Balkinization  

Saturday, March 06, 2004

JB

Conservatives Have Never Practiced Judicial Activism-- Not!

I recently criticized Jonah Goldberg for failing to come to terms with the long history of judicial activism by conservative Justices. Indeed, the New Deal revolution is in significant part a reaction to this long history, and when liberals innovated with constitutional doctrines in the second half of the twentieth century, it was conservatives who reminded them that judicial activism cuts both ways. They argued that if liberals of a previous generation didn't like conservative judicial activism in the Lochner period, contemporary liberals should not practice judicial activism even when it happened to favor liberal causes. This history is familiar to most students of constitutional law, and I was reminding Jonah Goldberg of this fact when he appeared to assert that judicial activism was a peculiarly liberal phenomenon.

Nevertheless, Stuart Buck has taken issue with my account of the long history of conservative judicial activism. My list of cases included, among other examples, Dred Scott v. Sanford, The Slaughterhouse Cases, The Civil Rights Cases, Pollock (The Income Tax Case), The Lochner Era police power decisions striking down labor laws, the Rehnquist Court's eleventh amendment decisions (Seminole Tribe, Alden v. Maine,), its decisions on section 5 power (Garrett and Kimel), and the post 1990 commercial speech decisions.

Stuart appears to agree with my inclusion of the eleventh amendment decisions and the section 5 decisions as examples of conservative judicial activism. He tries to define all of the others away as not being conservative decisions, because many conservatives *today* would not agree with the results in these cases.

This approach won't work. It's not responsive to my argument with Jonah. He claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950's and 1960's which have become part of the consensus that contemporary liberals and conservatives now share.

Put in these terms Stuart's objections don't really hold much water. For example, Stuart seems to think that the Lochner decisions striking down labor laws were not conservative (and not activist). This view is untenable. Lochner and its associated decisions were the very essence of what was then called laissez-faire conservative constitutionalism. The entire history of the progressive reaction to Lochner which led to the revolution of 1937 understood those opinions to be paradigmatic examples of conservative judicial activism.

Or take Slaughterhouse. It is true that many conservatives and libertarians today think Slaughterhouse was incorrect-- as do I, by the way. But in 1873, the position taken by Justice Miller was the relatively conservative position. It was the position of Northern Democrats and conservatives in the Republican Party who wanted to deny that the Civil War had significantly changed the balance of power between the states and the federal government. Stuart seems confused by the fact that the Court upheld challenged economic regulation in that case. But that's not what makes the result conservative. What makes it conservative is the fear that the national government would be able to use its new powers under the 14th amendment to intrude on the police powers of the states and take over regulation of contract and property rights. (By the end of the nineteenth century, a new generation of conservatives arises with a very different agenda and very different concerns: They want to protect railroads and other business enterprises from regulation by states. This gives rise to the police power jurisprudence of the Lochner era, which reaches results closer to the dissents in Slaugtherhouse. There is no contradiction in recognizing that Justices in both generations were taking conservative stands; it is simply that the imperatives of conservatism changed in the Gilded Era).

The Civil Rights Cases, which struck down the Civil Rights Act of 1875, also reflect the judicial activism of the Supreme Court immediately following Reconstruction. They reflected the conservative compromise of 1877 which denied that Congress could use its powers to protect black civil rights.

The claim that either Miller's position in Slaughterhouse or Bradley's opinion in the Civil Rights Cases was the relatively *progressive* position during this period cannot seriously be maintained. These were pro-state's rights positions which restricted Congressional power to protect basic rights for blacks as well as for other citizens. As noted above, the focus of conservatives changed in the forty years between Slaugtherhouse and Lochner. But such changes are a fairly familiar feature of American political history.

Next consider Dred Scott. Taney held many positions that were, in their time, relatively progressive. But on slavery his views were conservative. (They were actually moderate conservative, because there were many more conservative defenders of the slaveocracy).
*Contemporary* conservatives surely abhor slavery. But there is no denying that the position in 1857 that Taney took was, in its time, the more conservative position. It certainly was not the progressive position! I'm not claiming that any conservative today thinks Dred Scott is correct. That's just silly. Rather, I offer Dred Scott as an example of my general point there is a long line of conservative activist decisions throughout American history. What we think of today as being activist is largely the work of those people who were identified in history as being conservatives in their own time. Liberal judicial activism is the product largely of the twentieth century. It is this historical blindness of Jonah Goldberg's-- as well as his failure to take seriously the recent cases of the Rehnquist Court on federalism and the Eleventh Amendment-- that undermines his attempt to blame judicial activism on liberals.

