voting Rights Act as a remedial measure for anything other than, perhaps, literacy tests and poll taxes.

Once again, Sotomayor’s position on a major controversial constitutional issue was on the far liberal side and contrary to the judicial mainstream at the appellate court level, the Supreme Court’s own trend, and the Constitution’s text.

There are times when thoughtful and principled conservatives and liberals can agree. One of those is in matters of freedom of speech and expression, and on the danger of thought-crime. Richard Cohen of the Washington Post is a liberal with whom I find little political common ground. However, in the matter of hate speech and hate crime laws discussed in this article, I fully agree with Cohen. Such laws are an abomination for several reasons. They require inquiry into the defendant’s political and social opinions on often flimsy evidence such as an outburst in the heat of passion, materials checked out on the library or viewed on the internet, and even jokes told in the past. They compartmentalize victims on the basis of belonging to certain protected groups, giving them a special status as people whose lives, safety, and property are somehow more worthy of protection than others’. They add to the arbitrariness, or at least seeming arbitrariness of prosecutorial decision-making, thereby undercutting the notion that all are equal before the law and that prosecutions are not brought for political and personal reasons.

So, thoughtful conservatives can agree that burning of the U.S. flag by despicable idiots is still constitutionally protected and represents a value (personal freedom of expression) that we should protect as a society. Thoughtful liberals can agree that ideas held by despicable idiots are still constitutionally protected even when they are expressed in speech or conduct. Of course, the conduct itself can still be criminalized the same as if it had been done unmotivated by the politically unsavory idea. An assault is still an assault. Similarly, stealing someone else’s flag to burn is still theft and arson. And, not to be forgot, just because expression of offensive ideas itself may not give rise to formal governmental sanction does not mean that we as individuals or as a community may not make known our distaste for them and their proponents through speech and other means of legal persuasion.

This is the article by Stuart Taylor in the National Journal that Senator Jeff Sessions mentioned in his questioning of Judge Sotomayor over the Ricci case. Taylor is a moderate liberal and favors the Sotomayor nomination. He makes a wonderful and convincing argument that the Sotomayor panel’s summary per curiam affirmance of the district court opinion is indefensible:

“The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the ‘disparate-impact’ provisions of federal civil-rights law.

“In fact, neither Sotomayor nor any other judge has ever found that the exams — one for would-be fire lieutenants, one for would-be captains — were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

“Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven’s discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit — regardless of whether they could win it.”

The result, had the Sotomayor view prevailed?

“The unmistakable logic of Sotomayor’s position would encourage employers to discriminate against high-scoring groups based on race — no matter how valid and lawful the qualifying test — in any case in which disproportionate numbers of protected minorities have low scores, as is the norm.

“Such logic would convert disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.”

The racial politics of the case, which also permeates the District Court’s opinion that the Sotomayor panel accepts, is particularly loathsome in light of the facts that Taylor outlines and some of which have not been accurately reported in the press. One such fact is that Connecticut and New Haven require job-related objective testing methods rather than more subjective methods often used to facilitate nepotism and improper discrimination. Pay particular attention to the efforts made to justify the test as a valid and racially-neutral measure of job performance, including the participation of members of racial minority groups in the creation and review of the test.

Justice Ginsburg in her dissent in the Supreme Court version of Ricci faults the city for relying on a written objective test for 60% of the evaluation rather than more on oral exams that, she claims, have produced fewer racial disparities. While oral exams have their purposes, and sometimes can be very effective testing devices, they have serious problems if one is trying to avoid race discrimination. The less racially disparate results that Justice Ginsburg trumpets precisely make that point by raising the suspicion that those results are due to racial considerations and not how well the applicant performed.

The article is well-written and undestandable. Taylor predicted that no Justice of the Supreme Court would endorse the obviously quota-friendly reasoning of the lower courts. He was right. None did, although Justice Ginsburg’s dissent made much noise about how the city might have had a basis for believing they might have been subject to a disparate (discriminatory) impact law suit if they failed to throw out the test. But even Ginsburg did not go so far as to endorse the view that the city could, without more, just throw out the result whenever a test did not achieve the racial mix the city desired.

In view of the Sotomayor hearings, here is a superb column by pollster and political analyst Michael Barone about the repelling background to the city of New Haven’s racially discriminatory rejection of its own promotion exam because the “wrong kind of people” did well. The article describes a process that looks loke something out of a cheap political drama. Judge Sotomayor, who, not surprisingly, sided with the city was overruled, along with her colleagues, by the Supreme Court. Here is the case. For support of Barone’s column, read the concurring opinion of Justice Alito. That opinion, more than the opinion for the Court by Justice Kennedy, conveys the corrupt and sleazy nature of racial affirmative action politics as practiced by the progressive elements of the American political class. It displays the repellent racial balkanization of American society that forty years of racial spoils system, multicultural indoctrination, and grievance-mongering victimology have spawned. It is so glaring that even the dissent’s disparagement of written exams cannot blunt. Pay particular attention to the machinations and influence of the Al Sharpton-wanna be, the Rev. Boise Kimber, and the almost cartoonish East Coast city mayor, Joe DeStefano. 

The dissent disparages written exams as unsuited to test true merit for promotion of fire fighters, as if a written test (which counted for part of the score) cannot test fire fighting knowledge. The dissent’s criticism is penned by a lawyer and joined by other lawyers, all of whom were admitted to law school and to the bar on the basis of written exams. The dissent’s option of oral exams as more indicative of merit than written exams is interesting. Oral exams do have some merit, but they are more likely to allow for improper personal considerations and bias, including racial bias, than the expert-produced written exams that were vetted to eliminate racial bias. That is one reason why law schools and the bar give written exams instead of orals. In the racially-charged area of government hiring and promotions, one hardly needs testing that is more conducive to racial manipulation.

Acting at the behest of various same-sex marriage advocates, Massachusetts is suing the federal government over the Defense of Marriage Act. The state is arguing that it has a right to define what marriage is, and that all of its citizens whom it deems married should have the same federal rights, e.g., filing joint tax returns. The state claims that the federal statute’s definition of marriage as between one man and one woman (the universal traditional definition holding marriage to opposite sex partners) interferes with the state’s right to define marriage and thus violates federalism.

A couple of thoughts about this. First, this should expose the agenda of the same-sex marriage lobbyists. They claim to want to leave this to each state to decide. I have always believed that to be an utter smoke screen, as the political ideology behind same-sex marriage is not one commonly associated with principled belief in states’ rights. For example, that ideology did not want to leave the matter of the constitutionality of homosexual sodomy laws to be resolved on a state-by-state basis. Instead, its adherents went to the Supreme Court to concoct a constitutionally-protected liberty interest in homosexual sodomy that was forced down the throats of all states. [Note: I am not arguing here in favor of the wisdom or desirability of anti-sodomy laws. But political skepticism about the wisdom of such law is (or should be) distinct from the issue of constitutional authority to have such laws. I also believe that most environmental, labor, and business regulatory laws are unwise, but the federal and state governments well may have the constitutional authority to pass them.]

This is not simply a matter of state sovereignty. Nor is this a matter of a federal decision to defer to state definition of a right for purpose of federal statutes. Instead, the state is seeking to tell the federal government how the latter must define marriage. Rather than federal interference in state matters, this part of the DOMA is protection of the federal government’s own interest in taxation. That interest is sovereign and plenary with the federal government and is not an aspect of state power. The state has its own sovereign tax power that it can exercise over its domestic entities. Massachusetts is free to allow state tax breaks to traditional opposite-sex couples, to same-sex couples, to polygamists, or to anyone else it chooses. But it cannot directly interfere, without the federal government’s consent, with the acts and institutions of the federal government. Thus, the federal government can treat business entities as corporations for tax purposes, even though they meet the definition of partnerships under a particular state’s laws. Under its labor laws, the feds can treat as employees people whom state law may define as independent contractors. This is all dealt with in the Supremacy Clause, Art. VI, Section 2, of the Constitution, and in other discrete areas of constitutional jurisprudence, from McCulloch v. Maryland to statutory preemption analysis.

This is just a more covert precursor of what will happen soon after a critical mass of a minority of states have approved same-sex marriage. At that point all the hypocrisy about same-sex marriage advocates just wanting a state-by-state resolution will be dropped, and there will be a massive attack through all branches of the federal government, but especially the judiciary, to impose same-sex marriage on recalcitrant populations. This will be done through attacks under the Full Faith and Credit Clause and the Fourteenth Amendment’s Privileges or Immunities, Due Process and Equal Protection Clauses.

Second, the lawsuit is not just defective substantively in that it corrupts principles of federalism. It is defective procedurally in that the state lacks standing to challenge a federal law on behalf of its citizens. Massachusetts v. Mellon long ago held that a state cannot sue as parens patriae on behalf of its citizens, where the state alleges that it does not like how its citizens are treated by a federal law. The state has to allege a direct injury to itself. There appears to be no such direct injury to the state here. It still gets its tax money. It still gets to recognize such marriages as a matter of state sovereignty. This is about an alleged injury to the state’s citizens from lack of access to federal benefits.

Unlessw there are facts not evident here, the suit should be summarily dismissed.

In National Rifle Association v. Chicago, the U.S. Court of Appeals for the Seventh Circuit recently upheld the anti-gun possession ordinances of two Illinois municipalities, Chicago and Oak Park. Both of these laws were, effectively, bans on the private possession of handguns (which seems not to have made much of an impact on Chicago’s Criminal-American community). The opinion was written by Frank Easterbrook, a noted conservative, and was joined by Richard Posner, a libertarian, as well as by the third judge on the panel. The laws at issue are similar to the D.C. statute struck down in D.C. v. Heller as violating the Second Amendment. The Seventh Circuit concluded, correctly, that the Second Amendment does not apply to the states, and that the Heller court had not resolved the question whether or not the Fourteenth Amendment protects private gun possession under the privileges and immunities clause or ”incorporates” the Second Amendment through the due process clause.

But the Seventh Circuit went further. It relied on a trio of 19th century cases (U.S. v. Cruikshank, 1876; Presser v. Illinois, 1886; and Miller v. Texas, 1894) to hold that the Second Amendment in fact does not apply to the states. In that conclusion, it agreed with the Second Circuit’s recent decision in Maloney v. Cuomo(2009), for which Judge Sotomayor, who joined the Maloney opinion, has received considerable criticism. The Seventh Circuit’s decision also conflicts with the Ninth Circuit’s (!) recent opinion in Nordyke v. King, which saw the nineteenth century cases as inapposite or overtaken by more recent developments in constitutional law that had fatally undercut their reasoning. Those developments are, first, the Supreme Court’s adoption of selective incorporation of most clauses of the Bill of Rights into the “liberty” protection of the due process clause of the Fourteenth Amendment and applying them to the states (”no state shall deprive any person of life, liberty, or property without due process of law”). The second development is the Heller court’s emphasis on the right of gun ownership being deeply rooted in our legal tradition, which right is also connected to the fundamental nature of the right of self-defense.

That raises the fascinating question of why two conservative/libertarian judges would go along with Illinois’s liberal politicians who want to restrict such an essential attribute of individual autonomy and privacy. One can think of three reasons. One is that they truly believe that the right to gun possession and self-defense is not a constitutionally protected liberty as, say, the right to have an abortion. That is rather unlikely.

A second, and more likely, explanation from the language of the opinion, is that the judges are setting up the case for review by the Supreme Court. Such an approach is not inconsistent with a belief that the due process clause protects a constitutional liberty to private gun possession (or should do so). It just means that, despite political or judicial sympathy to gun owners, the judges are mindful of their appropriate role. The opinion is a study in carefully-crafted judicial modesty. The court refers to the Heller court’s declaration in a footnote that the 19th-century Supreme Court precedents held that the Second Amendment does not apply to the states. Moreover, the Seventh Circuit expressly addressed the issue of how appeals courts should approach “outdated” Supreme Court precedents. It referred to an earlier case, an antitrust matter, from its circuit that had applied a Supreme Court case in that area, even while pointing out the Supreme Court precedent’s weaknesses. The Supreme Court then reviewed the appellate court’s holding and unanimously overruled its own precedent, stating that the Supreme Court also approved of the circuit court’s handling of the matter, as it was “this Court’s prerogative alone to overrule one of its precedents.” The Seventh Circuit also noted that the Supreme Court had repeatedly told the lower courts to apply Supreme Court precedent, even if later Supreme Court opinions undermined the particular precedent. By that reasoning, the Seventh Circuit was bound to apply the earlier cases, whose holdings it saw as having “direct application” to the issue it was addressing.

Similarly, the Seventh Circuit declined to find an independent right to gun possession by application of the Bill of Rights to the states through the privileges and immunities clause, which argument the court found foreclosed by the Supreme Court’s opinion in The Slaughterhouse Cases (1873). Again, the appellate court found itself incompetent to overrule either The Slaughterhouse Cases or the other three 19th-century Supreme Court precedents that the Seventh Circuit held also to have rejected a privileges and immunities clause argument.

The third explanation for the opinion, which is not necessarily precluded by either of the others, is that the judges are providing the strongest possible vehicle for Supreme Court review. For one thing, the case emphasizes the weight of the old cases, and its invitation to the Court to overturn or at least to clarify them is easy to read between the lines. For another, the facts, a ban on private handgun possession, present the strongest possible argument for the Supreme Court to recognize a Fourteenth Amendment protection. Yet another fact is that the challenger is likely to pursue Supreme Court review: The lawyers also argued Heller, and the organization/plaintiff has a strong interest in challenging the ban, especially on facts that are congruent with Heller. Finally, the Seventh Circuit has set up a circuit split with the Ninth Circuit in Nordyke on a much more favorable (for the challenger) fact pattern than the Second Circuit nunchuk possession case in Maloney. And the challenger here is more likely to seek review—and do so successfully—than the challengers in Nordyke. In the latter case, the challengers won on the constitutional law incorporation theory, but lost on the facts. The Seventh Circuit has presented the Supreme Court, if at least four members are inclined to grant cert (and I think they are), with a much fatter target to make a statement here than either Nordyke or Maloney.

I do have a couple of quibbles with Judge  Easterbrook’sopinion. I think that the Ninth Circuit in Nordyke actually had the better argument about the holdings at least of Cruikshank and Presser (Miller v. Texas—not to be confused with Miller v. U.S.—presented little beyond simply an assertion). Neither of those cases squarely addressed the issue of incorporation. Cruikshank did not even involve formal state action; it was a federal civil rights act prosecution of members of a White mob for depriving Blacks of their claimed constitutional right to keep and bear arms. Presser noted in passing that marching around with guns as a private militia was not protected under the Second Amendment.

As to The Slaughterhouse Cases, the Supreme Court there rejected the position that Congress considered the privileges and immunities protected under the Fourteenth Amendment to be all those mentioned in the Bill of Rights. And it went further by limiting those privileges and immunities to those comparatively few that were aspects of U.S. citizenship. Since gun possession, like most rights, are not attributes of U.S. citizenship but of state citizenship, the Court did not see fit to protect that right under that particular provision. Justices Field and Bradley took a much more vigorous approach to the rights protected under that clause, and it is likely that they had the better historical argument, at least as it would judge Congress’ intent to include gun possession among those rights. There was clear evidence in the Congressional debates that gun possession was to be among the protected privileges and immunities, even if the entire Bill of Rights was not. As demonstrated by the late Professor Bernard Siegan from the University of San Diego Law School in his review of the adoption of the Fourteenth Amendment, the Court in The Slaughterhouse Cases took much too crabbed a view of the privileges and immunities clause.

Finally, the Seventh Circuit’s criticism of the challengers’ citation of Blackstone about the “deeply rooted” nature of the right to keep and bear arms ignores the Supreme Court’s own use of Blackstone in Heller. When Judge Easterbrook adds that “Federalism is an older and more deeply rooted tradition than is the right to carry any particular weapon,” he is just wrong, certainly if “any particular weapon” is understood as the Heller court did. The right to keep and bear arms predates both the federal and the state constitutions. And Blackstone’s (and others’) treatment of the right to keep and bear arms as a deeply rooted right of Englishmen (or humans generally) traceable in England at least to the Charter of Rights, it predates the state constitutions. As to the federal, the Court made that very point in Heller about the Constitution’s language referring to a pre-existing right to bear arms when it uses the defining designation “the” right to keep and bear arms. On the other hand, federalism as an American tradition arose with the Articles of Confederation or, if one wants to be even more charitable, with such earlier failed proposals as Benjamin Franklin’s and Thomas Hutchinson’s failed Albany Plan of Union of 1754. By definition, federalism is defined by the constitutional politics of the polity. Rights as understood by the framers of our system, pre-existed our polity and, under Lockean social contract speculations, all polity.

I hope that the Supreme Court will accept the gift given it by the Seventh Circuit and grant the inevitable petition for writ of certiorari. From the language of the Heller case, the history of the Fourteenth Amendment, and the Court’s own precedents under either the incorporation of the Bill of Rights theory or under the unenumerated fundamental liberty theory that found constitutional rights to privacy, contraceptives and abortion, the Court must then recognize a fundamental right to private gun possession for self-defense.

As expected, by a 6-1 vote the California Supreme Court has upheld the constitutionality of Prop. 8, which overturns an earlier decision of the court that had declared the statutory (and traditional) definition of marriage as between one man and one woman as contrary to equal protection and due process principles. The proposition, approved by voters in November as a backlash against the earlier court decision, was attacked by homosexual-rights advocacy groups and other challengers as an unconstitutional revision of the state constitution, which would have required additional votes by the legislature and the voters. The argument was, not to put too fine a point on it, patently absurd. The state supreme court correctly found that the proposition was a mere amendment, properly adopted.

The dissent, if the report is correct, is suitably hyperbolic in finding that the decision “places at risk the state constitutional rights of all disfavored minorities.” Huh? Does he mean the parents who want to be notified of their minor daughters’ abortions? Or the upper-middle class taxpayers who are expected to fund the lifestyle choices of those unwilling to pay for them? Or those who oppose anti-jobs and pro-environmentalist policies like the refusal to permit oil drilling, the failure to build gasoline refineries, the restriction of the water supply to preserve the “Delta smelt”? Or the parents who want to remove their children from public elementary school classes where the ins-and-outs of homosexuality are discussed and the lifestyle praised? Does he mean those disfavored minorities? He can’t be talking about homosexuals who, though only constituting a small fraction of the population, nevertheless got 48% of the vote in favor of their radical redefinition of marriage.

The chief justice, who wrote the opinion for the court, wistfully observed that “our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution….our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.” Had the chief and some of the others aspired to that same judicial modesty in last year’s case, they would have rejected the radical transformation of traditional marriage they undertook, and the whole Prop. 8 circus could have been avoided. Instead, they saw themselves as a constitutional convention (albeit without the need for popular ratification) and created a new right to same-sex marriage out of nothing. They badly miscalculated politically. As far as I am concerned, they should be removed from office, given the blatant abuse of power that the earlier decision represents. If the people want to vote for same sex marriage, fine. I may oppose that, but at least the change would be done according to the rules and would reflect a movement in popular view. For an unelected body of elite guardians to do this by a 4-3 constitutional sleight of hand that misinterprets the issue before the court is another matter altogether.

It is curious that the chief justice downplayed the significance of the proposition and the decision on same-sex couples. He noted that they still have a constitutionally-protected right to form officially-recognized, intimate relationships with the same incidents of marriage. In other words, civil unions are themselves examples of constitutionally mandated equality. They are not just statutory policy choices by the legislature. Thus, same-sex couples have almost all the benefits of marriage through the civil union law rooted in the state constitution. They just can’t call it marriage. Yet it was that very fact of similar attributes while calling it marriage for opposite-sex couples but not same-sex couples that, in last year’s decision constituted the constitutional violation. It was the failure to call it marriage when it had those attributes that imposed “second-class citizenship” on same-sex couples. Suddenly, the designation is just a little matter of “carving out of an exception,” with no practical effect, not some horrendous stigma.

The court also upheld as valid the same-sex marriages performed under the regime created by last year’s exercise of judicial autocracy before the people could do themselves right. There is no real strong legal argument for that result, but there is a strong emotional appeal. It also helps pave the way for a future campaign to allow same-sex marriage by pointing out select cases of how those marriages are just like everyone else’s with their successes and failures. But mainly the studies and the media will point out the successes. The success or failure of this or that individual same-sex marriage of course is not the point of those who oppose abandoning the definition of marriage applied across time and geography, but that will be ignored as the debate is framed in terms of equality and the aspersion of the mental affliction of “homophobia.”

After I read the decision itself, I’ll have more to say about it.

Libertarian law professor Randy Barnett proposes a constitutional solution for the “tea partiers.” He urges them to push their states to petition Congress for a constitutional convention to consider a series of “federalism amendments” to adjust Congress’s powers and bring them more in line with the constitutional framers’ understanding of national-state relations.

The problem, as I have pointed out previously, is that the legal and political elites are deeply suspicious of a constitutional convention because they fear the possibility of unanticipated changes beyond those for which the convention was called. After all, there is a precedent for a run-away constitutional convention—the one that produced the current constitution in 1787. Recognizing that suspicion, Professor Barnett wants it put to good use. If pressure for a convention increases, the Congress is likely to act precisely to keep control of the amendment process.

I find his proposal intriguing. It goes without saying that the particulars of the proposed amendments need considerable discussion. Perhaps he can get that discussion going.

This is the text of the opinion from the Ninth Circuit on the Alameda County gun possession ordinance, in which the court applied the protection of gun ownership by individuals in the Second Amendment to the states. The court did this by applying the theory of “selective incorporation” of the Bill of Rights (which applies only to the feds) into the liberty provision of the due process clause of the 14th Amendment, which applies to the states. There is historical controversy over the legitimacy of the incorporation theory, but it has been used frequently by the courts over the last three-quarter century. It actually may not have been needed here, as the debates over the 14th Amendment show a keen awareness among its supporters in Congress that gun ownership was one of those fundamental privileges and immunities of citizenship that the 14th was intended to protect for the newly-freed slaves.

This is a good and quick overview of the opinion.

Some comments. Most observers are saying that this decision by the three-judge panel will go to the whole circuit for en banc review before ending up at the Supreme Court. That may well be correct. However, I would suggest caution. First, the county technically won this, so they may take their victory and leave it at that. The challengers lost the decision, but they won the doctrinal argument on the constitutional protection of the right to own guns against state, as well as federal, laws. If they don’t like the particular application of this right to their facts, or the standard of review the court used, I am not sure why they would go to the whole circuit rather than petition the Supreme Court, or why the circuit would take it. It is highly unlikely that the en banc circuit court would reject the panel’s incorporation theory, given the Supreme Court’s treatment and emphatic characterization of the right at issue as fundamental for purposes of the Second Amendment in the earlier Heller case. To do so would more likely trigger Supreme Court review, and the Ninth Circuit doesn’t need yet another reversal to cement its poor reputation as a bellwether of constitutional law. On the other side, it is unlikely that the en banc panel would rule against the county on this particular issue.

Second, even the Supreme Court may not choose to hear this case. The strongest argument in favor of Supreme Court review is the split in circuits going back to (much) earlier cases, now that the Ninth Circuit has become the first appellate panel to accept incorporation. But the Supreme Court may choose to wait for the cases making their way through the Seventh Circuit, or some other case not yet filed where incorporation is either rejected, or where it is accepted but the application on the facts is well outside the Court’s sense of where the line between constitutional regulation and impermissible burdening of the right should be.

Third, this particular case raises substantive issues about where that line should be drawn. The court relied on a narrow reading of the Heller holding as protecting a right to possess guns in the home for self-defense. From that, the court concluded that the county could exclude the possession of guns on certain types of property specifically designated as county property and where large numbers of the public might congregate. Moreover, the lead plaintiffs were gun vendors trying to sell merchandise at gun shows the county had previously permitted on its property. So the plaintiffs’ cause was not the most sympathetic, quite unlike the challenger in the Heller case, a security guard who, under D.C. law, could carry a handgun to protect federal judges in their offices, but not himself in his home. The court here had little trouble upholding the county law.

True, if the court read Heller as only protecting a right of self-defense only at home, it may have been an unduly (and unnecessarily) narrow reading of the case. But the court here did not need to address the much more difficult questions of whether the states could prohibit, say, gun possession in one’s car or on the streets in general, whether such possession is “open carry” or “concealed carry.” Those kinds of prohibitions will test the constitutional boundaries of the right to possess guns for private use and flesh out the Heller ruling better than this case does.

I have already posted about the atrociously “reasoned” opinion of the Iowa Supreme Court’s anti-democratic same-sex marriage decree amending the state constitution. The court’s argumentation, while par for the course on same-sex marriage, was embarrassing. Professor Matthew Franck eloquently reinforces some of the points I made in that post.

Referring to the opinion’s arguments, Professor Franck points out the tyrannical impulse that moves its author. “By contrast, it speaks volumes about the extent to which American judicial power, having burst free of all constraints, is now in the grip of a banal routinization of tyranny so complete that the tyrants do not recognize their own character as they blandly overturn many centuries of civilization in a day’s work.”

As far as the Iowa Supreme Court’s amateurish psychoanalysis of attributing some hidden “bad” religious motivation to the legislature’s decision to limit marriage to opposite-sex couples, Professor Franck responds, “For the unanimous Iowa court appears incapable of entertaining the most elementary distinction between matters of theology, faith, and worship, on the one hand, and matters of moral reasoning springing from religious conviction on the other.”

Indeed. That isn’t what judges are trained to do, which is why they should keep their noses out of that realm of inquiry and stick to the law.

There are further developments in the unconstitutional effort to give the District of Columbia a voting representative in the House. It seems that the Office of Legal Counsel in the Justice Department, which is the primary division that, when asked, evaluates the constitutionality of proposed policies, has decided that the proposed bill is unconstitutional. It thus follows the view of OLC during the Bush administration, as well as during prior administrations going back decades.

That was not good enough for Attorney General Eric Holder who, not pleased with the opinion, went to the Solicitor General’s office and received the opinion that they could defend the constitutionality of such a statute, if it became law. Note that such a statement is not an endorsement of the constitutionality of the law, just that the law is not so far beyond the realm of reason that they could not even launch a constitutional argument in its defense. That was all Mr. Holder, who favors the statute, needed to claim that such a law would be constitutional.

Critics claim that Holder is politicizing the Justice Department, a practice that the Democrats constantly attacked the Bush adinistration for supposedly doing. I always thought that to be a bogus charge, especially as it was made by those who previously supported what had to be the most politically-tainted Juastice Department in the history of the Republic, that is, Bill Clinton’s department headed by the politically pliant Janet Reno. Ed Whelan points out that, had the Bush administration acted in similar fashion, the scandal would have been huge and trumpeted in the press. As he notes, even if the Bush administration had engaged in actions that “politicized” Justice Department opinions regarding executive power (which Whelan denies), that was done to promote matters of national security, not something as existentially inconsequential as D.C. representation. Sidenote: I enjoyed Whelan’s reference to Sir Thomas More, with Holder as Solicitor General Richard Rich, though Obama does not strike me as forceful and involved a ruler as Henry VIII was.

But no one should be shocked. Two months ago, Andy McCarthy already wrote about Holder’s tendency to politicize the Justice Department when he worked there during the Clinton administration. Holder’s testimony about his connections to Clinton’s infamous Marc Rich pardon was, shall we say, less than transparently truthful. But, not surprisingly, the Democrats have suddenly misplaced their histrionic dedication to avoiding even the appearance, much less the substance, of politicization of Justice Department decisions. It’s a hopey-changey new day, after all.