Now let me turn to the contemporary commercial speech cases. Stuart seems to be under the impression that the founding generation believed that the first amendment protected commercial speech, because he denounces the Roosevelt Court for stripping commercial speech of any protection in the Valentine case. I have to say that I would really like to see the evidence for his view that commercial speech was generally protected under the First Amendment until the New Deal. I've seen no proof of this in my own research.

Stuart is completely correct, however, that the liberal Justices supported the extension of commercial speech in 1976 and later cases, but by the 1990s the political valence of commercial speech had shifted. Liberals now are hesitant to extend the doctrine while conservatives are pushing for expansion. I have written about the reasons for this shift in my scholarship, but my point here is simply that the 1990's cases are pretty good examples of the Rehnquist Court's conservative judicial activism. They have no basis in the original understanding, and they are extensions of previous precedents that did not have to be extended.

As for Hans v. Louisiana and Ex Parte Young, Stuart wonders how they can both be conservative if they go in opposite directions. The answer is that the cases reflect different situations in which different oxes were being gored. Hans was decided in order to settle a post-Reconstruction dispute. Ex Parte Young arose many years later when the Lochner era Justices wanted to restrict progressive era legislation under the Due Process Clause. They were hamstrung by the Court's earlier decision, so they created an exception to get around what their predecessors had done. Likewise, the conservative decision in Slaughterhouse created a doctrinal difficulty for the later generation of conservatives who decided Lochner. Denied use of the Privileges or Immunities Clause, they turned to the Due Process Clause instead. That does not mean that both decisions could not have been conservative in their own time. It simply means that conservatism, like liberalism, is a moving target.



Wednesday, March 03, 2004

JB

Oregon Joins In The Fun

Multnomah County is now issuing marriage licenses to same sex couples, CNN reports.

The reason is interesting: The county attorney has taken the position that failing to do so is unconstitutional under the Oregon Constitution.

I think it's time for people to stop complaining about activist *judges,* and start focusing on the fact that members of the political branches are at the vanguard of this fight.

And what's perhaps more impressive is that this is being done by *state* officials, not federal officials.

This is somewhat akin to southern school districts in 1953 spontaneously deciding to desegregate elementary schools based on their understanding of the state constitution. Do you believe they should have waited for Brown v. Board of Education?


JB

Does Reverence for the Constitution Argue Against Amending It?

Should we refrain from amending the Constitution because it's sacred and the Framers knew what they were doing? I don't buy this particular argument against the Federal Marriage Amendment at all. I agree with Jonah Goldberg that this sort of claim is a non-starter, especially if you believe in a "living Constitution" that responds to the times.

Indeed, the argument for amending the Constitution through Article V is at least as strong as the argument for allowing Article III judges to change constitutional meanings through interpretation, because Article V itself specifies a democratic process for amendment. Note that this process, strictly speaking, is not democratic in the same way that majority rule is: It actually requires a supermajority, so a very large number of Americans can support a change in the Constitution and it still won't become law under Article V. (The best example of this is the Equal Rights Amendment whose basic call for sex equality I would assume an overwhelming number of Americans now support. Instead, these norms entered the Constitution through judicial interpretation by Article III courts in the 1970s). But we probably can say that amendments that do satisfy the very stringent requirements of Article V probably do reflect overwhelming popular agreement. (Except, that is, for the Twenty Seventh Amendment, whose ratification over a two century long period is deeply suspect).

So the best argument against the FMA is not the one I hear banded about these days-- that we shouldn't tinker with the Constitution. The best argument is that we shouldn't tinker with it in this particular manner. We shouldn't tinker with it in ways that reflect a parochial concern with a particular substantive issue that is also, in my opinon, unjust, and we certainly shouldn't tinker with it in ways that we may be sorry about later on.