The political losers that seem unable to get popular support for their same-sex marriage agenda, nevertheless have been able to score another victory in their quest to upend the law’s recognition of the natural basis of marriage. They have done this, predictably, by enlisting the help of the legal elite ensconced on their judicial thrones. This time, the anti-democratic judicial coup against the constitution occurred in Iowa. This is particularly troubling as the Iowa constitution makes it more difficult for the people of the state to do themselves justice and right this wrong. Any constitutional amendment would have to gain legislative approval in two consecutive sessions and only then would be submitted to the voters for approval. That process would take years at best and is strewn with hurdles that make success unlikely. Various Democratic leaders of the Iowa state legislature have already said that they won’t try to overturn the court’s diktat.

As a general proposition, it seems to me that there needs to be more robust popular input by making constitutional revisions a more frequent periodic event. Pennsylvania early had such a device through its Council of Censors, but that was itself phased out through constitutional change and never really had a chance to work. If there were a more frequent democratic outlet for constitutional adaptation, the power of the non-democratic, but politically-oriented, judiciary would be restrained. While both democratic and non-democratic political bodies are likely to pursue political self-interest and prone to bad decisions, I fear the “wisdom” of the democratic multitude somewhat less than that of the few self-designated judicial guardians making their Olympian pronouncements. I do so mainly because I believe that democratic error is more likely to be corrected than bureaucratic/judicial error. While a balance between the two elements, the popular and the elite, best promotes a stable but adaptable polity, the balance has shifted too far in the direction of the latter.

I have not read the decision in full, so I am basing these remarks on reports and on National Review’s Ed Whelan’s reaction. But from what appears, this is the typical self-congratulatory judicial paean to its own enlightened status as moral trailblazers bringing justice for those suffering from an ancient, religiously-based wrong. What horse manure.

Much of the opinion replows old ground that I and many others have already surveyed. I will limit myself to the same passages from the opinion that Ed Whelan skewers so well:

“[E]qual protection can only be defined by the standards of each generation.”  (p. 16) It was only in 1998 that the people of Iowa adopted the statute that the court now finds unconstitutional. As Whelan asks, wouldn’t that be the standards of this generation, rather than what their lordships’ imaginations tell them? But the unelected (they merely go through periodic plebiscitary retention votes) judges quickly disabuse the questioner of such an odd notion:

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”  (pp. 16-17)

Wha-a-a-t? One can always tell a liberal judge’s defense of his role as guardian of a “living constitution.” The reasoning becomes even more opaque than usual in judicial opinion. And the more preposterous the constitutional position on its merits, the more florid the language and nebulous the principle. After all, the judge would not need a herculean effort at obfuscation if the answer were a plausible conclusion from well-established legal precedent.

One of the all-time greats, of course, is Justice Kennedy’s (we think he is the author) “sweet mystery of life” passage in the joint opinion in the abortion case Planned Parenthood v. Casey: “ ’At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’ ” But this effort from the Iowa supreme court deserves at least some (dis)honorable mention. So, in one breath the learned jurists tell us that each generation must necessarily define the standards of equal protection, a position that would invite deference to political decisions. But, in the next breath, they assure us that hoi polloi would be distracted by sinister “influences” that make them resistant to change, and that, therefore, hoi aristoi on the courts, unsullied by those pernicious influences, are necessary to elucidate true equal protection. If a law student ventured such fractured reasoning in an argument, he or she would be graded accordingly.

Why must the meaning of equal protection change at all? And does it change only in a certain direction to a certain extent and no more? Who decides this? Certainly judges are not selected for their remarkable political sense, their deep understanding of philosophic truth(s), or their sociological acumen. Does that mean that, if in some years society were to decide that homosexuals really are not fit to be treated equally, the meaning of equal protection adapts to that new popular understanding? Or is it only if the judges’ understanding in that regard changes? What if the people are resistant to such change, based on sinister influences such as secularist ideology? What if the people are not, but the judges are? Or is this all just an attempt to freeze a particular ideological view into constitutional place, exactly the antithesis of what the moniker “living constitution” implies?

Predictably, the Iowa supreme court raises the specter of religious influence in shaping the definition of marriage and scolds that this just won’t do for the court’s evaluation of the constitutionality of law. The disingenuousness of that argument is so transparent that every rational reader should be annoyed at this insult to his or her intelligence. Read on one level, the court’s assertion (it can hardly be dignified as an argument) means that any time that there is a religious basis for a societal norm, that norm cannot be enacted into law. Say good-bye, then, to laws against killing, theft, perjury, and adultery, to name a few.

Even read on another level, more charitable to the court’s intelligence, this assertion displays ignorance. If the court is saying that the law cannot adopt norms that are unsupported by anything other than religious doctrine, the court misunderstands (or intentionally misconstrues) marriage. As an aside, the court’s opinion then also concedes the universality of a religious impulse (though not the truth of any particular religiuous dogma) among humans, and suggests the abnormality of atheism.

Marriage goes well beyond religious command. Marriage is easily defended by resort to non-religious, secular reasons. Every society recognizes the institution of marriage; every advanced society does so through its law. Every society marks marriage with a ritual celebration that goes beyond merely a party for individuals, but instead becomes a social event. This is particularly important in smaller, more primitive societies where the concept of a unifying body of law as an expression of social approval is less developed.

And every society in the past has limited marriage to opposite-sex couples, though not necessarily preventing the male member of the couple from marrying another female in another, simultaneous, opposite-sex couple relationship. (The female members of the harem were not married to each other.) This was true even if the society did not criminalize homosexual relationships, or perhaps even embraced them. The example of some Greek poleis comes to mind where custom permitted (and, some would say, celebrated) homosexual relationships, typically between men and adolescent boys. There, too, marriage was between a man and a woman.

The reason for that is clear. The institution of marriage, like other common human institutions, reflects something in the nature of things, here in human reproduction and child-rearing. All societies have had a tremendous interest in the fact of reproduction and in the need for “proper” child-rearing optimally structured for producing productive, socially-adaptive future members of the group. The Iowa supreme court may have concluded In footnote 26, ”The traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.” The “anything else” is many millenia of human experience that put the lie to the court’s cavalier contempt for the importance of mothers and fathers for their children.

Contrary to the Iowa court’s reliance on selected modern iconoclastic studies, the collective human wisdom gained from experience demonstrates that the optimal environment for raising children is a mother and a father, not two-of-a-kind. As between that experience (and innumerable commentators) on the one hand, and, by now, a few handfuls of be-robed former American and European lawyers (and some college professors), I’ll put my money on the former.

Purely private arrangements reflect the choices of the individuals involved and are created by voluntary action. Social institutions, on the other hand, reflect some need beyond the wills of the individuals involved and connect to a broader, some would argue “natural,” order. The Iowa court, like some of its professional companions, has totally distorted the purpose of marriage. If the only purpose of marriage is to provide the participants with a forum for their joy and personal commitment, that can be handled by an appropriate private commitment ceremony. To the extent such an arrangement is simply a private matter, its legal contours can be shaped by the individuals’ actions under, for example, contract or inheritance laws, as is done for other private choices.

Back to the court’s silly remark about religion. In the context of marriage, as I have shown, just as in the context of other social institutions, religion and religious doctrine do not create the institution. At most, religion provides additional support for the institution. That support may be more overtly “ethical” than what might be derived from a utilitarian “natural” justification, though even the latter can be reframed into an ethical justification.

But, as I mentioned before, in an odd way, the court confirms the existence of a universal (and, one would infer from the supporting evidence, “natural”) religious impulse in humans. If the contours of marriage are simply the product of religious influences, one would assume that to be the case in all societies that have marriage. Yet all societies have marriage. And they have it only between male and female. Therefore, religion is a universal human institution. One could hardly assert that such universality reflects anything other than a universal human need, and such a need would not manifest itself so thoroughly unless it was part of human nature itself. I don’t want to get into theories/proofs about the existence of God here, but that very universality and its integral connection to human nature leads in an interesting direction.

Finally, it is only the modern secularist institutions that attempt to drive religion from the public square that have sought to disconnect marriage from its function of child-rearing and its tradition of opposite-sex couples. I am talking about the governments of Europe and (less so) the United States, particularly the legal elites entrenched in the courts. I do not think it is a coincidence that it is those countries that have the lowest child-birth rates, the most intrusive welfare state, and the most advanced secularist regimes. The only thing that remains to be discussed is the extent to which that correlation can show causation.

I have held back commenting on the AIG bonuses and the political furore that has arisen. I wanted to let matters settle down a bit and to think more carefully about what this represents.

As I understand from reports, these bonuses were promised by AIG to various employees as an incentive to stay rather than jump ship to other companies when things were getting bad. Most, but not all, of the employees of the financial services division who were responsible for creating the company’s overexposure in derivatives such as credit default swaps had left by then and were not entitled to these particular bonuses. Skilled and knowledgeable employees continued—and continue—to be needed to keep the company going as an enterprise and to begin to unwrap the complicated layers of financials. Some new employees came in, and the promise of the bonuses was used to reward them for their skills. The new chairman came in with government support of his selection and he is serving without pay. The contracts that include the bonuses were known to the Treasury Department, the administration, and the Congress. In fact, those parties insisted on protecting those bonuses, as this posting by David Freddoso makes crystal clear. The House has now adopted a proposal to tax those bonuses at a 90% marginal rate for taxpayers with gross adjusted income over $250,000 (the fictional “wealthy,” which, by the way, include what was trumpeted by the Democrats in the last election as the “poorest” Senator, Joe Biden, with income well over $300,000).

Let me address the bonus taxation from three perspectives, constitutional, political, and economic. In decreasing order of expertise, in other words. As to the constitutional issue, several ultimately unsuccessful arguments can be made that such a tax is unconstitutional: the ex post facto clause, the bill of attainder clause, the takings clause, contracts clause principles, procedural due process, and equal protection.

1. The ex post facto clause prohibits government from making something criminal that was not criminal when done. It also prohibits changing the criminal procedure or the quality or quantity of punishment for crimes to the disadvantage of the accused compared to what the law provided when the act was done. Here, there is no criminal law involved. Even if the effect of this tax law were retroactive, it is a civil law. There is no criminal liability of any kind here.

2. The bill of attainder clause prohibits legislative punishment of individuals, usually for acts already done. There is a close connection to the ex post facto clause, with the focus on punishment for prior conduct. But there is a slightly different focus. Technically, a bill of attainder doesn’t require making something a crime or increasing a criminal punishment, as long as the effect is to “punish” someone for what they have done—or are going to do. The law can “punish” even when it does so in other than the typical criminal law manner. Punitive damages in tort suits are an example.

The other difference is that an ex post facto law usually rather generally declares punishments for a type of conduct or for actors whose identity is not fixed and who are not personally targeted, while a bill of attainder is a legislative declaration that certain identified or targeted individuals will suffer this punishment. Normally, legislatures provide broad classes of penalties, and courts determine whether a particular individual is to be subject to the punishment thus prescribed.

Here, the law has undertones of a bill of attainder. The Congress and the press repeatedly referred to AIG’s bonuses paid to these individuals as the focus of the law. Moreover, the tax rate itself, 90%, and the asserted need for the law, that is, to punish the greedy capitalists at AIG who had created this financial debacle and then rewarded themselves with taxpayer money, reek of punitive intent. Combining the 90% marginal tax rate with state tax rates and Medicare taxes pushes the marginal tax rate over 100%, thereby demonstrating clearly the punitive effect and giving further evidence to the punitive intent.

However, the argument ultimately is likely to be unavailing. Courts do not like to look behind the law’s text at what they characterize the “motives” behind individual legislators’ votes evidenced by floor statements during debate or, worse, in front of media cameras and microphones. Congress here has been smart enough not to identify any particular companies in the text of the law. In effect, the language is broad enough to encompass potential bonuses at other companies, such as Fannie Mae and Freddie Mac. As for the 90% marginal tax rate, there have been other times when the very wealthiest were briefly subject to such rates. That all said, there is a plausible argument that the tax is unconstitutional.

3. The “takings” clause prohibits government from confiscating people’s property for public use (today defined as public benefit) without compensation. A “taking,” in contrast to “regulation,” occurs when a burden is imposed in a focused effort on specific individuals and specific assets rather than on broadly-defined classes, and when such efforts result in a physical occupation or otherwise in destruction of the economic value of the assets targeted. Alternatively, such taking also occurs when government action for public benefit results in significant impairment of investment-backed expectations of such individuals in the targeted property.

Here, the tax is claimed to be for public benefit, indeed, for public use of the money in the bail-out. It targets the money of only a few individuals. While it is unlikely to be considered a “physical occupation,” in effect taking over 100% of the bonuses amounts to a destruction of the economic value of the targeted bonuses. Moreover, since these bonuses were a large part of the incentive to work at AIG, these taxes significantly impair the expectations of the employees who invested their labor in AIG.

However, the takings clause is applied historically to real property, though textually there is no reason it cannot be applied to other assets. There is precedent to consider money in accounts as property subject to takings clause protection. An example is interest on client trust accounts set up by lawyers. But it is exceedingly difficult to convince the courts that taxes, even high taxes, are subject to the takings clause. It is actions by government to condemn private property under eminent domain or by excessively burdensome regulation that are the focus of takings jurisprudence. Moreover, taxes often target comparatively narrow groups, and, again, Congress here is smart enough to apply this tax nominally to other bonus recipients and not to mention AIG. That said, the completely confiscatory and excessive nature of the total tax impact might just make this an unconstitutional taking.

4. The contracts clause prohibits states from interfering with vested contract rights. Similar limitations have been applied to federal action under the Fifth Amendment’s due process clause. Application of contracts clause principles by the courts depends on a balancing of the degree of impairment of the contractual rights on the one side, against the public’s need for the impairment and whether the impairment of the contractual rights through the specific law is unnecessarily heavy.

Here, there is clear and substantial interference with vested contract rights to receive the bonuses. The need for the public to interfere with these contracts does not seem particularly great. The amount commonly said to be at issue, $165 million, is dwarfed by the bail-out of AIG at $170 billion (less than .1%), and by the total bail-outs of financial institutions and other industries, along with “stimulus” spending in the trillions of dollars. Moreover, since the feds themselves knew about and endorsed these bonuses, to “recover” them now is particularly suspect. The courts look more skeptically at government seeking to undo its own contractual obligations than when it is making laws that adjust the contractual obligations of private parties with each other, such as private creditors and debtors.

However, at least since the 1930s, courts have been extremely reluctant to apply contracts clause protections. That goes double if the alleged violator is the federal government. The idea that contractual obligations, even to compensation, might be altered retroactively, is part and parcel of accepted bankruptcy law (as the United Auto Workers union might yet find out). Yet, bankruptcy is especially recognized under the Constitution, and also adjusts either purely private contractual obligations or, if governmental creditors are affected, adjusts those to the benefit of the private actor, not the government. Here it is the reverse. Again, there is a chance that this argument might work, but the historical cowardice of the courts in enforcing these protections dampens one’s expectation of success.

5. Even if a retroactive civil law (such as a tax) is not an ex post facto criminal law, its retrospective nature might raise issues of notice to the bonus recipients. After all, there was no indication when the AIG employees accepted their conditions of employment that their bonuses might be singled out for such heavy and special taxation. Thus, they were not on notice and to subject them to such taxes now, after the income has been earned, is an unfair procedure that deprives them of their property without due process of law.

However, tax laws often change. Indeed, one of the complaints of business is that the tax laws are altered so frequently it is difficult to make long-range plans. Certainly, no one is immune from having the income tax laws changed. Nor is the high amount of the tax by itself a “notice” issue. So there is clear notice that such change might occur.

But matters are more complex. There is no due process issue if the feds tomorrow adopt a law that says, for example, that income taxes will go up ten percent on income received in 2010. One has plenty of notice to decide whether to continue working. Such as law is not retrospective and, therefore, raises no issue similar to the 90% law in relation to the bonuses already earned and received.

A more analogous law would be if the feds on April 1st adopted a law that imposed an additional 10% tax on all income earned during 2009. At least as to income earned during January, February, and March, there might be a procedural due process issue. Whether or not there is a violation may depend on how much notice you had before you earned that income that the government might act. For example, Obama has been trumpeting how he is going to hit the “rich,” which for now is defined as those who make more than $250,000 per year, since the early stages of his formal campaign two years ago. The 90% tax law only targets those who make more than that threshold amount. Those folks can hardly complain that they were unaware that they were going to get soaked by the most left-wing administration this country has ever seen.

On the other hand, during the campaign, Obama stressed that he was merely proposing to raise taxes on the rich by increasing the top rates by a few percent. No one said anything about taxes that, in combination would rise above 100%. So there is an arguable procedural due process notice issue. Unfortunately, as with the other claims, the courts have not been sympathetic towards claims of violations of legislative due process.

6. Under equal protection principles, similarly situated persons must be treated alike. Thus, while the equal protection clause in the Constitution expressly applies only to the states, there is an anlogous liberty to be free from arbitrary discrimination that is protected under the Fifth Amendment’s due process clause. Discriminating between similarly situated people would be arbitrary. But people are not similarly situated if it would be rational for the legislature to recognize differences between them and legislate (discriminate) on the basis of those differences. And, to complete the circular reasoning, such discriminations are rational, as long as they do not discriminate between similarly situated persons. What that means in the real world is that, with the exception of a few well-defined and limited categories such as race and sex, legislatures generally can make laws that discriminate in favor of some people and against others. And legislatures do so with elan.

Here the discrimination targets other than race or sex. Indeed, in tax cases, such as California’s Proposition 13 property tax system that taxes similar properties quite differently depending on how long the taxpayers have owned them, the Supreme Court easily rejected the equal protection claim. Yet, this case may be different. Unlike Proposition 13’s concern about controlling future increases in property taxes that were hurting existing landowners, here the Congress has, through its members’ speeches and based on the text of the law, shown little basis for the law other than hostility to the targeted group. Mere hostile intent, dislike, or disapproval of a group cannot be the basis of a valid discriminatory law, as the Court or individual justices made clear in a couple of cases involving laws that targeted homosexuals. Such “invidious” discriminatory purpose, if shown, would violate the equal protection clause.

There is a correlative argument that such an invidious purpose to target a disfavored group also means that the law is not for the “general welfare” of the nation. That, in turn, raises a possible but faint, claim that the tax is not a proper exercise of Congress’s power to raise revenue to spend for the general welfare. That argument likely will fail. Though there may not be a “revenue-raising purpose,” it will raise enough revenue to have a “revenue-raising effect.” According to the Court, that is enough.

On the equal protection claim, the problem is that these are AIG employees, not homosexuals. Unlike the Court’s willingness to bend over backwards and to bend the usual constitutional rules to protect the latter group, AIG employees come with no similar claim to “victimhood.” Again, in the end, I would not count on the Court to pull the employees’ bonus chestnuts out of the legislation’s fire.

In the next post, I will address the political and economic ramifications.

Chapman Law School professor Ronald Rotunda’s take on the unconstitutionality of a portion of the “stimulus” package. Some governors, such as South Carolina’s Mark Sanford and Louisiana’s Bobby Jindal, are refusing certain unemployment compensation funds. The political catch in the federal law is that it requires those states to expand eligibility among their citizens for those funds. Once the federal money runs out, that expanded eligibility will become the burden of the states, and it is not politically feasible to cut those benefits. The constitutional problem is that the federal law allows the state legislatures by resolution to override the governor’s refusal. A state’s legislature in effect would be passing a law to accept the funds. But state constitutions typically require that the governor assent to the law or that his veto be overridden by a two-thirds vote of each house of the legislature. Congress, thus, is using its power baldly to amend state constitutions in violation of fundamental principles of federalism. Odd that those sticklers for constitutional law who so loudly protested the expansion by Republican President Bush of executive power (even with legislative support) in national security and military matters are so cavalier when it comes to the expansion of federal power by Democratic President Obama and his Congress.

My Pepperdine Law School constitutional law colleague Doug Kmiec is at it again. Having already switched from being a Reagan administration functionary and Romney adviser to being an Obama acolyte on the preposterous position that Obama was the only true pro-life candidate in the election, he now goes all in by opposing Proposition 8 after previously having supported it. Given his propensity to flip-flop on issues, I have to assume he supported John Kerry in 2004. And, as before, Kmiec supports this switch on the most “Huh?”-inspiring grounds imaginable.

He claims that marriage is of religious origin and should stay there. Proposition 8 should be overturned not on grounds that it is a constitutional revision rather than an amendment. Too technical, he says. Rather, it should be overturned because it interferes with the religious freedom of those faiths who accept same-sex marriage. This violates their freedom of religion. As I wrote, “Huh?” Moreover, he notes in passing that the solution is to separate church and state, which is liberal code language for an establishment clause violation. Along the way, he brings in the old canard that this is analogous to the old race-based marriage restrictions.

Let me dismiss the last one first. This is not like a racial restriction. From a purely constitutional law standpoint, racial restrictions have long been seen as violating the essential historical purpose of the Fourteenth Amendment. That the framers of the Fourteenth Amendment would have been opposed to same-sex marriage restrictions is an argument the very mention of which induces a cringe. While the state constitution’s equal protection clause is not as clearly rooted in racial origins as the Fourteenth Amendment, that is still where it has been most resolutely employed.

Related to the previous argument is the canard that Proposition 8 violates the “equality principle.” No more than any other law that restricts or burdens the behavior of some but not others, from anti-homicide laws to the differing degrees of homicide to tax laws to laws that restrict marriage in various ways. One can certainly argue that Proposition 8 is politically unwise or in an undefinable way “unfair,” but it hardly violates some ”equality principle” that at best operates only at a level of high abstraction.

Kmiec might reply that the equality principle exists and operates against every law as a general presumption, but that it can be overridden in particular instances. But he does not show why that principle could not be overridden in regard to same-sex couples while it can as to other restrictions on marriage. Worse, he does not even bother to make the argument at all.

As to the separation of church and state argument, more nonsense. As an aside, the state through its various policies and laws can influence what contracts and relationships we form. The state is not neutral and really cannot be in matters of such fundamental sort. Now, let us assume that just because some churches accept same-sex marriage and others don’t, the state must accommodate the views of the same-sex group, rather than the other. Kmiec might argue that, by withdrawing from the issue, the state is being neutral. Obviously, it isn’t. Given the argument as Kmiec has framed it, if the law were to recognize same-sex marriage, the state would be endorsing those churches’ theology over that of the churches that would limit marriage to opposite-sex couples. Now, I’m not agreeing with that position because I find the whole proposition nonsensical from top to bottom.

To use another example, let us assume that a religion condemns the payment of interest above 10% on loans. Let us assume that other religions believe that interest rates don’t matter because charging any interest at all is against their doctrine. Let us assume another religion that supports the payment of whatever interest the parties agree to pay so as to maximize people’s ability to enter into voluntary transactions. What must the state’s law regarding interest charged on debt look like? Must the state prohibit the payment of interest? Permit it, but cap it at 10%? Get rid of usury laws altogether?

What if a religion permits so-called “honor killings” of female family members who violate some religious sexual taboo, whereas other religions do not? Does it violate “separation of church and state” to prosecute perpetrators of honor killings? Does it violate the “equality principle” to do so? Or, in turn, not to do so for members of that religion?

As for the religious freedom claim, Kmiec again is wrong. Proposition 8 is not an interference with religious freedom at all. It does not prohibit the same-sex marriage religions to conduct religious ceremonies and call such arrangements “marriages.” Moreover, under freedom of religion analysis, the proposition is entirely neutral. It doesn’t mention anything about religion. It doesn’t matter why you want an opposite-sex or a same-sex marriage. The former is recognized; the latter is not.

To take another example. Under California law, one’s religious belief in the sinfulness of non-marital cohabitation cannot prevent the application of a law that requires landlords not to discriminate against cohabiting non-marital couples. I’m not arguing the social wisdom of that law. But in that case, unlike the same-sex marriage case, one’s religious belief is burdened. Unless I stop renting apartments, I have to sacrifice acting on my belief. In the same-sex marriage case, I can still get married in a church that will have me.

But all these arguments are just window-dressing for the real problem, the nature of marriage. I have posted on this several times already. Suffice it to say that marriage is recognized and, indeed, made sacred by religious decree. But, crucially, marriage is not founded in religious decree. It is founded in natural law which Kmiec as a Catholic—and a scholar, no less—must know. Religious doctrine as to marriage is founded on that natural order. Hence, the Catholic Church recognizes a, say, Presbyterian church marriage as valid. This article explores that argument fully and, in doing so, amply refutes Kmiec’s contorted justifications.

Marriage is based on the basic and natural differentiation of the sexes that holds that men are not simply male women or that women are female men. That differentiation is important to the raising of children as natural results of the male-female union. That union results in marriage by agreement of the parties. But it is more than that. Although the raising of those children is first and foremost a parental obligation, the community has an interest in their socialization to the community’s norms and expectations. Hence, the community has an interest in promoting the optimum way of raising those children and to do so by publicly endorsing and supporting opposite-sex marriage. Under Kmiec’s reasoning, marriage is just a culmination of purely private arrangements. If such an arrangement of pure will without any tie to its origins in a natural order, must be recognized by the community, then all such acts must be. Otherwise, after all, Kmiec’s “equality principle” would be violated.

As for Kmiec’s notion of getting the state out of marriage, I would certainly support that idea if the people of California (or their overseers, the courts) ever recognized same-sex marriage. Once an institution officially no longer serves its natural function, but is just a shell with a name, one might as well get rid of it. Let’s not then continue to make a mockery of the institution. We’ll call them civil unions to which, again, all those who want, should have access, without restriction to sex, numbers, or degrees of consanguinity (Kmiec’s “equality principle” taken to its necessary conclusion).

In the meantime, however, the notion that recognizing same-sex marriage will have no societal effect is nonsense. I have in other posts linked to studies that show otherwise, based on the experience in Europe. This post and the linked article also indicate that recognition of same-sex marriage is not likely to be an event free of social cost. Policies always bear a price tag, and the cost is likely to be higher when they go against long-established traditions common to human experience over the ages.

Judging from the reports about the oral argument, the California Supreme Court seems to be resigned to upholding Proposition 8. That initiative, passed in November, 2008, reversed a previous decision of the court that had, in effect, amended the California constitution by a 4-3 vote and legislated a right for same-sex couples to force the community to recognize their unions as marriages. To do so, the court had to destroy millenia of religion, philosophy, tradition and law around the world that have limited marriages to opposite-sex unions. Likewise, the court had to overturn a statutory initiative adopted democratically by more than 60% of the voters in 2000.

In essence there were two arguments before the court, though technically three questions were certified for review. One argument focused on the structural issue of whether Proposition 8 is a constitutional amendment that the voters can adopt, or whether the proposition is a constitutional revision. If it is the last, then the state legislature, by a 2/3 vote of each house, must submit to the voters the question whether a constitutional convention should be called to revise the constitution. Only if the voters agree will a constitutional convention be called. Of course, such a convention represents the organic power of the people to govern themselves and make foundational rules as to the structure and scope of government. Thus, it could not be limited to any particular topic, even were the legislature so to declare. The federal constitutional process in 1787 makes that quite clear.