Popular attitudes about homosexuality are currently in flux. Attempting to lock in a particular view about homosexuality now would be just as unjust as an amendment that said the following in the wake of the Court's 1954 decision in Brown v. Board of Education:

Neither this Constitution, nor the Constitution of any State, shall be construed by any state or federal judge to prohibit laws preventing or regulating comingling, marriage, or sexual relations between persons of different races

I suspect that such an amendment might have had a decent shot at passage in 1954. Most people, even in the North, thought that interracial marriage was not a civil right, and certainly they believed that sex between people of different races outside of marriage was not a civil right. However, by 1967, the Supreme Court, reflecting a revolution in attitudes about racial equality, did hold that laws prohibiting interracial marriage violated the Equal Protection Clause of the Fourteenth Amendment in a case called Loving v. Virginia. (The same case, by the way, held that marriage was a fundamental right protected by our Constitution). And the point is that Loving was not opposed to emerging norms about racial equality. Rather, it reflected them.

This is the problem with the Federal Marriage Amendment. It wants to hold off a change in attitudes that the Religious Right sees as coming.

Does this mean that I think that amending the Constitution is a bad thing? Absolutely not. I think that Constitutional amendments are important, especially with respect to structural questions that cannot be addressed by courts. An example which my friend Sandy Levinson has suggested are the rules regarding succession in office when large numbers of members of Congress are incapacitated, for example, as a result of a bomb or a terrorist attack. The Twenty Fifth amendment takes care of the problem for the President, but it does not deal with the analogous problem for Congress. Congress should have the power to pass the equivalent of a succession in office act to deal with this problem. But the Constitution as currently implemented does not permit it. We should also amend the Constitution to allow non-native born citizens to run for the Presidency. I also strongly believe in Constitutional amendments that secure basic rights of citizenship, like the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. I don't believe that the Federal Marriage Amendment secures basic rights of citizenship. To the contrary, it seems to me that it wipes the possibility of such rights for gays off the table. So my objection is not that you shouldn't ever amend the Constitution because it's perfect the way it is. It is that you should do so only for the right reasons. I oppose the FMA because it is not for the right reasons.

There are a couple of things I do disagree with Jonah Goldberg about, however. At one point he says:

By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.

All I can say to Jonah Goldberg is, Mr. Pot, Meet Mr. Kettle.

Here's the second thing I disagree with:

I bet it would be a lot easier to repeal a constitutional amendment than it would be to overturn, say, the constitutional requirement of providing criminals with Miranda warnings, which was simply invented by the Supreme Court. Meanwhile, amendments have been repealed and superseded by other amendments several times.

Actually, it's *much* easier to overrule a case like Miranda than to amend the Constitution to get rid of the Electoral College. All you have to do is win enough elections to appoint judges who will limit it in various ways That's what happened with Miranda, by the way. It's a shell of its former self, even as the Court reaffirmed it in Dickerson a few year's back.

What Goldberg doesn't account for is that the Constitution is continually being changed in little ways through judicial interpretations, both by the judges he likes and by those he doesn't like. Put enough of those changes together over time, and you can get significant effects. For example, in 1970 the Supreme Court held that voucher programs that let children of poor people attend parochial schools violated the Establishment Clause. By 1983, that holding had been seriously undermined, and by 2003, it was essentially overrule in Zelman v. Simmons-Harris. Indeed, the key issue now is not whether vouchers are constitutional but under what circumstances states can *refuse* to include religious schools in voucher programs. That was one of the issues that the Court effectively put off deciding when it handed down Locke v. Davey last week.

What caused the shift in doctrine from 1970 to 2003? Well, the Republicans won a lot of Presidential elections after 1968, they stocked the courts with conservative judges who read conservative values into constitutional doctrine, and the constitutional law we have today is the result of those changes.

The truth of the matter is, whether people like it our not, we have a two track system for changing constitutional meanings. Article V amendments, and Article III interpretations. Liberal judges and conservative judges alike engage in constitutional change through judicial interpretation. Although some judges say they are only following precedent or only following original understanding, that's just simply not true. They are using the modalities of precedent or history or text or structure in order to argue for their preferred vision of constitutional norms. (See my previous post on Scalia's jurisprudence for my discussion of how he selectively invokes original meaning and precedent to get where he wants to go).

The fact is, we are all living constitutionalists now; but only some of us are honest about it.