The California constitution, in article 18, sections 2 and 3, provides no guidance about the line between an “amendment” and a “revision.” Obviously, to be a constitutional revision, a measure must fundamentally alter the structure of government by altering the powers of the government or its component parts. Usually that is shown by numerous significant changes. An amendment, by contrast, is usually more focused on a particular change, especially to specific limited provisions. Indeed, an amendment is limited by the state constitution’s “single subject” rule, again demonstrating its limited scope.

But the challengers to Proposition 8, stymied by the traditional distinction between amendments and revisions, invented another argument. They claimed that even a narrowly-focused initiative is a revision if it restricts a fundamental right and thereby interferes with the courts’ constitutional role to define such rights.

That argument is specious for several reasons. First, as some justices pointed out during oral argument, prior amendments have done just what the challengers assert could not be done, for example, by imposing the death penalty after the state supreme court had declared it to be unconstitutional. Second, the only reason Proposition 8 restricts a “fundamental” right is because the court invented such a fundamental right that never before was recognized. That hardly makes it a fundamental right in the sense of a “natural” right recognized as such throughout human experience. Third, the “right” at issue necessarily is defined by the community. It doesn’t involve the constitutionally closer question of whether someone has a right to engage in private and consensual homosexual acts. Rather, it involves a demand for forced formal legal recognition of a private agreement, a distinction that, unlike Proposition 8’s opponents, various justices on the U.S. Supreme Court understood in their opinions in Lawrence v. Texas. Fourth, as the California justices pointed out in oral argument, saying that the people of California could not amend the state constitution so as to overrule a decision of the courts, places the courts above the people. Such an argument is an outrageous and radical authoritarian perversion of American constitutional theory, made all the more so in that such ultimate constitutional control is to be placed in the hands of an unelected elite. One is not surprised that it is anti-democratic leftists, such as the minions of Democratic Party officials and various ”civil rights” groups like the homosexual rights lobby, who make the argument. It has long been the case that it is the Left in this country, not the Right, that has contempt for democracy and leans towards authoritarianism and extra-parliamentary means to impose its elitist ideology on an unwilling people.

Three additional points about the case. First, “A guarantee of equality that is subject to exceptions by the majority is no guarantee at all,” said Therese Stewart, San Francisco’s chief deputy city attorney. As rather basic constitutional doctrine, that is utter rubbish. Since she is a “chief deputy city attorney,” I assume she knows that, so she is intentionally misstating the point. In other words, she is lying. As I pointed out in posts last year about the earlier court decision that imposed a constitutional right of same-sex marriage, at some level, constitutions, statutes, and common law create exceptions to “equality” all the time. The law treats everyone the same, unless you do one of the myriad of things, or have one of the myriad of characteristics, that are used to draw legal distinctions. Every one is protected against involuntary servitude—unless you commit any of a huge number of crimes (or refuse to work to pay child support, especially if you’re male). Everyone is protected equally against government destruction of property rights—unless the government wants to use your real property to build, say, a school, or you make $80,000 instead of $40,000 per year. Everyone has a right to vote, unless you are under eighteen. And everyone has a right to have his or her marriage recognized, unless the person is under eighteen, or is married to a sibling, or is already married to another person. I could go on and on about the discriminations and the manifestations of inequality in the various classes of law.

Second, one of the pro-same sex attorneys argued that, “when a majority repeals a fundamental right from a group ‘historically subject to discrimination,’ that’s a revision.” Without repeating my general point about the non-existence of a fundamental right or the revision/amendment distinction, her point about this involving a group “historically subject to discrimination” is false. For one thing, on its face, this initiative doesn’t target any “group.” It allows men and women to marry equally. They, again equally, just cannot marry a member of the same sex. The law doesn’t investigate why individuals want to marry people of the same sex, and it doesn’t any longer require sexual consummation for the marriage to be valid. So one can marry another person just out of some feeling of platonic love (in either its original or its bowdlerized modern meaning). At the very most, then, if a “group” suffers discrimination at all, the law on its face burdens the group of people that want to marry, for whatever reason (from homosexual attraction to flouting of social convention to tax planning), a member of the same sex.

But, let us assume that lurking behind this law is a desire really to target “homosexuals” as a class. I think that assumption has weight. However, the homosexual rights groups in Lawrence v. Texas got the U.S. Supreme Court to say on the basis of “gay law” research articles, that the notion of homosexuals and heterosexuals in the law is a product of the late nineteenth century, not earlier. While I disagree with that conclusion, as well as its relevance to the case (as did Justice Scalia in his Lawrence dissent), let us take them at their word. “Homosexual rights” have been advocated vigorously in the political arena at least four decades now. So the “historical discrimination” against the class of homosexuals lasted at most about seventy years. Before that, the distinction was not conceived, so it could not form the basis of the law. Since then, it has been contested in politics, with some successes and some failures for the homosexual agenda, just as happens for others who seek to advance their political programs. Given the millenia of Western civilization alone, that seventy years hardly qualifies as being ”historical subject to discrimination.”

Third (and this is the other big issue before the court), it appears that the court will uphold the validity of the marriages of the same-sex couples entered before November 5. The questioning by the justices points towards a justification grounded in nothing more than general notions of “fairness.” I am not overly concerned about having the state recognize those marriages, although I think that such a “cutting the baby (of same-sex marriage) in half” raises its own equal protection issue. What could possibly be the justification for forcing the state to recognize such bastardized (constitutionally-speaking) marriages that happened to be entered during a six-month judicially-imposed interlude, but not recognize those of equally sincere and committed same-sex couples afterwards? The court’s approach creates an unnecessary tension between two state constitutional doctrines.

That said, let me suggest that the court’s “fairness” concern, to the extent it has a constitutional connection rather than being merely surrender to an emotional impulse, is a “procedural due process” matter. At the core of procedural due process is “notice.” The people that got married as a result of the May state supreme court opinion were on clear notice that their “marriages” might be invalid. First, publicity surrounding what became Proposition 8 had been ongoing since the formal effort to place it on the ballot began in 2007. The California Attorney General’s office was involved as early as November, 2007, in formally determining the circulating title of the initiative for signature-gathering. Moreover, during the run-up to the court’s decision, there was a lot of publicity about the initiative. Over a million signatures were gathered. The initiative was certified finally for the election less than four weeks after the court’s decision. Both supporters and opponents of the initiative launched well-planned legal efforts about the language and the certification of the initiative. The Supreme Court in fact was formally asked by the supporters of the initiative and a number of attorneys general from other states to stay their decision to create a constitutional right of same-sex marriage so as to avoid the confusion that might arise from marriages before the initiative was approved. Unwisely, the court declined, in another well-publicized move. It can hardly be argued that anyone lacked notice of these controversies and did not fully understand the potentially precarious legal position of such unions. This did not sneak up on anyone. Therefore, contrary to the arguments, no one could reasonably rely on the security of such an institution to order his or her affairs. They should not be rewarded now for foolishly getting “married.”

Second, in light of the radically novel nature of the issue and the undemocratic process of the judicial diktat imposing same-sex marriage over popular opposition and contrary to long human experience, everyone was on clear notice that such a “right” would not immediately be secure and unchallenged.

Third, as the justices of the state supreme court conceded in their own opinion last May and in their questioning yesterday, if marriages are not recognized, same-sex couples still have essentially the same incidents of marriage under the civil unions law. In fact, it was that functional similarity between marriages and civil unions while calling the legal relationships by different names that provided the main basis for the court’s equal protection reasoning last May. It was the appearance of “second-class” status for such relationships that was the discrimination. Declaring such marriages void is hardly a great destruction of property rights or unfairly destroys reasonable reliance on the marriages’ validity in the creation of personal arrangements.

On the general issue of constitutionality of same-sex marriage, supporters are now forced to back down or move to various federal constitutional claims, an area they are not as comfortable litigating. It goes against their current divide-and-conquer state law-based strategy. It also forces them to confront the more traditional-minded and cautious (yes, that’s correct, in comparison to the California court) U.S. Supreme Court’s precedents and reasoning. But they may seek to buy time by launching their attacks before a friendly district judge in San Francisco and before the liberal Ninth Circus Court of Appeals. Then it will be a few years before the case gets to the U.S. Supreme Court, and, they may hope, the composition of that tribunal will have changed with the addition of members from the Obama elite.

Congress is certain to approve a bill that will give the District of Columbia a voting representative in the House. The President has already said that he would sign such a bill. Such an act is plainly unconstitutional.

As the linked article points out, until now the District, along with various areas whose inhabitants are American nationals though not full citizens, has sent a delegate to the House. That delegate may vote in committee (itself a practice of dubious constitutionality, though it can be argued to be an internal procedural matter), but not as part of the House. The right to vote in the House and the Senate belongs to “members.” Article I, Sections 2 and 3 as amended by the 17th Amendment, require that these “members” be elected by the people of each “state” and be inhabitants of the “state” in which they are elected. Article I, Section 4, requires essentially that the “state” legislatures set the terms of election.

The District is not a “state.” It is true that the word “state” in the Constitution can have different meanings. But Article I, Section 8, cl. 17, of the Constitution very clearly distinguishes between the “District” and the “states” from which it might be carved. That clause also gives exclusive legislative power to Congress over the internal administration of the district. Put another way, Congress exercises the full “police (regulatory) power” over the District as well as an “organic power” to organize the District’s government. Congress has used those powers actively since at least 1801. Article I, Sections 1 and 8, as well as structural principles of federalism signified by the 10th Amendment, make it clear that Congress has no such power over the states.

In similar vein, Section 2 of the Fourteenth Amendment makes it clear that “Representatives shall be apportioned among the several States.”

Further, when the residents in the District were granted the power to participate in the election of presidents, the 23rd Amendment’s language made it crystal clear that the District is not a state. The amendment refers to the “District” that is to be entitled to electors equal to the number of Representatives and Senators it would have “if it were a State.” Moreover, “they shall be considered, for the purposes [of such election] to be electors appointed by a State.” That is not language that recognizes the District to be a state. Of course, the whole amendment would have been unnecessary if the District were a state.

It is noteworthy that it was considered necessary to have a formal constitutional amendment to give District residents the right to vote in presidential elections. A mere Congressional statute would not have been enough. Further still, the 23rd Amendment only gives the District votes in the electoral college. It does not give the District the right to participate, as states do, in voting pursuant to the 12th Amendment in the House of Representatives if no presidential candidate receives a majority of the electoral vote.

Another constitutional provision also undercuts the District’s status as a “state.” Article V of the Constitution, which controls the amendment process, requires “state” participation. The District has never been permitted to participate in amendment of the Constitution, yet further recognition of its distinct status.

The Supreme Court, too, has recognized the difference between the District and the states. In the recent Heller case, which addressed the District’s ban on private handgun possession and other firearms restrictions, the Court applied the Second Amendment. Since the Court has held for almost two centuries that the Bill of Rights only applies to the federal government, this decision rests on the premise that the District is a federal enclave, not a state. Were it a state, the Court would have analyzed the matter under the 14th Amendment, which does apply to states and their subdivisions. That is the principle driving the challenges to local handgun restrictions such as in Chicago. There are plenty of other precedents that show a similar judicial understanding of the constitutional status of the District.

“But,” say those who are not troubled by constitutional text, “This leaves the District’s residents unrepresented in Congress. No taxation without representation.” There are two responses, one constitutional, the other political.

On the constitutional issue, the Supreme Court in Term Limits v. Thornton struck down an Arkansas state constitutional amendment that imposed term limits on the state’s federal representatives and senators. The Court held that the state could not impose conditions on those representatives beyond those specifically enumerated in the Constitution. The reason? Those representatives may be elected by the people of Arkansas, but they represent the entire people of the United States, not just those of Arkansas. Therefore, any such change would have to be adopted by formal amendment of the U.S. Constitution. The thrust of that opinion is that the senators from Arkansas represent people who reside in California, Maine, Guam, Puerto Rico, and, presumably, in the District of Columbia. So, constitutionally speaking, the District’s residents are represented even if they cannot vote, under the Supreme Court’s adoption of the theory of “virtual representation.”

On the political side, it is easy to enable the District’s residents to vote for federal representatives and Senators. Just cede most of the territory back to Maryland. That was done once before, in 1846, when a large piece of the District was given back to Virginia. Then those residents could vote in Maryland elections for federal representatives and Senators. The part of the District that contains the main government buildings might be retained under federal control, but it is unlikely that there would be a significant number of people other than the President and Vice-President that would actually live in such a truncated area.

Although the statute is blatantly unconstitutional, the difficulty lies in challenging the action in the courts. One problem is that the courts are reluctant to inject themselves into such a political matter that is not readily susceptible of a judicial remedy other than a mere declaration of unconstitutionality. What, after all, can a court do? Say that any vote cast by such a representative taints the whole bill? The problem here vexes the usual manner of providing relief, even in the rare case where the courts have injected themselves in the internal administration of Congress.

“Standing” is another problem. Who, exactly, would have suffered a concrete and specific enough constitutional injury to be able to sue? A couple of possibilities come to mind. Under the Supreme Court’s reapportionment cases as well as other precedent (such as Bush v. Gore), a plaintiff has suffered a constitutional injury when his or her voting rights are diluted because the government’s unconstitutional action weighs the plaintiff’s votes differently than would be the case without the unconstitutional action. The problem with that theory is that it has been applied to differential treatment of voters that results from action within a single state, not from action by the federal government that affects different states.

The other theory is that a member of Congress has suffered a political injury because his or her vote is diluted as a result of the Congress’ action in adding the District’s “member.” However, the Court has been reticent to recognize such an injury, since the “injured” member can still perform his or her constitutional tasks. Worse, in the absence of a case where the District’s member casts a deciding vote on a bill that subsequently becomes law, it might be difficult for anyone to claim a justiciable injury that the courts will recognize.

Congress’ attempt to create a veneer of bipartisanship by giving a supposedly likely Republican seat to Utah is a constitutional red herring. Leaving aside the political possibility that the “Utah seat” will be given to another state after the next census, whereas the D.C. seat is fixed, the two seats are constitutionally different. Congress can fix individual states’ representation by statute. There is nothing in the Constitution that sets the maximum number of seats in the House of Representatives, or how many seats each state can have today above the constitutional minimum of one seat per state. After the federal government was established in 1788, Congress repeatedly modified the numbers of the states’ seats in the House of Representatives. So, Congress can change the total number of seats in the House. It can also fix a formula to determine the states’ representation. Changing Utah’s representation is not a constitutional problem; giving D.C. a seat is.

Congress is engaged in this flagrant constitutional violation because it cannot get a constitutional amendment adopted for D.C. statehood. The willingness of the Democrats to go against clear and specific constitutional text about a matter that does not deal with a momentous issue such as national security speaks volumes about their fidelity to that document in other contexts.

I previously published two posts regarding Marbury v. Madison. The first dealt with the general background of the case, including some words about the redoubtable William Marbury. The second outlined Chief Justice Marshall’s reasoning, and began a critique of his written opinion.

Let us now examine the second part of the case, the more “legally-reasoned” portion. In this “jurisdictional” part (which should have been first), Marshall grasped an opportunity to affirm the federal courts’ power of constitutional review over acts of a co-equal branch. It is that portion of the opinion that in popular discourse and ordinary teaching is seen as the great achievement and novelty of the case. Far from it. The Marbury case was not the first Supreme Court opinion to exercise constitutional judicial review over an act of Congress. That had happened twice before, in 1794 in the odd case of U.S. v. Yale Todd and in 1796 in Hylton v. U.S. In fact, the Marbury case was not the first to declare an act of Congress unconstitutional. That, again, was U.S. v. Yale Todd. In addition, numerous state court decisions, lower federal court decisions, and Supreme Court decisions had employed constitutional review of state legislation. Moreover, in that part the Court very carefully only claimed that in its own constitutional functions and, arguably, only where the statute at issue directly affected the courts’ constitutionally-defined role could the courts decline to apply an unconstitutional statute of Congress. This narrow ruling fit comfortably within the Jeffersonian-Jacksonian “interdepartmental theory” of concurrent finality over constitutional matters. Each branch, according to that view has a co-equal power to decide constitutional matters, and was the final judge of the constitutionality of actions that affected its own constitutional role. The Court was merely setting itself up as an equal player in the constitutional system and distinguishing its role under a “written, legal”constitution from that of the English courts. The latter, operating within an “unwritten, customary” (and political) constitution, operated “under” the sovereign. As James I’s Attorney General Sir Francis Bacon declared, “[The judges] must yet be lions, but lions under the throne.” The second part of the Marbury opinion is a judicial “declaration of independence” from the political branches.

As a consequence, the decision to disregard the judicial act met with little controversy other than some snide remarks that correctly noted the strained interpretation Marshall had given the statute’s language to reach his result. Rather, what caused the uproar and set the wheels of attempted political retribution against Marshall in motion was the first part. Read frankly, that part all but claimed a power in the Court to tell the other branches how to run their own domain. While the second half, as mentioned above, was an acknowledgment of the courts’ constitutional equality, the first half staked a claim to judicial supremacy. And that would not be tolerated. The Jeffersonians in Congress and, indeed, Jefferson himself, attacked the bold usurpation proclaimed by Marshall. It is that portion of the opinion then, that was unprecedented and, indeed, revolutionary.

Increasingly during the 20^thcentury, and especially in the last fifty years, the Court has encouraged a view of its function that mirrors the “judicial supremacy” model. While it has actively asserted that in review of state actions, it has also incorporated it in cases involving Congressional and Presidential acts. But that is drawn from the dictum in the first part of the Marbury case, not from the holding in the second part. And it remains a controversial position even today.

On a strictly formal analysis, the second part has problems, as well. Marshall read the statute in a way that would get an ordinary advocate in trouble if he or she tried that with a court. The sentence that dealt with “mandamus” had nothing to do with original jurisdiction, unlike the three preceding sentences that addressed original jurisdiction but never mentioned “mandamus.” The sentence on which Marshall focused explicitly mentioned “appellate” jurisdiction, which, of course, was not relevant to Marbury’s suit.

But, even if that sentence dealt with original jurisdiction, the clause addressing issuance of the “writ of mandamus” did not create additional jurisdiction outside the scope of the Constitution. It authorized a judicial “remedy” according to the principles and usages of law. In other words, if the Court otherwise constitutionally had jurisdiction over the case (the Constitution expresses principles of “law,” according to Marshall), then the Court could issue writs of mandamus. Otherwise, if the power to issue mandamus were “jurisdictional,” no federal court ever could issue such writs. All federal courts, after all, are courts of limited jurisdiction, and the Constitution is silent on mandamus altogether. While some have attacked a jurisdictional/remedial distinction, it makes sense. Article III of the Constitution talks in terms of cases and controversies involving persons, political entities, and subject/causes of action, not in terms of remedies.

In any event, Marshall read the statute’s text in a strained fashion and thereby violated a judicial “canon” of constitutional interpretation. If a statute can reasonably be read in two ways, one of which would uphold the statute as constitutional and the other would not, the court is obliged to read the statute in a way to uphold it against a constitutional challenge. This Marshall clearly did not do.

Marshall’s justification of judicial review is also suspect. Even assuming that he is right that a written constitution is law, something that he proclaims but does not prove, the fact that courts interpret law does not prove their power to disregard it.

Turning to his justification based on the Supremacy Clause, Marshall conveniently ignores the rest of the clause. The clause does not distinguish among the Constitution, the federal statutes, and U.S. treaties. Rather it sets them all up as supreme over conflicting state law. Marshall suggests that the language that federal statutes made “in pursuance [of]” the Constitution are supreme law means that statutes must comply with the Constitution and therefore are subsidiary to the latter.

But a close reading of the text negates that. There is no “in pursuance thereof” qualifier for treaties. Does that mean, then, that treaties (perhaps followed by a federal statute) can accomplish unconstitutional objectives that a statute alone could not? While some subsequent Court cases seem to hem and haw about that answer, as a first principle of constitutional law that would be unacceptable. But there is a historical explanation for the phrasing that resolves the textual ambiguity. To pursue means to follow or go after. Depending on the context, that can have spatial, temporal, or qualitative meaning. Marshall read the clause in the last manner. But he should have read it in the second. When the Constitution was adopted, the United States had signed a number of military, commercial, and diplomatic treaties with other countries. If the adoption of the Constitution cancelled those treaties, that would have meant diplomatic complications. Therefore, treaties made before or after the adoption of the Constitution remained binding. On the other hand, statutes made before the adoption of the Constitution would not be carried over to the new government and would have to be re-adopted to be valid. An example was the classic Northwest Ordinance of 1787. It was a fundamental law that provided a pattern of organization and administration of territory. Congress promptly re-adopted the statute in 1789.

Read in that temporal sense, the “in pursuance thereof” language that is present for statutes and absent for treaties makes sense. But it ruins Marshall’s justification why the Constitution is supreme over federal law.

Another strange argument is the oath. Every official, state and federal, along with many others, takes an oath support the Constitution. Indeed, the President’s oath is actually in the Constitution. So this point hardly adds weight to the claim that the Court has the duty to disregard acts of Congress and that their interpretation of a statute somehow has greater weight than does Congress’.

Finally, there is the strange sequence of examples of unconstitutional actions Marshall disparages. None of them are relevant. The “parade of horribles” he discusses all involve specific constitutional limits on Congress. The Marbury analysis does not involve an express constitutional limit, but a more difficult and ambiguous line-drawing between judicial and legislative power where the Constitution does not provide clear guidance.

Nor does Marshall adequately deal with precedent, such as Hayburn’s Case, which was an action in original jurisdiction before the Supreme Court, even though it involved neither a state nor diplomatic personnel. That case suggested that the Constitution’s division of Supreme Court jurisdiction in Article III is not absolute.

From a practical viewpoint, it is unclear why that case proceeded at all. If there was a problem with the Supreme Court’s original jurisdiction, why was the matter not dismissed on the Court’s own motion in December, 1801. For that matter, why didn’t Marbury go to a lower federal court either in the beginning or after his case was dismissed from the Supreme Court? To take this matter one step further, if Marbury so wanted the position, and if he was appointed once the Senate confirmed him, without the need for the commission, why didn’t he just take up his duties? Even if he wanted to get confirmation from the Court that the commission was not needed, he could have taken up his duties after the Court agreed with the substance of his claim in the first part of the opinion. Yet, he never did, which suggests that the suit was not genuine.

Yesterday, I posted the first part of this series on Marbury v. Madison, focusing on the backdrop to the case and, especially, the person of William Marbury. In this post, I begin a review of the case itself.

In late December, 1801, Marbury’s attorney, Adams’s former Attorney General Charles Lee, filed an Order to Show Cause re: Writ of Mandamus in the Supreme Court to compel delivery of the commission. The Court issued a preliminary writ to the administration and set the issue to be heard the next term, in June, 1802. Jefferson told Madison to ignore the order. The Jeffersonian Congress set to work. In the Judiciary Act of 1802, it altered the timing of the Supreme Court’s semi-annual terms by combining them into a single term. By playing with the dates, the law eliminated any term for the Court in 1802. Thus, the case was not heard until February, 1803, giving the Jeffersonians more time to increase the political heat on the Court. It also meant that, even if he won, Marbury would only hold this minor office another three years.

As instructed by Jefferson, the administration refused to appear. This put the Court in a dilemma. It could simply rule for Marbury. But that would cause it to lose face, as Jefferson had made it plain by his cold shoulder to the proceeding that the commission would not be delivered. The Court could rule for Madison. But that would be made to appear as political surrender, once the Court had issued the preliminary writ. The Court could declare the matter to be beyond the Court’s competence as a non-justiciable political question involving sensitive political matters of separation of powers rather than a concrete legal issue of an invasion of an individual’s legal rights.

Instead, Marshall, writing for a unanimous Court (but of only four justices, including an old political enemy of Marbury, Samuel Chase), eventually decided the case in two parts. In the first part, the Court declared that Marbury had a right to the commission and that delivery was not necessary to establish that right. Marbury had a right to the office when confirmed by the Senate, and the delivery of the commissions was merely a “ministerial act” with no independent legal significance. Marshall confirmed that the writ of mandamus Marbury was seeking was the proper remedy to enforce his right. Marshall also declared that a court could enforce that remedy against the Secretary of State and broadly hinted that he could enforce a writ even against the President himself for breaching a fiduciary duty.

In the second part of the opinion, Marshall attacked the statute under which Marbury had brought his action, Section 13 of the Judiciary Act of 1789. He determined that the statute purported to authorize suits for mandamus in original jurisdiction of the Supreme Court, which is exactly how Marbury proceeded. But, Marshall concluded, that was an unconstitutional extension of the Court’s power to hear cases in its original (trial) jurisdiction. Under the Constitution, Marshall found, the Court could hear only cases involving states or certain diplomatic officials in original jurisdiction. All other cases that federal courts could hear had to be taken to a lower court first and could come to the Supreme Court only on appeal. Therefore, the statute under which Marbury had brought the suit was unconstitutional. Marbury would not get his commission.

Borrowing extensively from the argument about judicial power made by Alexander Hamilton in Federalist Paper 78, Marshall put forth the justification for judicial constitutional review of legislation. He argued that the Constitution is law; that judges interpret the law; and that therefore judges interpret the Constitution. The Constitution is law because it is written, and written Constitutions are thought of as legal documents.

If the Constitution is law, it is also a form of law that is superior to a mere statute. Marshall found support for that proposition, he claimed, in the Supremacy Clause, which states that “The Constitution of the United States, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” As between an inferior form of law (statute) and a superior form of law (Constitution), the Court, said Marshall, was bound in their decisions to follow the latter.

That conclusion was strengthened, Marshall argued, by the fact that judges take an oath to support the Constitution. Finally, he proclaimed, how could a Court do otherwise than strike down a law contrary to the Constitution, and proceeded to list some unthinkable propositions. Thus, he declared, if Congress were to pass an ex post facto law, contrary to the provision in the Constitution that prohibited such laws (Article I, Section 9), how could the Court uphold such a law and ignore the Constitution? To ask the question is to answer it.

There are many criticisms that can be directed against Marshall’s opinion, criticisms based on legal reasoning, traditional jurisprudential considerations, and textual analysis. Moreover, the case has been frequently misinterpreted.

To start with general criticisms. It can be argued that Marshall should never have decided such an important issue with the facts he was facing. First, he only had four of the six Justices on the Court at the time. Second, the government had made no appearance, and Marshall had heard only from Marbury’s counsel. Third, it was probably a set-up case. Fourth, no matter what happened, it was clear Marbury would not get his commission.

On top of that, the case organization was improper according to conventional case structure. Since the federal courts are courts of limited jurisdiction, before they can decide a case, it must be shown that they have the constitutional authority (and, for practical reasons, the affirmative statutory authority) to hear the subject matter of the dispute. Since the Court decided that the statute of Congress under which Marbury allegedly brought his claim was an unconstitutional expansion of the Court’s jurisdiction, that issue should have been addressed first. Once the Court chose to travel the jurisdictional road, the case should have been dismissed without further speculation about whether Marbury had a right to the commission and what the courts could do about that. The entire first portion of the opinion is dictum, mere observations of no binding legal significance.