JB

Supporters Call For New Religious Crusade Against The Unclean

It's official. It's not just gays. God hates shrimp.

Frankly it's no surprise to me. I just *knew* they weren't kosher.

Well, sorry, call me intolerant, but that's just how I was raised. Look it up. It's in the Bible and everything.

Next thing you know, these shrimp will want to marry. And then they'll start demanding the right to adopt crawfish or something like that, and then.... well, don't get me started.



Tuesday, March 02, 2004

JB

Is God on America's Side?

So Elizabeth Bumiller asked in Sunday's Democratic candidates debate, trying to trip them up. We know George W. Bush's answer. Of course God is on America's side. We are working to make things better. Our opponents are the evil doers.

Here is Abraham Lincoln's answer:

Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes.

"Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."


As it was in the time of the Civil War, so it is today. Both we and our adversaries pray to the same God. He will not answer either their prayers or ours fully. The Almighty has His own purposes. The important question is not whether God is on our side, but whether we are doing our best to be on His side.

But if Lincoln had said that on Sunday night, I can just imagine Matt Drudge's headline the next day: ABRAHAM LINCOLN NOT SURE GOD ON OUR SIDE-- THINKS NATION MAY NEED TO PAY FOR OUR SINS.

And the pundits would click their tongues and say: My goodness, he doesn't think we're always right! How did such a man ever get to be elected president, anyway?


JB

Dick Cheney Argues for Superiority of Democrats' Economic Policies

Vice President Dick Cheney gave strong reasons for preferring Democratic fiscal policies in an interview today, Reuters reports (via Brad DeLong):

"If the Democratic policies had been pursued over the last two or three years, the kind of tax increases that both Kerry and Edwards have talked about, we would not have had the kind of job growth that we've had," Cheney said.

Approximately 2.3 million jobs have been lost since the Bush Administration took office in January 2001.

Cheney also stated that he supported a constitutional amendment to prevent his daughter, Mary Cheney, who is a lesbian, from ever marrying her partner.

"The president's taken the clear position that he supports a constitutional amendment," Cheney said in an interview with MSNBC. "I support him."

I know that it's common for parents to object to the people that their children are currently dating, but this is going a bit far, don't you think?



Monday, March 01, 2004

JB

Separation of Powers, or Stonewalling?

Josh Marshall provides the transcript of Scott McClellan's unconvincing attempts to explain why President Bush will meet with the 9/11 Commission-- you know, the one he tried to shut down early-- for only one hour. McClellan offers the argument that the Commission is a legislative body, which, I take it, is an appeal to the constitutional principle of the separation of powers.

But that argument won't wash. If we were to take it seriously, Bush should be refusing to appear at all. Saying that you will meet with a legislative body for only one hour is like being a little bit pregnant.

The reason that President Bush won't appear for more than one hour has nothing to do with the separation of powers. The president is worried that he will be asked deeply embarrassing questions about his conduct and that of his Administration in the run up to the September 11th attacks. Those embarrassing questions will, in turn, show his hypocrisy in repeatedly using the 9/11 attacks to justify every questionable policy of his administration, including his mismanagement of the national budget, while attempting to insinuate that anyone who questions his policies is therefore unpatriotic. The families of the 9/11 victims should give him hell for his repeated and cynical manipulation of this tragedy.



Sunday, February 29, 2004

JB

John Kerry Discovers the Winning Meme

From a speech delivered on Friday, February 27th:

I do not fault George Bush for doing too much in the War on Terror; I believe he’s done too little.

Here is Kerry's preliminary list of reforms: Kerry promises to add 40,000 troops to active duty, reform intelligence gathering services to prevent a replay of the WMD debacle, streamline the national terrorist watch list, work to cut off the flow of terrorist funds, particularly from Saudi Arabia where the Bush Administration has feared to tread, coordinate with other countries to track and prevent the spread of weapons of mass destruction, retrain the Iraqi security force and stay in Iraq until the job is done, embark on a ten year program to make the U.S. energy independent of Middle East oil, fund homeland security programs that were promised funding by the Bush Administration but never got it, and improve technology at ports for screening for dangerous weapons.

That's a start, but there's plenty more to be done. The good news, however, is that the Democrats have started to rethink their position about war and national security. They will need to if they want to dominate presidential politics again.



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