But that misreads Marshall’s intent. He knew as well as anyone else that Marbury wasn’t going to get the commission. For that matter, most likely Marbury, his Federalist Party ex-Attorney General lawyer, and their political allies knew, as well. Marshall was not writing a legal opinion, but a political tract. By putting the jurisdictional issue last, he was able to deliver his lecture on separation of powers to the executive, before announcing in a carefully-constructed argument of false judicial modesty that the Court was not authorized to decide the case. That argument, of course, flew in the face of the first part of the case in whch Marshall had declared loudly that the laws and courts of this country stand ready to provide a remedy for the wrongs suffered by individuals at the hands of the government, even if that meant interfering with the domain of the executive branch. If Marshall was serious about his strained reading  of the Judiciary Act that resulted in the Court renouncing jurisdiction, he should have avoided the foray into separation of powers and just found that the case was a non-justiciable political question in light of the subject matter and the inability to grant judicial relief. But that would have been to abandon the field of battle with a whimper. Marshall was determined that his retreat on the commission would be tactical and serve a greater strategic goal of protecting the Court’s institutional independence.

February 24 is the anniversary of one of the most significant cases in American constitutional jurisprudence, Marbury v. Madison. The case has been cited, and the opinion by Chief Justice Marshall quoted, in over 250 Supreme Court cases and numerous other contexts, sometimes even correctly. In this post, I will provide the background to the dispute and discuss the oft-neglected and mysterious Mr. Marbury. In future posts I will analyze the case itself. 

Some factual background. The Adams administration became a lame duck after its defeat in the 1800 election. The Federalist Party of which Adams had been the standard-bearer (though Hamilton was its public intellectual and political embodiment, and Fisher Ames its theoretician), prepared to accept its defeat peacefully. By itself, that marks the election of 1800 as crucial in the progress of American democracy. The losers retired from the field more or less gracefully, and the winners set about governing rather than persecuting its former adversaries. This set up an understood political compact to which the various political combatants over the years have generally adhered. That consensus has been crucial to the stability and peacefulness of the American system characterized by a relative absence of the violence that often accompanies regime changes even in democracies.

At the base of the Federalist Party’s acceptance of its loss (aside from Adams’s insistence) was a firm conviction that, after suffering through four years of Jeffersonian “mobocracy,” the American people would heartily embrace a return to sanity. Sanity, of course, was Federalist Party governance of ordered liberty within a framework of classic republican principles. [Note to current conservatives who sat out the recent election confident that Obama would mess matters up and “true” conservatives would lead a Republican renaissance in 2012: How did that work out for the Federalist Party?] In the meantime, the Federalists reasoned, they would entrench themselves in the Judiciary to keep a check on the other branches and to further their own political agenda whenever possible. Thus, in mid-February, 1801, the lame-duck Federalist Congress adopted the Judiciary Act of 1801. That law, which re-organized the federal judiciary to increase its number and jurisdiction, ultimately was repealed by the Jeffersonian Judiciary Act of 1802. That action was upheld by the Supreme Court a day after the Marbury case in Stuart v. Laird.

While that statute had little immediate effect, another law, the Organic Act for the District of Columbia, was adopted two weeks thereafter, on February 27, 1801, just days before the change in administrations on March 4. The Organic Act provided for the appointment of 42 justices of the peace for the district for five-year terms. The appointments were political patronage that allowed the Federalist administration to reward its supporters. The justices of the peace had both judicial functions over minor matters and administrative/legislative/executive functions as the county government.

Adams duly nominated men to the positions on March 2, and the Senate hastily confirmed them en masse on March 3. The commissions were signed by Adams on March 3. Late that day, they were sent to John Marshall, Adams’s Secretary of State (who had also recently been confirmed as Adams’s choice for the Chief Justiceship of the U.S.), whose job it was under federal law to countersign and “seal” the commissions and to deliver them to the appointees. The story is that Marshall was signing and sealing commissions until midnight (hence the derisive term “Midnight Judges Act,” given to the statute by the Jeffersonians) and handing them to his brother James to deliver. At the stroke of midnight, so goes this tale, Secretary of State-designate James Madison (or, more likely, Attorney General-designate Levi Lincoln, as Madison was not in the capital yet), who had been waiting and watching the time, entered Marshall’s office and told him that it was now March 4. The story may well be apocryphal.

In any event, some (or even all) of the commissions were undelivered (historians differ), including that of William Marbury. Jefferson initially instructed Lincoln and Madison not to deliver the commissions. Jefferson saw the number of justices of the peace authorized by the law as excessive in relation to the population of the place. Jefferson was committed politically to reducing the size and expense of the national administration, whose entire budget was measured in the millions of dollars. On the other hand, the justices of the peace were paid out of filing fees, so that there was no direct expenditure of public funds. In time, Jefferson had some of the commissions delivered. Since some of the appointees actually declined those appointments, the Jefferson administration eventually appointed some new justices of its own, and a total of 25 to 30 offices was filled. Due to political enmity that Marbury had earned from local Jeffersonians and his own role in governmental programs (Adams’s naval construction) that Jefferson considered anathema to his vision of the U.S., Marbury was not among those whose commissions were delivered.

Marbury was a scion of an impoverished Maryland tobacco plantation family. Abandoning the unpredictable tobacco farming that had twice left his father economically broke, he achieved great success as a financier. He hardly needed a position as a lowly federal employee. He also was an ardent Federalist Party politician in Maryland state politics, eventually attaining the most powerful unelected state position, control of the state’s finances, and a temporary command of the state’s militia. Though it is possible that he saw this short-term, low-level federal position as a position of honor, it may just as likely be that the Adams administration, faced with a scarcity of names and a need to act very quickly before it was out of office, simply named people it had heard might take the job. As Marbury lived in Georgetown (an area that became part of the new federal district after cession by Maryland) and was a leader of the Adams wing of the Federalist Party there, he may well have come to the attention of others as a possible candidate. Indeed, he was friends with Adams’s Secretary of the Navy, who was kept on by Jefferson for a brief period. Also, many of the names were supplied by a couple of local politicians whom John Marshall trusted. Adams even appointed a few prominent Republicans.

In any event, there is a question whether Marbury really was eager to make a move on his own to claim his position. However, he eventually did, perhaps out of his own political convictions, perhaps only after being prodded by Federalist Party lawyers who saw this as an opportunity to harass the Jefferson administration in a forum that was reliably Federalist, the Supreme Court. After demanding that the administration give him the commission, which Jefferson instructed Madison not to do, Marbury moved to the courts.

Some of my students have asked me whether Obama is President, given that he and Chief Justice Roberts flubbed the delivery of the oath. This is a tempest in a constitutional teapot. The Constitution provides that the electoral process set forth in Article 2 and the Twelfth Amendment select the person who “shall be the President.” Nothing further is needed. The oath provided in Article 2 is required, going by the text, to be taken before the President “enter on the execution of his office.” So, I suppose, that Obama could be President but not be able to exercise the powers of the office. Welcome, Joe Biden?

But the relevant words of the oath were uttered, even if in slightly jumbled order and with a botched preposition. The gist of the oath was sworn to; the formalities were met; the process was functionally satisfied. If this were challenged in court, it likely would be a non-justiciable political question. Even if it weren’t, a Court that has managed to conjure rights to abortion and sodomy from the Constitution, and that has overturned established precedent and long constitutional understanding to give alien unlawful enemy combatants kept outside the territory of the U.S. habeas corpus and other constitutional protections, would scarcely break an interpretive sweat in finding that the oath taken was satisfactory. I would advise President Obama simply to retake the oath. It’s apparently not the first time that this has happened. That said, if he doesn’t, conservative conspiracy mongers should avoid obsessing about that issue. Deal with matters of serious substance, not with loony distractions.

UPDATE: Obama has retaken the oath.

UPDATE #2: Mark Steyn has a frightening thought.

Some years ago, I debated campaign finance “reform” with now-Dean Erwin Chemerinsky of UC Irvine Law School. As a good liberal, he defended regulation of political speech and campaign contributions, whereas I argued that such restrictions were violations of the First Amendment. I figured that campaign ads and contributions through which people advanced political ideas they thought to be important were at least as protected by the Constitution as the internet pornography that Dean Chemerinsky and his ideological allies claim must be available to adults unrestricted even if that means children will have access to it as well. Somehow, I think that if Madison and Hamilton were told that our courts very assiduously scrutinize laws that seek to regulate (not ban) pornography on the internet and regularly find them to be unconstitutional, but see no problem with regulations that restrict publication of political ideas during campaigns, they would believe we have succumbed to dementia. But I digress.

Dean Chemerinsky argued that such restrictions were needed to “get money out of politics” because there is the appearance of corruption in the process which discourages Americans from voting. I responded that there are other factors that are far more likely to discourage political participation. One is the rampant exercise of judicial review that allows unelected judges too frequently to overturn the democratic choices of the electorate on the flimsiest of constitutional threads and newly-concocted “rights.” The other is the hopelessly gerrymandered nature of political districts that keeps legislative races uncompetitive in the great majority of districts.

This is a pictorial sequence of 20 of the most grotesquely gerrymandered Congressional districts. After the 1980 census, the California Democrats who controlled the legislature sought out the help of the powerful Democratic Congressman Phillip Burton from San Francisco. Burton was put in charge of redistricting. When even the press criticized the weirdly-shaped gerrymandered districts the Burton plan produced, Burton laughingly shrugged off the plan as “his contribution to modern art.” When one sees these districts, one appreciates Burton’s quip. It is utterly unsurprising that, of the 20 districts, 16 are held by Democrats. Of the states, California, Illinois, Maryland, and Pennsylvania are particularly “artsy.” But the Picassos of districting have to be the good people of North Carolina. Ironically, the partisan gerrymandering that these districts demonstrate (and that has been found to be constitutional) is the unintended consequence of the Warren Court decisions that effectively eliminated all other forms of non-population line drawing for Congressional districts. The Court has declared that all such districts must be essentially equal in population. Before those decisions, the legislators drawing district lines paid more attention to non-population factors, such as the boundaries of political subdivisions. That, in turn, limited the ability to cross such boundaries for the purpose of political gerrymanders.

Professor Akhil Reed Amar has co-authored a piece in Slate Magazine that argues that the Senate can reject Roland Burris, the man appointed by Governor Blagojevich to fill Obama’s Senate seat. Professor Amar teaches constitutional law at Yale and is very much a scholar. I have met him, and I believe him to be cautious and a centrist, which, by Yale Law School standards, makes him a dyed-in-the-wool conservative. So I take his views quite seriously.

He bases his conclusion on the provision in Article I, Section 5, that sets up each house of Congress, here the Senate, as the judge of the elections, returns, and qualifications of its members. In Powell v. McCormack, the Supreme Court limited the Senate’s role in considering the “qualifications” of the members to those listed in Article I, Section 2, of the Constitution, which relate to age, U.S. citizenship, and state residency. Section 3 of the Fourteenth Amendment and the “Republican Form of Government” clause of Article IV arguably impose additional “qualifications.” But there is nothing in the Constitution that specifically addresses the meaning of “elections” and “returns.” Thus, argues Amar, the Senate is free, by a simple majority, to refuse to seat Burris after holding that he was not properly elected. In Congressman Powell’s case, the argument had not been made that he was not properly elected, only that he personally was not fit because of separate ethical problems in his dealings with Congress.

Amar is correct that the Senate can find that an election is so tainted by corruption or by uncertainty about the final number of votes that they can decide that the winner is in doubt. The Senate has done this on more than one occasion, a particularly interesting one being the 1974 election between Louis Wyman (R) and John Durkin (D) to succeed Norris Cotton (R). Wyman had won the initial vote by 355 votes. The Secretary of State certified the election, and the governor appointed Wyman 4 days early when the incumbent resigned to give Wyman a little extra seniority. After a recount demanded by Durkin was completed, he moved ahead by 10 votes. When, in turn, Wyman demanded a recount, he ended up leading by 2 votes.

The Senate then tied itself in knots over various contested ballots. The matter was unresolved for months. Wyman was not seated during that time, the seat being held instead by the previous incumbent who had been reappointed as a “caretaker” by the governor. Eventually the matter was dealt with in the following summer when Wyman proposed a new election, which Durkin accepted. As a postscript, Durkin won that election handily, only to be defeated for reelection in the Republican landslide of 1980.

To the extent that the Powell case is concerned about improper Congressional interference with the voters’ decisions in a clean election by introducing “qualifications” that members must have (e.g., no criminal record) beyond those specified in the Constitution, the Senate’s investigation about the propriety of the election itself does not interfere with that concern. Amar rightly points that out. But I think that he is on thinner ice when he tries to apply those principles to this case. Actually, the current scenario that more closely fits his argument is the Minnesota Senate election and the various challenges to ballots and to the canvassing board’s interesting inconsistent applications of its standards.

There are several problems with Amar’s reasoning. First, a slight quibble. He concludes that the Senate can make decisions on seating someone by a majority vote, unlike an expulsion which requires a 2/3 vote. While a majority vote to deny a seat is enough (as would be the case with the controversy over the Illinois Senate seat), a majority vote in favor of seating someone might not be (the Minnesota problem). The Senate has filibuster rules that allow continuing debate on a matter unless cloture is voted by 60 Senators. If party discipline holds (always a dubious proposition among Senate Republicans), this could delay the seating of Franken over the contested ballots at least until the Minnesota courts have resolved the matter. Perhaps there should be a re-vote, as in Durkin-Wyman. On the other hand, it could be argued that the filibuster, as merely a Senate tradition, only applies to legislation, not to organization of the Senate. But that argument, in turn, may be foreclosed by the failure of the Senate to deny application of the filibuster to the even more constitutionally suspect scenario of confirmation votes for presidential appointments. If a minority can frustrate the constitutional separation of powers that relates to presidential appointments, it surely can do so as to matters that only affect the Senate.

That said, an incidental benefit of the filibuster in the case of seating Senators is that it is less likely to prevent abuse of power by a transient partisan majority. Whereas a majority might choose not to seat any minority members by challenging all their elections, the majority itself would see their own members’ elections challenged. If it took 60 votes to seat their own members over a filibuster, they would not be able to do so with a bare majority. Rarely does one party control 60 Senators. Of course, all of this is unlikely to happen anyway, because the best antidote to a power grab by the majority is the political backlash it would provoke.

A second, and more substantive, problem with the Amar scenario is that this is not an election, but an appointment. There is, then, no issue with uncertainty over who has been selected, such as with contested ballots in an election. The person appointed to the office is clear, as is the process. Blagojevich is the governor, and he has done what is required as an official act to appoint a Senator to a vacant office. As the Supreme Court held in Fletcher v. Peck in 1810, just because a legislator who cast a deciding vote on a bill was bribed into voting for it does not nullify the law. Of course, both the legislator and the one who provided the bribe can be prosecuted. But the act stands.

Nor is there any evidence that this appointment was secured as a result of corruption, so that the process of appointing this person was tainted. Surely, no one wants to follow Professor Amar into speculations about a general taint of Illinois politics that might cause individuals not to compete for a seat. If Professor Amar wants to equate this appointment process with an election, general corruption and unethical behavior are hardly unknown in politics, and particularly in Illinois politics. Why, there are even questions about the ethics surrounding actions during the elections of one Barack Obama both to the Illinois State Senate and to the U.S. Senate that discouraged other contestants from entering the fray. So it is with Blago’s alleged earlier statements, which may or may not constitute an actionable crime (rather than just “trash talking”); may or may not have discouraged some persons from wanting to be associated with any appointment by Blago; and may or may not be evidence of Blago’s deliberations over whom to appoint once the whole comically sordid mess became public.

The precedents to which Professor Amar links are not particularly enlightening. Indeed, there are many others. A couple that might be more directly on point involved the Senate’s refusals to seat Senators from (of course) Illinois and Pennsylvania in 1928 and 1929, respectively. The first one is particularly instructive. Upon the death of the incumbent Senator William McKinley (no, not that William McKinley), the governor of Illinois appointed one Frank Smith in December, 1926, to fill the vacancy. The appointment apparently was to be for a brief time, as Smith had been elected to the seat to begin the new term in 1927. As an aside, for reasons that shall soon become apparent I seriously doubt that this Mr. Smith was the model for the Frank Capra/Jimmy Stewart movie Mr. Smith Goes to Washington, about another Senator appointed by a governor to fill a term. The real Smith had been chairman of the Illinois Commerce Commission and had received through his personal agents nearly a quarter of a million dollars (a large sum of money in 1926 dollars) in campaign contributions from corporations with business before the Commission. This was a clear violation of state law. Based on this improper receipt of funds as well as on other (unspecified) corrupt practices, the Senate eventually (in January, 1928), refused to seat Smith because, “the acceptance and expenditure of the various sum of money aforesaid in behalf of the candidacy of the said Frank L. Smith is contrary to sound public policy, harmful to the dignity and honor of the Senate, dangerous to the perpetuity of free government, and taints with fraud and corruption the credentials for a seat in the Senate presented by the said Frank L. Smith.”

Two conclusions might be drawn from this case. One, the Supreme Court was wrong in Powell to limit the “qualifications” of Senators only to those expressly listed in the Constitution. Two, and more likely, the Senate can be said to have rejected the “return” sent by Illinois state officials. There seemed to be no uncertainty about either Smith’s interim appointment (no other contestant appeared before the Senate) or the election votes themselves. But even if the Senate rejected the return, it was because of direct (and uncontradicted) evidence of corruption and criminal conduct by the would-be Senator himself that was dangerous to free constitutional government. That’s not the situation in Burris’s case. No one has accused Burris of corruption or criminal conduct.

The other case at the time involved William Vare, whose election to the Senate from Pennsylvania in 1926 was challenged by his opponent William Wilson. The main ground was that Vare had spent over $750,000 in the primary to win the nomination. Unlike with Senator Smith, there apparently was no direct showing that Vare had collected those funds improperly, though he controlled the Philadelphia Republican political machine and had at least indirect ties to organized crime. The Senate apparently was aghast at that amount as was the “reformist” governor of Pennsylvania, Gifford Pinchot (former environmentalist, head of the Forest Service under Theodore Roosevelt), who refused to sign the election certificate that Vare had been duly elected. I should note that in the primary election at issue, Vare had drubbed Pinchot, which suggests some sour grapes in Pinchot’s refusal to sign the traditional required election certification. Allegations of, once again unspecified, corruption were added to show a “prima facie” case of fraud and corruption in the election. Once again concluding with its boilerplate concern about offense to the dignity and honor of the Senate and danger to free government, the Senate refused to seat Vare.

While the demonstrated “offense” of Vare was merely spending oodles of money to get elected (not that such a thing has ever been known to happen otherwise, right?), the governor and the Senate were very careful to add allegations of voting fraud (thereby throwing doubt on the validity of the election) and corruption of the candidate himself. Again, neither of those latter allegations applies to the Burris case, though at least the former might apply to the Minnesota Senate contest.

The Senate in the Burris case is obviously trying to delay the whole matter until, they hope, Blagojevich resigns or is removed by impeachment. But rather than accuse Burris of anything, the Senate leadership cited the Illinois Secretary of State’s refusal to certify the appointment. This avoids the obstacle of having failed to tie Burris himself to any misconduct, but it raises another problem. As I understand it, Illinois does not require an independent certification for the office to be filled. This is similar, then, to the facts underlying the famous 1803 case Marbury v. Madison, in which the Supreme Court held that delivery of an appointment commission (and, by extension, the Secretary of State’s signature) prescribed by federal law were “ministerial,” not “discretionary.” Applied to the Burris case, Marbury means that the appointment was complete when Blagojevich made it as prescribed by state law. The Illinois Secretary of State himself has acknowledged that he cannot override the governor’s appointment power.

In holding on to the Illinois Secretary of State’s failure to sign the certification, Senator Reid is holding on to a thin reed, constitutionally speaking. But there is a real question whether any of this matters. Professor Amar concludes that the Senate has the raw power and the constitutional authority to deny Burris his seat. While I disagree with the second part of that conclusion, certainly he is right about the first.

For one thing, if sued over their vote to exclude Burris, the members of the Senate will invoke the immunity of the Speech and Debate Clause. While the Powell precedent does not make this immunity argument a slam-dunk winner, it is a substantial hurdle as long as the Senate continues to bar the door to him. Powell’s case was different because by the time his suit was heard he had been reelected and seated. So, he was physically in the Congress already and the suit essentially was over back pay. But even if that constitutional pitfall can be avoided, the problem here is that the matter likely is what the courts call a non-justiciable political question. If Burris takes the case to court, he may be able to get an order to have the Illinois Secretary of State sign the certification. But a court would be reluctant to inject itself into the selection process itself and to order a coordinate and equal branch of government, the Senate, to admit a member over its wishes when the dispute is not over the narrow Powell issue of the interpretation of specific and expressly mentioned constitutional qualifications. The Supreme Court said as much in a footnote dictum in Roudebush v. Hartke, a 1972 case arising out of an Indiana Senate contest. The Court there noted that, in an election contest, which “candidate is entitled to be seated in the Senate [poses] a non-justiciable political question.” Judicial interference in this matter, even if based on a plausible constitutional argument, would inject the court in the highly sensitive issue of the internal operation of the Senate. The question is of the type that courts are likely to avoid out of respect to that body. For one thing, there is no realistic way a court could enforce its decision. Though that has not always stopped the courts in the past, it is a weighty factor. And it is in that lack of enforceability of the judicial writ that the Senate’s raw power comes through.

Finally, Professor Amar’s suggestion that the Senate can avoid any judicial challenge by a preemptive sense-of-the-Senate resolution that threatens Burris with expulsion if he goes to court and prevails, is make-weight. Expulsion requires a two-thirds vote and is difficult to get. Moreover, while some have argued that expulsion requires no justification, the text of the Constitution and the historical practice demonstrate otherwise. The text of Article I, Section 5, suggests that expulsion can only occur for “disorderly behavior,” an admittedly ambiguous term. Punishment for disorderly behavior short of expulsion, such as a censure, can occur by majority vote. Criminal, unethical, or corrupt behavior can serve as the basis for expulsion. However, historically, such expulsion has been restricted to behavior that has occurred while the Senator is a member, not for what happened before he became a member. As well, expulsion only lasts for the duration of the Senator’s term. It bears noting, too, that, if anything, expulsion seems to be focused even more on the personal misbehavior of the individual than does a motion to deny him the seat in the first place. Since Burris is not accused of criminal activity, unethical behavior, or corruption, and certainly not for anything while he was a member, expulsion is not constitutionally warranted. Again, though, it is unlikely that a court would entertain a suit that challenges an expulsion.

Obviously, the Senate leadership hopes that the matter will disappear. They hope that Burris will be scared off by Reid’s blustering, that the Illinois lieutenant governor will appoint him (though it is unclear to me how he would have the state constitutional authority to do that), that Blago will be removed and the appointment rescinded, or that the legislature passes a law (presumably over Blago’s veto) that sets up a special election. To that end, if they need more time, they can refer the matter to a committee for further study and wait out the governor. In all of this, the Senate is acting on the basis of raw power. But the Senate is not acting on the basis of constitutional precedent, and no one should be deluded that those are one and the same.

I have been a bit under the weather. I am also getting ready for Christmas, a big occasion at our house. So I missed this story by Gateway Pundit earlier. Last Friday was the 10th anniversary of the impeachment of President William Jefferson Clinton. On December 19, 1998, the House of Representatives voted on four articles of impeachment against him, mainly on perjury and obstruction of justice. Two articles were approved and sent to the Senate for trial.

Just as I had thought about the pending impeachment of President Richard Nixon earlier, I was not convinced that President Clinton deserved to be impeached for these offenses, even if they were technically criminal. In both cases, I think, there was more than a bit of politics involved in the bringing of these charges, even if, again, they technically fell within the scope of the impeachment provisions for “high crimes and misdemeanors.” That test is a rather malleable concept not even limited to technically criminal behavior such as perjury, but extending to abuse of office and unfitness for office due to moral turpitude and corruption.

I should also note, however, that most of the House “managers” (prosecutors) in the Senate trial were upstanding persons who believed they were doing the right thing ethically, even if not the wise thing politically. No one could accuse Henry Hyde or James Rogan, for example, of plain political opportunism. I know the latter of those two. Rogan is a former California prosecutor and judge. He is very intelligent and personable, with a keen sense of humor. He also a strongly-honed sense of propriety. Since the impeachment, he has struck up a friendly correspondence with the Clintons. More recently, he has been nominated by President Bush to a federal judgeship. Despite his bipartisan appeal (based on his personality more than his strong conservatism), his nomination has languished. To their credit, this is not the Clintons’ doing, but that of none other than California’s own inimitable version of a Senator, Babs Boxer.

The Republicans received a bloody nose in the 1998 Congressional elections because Americans saw the impeachment as partisan, unwise, and unnecessary. Even if the first may be in doubt, the last two certainly are correct. I thought that, even if they were successful in removing Clinton, they would lose. It would mean that Al Gore would contest the 2000 election as an incumbent President rather than as a candidate for an open office. Moreover, Gore then could, if he chose, run for reelection in 2004 and end up being President for nearly ten years.

I have previously posted about a quixotic idea to neutralize the Electoral College by having states that represent a majority of votes in that institution pass statutes committing them to vote their electors for the winning national candidate, regardless of who won the popular vote in those states. Now, this idea won’t happen because too many states like the political clout the system gives them at election time. For another, the statutes are probably unconstitutional, though it may prove difficult to get a court to hear a constitutional challenge if enough such laws were enacted. The matter likely is what the courts call a “non-justiciable political question.” Matthew Franck of National Review addresses the issue in more detail in response to a Wall Street Journal op-ed by George Soros’ offspring. Curiously, the small minority of states that have adopted the proposal all are controlled by Democrats.

There have long been attempts in Congress to extend to the residents of the District of Columbia the right to vote in federal elections, and to give residents of the District voting representation in the House and the Senate. Democrats especially favor such proposals, as the District, with Blacks constituting more than 70% of its population, would be guaranteed to send Democrats to Congress for the foreseeable future. District residents can vote for their own municipal government, and they elect a non-voting “delegate” to the House. In addition, under the 23rd Amendment, they get three votes in the Electoral College in presidential elections.

The problem with giving the District such representation is that it would require a constitutional amendment. The Constitution gives the right to set voting qualifications for Congressional elections to the several states. Moreover, the representatives and Senators must have “state” residency. And D.C. is not a state.

Along come former U.S. Court of Appeals judges Kenneth Starr and Patricia Wald, the former a conservative, the latter a liberal, who argue that Congress can, by mere statute, give the District’s residents the right to vote for members of Congress (but not for the Senate), without making D.C. a state. National Review’s Matthew Franck meticulously demolishes this harebrained and unconstitutional pipedream. He suggests instead that Congress just return most of the District to Maryland, keeping for itself only a few blocks around the Capitol, the White House, and a few other government buildings.

From Ed Whelan at National Review’s Bench Memos, comes this excerpt from his feature about liberal judicial activism in history. I have posted before about Judge Stephen Reinhardt of the Ninth Circus Court of Appeals. Reinhardt is an icon, an aging liberal lion who sees the Constitution as, at best, a shadowy road map for his creativity in constitutional matters. Never mind that he routinely gets reversed when his decisions are taken up by the Supreme Court. As he has responded when asked why he persists in his constitutional fabulism despite the Supreme Court’s reversals, “They can’t catch ‘em all.” Here is Judge Reinhardt the art critic, on the finer distinctions between nude table dancing and nude stage dancing and what the whole thing has to do with the Constitution:

December 1 1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude. In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.” Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

No word yet from His Honor whether lap dancing expresses a message different still from the other types. Talk about personal attention. My attention certainly would rise more from a lap dance than a mere table dance. One wonders how much time Reinhardt had to spend learning about these dances to hone his expertise as a nude dancing savant and critic.